Wednesday Writs for 11/7

Wednesday Writs for 11/7[L1]: When people talk about frivolous lawsuits, abuse of the court system, and outrageous verdicts, they often refer to the McDonald’s hot coffee case, in which a woman spilled her coffee in her lap and sued the restaurant. But there is much more to this story than the popular myth would suggest. The coffee was between 180 and 190 degrees, sgnificantly hotter than a typical cup, and Stella Liebeck, 79 years old at the time (and not driving), spilled the coffee when attempting to add cream and sugar. She spent 7 days in the hospital, requiring skin grafts for the third degree burns she suffered on her legs and groin. Read more about Liebeck v. McDonald’s Restaurants, our case of the week.

[L2]: Probably no one would doubt the validity of this lawsuit, in which a “doctor” (who received a “doctorate” 8 months after finishing a bachelor’s degree) convinced seriously ill people he could cure their illness through non-traditional means- such as an IV of fluids and baking soda. The plaintiff, a cancer patient, is now in stage iv.

[L3]: According to the State of Texas, WalMart is not liable for the death of a 24-year-old woman in their parking lot after the increasingly impaired woman purchased-and inhaled- 60 cans of compressed air from one store, over the course of 27 hours.

[L4]: If there’s not already, there will likely be some lawsuits resulting from these exploding toilets.

[L5}: When this post is published, we will all no doubt be discussing fresh midterm results. If it’s all too much, here’s a good read about the 1972 presidential election, with some familiar themes.

[L6]: An Arizona constitutional amendment allowing accused rapists to be held without bail has made its way to SCOTUS after the Arizona Supreme Court struck the provision down. (No word on whether the Court will grant certiorari).

[L7]: All lawyers daydream about telling that judge just exactly what we think of him or her. This lawyer apparently dared to make his dream a reality, much to his detriment. 

[L8]: If you’re wondering why lawyers get fed up with judges, consider the one who asked an alleged rape victim whether she couldn’t have just kept her legs closed.

[L9]: University of Louisville football coach Bobby Petrino is the latest coach to face criticism regarding the handling of criminal allegations against a person involved in his program after it was revealed that tight end Kemari Averett continued to play for the team after having been accused of rape. U of L officials knew, but Petrino didn’t… and that’s the way the University wants it.

[L10]: Lawyers of a man accused in a plot to kill Muslim refugees try an interesting twist on the insanity defense in a bid for lenient sentencing: they say their client was driven to it by Trump’s rhetoric, in the first use of the “Trump Defense”. Elie Mystal (@ElieNYC) has the story.

[L11]: Coming in at number one on the list of bad places to hide your drugs: the interrogation room at the police station. Our dumb criminal of the week apparently did not expect there to be cameras. In the interrogation room. At the police station.

[L12]: Why did the chicken cross the road? I don’t know, but if it does so in Quitman, Georgia, it has run a-fowl (I do apologize) of our crazy law of the week.

[L13]: Lastly, here’s a great scene from what is, for my money, one of the top three the best lawyer movies ever made. Come back next week for #2.

My Cousin Vinny (5/5) Movie CLIP – Automotive Expert (1992) HD




Senior Editor

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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19 thoughts on “Wednesday Writs for 11/7

  1. My Cousin Vinny! One of those movies I have been sucked into rewatching while idly flipping through channels more than a couple times. Underrated, IMO. Glad to hear it’s one of your faves.


  2. L1: Using the Stella Liebeck case as an example of a frivolous lawsuit always strikes me as confused. Given that it got to the jury, much less that she won, it by definition isn’t frivolous. Complaining about the verdict is more coherent, but these things always suffer from being a critique of the decision made by the people who saw all the evidence, with the critique based on news reports that are invariably incomplete by reporters who often don’t understand the issues and whose incentives are to favor simplistic and sensationalized stories. I roll my eyes at these critiques.


    • The term “frivolous lawsuit” is one which frustrates me particularly, because it’s a really good example of people letting labels do their thinking for them, labels whose meanings they don’t particularly understand. The typical loud complainer about “frivolous lawsuits” often cannot, when asked, define the word “frivolous” with any precision in this context.

      “It’s a lawsuit that should never have been filed” is the approximate attempt I get back first.

      “So that means that there is some other kind of lawsuit that it was okay to file, right?”
      I ask. Sometimes I ask them to come up with a name for that other kind of suit, other times I suggest the phrase “righteous lawsuit.”

      “So how are we to tell the difference between a frivolous lawsuit and a righteous one?”

      “Well, the frivolous lawsuit is based on something that is just not true, or wrong, or not applying the law correctly.”

      “And who decides when something is true or not true? Isn’t figuring out what’s true and not true what a lawsuit is all about?”

      This is usually enough to flummox a layman. When I teach classes about law, I go further and educate about 12(b)(6), summary judgment, and anti-SLAPP motions, and the torts of malicious prosecution and abuse of process, and sometimes about bar discipline and Federal Rule 11.


  3. L3: I am surprised that Findlaw is surprised that Texas recognizes no duty of care under that fact set. I claim no expertise in Texas law, but that would have been my guess, had anyone asked. I just read (OK: skimmed) the opinion. Nothing jumped out at me as startling.


    • I’m not entirely sure how much of a duty of care a place like Wal-Mart has. Did the same employees recognize the woman as making multiple trips? If yes, what amount of duty should they have? I guess I’d have to know more about the evidence presented before I could really have an opinion regarding how much of a duty I would expect a business to have.


  4. Ugh. The Liebeck case again. The legal industry has been trying to rewrite the history of that case for two decades. See the counterpoint by Walter Olson. The coffee was not unusually hot — the coffee industry recommends temperatures of around 200 degrees. 700 people suing McDonalds over the billions of cups they serve does not seem like a lot. And the only prior cases they’d settled was when they were at fault.


    • Usually, the legal industry considers the evidence presented at trial, which isn’t what was discussed in that link. For one thing, there is a difference btw/ the ideal temperature to brew coffee and the safe temperature to serve coffee.


    • Re: the trade industry advice. That’s not necessarily serving temperature or even storage temperature, it’s brewing temperature. And just because the trade association says “this is how you do it” doesn’t mean they’re right, or at least not necessarily right for a particular purpose. 200 degree might be the right way to brew the coffee to get the best flavor, but giving liquid that’s twelve degrees shy of boiling to a person in a moving vehicle is a pretty damn obvious safety hazard.

      I also happen to disagree with the notion that coffee is best when brewed at 200 degrees. Coffee is best cold-brewed in the refrigerator overnight. Hot water brings out the bitter tannins in the beans; a cold-brewed coffee is much smoother and sweeter in flavor. That’s just my opinion, of course, it’s just that my opinion happens to be right.


      • A personal anecdatum is that before the Liebeck case, or at least before I was aware of it, I observed that McDonald’s coffee was served too hot to drink. Breakfast is the one meal I will voluntarily eat there, based on the food. A strike against it was that the coffee was so hot that I would have either to eat my breakfast before the coffee was drinkable, or let the food get cold. The claim that McDonald’s coffee was not unusually hot is risible.


  5. I’m sorry the inclusion of this case made you go “ugh”. But as to your complaint, I disagree.
    It was served 20-30 degrees hotter than their own manual dictated. And 700 people scalded is 700 people scalded. I don’t think it matters that it was 700 out of a billion- it put them on notice.
    And they serve it to people in a moving vehicle, without the sugar and cream pre-added. What happened was foreseeable. Sure there was contributory negligence on the customer’s part, which the jury acknowledged.

    There’s no “re-writing” here. People rolled their eyes at this case as a plaintiff getting millions “for nothing” when in fact she was very seriously injured.


  6. Daily Mail article

    Pensioner, 69, ‘who identifies as a 45-year-old’ begins legal action to have his age reduced so he can attract more women on Tinder

    Emile Ratelband is a 69-year-old positivity guru famous in the Netherlands
    He says doctors told him he has a 45-year-old’s body and wants to be younger
    Ratelband is suing his local authority after they refused to amend his age

    To show why taking “self-identification” into legal consideration is nuts, Ben Shapiro once asked a student why people couldn’t just “self-identify” as a different age. Well, now we’re there.

    Next step: Forcing the legal system to release convicts who self-identify as innocent.


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