Accidents Happen

BY ANDREW J. McCLURG

As lawyers know better than anyone, every story has two sides. This can be frustrating when one is searching for the truth.

What should you do when two witnesses tell such completely opposite stories you can hardly believe they’re describing the same event? First, make sure they really are describing the same event and that you haven’t mixed up the case files.

If that’s not the problem, it’s possible the witnesses are lying. But be aware that conflicting eyewitness accounts can also result from honest differences in perception. Studies show people tend to perceive things in ways that best suit their needs.

This is especially true in relationships and automobile accidents. Since relationships would require more than 500 words to explain, we’ll focus on auto accidents.

Notice the different perceptions reflected in these insurance forms filed by two drivers involved in the same collision:

Describe How Accident Happened

Driver 1. I was minding my own business driving with my eyes glued to the road practically in slow motion when my neighbor’s death machine suddenly warped out of his driveway aimed straight at me.

Driver 2. With my head turned completely around looking for cars, I was backing out my driveway at approximately one-third of a mile per hour when my neighbor decided recklessly and without warning to launch an assault on the land speed record.

Describe Damage to Vehicles

Driver 1. My irreplaceable, vintage automobile is a total loss. Amazingly, despite the explosive force of the accident, my neighbor’s car has only a tiny dent in one fender.

Driver 2. After I pried myself loose from the twisted wreckage of my vehicle, I immediately inspected my neighbor’s rusted-out junkbox. Miraculously, the heap suffered only a minor, hardly noticeable scratch.

Describe Any Injury to Persons

Driver 1. My vertical leap and ability to enjoy life have been severely impaired. I’ve had to cancel my plans to quit my job as an accountant and become an NBA basketball player. The doctors say my case of PTCBLMSS (Post Traumatic Can’t “Be Like Mike” Stress Syndrome) is the worst they’ve ever seen. Fortunately, my neighbor was not hurt at all, except for a very slight bump on one arm.

Driver 2. It’s hard to write with my shattered elbow in this cast. I’ll submit an addendum when I get out of the hospital. As for that crock about my neighbor’s vertical leap, you should know that old Mrs. Merryweather (rest her soul) outrebounded him in last year’s neighborhood basketball tournament.

Other Comments

Driver 1. After reviewing the tragic circumstances of this horrible crash, I’m sure you will agree my neighbor is guilty as sin and does not deserve the great American privilege and responsibility of holding a driver’s license. If he doesn’t admit the accident was one hundred percent his fault, it’s only because he’s a pathological liar.

Driver 2. After you carefully investigate this terrible collision, I am confident you will come to the conclusion that I am as free from fault as a newborn baby. If my neighbor doesn’t confess all responsibility, it’s only because lying and bad driving are part of his devil-worshiping religion.

Short Subjects

BY ANDREW J. McCLURG

Millions have read Jonathan Harr’s bestseller, A Civil Action, the true tale of a labyrinthine toxic tort suit in Massachusetts that ground on for six years. Amazingly, Harr condensed 196 volumes of depositions, 78 days of trial testimony and 57 volumes of hearing transcripts into a taut legal thriller.

Simplifying the complex takes real talent. No one does it better than Hollywood, as Touchstone Pictures proved when it cut the six-year litigation down to only 118 minutes in a movie version of the book starring John Travolta.

But brevity has a cost – the loss of detail that made the original story so compelling. The real test comes this fall when Attention Deficit Productions brings A Civil Action to television.

The half hour special (retitled simply Action) strives to please today’s easily-distracted, channel-flipping audience while retaining all the important drama and characters from the original: Schlichtmann, the idealistic, obsessed plaintiffs’ lawyer; Conway, his stalwart partner; Facher, the formidable adversary; and Judge Skinner. Check out the complete script:

A spring day in 1982:

Schlichtmann: We gotta sue these guys.

Conway: Okay. [Commercial break]

Several years follow in which the plaintiffs ask defendants for a bunch of documents and stuff. [Commercial break]

At trial, young Schlichtmann gets guidance from the patriarchal Facher:

Facher: Objection! [LOOK SMUG]

Facher: Objection! [LOOK SUPERIOR]

Facher: Objection! [LOOK AT SCHLICHTMANN DRAW SWITCHBLADE]

[INSERT SCENE FOR TV: Schlichtmann attacks Facher. Facher reveals he’s Spiderman when he leaps to avoid thrust and sticks to ceiling. Sudden hurricane hits courtroom. Schlichtmann saves everyone. Falls in love with beautiful juror.] [Commercial break]

Captivating experts are called to untangle the complex evidence:

Schlichtmann: Please explain to the jury what the 12,000 pages of data [Commercial break] from the hydrogeological groundwater study [Commercial break] revealed, remembering that the producers have allotted your character only one second.

Expert: Defendants bad.

Heated settlement discussions continue (commercials woven in to save time):

Schlichtmann: That’s our offer. But that’s not all. You not only get the settlement and dismissal. Act now and we’ll send you the incredible Abdomenizer. A whole new you in three weeks. It’s a good deal, Facher.

Facher: Outrageous. If my ‘Original Club’ wasn’t securely protecting my auto from theft, I’d use it to knock some sense into you.

Closing argument finally arrives:

Schlichtmann: Ladies and gentlemen, I want to thank you for your attention and patience during these four grueling minutes of trial.

Judge Skinner: I will now instruct the jury. Run, don’t walk, back to that room and reach a verdict. Giddyup.

Juror: Aren’t you supposed to give us four convoluted questions that will later prove controversial?

Judge Skinner: No time for that. It’s thumbs up or down. [LOOK AT WATCH] Too late. Everyone shake hands and go home.

Frequent Crier Miles

BY ANDREW J. McCLURG

With complaints against airlines up 26 percent last year, Northwest picked a bad time to trap passengers in their seats for up to 11 hours during a January storm.

Things got worse when American’s pilots staged a “sick-out,” stranding thousands of angry fliers. (Official comment of the International Association of Pilots With Really Weak Immune Systems: “We were sick as dogs. No Kidding, Coughing, sneezing, scratchy throat, that aching feeling. It was awful.”)

Whatever the cause, both incidents were bad breaks for the airlines in light of recent marketing studies showing “vassalage” and “ruination of life” as two airline practices that annoy consumers.

Now Congress is getting into the act. Besieged with complaints about everything from getting no explanations for flight cancellations to being forced to hand babies over to security screeners at metal detectors, members of Congress have proposed a comprehensive Air Traveler’s Bill of Rights.

Not surprisingly, the airlines don’t like the proposal. Industry lobbyists have come up with an alternative bill of rights they assert is more balanced and fair to both sides. Here it is:

Air Traveler’s Bill of Rights (nonchangeable without penalty)

1. You have the right to remain silent. In fact, we prefer it that way. Please keep your trap shut the entire trip. If you choose to give up this right, anything you say can and will be used as an excuse to ram your head into the overhead compartment.

2. You have the right to arrive at the airport and find we canceled your flight. Why? You don’t really want to know. It was canceled two months before you made the reservation. Truthfully, we haven’t even looked into buying a plane for that flight. We’ve also canceled your credit cards, haircutting appointment and big date for this weekend. Right now, we’re towing your car.

3. You have the right to have an attorney present during check-in, provided she buys the most expensive business-class ticket on this week’s Hot 100 price list. If your attorney cannot afford one, you need a more successful attorney.

4. You have the right to have a drink cart parked between you and the bathroom at all times. Moving a drink cart with intent to urinate is a federal felony.

5. You have the right to be pepper-sprayed if you verbally abuse airline personnel with epithets such as, “Could you please help me? I’m begging you.”

6. You have the right of all Americans to be treated rudely and with contempt.

7. You have the right to a free radiological examination of your infant children. Since you whined so much about having to hand the totsters over to members of our crack security squad, just pop ‘em down on the X-ray machine belt and pick them up on the other side.

8. You have a right to have your knees surgically removed so you can fit in a seat designed for very tiny toy people with no knees.

9. You have the right to redeem the declining value of your frequent flier miles for selected bus travel in the Midwest, provided all travel be completed before the first date to fall on the date beginning on the date of travel.

10. You have no right to your luggage. Just forget about it.

Yeah, Yeah, Yeah

BY ANDREW J. McCLURG

Some people blamed Yoko Ono for the Beatles’ breakup, but now comes the discovery that the demise of the Fab Four was rooted in a bizarre artistic dispute over the recording of Sgt. Pepper’s Lonely Hearts Club Band.

John Lennon had a keen interest in legal matters, particularly those involving searches and seizures. His various legal run-ins gave him the idea to record a concept album about—you won’t believe this—the law. Unfortunately, the other moptops hated the idea. They rejected his proposed title of Sgt. Pepper & Associates, Limited Liability Partnership: If this Record Doesn’t Hit Number One, You Don’t Owe Us a Dime.

That was the beginning of the end. John was bitterly disappointed as he watched his idea being dismantled night after night during those famous recording sessions at Abbey Road. For the first time ever, here in John’s own words that I made up, are his original psychelegadelic versions of some of the greatest songs in rock history:

“Rumor had it this was some kind of drug song, but that wasn’t it at all. I wrote it about an admiralty case. Lucy was the name of a barge. The first verse went like this (strumming guitar):

Picture yourself in a boat on a river, with tangerine trees and marmalade skies, suddenly a submerged log rips through the hull, the navigable waters grow incredibly high.

It’s original title was Lucy Underwater With Multiple Liens and Judgments.“

“A negligence case, with a tricky charitable immunity issue included. For the benefit of Mr. Kite, the defendants staged a show one night—on trampolines of all things.”

“As if that wasn’t reckless enough, they induced plaintiff to jump over men and horses and, with conscious indifference to his welfare, through a hogshead of real fire. There weren’t even any warnings on the hogshead.”

“Paul wrote this one. He had this line going through his head (singing), I’m fixing a hole where the rain gets in and I told him to add to keep my tenant from suing me. I wanted it to be a tale of landlord-tenant oppression. When Paul sang the chorus line, Where it will go-oh-oh-oh, I said ‘Paul, yer daft. Change it to Implied warranty of habitabilitee-ee-ee-ee’ but he wouldn’t have it.”

“My favorite cut on the LP because it stays fairly true to my original idea, which was to track the thoughts of a down and out personal injury lawyer who starts each morning searching the newspaper for clients. The first version went like this (reading lyrics):

I read the news today.
Oh boy!
A wrongful death case. Victim didn’t notice that the lights had changed.
Eyewitnesses: A crowd of people stood and stared.
Economic damages: Victim may or may not be from House of Lords. Nobody is really sure.
I read the news today.
Oh boy!
Four thousand holes in Blackburn, Lancashire. The mother of all products liability cases.
Note to self: Will need expert witness. Holes are very small. Have to count them all.

Lest anyone think I’m showing disrespect to the Fab Four, I feel obliged to point out: I love you Beatles, oh yes I do, I love you Beatles, I love you true . . .

Contract Sports

BY ANDREW J. McCLURG

As sports fans look forward to another season of exciting NFL football, the slow process of coming to contract terms with this year’s draft picks continues. Why does it take so long to sign players to contract? These sports law insights help explain it:

High-Low. As with all contract negotiations, the basic negotiating strategy in the NFL is the high-low method. The draftee’s sports agent starts high and the NFL team starts low. Each side compromises until agreement is reached. Here’s a typical negotiation:

Agent: We demand a $50 million signing bonus, title to the stadium, a new Ferrari and renaming of the city after my client.

NFL team: Hundred dollar Wendy’s gift certificate, free stadium parking on game days, new Huffy ten-speed and we’ll rename the offensive line coach’s cat after your client.

Agent: $40 million signing bonus, all stadium concessions, vintage Corvette with fuel injected engine and rename a major highway after my client.

NFL team: Ten thousand dollars, all non-alcoholic beer concessions, vintage Pinto with fuel injected passenger compartment and rename the alley behind the mayor’s house after your client.

This continues for months, sometimes through a bitter training camp holdout, until the parties agree on what they were willing to accept at the beginning.

First Round Pick Exception. A major negotiating exception exists for first round draft picks. Signing these players is seen as so vital to a team’s success that they get just about whatever they demand.

Look at the compensation package obtained by a hot first-round quarterback in the ‘99 draft: “In consideration for his running and throwing, Player shall receive the Chrysler Corporation, Bill Gates’ checkbook and a major country to be named later.”

Incentives. NFL teams assume a huge risk when signing players of unproven pro potential to fat contracts. Lots of big bucks signees turn out to be busts. As a protective measure, NFL lawyers now routinely insert incentive clauses in contracts that provide for higher payments upon players attaining specified goals. Here’s a commonly used clause:

“Player shall be paid incentive bonuses according to the following schedule: 1. Avoiding DWI charges: $10,000; Avoiding drug charges: $100,000; Avoiding assault charges: $500,000; Avoiding Three Strikes and Your Out sentencing: $1 million.”

Sports Agents. Although sports agents get criticized for being stubborn negotiators, they can’t help it. It’s apparently part of their genetic makeup as I learned last week when visiting a sports agent friend. He told his kid to take out the trash and this colloquy ensued:

Kid: I’ll do it for twenty bucks and unlimited Nintendo privileges.

Agent dad: You’re outta your mind. I’ll give you fifty cents.

Kid: You insult me. And after all I’ve done for this organization. Perhaps my services are no longer valued here. Maybe I should call the Hammersteins next door and see if they’re in the market for an exceptional kid.

Agent dad: Alright, alright. Five bucks, but that’s my final offer.

Kid: Dad, I’m going to pretend I didn’t hear that.

While we anxiously await the season opener, I have a great programming tip for ESPN—televise the contract negotiations. No need to worry about losing viewers with a boring defensive struggle. Rumor has it the negotiations can get quite offensive.

Hiring Squeeze

BY ANDREW J. McCLURG

According to Kimm Walton’s popular book, Guerrilla Tactics For Getting the Legal Job of Your Dreams, when legal interviewers ask tough questions like “What’s your greatest weakness?” it’s not so much because they want to know the answer as to test your ability to handle pressure. So avoid baring your soul with honest answers like “Life terrifies me” or “I hate the law.”

Walton wisely advises job applicants to prepare answers to tough questions in advance, but if she’s right about employers intentionally putting us on the spot, a more aggressive response may be in order. People are stressed out enough at job interviews. We don’t need interviewers trying to make us look bad. As Americans, we enjoy the basic, inalienable right to do that for ourselves.

Fight back! Try the brand new interviewing strategy designed with today’s pugnacious young lawyer in mind: Intimidation. Answer all tough questions with the goal of making the employer afraid NOT to hire you. For example, the next time a law firm asks, “Do you have what it takes to bring business into the firm?,” say, “Of course. It’s in the trunk of my car. Just tell me whose business you want.”

Here are some of the toughest legal job interview questions according to Guerrilla Tactics and some Gorilla Tactics for answering them:

Q. Tell us about yourself.

A. Which one. Fred’s been bad. He can’t come out today.

Q. Did you get into any other law schools?

A. Plenty. In fact, I got into every Ivy League school except Columbia. Now there’s a school that deserves its top ranking. It has the finest alarm system in the nation.

Q. What’s your greatest weakness?

A. An unquenchable thirst for vengeance. I’ve spent years in therapy battling it, but always end up trying to get even with my inner child.

Q. Where do you see yourself five years from now?

A. As a highly-paid member of your firm or possibly at the Super-Max Federal Correctional Facility in Colorado.

Q. What’s your greatest strength?

A. I can carry a rocket-propelled grenade launcher in one hand.

Q. Why didn’t you get an offer from your last employer?

A. I might have. It was hard to understand what he was yelling from behind the locked door.

Q. Why aren’t your grades better?

A. Because my professors, like most people around me, possibly including you, are engaged in a massive conspiracy to persecute me unjustly. I know because Hillary Clinton, who lives inside my head, told me so.

Q. Who else are you interviewing with?

A. I’ve been offered several jobs, but they’re not legal positions, at least not in this country.

Q. Why should we hire you?

A. Ha, ha. Don’t, and find out.

Obviously, this strategy is not for everyone. It’s only for the criminally insane. For everyone else, I suggest sticking with the advice in Guerrilla Tactics.

Heal Thy Self

BY ANDREW J. McCLURG

With Congress debating a patient’s bill of rights, it seemed like a good time to reprise one of the most requested Harmless Error columns of the last four years.

Legal disputes arising from the denial of medical coverage by managed health care organizations are on the rise. HMOs face a difficult challenge in making coverage decisions because they must delicately balance two conflicting interests: providing quality health care for their patients at a reasonable cost and hoarding as much money as possible.

Here are some of the more common questions about coverage and some standard responses from HMOs:

Q. How do I know if my condition is covered?

A. Check the “Exclusions” section of your plan description. Typical services excluded from coverage include dental care, cosmetic surgery and anything costing more than ten dollars. Our preferred method for determining whether a condition is covered is through an autopsy. However, before seeing a coroner, you must get a referral from your primary care physician.

Q. Is mental health treatment covered?

A. Are you crazy? That stuff is expensive. However, to serve the mental health needs of our loyal plan participants we’ve set up a therapy help line. Simply dial our toll free number and select from the following menu of sensitive pre-recorded treatments:

1. Quit Your Whining.
2. It’s Your Mother’s Fault.
3. Dump the Jerk.
4. Those Strange Voices In Your Head Aren’t Real.
5. Smiling Your Way Through Deep, Dark Depression.

Q. Is Viagra covered?

A. Only under the extended plan. Ha. Kidding. The real answer is: NO. Due to rising pharmaceutical costs, we’ve been forced to make minor adjustments in our prescription coverage. Effective immediately, the following prescriptions are no longer covered: the most popular drugs selected by physicians for effective treatment of the most common ailments suffered by human beings.

Q. How can I get in to see an “Out-of-Network” provider as described in my plan?

A. You can’t. That’s a typo. The coverage is for “Out-of-Work” providers. They’re much cheaper.

Q. What happens if coverage is denied, but I desperately need treatment?

A. We recognize the need to resolve coverage disputes expeditiously. For this reason, we’ve established a speedy automated appeal procedure.

Step one: Request EZ Complaint Form 5436.

Step two: Fully complete all 72 pages, including attached “Humiliating Intrusion Into Your Personal Life and Medical History Form 7435.”

Step three: Conveniently deposit the completed form in any nearby trash receptacle. While you relax in the comfort of your home, your claim is being automatically processed and denied.

Q. I’m blind. Does your company show special sensitivity in handling claims by the sight-impaired?

A.

Q. My plan excludes coverage for pre-existing conditions. What does that include?

A. The new industry-wide definition for pre-existing condition is: “Any illness, disease, infirmity, malady, affliction, ailment, injury, sore throat, cough, scraped knee, fever, infection, broken bone, concussion, kidney stone, pregnancy, tumor, hemorrhage, psychosis, missing limb, ache, pain, or gripe of any kind arising on or before the date on which medical treatment is sought.”

Q. Does my plan cover home visits by a designated provider?

A. Ha, ha, ha, ha, ha, ha, ha, ha, ha, ha, ha, ha, ha … stop, you’re killing me.

Say What?

BY ANDREW J. McCLURG

The hearsay rule and its many exceptions are a marvel of complexity. The confusion starts with the basic definition of hearsay as any statement made out of court “offered to prove the truth of the matter asserted.” If an out-of-court statement is offered for a purpose other than proving truth, it’s admissible.

Some lawyers believe all statements are offered to prove their truth and that opponents sometimes subvert the rule by misrepresenting the real purpose for which evidence is offered.

This allegedly occurred in a recent criminal case where John was on trial for killing Bill. The prosecution pinned its case on a post-it note seized from John’s refrigerator that said “To Do: 1. Pick up dry cleaning. 2. Empty litter box. 3. Kill Bill.”

The defense cried hearsay, but the prosecutor argued indignantly that the note wasn’t being offered to prove John killed Bill, but only to show John has good penmanship, is an organized person and has potential as a hit songwriter because he can rhyme “Bill” and “kill.” The judge readily agreed and admitted the note, but cured any problem by telling the jury not to think about it.

Of course, John’s note could also come in as an Admission of a Party-Opponent, but why the law gives credence to these stick-in-the-muds is a mystery. In any event, all lawyers can use a refresher on the hearsay exceptions. Here are two for starters:

Records of Vital Statistics. Diverse constituencies attended the drafting convention for the hearsay rules, including a faction of rabid sports fans with a love of sports trivia. These diehards insisted on a hearsay exception for records of vital statistics such as most RBIs, most yards rushing and most third down conversions by a player facing mandatory sentencing.

Opponents argued the exception was unnecessary because such statistics can come in under other exceptions, such as that for dying declarations: “Gasp. Most touchdown passes … cough … cough … Dan Marino … ackkk.”

But the determined sports fans won. Unfortunately, lots of precious courtroom time is wasted over squabbles about whether a statistic is “vital.” Cubs fans think their stats are vital, Knicks fans theirs, it goes on and on. At one recent trial the litigants got so rowdy they began throwing snow balls at the jury and beer sales had to be shut down.

Mental, Emotional or Physical Condition. Another important hearsay exception is for statements regarding a person’s mental, emotional or physical condition. Under this rule, just about any gripe concerning what ails a person is admissible. “My back is killing me,” “I think I’m gonna throw up” and “Oh no, I have a huge zit” all come in. The problem is no one wants to listen to this complaining in the first place, much less admit it into evidence.

However, sometimes a closer look reveals evidentiary significance in everyday whining, as the above examples demonstrate when studied in context:

“My back is killing me. I’m not carrying that body one more step.”

“I think I’m gonna throw up. Maybe I should cut down my intake of illegal narcotics.”

“Oh no, I have a huge zit. I hope no one recognizes me from the liquor store robbery.”

Next month we’ll cover the hearsay exception for “excited utterances,” concentrating on lawyers’ responses to the statement: “I’m leaving the firm and taking all the clients with me.”

Tot Tech

BY ANDREW J. McCLURG

In our high-tech information society, product manufacturers are well aware of the importance of product release announcements for generating buzz in the marketplace.

Lawyers often play a crucial role in compiling and reviewing new product documentation prior to its release. Sometimes it goes to their heads, as two Silicon Valley lawyers recently demonstrated:

Product Release Announcement

The development team of Todd and Rita Billington are delighted to announce the release of their new product, Kate, on Wednesday, 2:23 a.m., at Memorial Hospital. Processing difficulties delayed the product release one day, a snag that caused concern and prolonged wailing among the Rita Division of the Billington team.

Product specifications:

Weight: 7 lbs
Length: 20 inches
Memory: none
Connections: cordless once removed from packaging

Although customer response has been warm, critics have accused Kate of being over-engineered and lacking several important features called for in the original user requirements documentation, including a simplified user interface and automatic scream-saver when not in use.

The Billington team resisted investor pressure to outsource the development, insisting on maintaining full creative and legal control over the product and its source code. However, negotiations are already underway with several neighborhood independent contractors to outsource some future product maintenance and support on big nights out.

Kate comes equipped with many features demanded by today’s consumers of high quality tots: drooling, gurgling, cooing, chubby thighs and the prettiest pair of blue input units on the market today. The product is easily booted and rebooted using adorable tiny shoes from the Gap Kids typically delivered by outside suppliers.

Management is currently tackling what it terms “minor bugs” with Kate, including complaints that the product’s dual ports open frequently and without warning. Experts predict the problem will correct itself within 30 to 36 months, the estimated time frame to RAM the idea of using a toilet into long term memory. Until then, the problem is being addressed using extra-absorbent softwear.

Looking for a hard drive? How about an impossible one? Packing Kate’s 300 essential travel accessories, mastering the tech support to install her car seat, and negotiating traffic while faced backwards waving a cookie is guaranteed to make even a trip to the grocery store the hardest drive of your life.

Users must also beware of the virulent “Colic” virus, which rapidly disables all product functions except the sound card.

The product comes with a limited warranty: “Product is warranted to perform reasonably well for 13 years, at which time all operating systems will suddenly crash and product will function erratically and unpredictably. This is normal. Do NOT attempt to return product to place of manufacture as serious injury could result.”

While management irons out these complaints, the Billington team’s primary focus is to make Kate at least modestly compliant by Y2K. Currently, Kate is ignoring all user commands.

(Congratulations to new product owners Markus Weber and Wendy Nather, Chicago, IL, whose real birth announcement inspired this one.)