Things That Make You Go Hmmm...

Thinking about the 12 Days of Christmas reminds us of one of the most effective argument strategies we see: Use a couple of numbers.

Magazines are well aware of this approach. Just look at the monthly covers trumpeting lists such as “Top 100 colleges,” “400 richest Americans,” and the women’s magazine classic, “Seven Ways to Please Your Man!”

Recently we watched jurors deliberate a case in which a doctor failed to diagnose an extremely rare disease in an obese patient. The patient’s presenting symptoms: moderate muscle pain and high blood pressure. The doctor assumed a pulled muscle and too many Big Macs, and said to come back if the pain persisted. The true pain source turned out to be an extremely rare, deadly bacteria.

During discussions, plaintiff-leaning jurors zeroed in on the prevailing predisposition that “doctors are rushed and don’t spend enough time with patients.” Unfortunately, the initial pushback by defense-leaning jurors was weak: “Doctors can’t always diagnose these rare conditions right away.” The problem here was that plaintiff jurors simply could not understand just how little information the patient’s symptoms provided the doctor.

Adding a number helped change this. Jurors were introduced to some statistics: There are approximately 5,100 potential diagnoses for the combined symptoms of pain and high blood pressure. During deliberations, the defense-leaning jurors effectively adopted this number as their theme and supported it with another number: The disease occurs in no more than one in every 305,000 people.

Happy holidays and the very best wishes for the New Year.

Article: Lawsuit Blames Injury On Lowe's Bathroom Door

Oh, Florida.

According to Tampa Bay Online, a man has filed suit against Lowe's for an unfortunate injury sustained in the loo.

Tommy Rassier says he was using a toilet stall at a Lowe's Home center in Pinellas Park on Aug. 18th when something terrible happened.

According to a lawsuit filed in Pinellas Circuit Court, Rassier was about to sit down when a person unknown to him pushed open the stall door knocking Rassier "in the head and neck with the door," pushing him "back into and against the toilet."

Overall, I'd say this is a pretty crappy situation. RIM-SHOT!

Rassier thought the stall door was locked and faults Lowe's for failing to maintain the door's locking mechanism. The suit says Lowe's was negligent in permitting a dangerous condition.

His lawyer, Joshua Chilson, said it's an unusual case but a valid one. "Bizarre things do happen and that doesn't mean the case is without merit," Chilson said [sounding exactly like a man who believes this case is without merit].

Chilson said Rassier suffered dramatic neck pain when the bathroom stall door hit him and suffered "a herniated disc in his spine." No one called 911 to report the incident.

The person who knocked Rassier in the toilet didn't stick around to leave his name and there were no other witnesses to the mishap, Chilson said.

Chilson said he does have photographs of the broken lock that show several holes indicating the mechanism might have been moved around previously in a failed attempt to make it work properly.

Not for nothing, but you'd think a home-improvement store would have the wherewithal to install a functioning lock on a bathroom door. Just sayin'.

A few questions a jury might pose that could significantly impact the plaintiff's credibility:

-Why was no police report filed?
-There are no witnesses?
-Nobody can track down the most-forceful-bathroom-door-opener-in-the-world?
-A 3/4" door was enough to cause "dramatic neck pain" and a "herniatic disc in his spine"?

Something stinks here.

We are curious if any litigators out there have noticed an increase in frivolous civil suits as the economy worsens. Thus far it's probably anecdotal, but we would love to hear from you if you've noticed a pattern.

Personal Responsibility is Dead

According to Naples Daily News out of Naples, Florida, a man is suing Marriott for injuries he sustained while drunk at their Marco Island hotel.

Michael Fenton admits he’s an alcoholic. He went on a two-day bender at the Marco Island Marriott Resort and Spa last January. In an inebriated state, he then plunged over a stairway some 100 feet. Now, he’s suing the hotel for serving an addict and causing his brain damage.

Fenton...is suing Marriott International Inc. and Marriott Hotel Services Inc., claiming that the bartender knowingly served a person who was addicted to alcohol, despite pleas by his family.

The lawsuit says Fenton got wasted in the hotel bar on January 17, 2008, and his family told the bartender to stop serving him. The bartender complied and Mr. Fenton went to his room to sleep it off.

But the next day, the lawsuit says, he went to the bar and was again served a substantial number of drinks and drank most of the day into the evening.

“The bartender continued serving him even though he was visibly intoxicated,” the lawsuit says. “Family members found Michael Fenton in the bar that evening and requested the bartender to stop serving him. The bartender ignored the request and continued serving him.”

Fenton then went to the “large, double-sided grand open stairwell” on the second floor to go to the bathroom on the first floor. As he tried to negotiate the first several steps, he fell over the handrail to the ground floor and suffered severe and permanent brain damage.

And just for good measure, the plaintiff is claiming the staircase "did not meet state and county building codes or industry standards."

Marco Island's chief code compliance officer, Eric Waddle, sums up my thoughts exactly:

“A building couldn’t have been approved if it didn’t meet code."

One of the accusations against the hotel is, I kid you not, "serving an alcoholic." If you could sue hotels in small towns every time they served an alcoholic in the bar, hotels would cease to exist. Alcoholics and hotel bars go together like Jack and Coke--ERRRRR, I mean, peanut butter and jelly.

Given the strong underlying theme of personal responsibility here, I have a feeling the first question jurors (especially Florida jurors) would ask is: If the family is so concerned about this severe alcoholic, why are they leaving him alone, unsupervised, in a hotel bar for "most of the day into the evening?"

That's like claiming you're terribly concerned about your suicidal teenager, but not bothering to clear the house of guns, knives and rope.

Freakonomics Blog: Juror Unanimity Isn't Necessarily a Great Thing

Here is a compelling take on the unanimity requirement of our legal system:

Juror Unanimity Isn’t Necessarily a Great Thing: A Guest Post
By Ethan Leib

Thanks for putting up with my quirky intellectual agenda of friendship and the law in the last two posts. For my final post, I thought I would highlight a more traditional area of my legal research: the jury.

There is something quirky at play here too: the U.S. is one of the few democracies around the world to have a unanimity rule for juror decision-making. The Times’s Adam Liptak has been doing a series on American Exceptionalism — “commonplace aspects of the American justice system that are virtually unique in the world” — but he has yet to focus on the puzzling persistence of unanimity as our jury decision rule.

Here are a few facts that make unanimity a non-obvious choice for juror decision-making.

1) We don’t require unanimity for any other important decision in our pluralistic polity. Our Supreme Court doesn’t decide by unanimity and neither do our legislators.

2) No other modern country (save Canada and a few jurisdictions in Australia) requires it.

3) We require unanimity to acquit as well as convict, so the idea that it contributes to protecting defendants is not fully accurate.
4) The symmetrical unanimity requirement contributes to inefficiency by giving us hung verdicts more than necessary.

5) Our juries have gotten more diverse as we’ve made it harder to get out of service and as we’ve grown more inclusive in our political system. With that diversity, majoritarianism seems more appropriate.

6) Empirical evidence tends to support the view that verdicts don’t change all that much when you change the decision rule. So the idea that unanimity contributes to certainty is probably overblown.

7) There is also empirical evidence suggesting that people assigned a unanimous decision rule will often agree to decide by supermajority (albeit unanimously) — meaning that in such cases, there is no difference between the two rules, except that some jurors agree to pretend that they agree with a verdict from which, in fact, they may strongly dissent.

8) We all know that many people are willing to falsify their preferences by changing their votes to agree with the majority; the incentives for doing so are especially high when one is a holdout juror being berated by other jurors because everyone wants to get home faster.

9) We don’t have such stringent unanimity rules in the context of the civil jury or courts martial, yet both those systems are respected and deemed legitimate by the public. Moreover, the few states that have experimented with relaxed jury-decision rules for the criminal jury — Oregon and Louisiana — do not suffer especial deficits in legitimacy.

10) Unanimity is often an illusion. Suppose a jury hangs, leading to a retrial. The second jury empanelled to try the defendant then convicts unanimously. Despite this second “unanimous” verdict, the truth is that, of a total of 24 jurors who heard the evidence, fewer than 24 were persuaded to convict. Indeed, it’s possible in theory that only thirteen — a bare majority — were persuaded, if in the first trial the holdout favored conviction, not acquittal.

These facts should be enough to get us to question our fealty to unanimity. At the very least, I think it is high time we stopped requiring unanimity for acquittals.