DANGER OF PRINCIPLE

Met with a client today to discuss settlement of her claims against various defendants in an injury claim. The defendants want to settle and I recommended we at least explore the possibility. The client however, won't talk settlement. She insists on "getting her day in court" and "the principle of the matter." Her remarks made me remember a case I had years ago that ended up being tried because of the "principles" involved. In that case, my client had suffered serious injuries in a bus accident. Liability was unclear. And to be honest, my client was one of the most unlikeable people I have ever represented. She was ill-tempered, impatient, and argumentative. She swore like a drunken sailor and at least once during trial smelled like she might have added a little pick me up to her coffee before coming to the courthouse. In short, not a particularly likeable client. I had argued with her to consider a generous offer that was on the table(with indications that there was more money). She was steadfast - no settlement. I brought in a female colleague to talk to her thinking that might help. And my colleague had a great approach. She explained that at this point, near trial, the case was no longer about justice or truth. It was about MONEY, pure and simple. She went on to explain that the offer was generous and that we could probably get more. My colleague went on to explain that liability wasn't clear cut and there was some holes in the damages picture. In short, think about settlement. But the client, big suprise, refused. Wanted to try the case because of the principle involved. So the case was tried. And my client's personality came through loud and clear. Her temperment on the stand ranged from irritable to snide. Jury found her immensely dislikeable, just as I had feared. And the verdict of course, was NG. Moral of the story? "Principle" doesn't pay the bills and is a very silly reason to try a case.

HOSPITAL NOT RESPONSIBLE FOR TIRED RESIDENT

The Illinois Appellate Court(First District) was recently faced with a novel issue: whether a hospital may owe a duty to a third party injured by an allegedly sleep-deprived employee. In Brewster v. Rush-Presbyterian St. Luke's Medical Center, (no cite available yet), Heather Brewster, a scholarship athlete at Eastern Illinois University was seriously injured when the car she was driving was rear-ended on a suburban highway by first year medical student in 1997. The medical student, Sook Im Hong had worked 34 of the 36 hours immediately prior to the collision. Hong admitted the crash occurred because she had fallen asleep at the wheel. Evidence was presented that Rush required residents to work excessive hours and knew that the schedules would cause sleep-deprivation amongst residents. Rush argued that the hours it imposed were permissible under Illinois law and consistent with standards in place at the time. The Appellate Court, in upholding a 2003 trial court ruling, held that at present, there is no such duty imposed under Illinois law.

The plaintiff, Heather Brewster, was left physically and cognitively impaired and she was forced to quit her studies. She was ultimately declared incompetent and now lives with her parents. Her attorney indicated an appeal to the Illinois Supreme Court was in likely. Chicago Sun Times, Wednesday, September 21, 2005.

CHAMBER AT IT AGAIN

Those funsters at the United States Chamber of Commerce are at it again. The Chamber recently had their pollsters, Public Opinion Strategies[POS] release results from a "poll" POS conducted for the Chamber as part of its "legal reform" agenda. The poll results? Illinois citizens support restrictions on their rights to sue corporations engaged in misconduct. Yep, turns out that John Q. Citizen, of Anytown, Illinios feels he has far to many rights when it comes to suing corporations that do him wrong. The citizenry of Illinois, according to POS anyway, wants to restrict its ability to sue corporations. Sound fishy? Just a bit. First, the actual "questions" asked were not released by the pollsters. From what I read, that is pretty unusual. And perhaps indicative that he questions were not entirely fair.

Secondly, the poll results are at odds with legitimate data from recent studies. First, a study conducted by Site Selection Magazine ranked Ilinois as the third best business climate in the country in 2004. And a recent St. Louis Post Dispatch/KMOV poll in the St. Louis area found that a strong majority of those polled oppose the recent legislation signed by the Governor putting caps on pain and suffering awards in med mal cases.

The Chamber, over the last several years has become increasingly aligned with the Republican Party and the "tort reform" agenda, spending millions of dollars putting out an anti-lawyer message. I am a member of a local chamber, and attend legislative/legal committee meetings. At one meeting, in a discussion about caps, an insurance executive candidly admitted that the real reason behind caps legislation is underperforming insurance investments, as opposed to runaway verdicts. Unfortuntely for Joe Consumer, the Republican Party[and their Chamber of Commere mouthpiece]whupped the trial lawyers pretty good when it came to getting their message out. Having Bush standing in front of all those white-coated doctors down in Madison County was a stroke of genius. Us trial lawyers, the guys who are supposed to be so good at communicating, got beat at out own game.

GRAYDON CARTER PIECE

Off the beaten path a bit, but the October issue of Vanity Fair(the one with a shirtless Paris Hilton on the cover)has interesting piece by editor Graydon Carter. He devotes his Editor's Letter monthly piece to his recent participation in the libel trial against Vanity Fair brought by none other than Roman Polanski, the director, and also as Carter describes him a "...fugutive from American justice". The piece does a nice job describing some of the differences between American court system and its counterpart in England[the most interesting from a trial lawyer's standpoint, being that in England, the defendant publisher is required to prove that what was printed was correct].

The crux of the case concerned a couple sentences contained within a story on Elaine's, the famous restuarant in New York where all the big shot literary types hang out. The story appeared in the July 2002 issue and was written by an A.E. Hotchner described as a "distinguished journalist". Carter also notes Hotchner was also apparently a friend of Ernest Hemingway[not sure how that's relevant, but hey, this is Vanity Fair magazine]. Apparently the article contained a story told by some other literary type about Polanski's conduct in Elaine's not long after his wife, Sharon Tate was brutally murdered by the Manson gang in 1969. I'm not going to discuss the alleged conduct, because I don't need Polanski suing me. In any event, Polanksi sued the magazine in England. One of the things that perplexed Carter was why a citizen of France can sue an American magazine in England. Can't say I blame him.

Carter goes on to discuss how Polanski won a major victory shortly before the trial was to begin. If he sued in the United States and showed up(which most U.S. courts would expect him to do) he probably likely would have been arrested. [A little background - in 1977 Polanski sodomized a 13 year old girl in California. He was ultimately indicted on six counts and pled guilty to one count of unlawful sexual intercourse with a minor. He spent some 6 weeks in prison undergoing psychiatric tests, but eventually fled the country, worried about jail time. That's why the little weasel can't come back into the country]. If he sued in England and showed up, he ran the risk of being extradited to the States. So his lawyers argued that he should be allowed to litigate the case in England, while he himself stayed in France. The House of Lords agreed(?) so he was allowed to give his testimony, and watch the proceedings via video. Have to admit I'm curious why the House of Lords would be so solicitous of an admitted sex offender.

Anyway, cutting to the chase, Polanski prevailed at trial and was awarded approximately $100,000. Carter closed the article with a quote from the woman Polanski raped, now nearly 40 and a mother of three, presently living in Hawaii. "This libel case makes no sense, " she told a newspaper. "Surely a man like this hasn't got a reputation to tarnish?"

NEW ASSISTANT

Couple of months ago I learned my assistant would be leaving for personal reasons. Although disappointed to lose her, I thought I could get by without an assistant for a bit. Yeah, well, I was wrong about that. Very, very wrong. The last month has been a bit hellish. But hired someone new the other day who I think is going to be great. And I now have some time to get back to blogging...

Saw an interesting blurb in the Chicago Sun Times today about a recent filing against White Hen. A young girl from Winnetka is suing White Hen after she was allegedly raped by an employee. The alleged perpetrator has been charged with criminal sexual assault[and is believed to have fled to Mexico]. The plaintiff will no doubt face motions to dismiss, where White Hen will argue that any sexual misconduct was outside the scope of the employee's duties. There is a long line of cases in Illinois where employers are dismissed out of cases after their employees sexually abuse people that come into their store, or onto the bus etc. The article did indicate that the defendant had apparently approached a number of other young girls in a suggetive manner prior to the attack. The plaintiff will likely argue the previous conduct put White Hen on notice that this guy was creepy and they should have gotten rid of him. Hopefully those facts will allow plaintiff to defeat the inevitable motions and this little girl can get some justice.