High Wire Risk and Daredevil Litigation

Nik Wallenda became the latest person to capture the nation’s attention with a crazy stunt that did not involve handing a microphone to Vice President Biden.

On Sunday, Nik Wallenda became the latest person to capture the nation’s attention with a crazy stunt that did not involve handing a microphone to Vice President Biden. In case you missed it, Wallenda successfully walked across the Chicago River on a wire some 50-stories up in the air. While the risk associated with crossing any street in Chicago is substantial these days, 5.8 million people will actually watch Wallenda.
Normal people wonder at the bravery (or insanity) of Wallenda’s actions, or marvel at his skill. Lawyers, insurance adjusters, and PR agents tend to take a more gloomy view of human events. So, consider what a litigious people might do in the wake of the modern daredevil’s actions.

Scenario #1: Tragedy happens and the Wallendas sue the City, the State, and everybody else they can think of.

Most defendants would get out of this suit early, based on the extreme risk assumed by Wallenda. As it was, his most likely injury was probably carpal tunnel syndrome from all the liability waivers that he signed. However, if someone took on a special duty, like rigging the wire or other equipment, and the family could prove this contributed to the outcome, there might be some contractual violation. Such a contract would probably already limit the loss through liquidated damages, which are damages negotiated in advance in a contract.

chicago1Scenario #2: Tragedy happens and local TV crew witnesses horrific ending and sues its network and local affiliate for the emotional trauma.

At least some TV crews were required to sign a waiver explicitly prohibiting such a lawsuit in the event of a tragedy. But even without such a magic bean, it’s doubtful that a suit like this would get far. A TV reporter has a certain assumed risk to the facts or events that he or she may witness.

Scenario #3: Tragedy happens and the FCC fines the Discovery channel for a violation of broadcast guidelines.

The FCC has no jurisdiction over cable programming directly, but any over-the-air station that carried the event live could be subject to fines which the station may or may not successfully pass along to Discovery. For its part, Discovery ran a 10 second delay in the broadcast, just in case.

Scenario #4: The State of Illinois fines the City and/or the Wallendas for failing to put up a net.

This one might have some teeth, if the state fined the person or entity truly responsible. The ABC affiliate in Chicago noted this curiosity:

Chicago city officials ignored a state law requiring safety nets for aerial acts higher than 20 feet, saying the law wasn’t intended for “elite” performers.

Ignored. Not “applied for a waiver to” or “found an arguable loophole for.” Simply ignored. If it weren’t Chicago, that part of the story may have caused a bit more of a stir than it did. It’s unclear whether the city or the performer is ultimately responsible for the violation, or the penalties. Either way, the violation seems undisputed. Of course, since no tragedy happened, it will almost certainly be forgotten. But if Chicago can get the deceased behind the curtain on polling day, whose to say the State of Illinois wouldn’t issue a fine to Wallenda for this violation if something had gone wrong?

Scenario #5: A random woman’s reaction to the successful stunt, filmed by the Discovery Channel, becomes a successful, if embarrassing, internet gif.

Assuming the woman was not in a private place when her image was taken, she’s probably going to lose. The right to privacy does not extend to my right not to be photographed or videoed in a public place. If I’m walking down the street, photos of me are fair game. If that’s not enough, the Discovery Channel certainly had its bases covered on the scene:chicago2

Due Process and Don’t Process

I’ve written before about small claims court.  Lawyers don’t get into small claims court often, but I have to confess that I find it fascinating.  Big boy court is expensive enough that it naturally filters out smaller disputes.  But in the small claims world, the unfiltered view can be enlightening.

Small claims courts are simpler by design. By suspending normal rules of evidence, the law allows judges more freedom to ask their own questions.  The judge’s experience typically allows for sorting issues quickly.  Most issues, even in the illumination of small claims court, are not new. The judge has probably seen it before and often knows what each side will say before he says it.

Who makes small claims decisions? The judge, the court reporter, or somebody–wait, is that Alfred Hitchcock?

But the judge still has to show up.  In Reynolds v. Capps, a May 23, 2012 Indiana Court of Appeals case, the Court chastised the trial judge for the practice of apparently allowing the court reporter to conduct court in his absence.  The Reynolds case was an eviction and request for damages–pretty run-of-the-mill stuff. Indiana has a special law that allows a landlord to allege that he shouldn’t have to wait until the whole case is over to get the tenant out, but that law also allows a tenant to oppose the landlord’s request for immediate possession before the court decides it.

At an “Initial Hearing” both the landlord (Capps) and tenant (Reynolds) showed up, and according to the Court of Appeals, some Constitutionally-impaired hijinks ensued:

The court reporter verified the nature of the action, and the parties discussed their allegations, including Reynolds’s concerns about the condition of the premises. The court reporter repeatedly explained that evidence relating to the parties’ allegations would be heard later. In her statement of the evidence, the court reporter explained, “I advised the parties the reason for the Initial Hearing was to set a date for the Defendant to vacate the Plaintiff’s rental property . . . .” . . . According to the court reporter, when Reynolds made statements about the problems with the apartment, the court reporter responded, “all evidence was to be heard at the trial of this matter . . . .”

(P.3). The apparent authority of the court reporter did not end when conducting the hearing, but the reporter also filled out “a pre-signed ‘INITIAL HEARING/JUDGMENT ORDER’ form requiring [tenant] Reynolds to vacate the premises.”  So, not only was the judge not present at the hearing, the court reporter walked in with the judge’s decision already made. The tenant was getting kicked out.  No presentation of evidence, no chance to argue her case–just get out.

This is bad.  Look, I’m no technocrat. I believe that the rules that govern court procedure should be used to clarify and not stifle the evidence.  Courts have difficult caseloads and finding ways to streamline the process is good for judges, litigants, and taxpayers.  But at the risk of sounding picky, courts really do need to hear actual evidence before reaching a decision. Really.

The Court of Appeals was not impressed.  It said that the lower court failed to meet the minimum due process requirements because the tenant had a right to have her side of the case heard by a judge.  Not only is a court reporter not a judge, and not authorized to make judicial decisions, the court reporter repeatedly told Reynolds that no evidence would be taken.  The Court of Appeals then gave the trial court some constructive criticism. Well, more like a judicial smackdown:

Even taking into account the informality of the small claims process, if the hearings on evictions are regularly conducted without a judicial officer present, we pointedly and directly express our concern and expect that situation to be remedied.

(p.6).  It is normal for court staff to help sort out the deluge of small claims cases for a judge.  I practice in a county where a court staff member talks with both parties at the small claims initial hearing to determine whether their agreement will actually require the judge’s participation.  (Surprisingly, many people come to small claims court having never attempted to resolve the dispute themselves first.)  If both sides appear and report they are still in dispute, the court staff will schedule another day for the judge to hear the case.  If only one side appears (typically the Plaintiff), the court staff will advise the judge, who can then enter a default judgment.  From what I know of surrounding counties, this process is pretty typical.

However, the Reynolds case involved (1) a meaningful decision (2) without evidence (3) made by a non-judge.  It’s unclear if the judge was condoning this as a normal small claims procedure, or whether the court reporter misunderstood her role.  Either way, in my opinion the pre-signed judicial order is never a good idea.

No. You’re not the next American Idol.

Objective advice, whether it’s from a lawyer, a mechanic, or someone telling you that you cannot carry a tune in a bucket, is as difficult to give as it is to receive.

Every year on American Idol, there is a contestant who earnestly auditions for the judges.  This Sally Songstress usually appears early in the season, before the talent has been narrowed down.  After her performance, the judges tell her–with varying degrees of tact–that she has no talent and is not going to Hollywood after all.

“Sorry, dog.  It’s a ‘no’.”

Sally stands and stares in disbelief at the judges. Then the waterworks start. Or the dumfounded blinking. Or the profanity that reflects her assurance that the judges do not, in fact, know what they are talking about.  It’s a shallow pastime to watch a train wreck of human emotion.  But it makes for riveting television.

Did she really think she could sing? How could someone become so self-deluded? What made Sally so sure that she had talent while she was strangling a cat in front of a national audience? Perhaps arrogance, perhaps an inner ear infection.  But most likely she had been told she had talent. Since she was young, family and friends chose flattery over honesty. I mean, who thought Sally would end up singing in front of a national audience?  Tell her what she wants to hear.

Flattery may get you on television, but not in a good way.

Tell her what makes her feel good.  Faced with a lifetime of expectations, Sally simply expected the judges to echo what everyone else had told her all of her life: she had talent and would go far as a singer.

The truth is she did not.  And she will not.

Legal disputes often produce the same personality, in the form of litigants who believe that their cases are flawless, that there is no risk of losing, and that justice will surely see everything from their point of view.  If Sally has a personal injury dispute or landlord/tenant matter or a divorce, she will walk into her lawyer’s office and explain her side of the case, ready for the attorney smile and say, “Wow! You have a great case. You cannot possibly lose! [You’re going to Hollywood!]” Instead, the attorney is too often the first and only voice of doubt, and perhaps the first to offer more than just sympathy and a friendly shoulder to Sally.  The reactions are often Idol-like: disbelief, shock, and even resentment can follow.

But everybody at work said I would win.

But my cousin had a case just like this and he won.

But I thought that the law said . . .

Expectations are tricky things.  It’s human nature to hear what we want to hear.  I tend to believe the mechanic who only says my car needs a tune up and not the one who insists it needs a transmission overhaul.  But that’s not an objective way to determine which mechanic is correct.

Despite what is portrayed in the movies and on television, legal matters are almost always decided on the law and the facts. (To the extent other factors may occasionally be involved, it’s unlikely these variables can ever successfully be predicted or manipulated to any party’s advantage.)  Objective advice, whether it’s from a lawyer, a mechanic, or someone telling you that you cannot carry a tune in a bucket, is as difficult to give as it is to receive.  But there is value in it.  Before an attorney is of any use as an advocate for a client, he must be objective with the client.  Attorneys who skip this step and proceed immediately to advocacy have clients who are not well-served.