Artwork

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Re: Artwork

Postby dai bread » Sun Sep 14, 2003 12:24 pm

Jmfryar, would you please explain the McDonalds case to a resident at the botttom of the world who isn't up with the details?

You said the coffee was at 200 degrees. Presumably that's Fahrenheit, so it's below boiling point. How else do you make coffee? What temperature do Stateside coffee percolators run at?

If the woman was seriously injured, then someone was remiss with the first aid, and possibly there is a cause for action there, but to say she sued because the coffee was hot simply exposes Stateside law to ridicule. But that's all the information we got here, and taken with my next tale, it's unfortunately believable.

Once upon a time I worked for the NZ branch of a Swiss multinational chemical company. I don't want to mention its name because this is a public forum, but I will pm it to you if you like.

The Stateside branch (I forget which city it was in) had to pay USD 1 million to a cyclist.

The cyclist was knocked over by a truck. He sued, as one does Stateside, and the trucking company went broke. So did its insurer. So who was left, who had any pockets at all? The big Swiss multinational, whose product was being carried on the truck as cargo.

Yes, I know lawyers too, and they are very fine people, even if their faith in the rule of law is a bit touching. You appear to have your heart in the right place jmf, so please don't think I'm getting at you, or even the U.S.

NZ's chief product is laws, and this was said by a magistrate in 18?? Nothing's changed since.
We have no money; we must use our brains. -Ernest Rutherford.
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Re: Artwork

Postby jmfryar » Sun Sep 14, 2003 3:26 pm

McDonalds case - facts are here -
at a minimum - coffee is served at 135 degrees F.

at the temperature it was served to her it would have destroyed her mouth - literally.

http://www.lectlaw.com/files/cur78.htm

With regard to your story - not a clue with the details you've provided, but several things ring exceptionally untrue...

It was a million dollar judgment. If they had insurance, lets say that the insurance kicked in. According to your facts, they did not have a policy in that amount, as they had to pay some of the judgment. So, according to you, an insurance company was driven out of business by paying a single settlement of less than one million dollars.

An insurance company with assets in that range would not be allowed to operate in the US - it would be shut down, most probably for fraud - since most insurers have re-insurance policies (insurers who insure insurers) I'm not clear on how it's even vaguley possible that a single settlment could drive an insurance company out of business.

Unless it was Uncle Billy-Bob's good ole boy insurance. At that point, you're taking your chances anyway...

There is the possibility that they had a policy where the cost of the defense actually came out of the policy limits, but a decent attorney or broker could have steered them away from that policy - this is why you always consult with an attorney before doing certain things, and a few dollars saved now may result in thousands (or millions) spent later.

And that still doens't explain how the insurer went out.

With regard to shutting down the trucking company...

If they didn't have insurance, that is a possibility. But it is possible (depending on circumstances) that a judgment can be erased by filing for bankruptcy.

What probably happened is there was an amount levied against the company and, rather than pay it, they closed shop - so the cyclist has a judgment that he/she can't collect on...

Lets say that it's not - so you have a trucking company that is operating without insurance (they deserve to be shut down for being that stupid, but lets not go there...) and one of their drivers gets in an accident with a bicyclist.

Your argument is, before we look at the injuries of the cyclist, we should first look to see how badly the business will be effected. You're arguing company over person.

These judgments take into account the future of the victim. He lost his legs and suffered brain damage. He was a postal carrier and can no longer work - the judgment reflects his future earnings so that he can survive the rest of his life...

And if the company did shut down so they didn't have to pay, this is someone that will be living off the state as a result, which comes from your tax money...

Keep in mind that these judgments are not windfalls - they are not allowed to be. They represent combinations of damages, medical bills and future earnings - these people are SERIOUSLY messed up.
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Re: Artwork

Postby dai bread » Mon Sep 15, 2003 1:36 am

Thanks jm. I will check out the McDonalds case when I have more time.

As far as the truck company is concerned, the story was told to me by the manager of the NZ operation, and although he subsequently turned out to be less honest than he should have been, I have no reason to suspect him of fabricating this story. Though I will admit the bit about the insurer going broke did make me wonder, even at the time. Presumably they had more claims pending than this one.

And no, I'm not suggesting the cyclist should be left to suffer. What I am saying is, "What does the owner of freight have to do with any accident its carrier may be involved in?"

Here in NZ, the Accident Compensation Commission would have taken care of the cyclist, though he would never have got rich off them.

<small>[ 09-15-2003, 04:01 AM: Message edited by: dai bread ]</small>
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Re: Artwork

Postby dai bread » Mon Sep 15, 2003 1:48 am

I have now checked out the McDonalds case. It didn't take as long as I thought it might.

Facts are wonderful, aren't they? Almost all of that story was not reported here, especially the bit about Stella being in a car at the time. That would have made the provision of first aid very slow, and therefore largely ineffective.
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Re: Artwork

Postby jmfryar » Mon Sep 15, 2003 7:21 am

Now...if you told me the names involved in the trucking case, I could tell you why they were held accountable - just because someone is involved at some point doesn't necessarily make them liable - usually there needs to be something that they did or didn't do - like load the truck properly.

With regard to "mentioning names" court cases are public information unless sealed (wich is HIGHLY unusual) so that anyone can take a look at the decision and reasoning. This is one of the great things about the US judicial system that keeps it honest - when the whole country is reading over your shoulder, you tend to be careful how you decide things...

I found Shapely's case merely by going onto Westlaw and searching under the facts he gave me for cases. Westlaw and Lexis are the two legal search engines that contain cases, law review articles, news items, statutes and various other tid bits that attorneys need to put arguments together.

I get full access as a student to both services for class research, article research and just plain old curiosity when cases like the McDonalds case and Shapely's case rear their heads.
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Re: Artwork

Postby barfle » Mon Sep 15, 2003 7:40 am

As I noted, attorneys have valid uses, although in many cases they are, IMNSHO, regarded as "necessary evils."

Much of the reason they are necessary is because the law, to quote Dickens, "is a ass." Much of it is twisted, complex, and incomprehensible. Some of that is due to legislatures (most of whom seem to have law degrees) writing laws that are more easily misunderstood than understood, and some of it is due to legal precedent - a judge or jury, deciding an individual case, creates an environment that affects later decisions.

My wife worked as an insurance underwriter for many years, and was knowledgeable about many frivilous lawsuits. I recall one case where they refused to insure a manufacturer of refrigerator magnets because they were too small and could be swallowed by children. No mention was made of a parent assuming responsibility for placing small objects where they could be picked up and eaten, no mention was made as to the toxicity of the magnets (who among us didn't swallow something like a dime when we were very young - and we're around to tell the tale). The insurance company knew that there would be some knucklehead out there that would let their toddler put one of the magnets in its mouth, then file a claim or perhaps sue the magnet company, and the value of the product just wasn't worth the liability. It's a shame, but the environment was created by a litigious society - one that likes to sue, whether or not the suit has any validity.

As far as attorneys padding their bills, one thing that separates lawyers from the mechanics, etc that jmfryar mentioned, is that they know how to do it without breaking the law. When an attorney is paid by the word, to you think he's going to say "We claim..." or "What is claimed is..." Is it legal to get verbose? Yes. Is it right? No. And I see that language EVERY DAY on the job.
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Re: Artwork

Postby jmfryar » Mon Sep 15, 2003 8:29 am

Attorneys are paid by the word?
that's new one...never heard that before! What state do I need to get barred in for that one???

Last I checked, they were paid by the hour...

Sigh...I've said it before, I'll say it again - it's not the attorney's that give the awards - it's the juries, made up of ordinary people, who do.

I'll say it again - it is ILLEGAL to pad a bill. As in against the law. As in prosecutable. You can't do it legally. It's illegal. As in you lose your license. Possibly go to jail. Can't make it any clearer. Wrong to do. Bad, bad, bad. I know someone who is doing prison time right now for doing it. As in in jail. For years. Not coming out for a while. Will never be able to pad a bill again since lost license to practice law. For padding bills. Got caught. Got caught padding bills. No legal way to do it. It's illegal.

He got caught because a smart client asked to see a bill...

P.S. Most laws and statutes are absolutely crystal clear if you know how to read them. As are most contracts, insurance policies and tax codes. People just don't take the time to learn...
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Re: Artwork

Postby barfle » Mon Sep 15, 2003 8:48 am

Juries are made up, at least in my experience, by people whose only qualification is that they can't get out of it (California). Fluency in English isn't important, the ability to stay awake isn't important, an IQ greater than 75 isn't important. The reasons they award ludicrous judgements is because a plaintiff's attorney demonizes the defendant to the point that the jury comes to believe that no punishment is too small.

And now comes the nitty gritty of how and why lawyers can get away with things others cannot. Charging for work not done is both illegal and immoral, and it seems like your acquaintance who is serving time for doing so is paying the penalty. I recall a movie called "The Firm" with Tom Cruise and Hal Holbrook. However, doing unnecessary work and charging for it is in the eye of the beholder. Many patent attorneys charge by the word to write an application, as I understand it. And verbosity is almost universal.

I have to take the time to understand the applications I see. I cannot research the prior art without understanding the invention. And a remarkable number of them verge on the incomprehensible. Those contracts that should be crystal clear should not require any special training other than reasonable knowledge of the English language to understand. Requiring special training to "know how to read them" is a big part of why there are law schools.

I'm not saying that lawyers are a universal enemy - not at all. However, there are enough of the kinds of lawyers around that fit the civilian stereotype that the general opinion of lawyers is not totally unjustified.
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Re: Artwork

Postby Selma in Sandy Eggo » Mon Sep 15, 2003 9:10 am

OK, I have to take issue with both of you, barfle, and jmfryar.

I have been on juries. We were not there because we were too stupid to get out of it. We did an honest job of trying to sort the matter out, every time, and I think we did a fairly good job of it. The phrase "civic duty" means something to a fair number of us.

Also, having been on juries, I have to say that I have limited respect for the lawyers. I am smarter than a coconut, have a reasonable set of language skills, and was paying attention. I also have a finely tuned bullshit detector which kept going off while lawyers were speaking.

If somebody is "explaining" how something happened, and I cannot follow the explanation, it is because the explanation is either muddled or complete nonsense. The guiding principle seems to be "If you can't blind 'em with brilliance, baffle 'em with bullshit."

I have an acquired allergy to lawyers and, if possible, I avoid them in a professional venue. It was jury exposure that caused this terrible medical problem. Do you suppose the bar association carries insurance that would compensate me for my suffering? Hmmmm. I'd look into it, but it would mean hiring a lawyer.

How did this thread wander to here from the art cows <giggle> ?

Selma
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Re: Artwork

Postby barfle » Mon Sep 15, 2003 9:30 am

Selma, I've been on juries as well, hence my familiarity with many of my peers. Although your BS detector may be in full operation, you, or someone like you, is NOT a guarantee on most juries. In fact, since lawyers are allowed to eliminate a handful of prospective jurors without reason, many of them would excuse you if their BS detector detector went off. And regarding the concept of "civic duty," I have to say that I was treated with more respect in Army basic training than I was as a prospective juror. Please reflect on that statement for a few seconds.

Jurors aren't allowed to ask questions if they find something incomprhensible. And if they are baffled by BS, I find it difficult to blame them, particularly because they are deliberately chosen from those who are NOT knowledgeable about how the law is supposed to work (as compared to how it actually ends up working).
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Re: Artwork

Postby treebeau » Mon Sep 15, 2003 9:54 am

Interesting note:

McVeigh got the same verdict in Colorado as he would have gotten in Oklahoma City. Guilty is guilty no matter where the trial is moved.

I think that lawyers would have weeded out biased potential jurors during voir dire. And during a trial the judge instructs the jurors. If they hear all the evidence and make a decision based on feelings and not facts, the judge would know that and probably overturn the decision.

So, why move the trial?

Regards,
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Re: Artwork

Postby jmfryar » Mon Sep 15, 2003 11:42 am

Originally posted by barfle:
I recall a movie called "The Firm" with Tom Cruise and Hal Holbrook. However, doing unnecessary work and charging for it is in the eye of the beholder.


That's a movie...a work of fiction...that panders to the general misunderstanding...
do attorneys do it? sure - they get caught. Do doctors, mechanics, contractors and all else do it? yes, and they get caught...

Many patent attorneys charge by the word to write an application, as I understand it. And verbosity is almost universal.

Hire one that doesn't

Those contracts that should be crystal clear should not require any special training other than reasonable knowledge of the English language to understand. Requiring special training to "know how to read them" is a big part of why there are law schools.

They shouldn't be - most courts require that contracts and policies be in a "plain and ordinary meaning" - understandable by a layperson. This is a requirement - if you can't understand it, get it written so that you can.

This is the plain language movement that's been going on for quite some time - anyone should be able to pick up a contract and read it front to back and understand it - now, for a speciallized contract, that is probably a different standard - I don't come anywhere near claiming I can ever read a patent application.

But to be a patent attorney you have to have an engineering degree and a JD - so unless I want to spend another 2 or 3 years in school, I'll never see that field. It's has it's own Bar as well...

I'm not saying that lawyers are a universal enemy - not at all. However, there are enough of the kinds of lawyers around that fit the civilian stereotype that the general opinion of lawyers is not totally unjustified.
just as there are bad doctors (anyone into holistic medicine will give the same, if not a more, vehement argument), auto mechanics (as anyone who's gotten repairs and the accompanying bill lately), contractors (why is everything two weeks???) and so on...

But it's attorneys who protect your rights, attorneys who keep you free, and attorneys who fight for you every step of the way...
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Re: Artwork

Postby jmfryar » Mon Sep 15, 2003 11:52 am

With regard to juries -

Keep in mind that attorneys are, for the most part, trained to read and write, not speak in public.

If I threw you in front of a room of people, started firing questions at you, and put someones life at risk, you might find yourself in the unenviable position of most attorneys when they first start out. Some make it, some don't, but they get better.

The question I have - is this aversion to attorneys before or after your jury exposure? It might have tainted your view...

With regard to this thread -

I always knew that there was an aversion to attorneys, but I've seen these arguments before...

Think for a second - what do you call the overwhelming condemnation of an entire class of people?

There is empiracle evidence out there that blacks and jews are "lesser" than whites (faulty studies all, but endlessly quoted...)and aren't these the same arguments? Stories, rumors, gossip and bitterness...

I'm going to stop responding to this particular thread after this. I hope I've made the following points:

There is a vast difference between the reputation and the truth with regard to attorneys.

Most opinions of the profession are based on rumor and speculation but not proof or evidence.

A vast majority of attorneys practice the profession for the right reasons: Truth, justice and protection of the rights of their clients.

If you do not agree, that is absolutely your right as an American (and I right I will do everything within my power to protect professionally when I graduate) and I will always be more than happy to answer any questions specifically (please PM me though as I don't think that there are too many people interested in the topic).

But the hatred and anger that I see bleeding through the lines makes me far too uncomfortable - I thought we left this sort of thinking behind pre-60's. Unfortunately, I am wrong...
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Re: Artwork

Postby Marye » Mon Sep 15, 2003 11:53 am

Well Jm... I agree about contractors... has anyone found ONE that can come in on time and within budget? I am so annoyed with our renovations. :mad: :mad:

Jm... are you a lawyer now?

Oops! I see by your last post you are done responding here...

<small>[ 09-15-2003, 12:57 PM: Message edited by: Marye ]</small>
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Re: Artwork

Postby jmfryar » Mon Sep 15, 2003 11:55 am

Originally posted by treebeau:
Interesting note:

McVeigh got the same verdict in Colorado as he would have gotten in Oklahoma City. Guilty is guilty no matter where the trial is moved.

I think that lawyers would have weeded out biased potential jurors during voir dire. And during a trial the judge instructs the jurors. If they hear all the evidence and make a decision based on feelings and not facts, the judge would know that and probably overturn the decision.

So, why move the trial?

Regards,
Tim B.
You have to have a jury that believes he is innocent when you start - the standard is innocent until PROVEN guilty - and that's the onus of the prosecution...in a poll of Oklahoma City, 80% of the population said he was guilty and should be condemned - kinda hard to get a fair and impartial trial when 4/5 of the population readily admits that they're ready to hang him before the opening argument...

Makes you wonder if the remaining 20% kept their mouths shut hoping to get on the jury so they could convict him...so they moved it.

There are other reasons as well, I'm only giving one of the arguments...
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Re: Artwork

Postby piqaboo » Mon Sep 15, 2003 12:04 pm

Im curious: did they poll colorado residents before moving the trial there?
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Re: Artwork

Postby OperaTenor » Mon Sep 15, 2003 12:12 pm

That's funny, I thought you had to have a jury that was unbiased either way.
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Re: Artwork

Postby Shapley » Mon Sep 15, 2003 12:14 pm

Jim,

I had started writing a lengthy continuation on this topic this weekend, but decided, like yourself, that the thread had wandered too far and gone on too long. Believe it or not, I was even trying to tie it back into the cow parade issue (the personal responsibility of the parents, artists, etc.). I had typed about two pages before I decided this wasn't the venue for me to mount my soapbox.

Unlike yourself, however, I don't see hatred or enmity in the conversation, and I think most of us have attempted to retain a level of humour while discussing a topic we all have strong opinions on. I think the majority of us hold you in high regard, and your graduation from law school and passing the Bar will only raise the bar (pun intended) of that esteem. Completing Law School is no simple task, and the accomplishment should always be source of pride to you. 1st_Oboe has joined the Marines. I was a sailor and as such I ribbed the Marines endlessly. My brother was a Marine and I still take a jab it him when the occassion arises, but I honor and respect him and the Corps.

If you have taken offense at my postings, I apologize. The law is something I feel strongly about, enough so that I once ran for Congress in an effort to safeguard the freedoms I felt were threatened by it. I was unsuccessful, and have given up politics in favor of making an honest living :D

V/R
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Re: Artwork

Postby barfle » Mon Sep 15, 2003 1:14 pm

jmfryar, yes, "The Firm" was a work of fiction. I used it as an illustration of padded billing and the concequences threrof, nothing more.

I'm not hiring an attorney to write a patent application for me. I'm the examiner who has to read and understand that tangle of technical and legal jargon.

The reason I put "know how to read them" in quotation marks is because they are the words you used. I was quoting jmfryar specifically.

I have experience with several lawyers. Some of them are fine people, others fit the definition of "shyster" to a T. As I have noted twice before, an attorney is not, by definition, evil. I am not prejudiced against a group of people simply for being members of that group (well, maybe the New York Yankees). I'm starting to get the idea, however, that you are picking parts of my posts as being reflective of them in their entirety, which I will ask you to refrain from doing in the future.

It's an attorney's job to serve their client in the legal environment. In many cases, that ends up finding a loophole or flaw in the letter of the law that was clearly unintended by the author of the law - in many cases it involves an unanticipated set of circumstances. Are they doing wrong when they find a loophole that lets their client off the hook they so richly deserve to be hung from? That's the gray area that many people find so distasteful.

As far as my experience with lawyers while on jury duty, I found more simple incompetence than much of anything else. I'm afraid they were generally poorly prepared and not adequately familiar with the case they were trying. Those of us on the jury who were paying attention tried to arrive at our decisions in spite of the lawyers' misstatements, although we wondered among ourselves how we could make our concerns known. These cases were generally pretty petty cases, nobody was going to the gas chamber based on the outcome, and some of the attorneys may well have had ten cases too many and this was number 11, but they weren't doing much of a job defending their clients.

I have no inherent "aversion to attorneys," although my experience in the Patent Office has certainly given me an aversion to some of them. I have seen clear cases of dishonesty on the parts of attorneys in patent applications, and I'm keeping a list of the sneaky tricks those guys have pulled. Of course, I don't have a record of just how those tricks came about, but without getting into specifics (which would bore most of the readers of the BBB), the odds that these antics are random errors are miniscule.

The prejudice you allude to in your post was against characteristics that the people had no control over - their ancestry. That's a lot different than a "prejudice" against a profession, for example, drug dealers or gang members. I know that being an attorney is a tough job that takes a lot of study and work to get in the first place. For the fourth time, I don't believe lawyers, by themselves or in a group, are necessarily bad. I do lament the fact that in our present legal environment, they are nearly indespensible, though.

OT, note that in the United States, a criminal defendant is innocent until proven guilty. The assumption is of innocence, not of neutrality.

Allow me to add, please, that I find jmfryar's signature to be quite insightful and worthy of a few moments reflection.

<small>[ 09-15-2003, 02:18 PM: Message edited by: barfle ]</small>
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Re: Artwork

Postby Bones » Mon Sep 15, 2003 1:53 pm

"But it's attorneys who protect your rights, attorneys who keep you free, and attorneys who fight for you every step of the way..."


ROFLMAO!!!
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