Comments on: Liebeck v. McDonald’s, another round http://overlawyered.com/2014/05/liebeck-v-mcdonalds-another-round/ Chronicling the high cost of our legal system Tue, 30 Sep 2014 14:04:02 +0000 hourly 1 http://wordpress.org/?v=4.0 By: Robert http://overlawyered.com/2014/05/liebeck-v-mcdonalds-another-round/comment-page-1/#comment-284890 Wed, 14 May 2014 23:02:16 +0000 http://overlawyered.com/?p=45839#comment-284890 Thanks for that link, Turk. Very interesting and relevant, but the studies cited only looked at criminal trials, rather than civil trials. Obviously the concept of “acquitting” or “convicting” doesn’t quite apply in the civil context, and the notion (if we can postulate from the statistics cited) that judges, being state employees themselves, may in some cases be subtly biased toward the state prosecutor, would not apply in a dispute between two private parties.

There’s a mention of jury nullification in there too, but again that doesn’t really apply in the civil context. Or, on the other hand, the outcome in Liebeck could be viewed as a form of civil jury nullification — of a jury overriding legal and public policy principles to award damages to a sympathetic plaintiff. Here’s one of a very few studies in this area citing similar concerns to mine:

“Concerns about protecting citizens against oppressive government action do not arise in lawsuits between private parties. Beneficiaries of nullification may applaud the jury’s function in softening the application of seemingly harsh rules, but their adversaries will voice legitimate complaints that nullification sacrifices their due process rights. In addition, when a jury chooses to disregard laws adopted by legislatures or courts, it undemocratically usurps the lawmaking function lodged in those institutions. Thus, courts should more readily embrace tools such as special verdicts and bifurcation of trials in order to minimize the risks that civil juries will deviate from their instructions.”

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=266961

Much of the outrage over the Liebeck case, to me, seems to stem from a sense that perceived nullification in a civil context, rather than being an instance of people standing up to the government, actually represents a miscarriage of justice, although the in civil cases the presence and role of a jury seems to attract very little attention as compared to criminal trials.

]]>
By: Turk http://overlawyered.com/2014/05/liebeck-v-mcdonalds-another-round/comment-page-1/#comment-284843 Wed, 14 May 2014 19:15:25 +0000 http://overlawyered.com/?p=45839#comment-284843 @Robert:
That’s the only reason think I could think of, too, except that fact-finding is a relatively modest part of the full range of judicial authority (the power is given only to the trial courts)…

First, while you say fact finding is a relatively modest part, others may say it is the most important part. It depends on the case. It matters 100% of the time when the facts are in dispute.

Second, you wrote that the power of fact-finding is only given to trial courts. But that is not the way the Constitution was written:

Article III, section 2:
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Amendment Seven would limit that previously given constitutional power (“…and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”).

We return, in essence, to the concept of the citizenry being the sovereign and not the king (We The People…).

Last: Some people have tried to do studies of the differences between judges and juries (such as, for example, having judges write down what their verdict would be, for purposes of the study only, had there been no jury).

You can find a little round-up of the studies, for what they are worth, at this Slate article:
http://www.slate.com/articles/news_and_politics/explainer/2013/07/zimmerman_trial_how_accurate_are_juries.html

]]>
By: Robert http://overlawyered.com/2014/05/liebeck-v-mcdonalds-another-round/comment-page-1/#comment-284833 Wed, 14 May 2014 18:34:23 +0000 http://overlawyered.com/?p=45839#comment-284833 I presume, without going to look in the Federalist Papers, to stop judges from becoming too powerful.

That’s the only reason think I could think of, too, except that fact-finding is a relatively modest part of the full range of judicial authority (the power is given only to the trial courts), and is irrelevant in many cases where the essential facts aren’t disputed, or the challenge itself solely concerns a legal, rather than factual, issue. Far and away the more powerful role, in civil cases, is being able to say what the law is, whether that is the power to mold the common law in a negligence case or the power to strike down an entire statute as unconstitutional. Next to that power, fact-finding seems pretty routine and unexceptional.

And I do find it odd that some people think a judge would be any better at deciding who is telling the truth on the witness stand and who isn’t.

I’m not one of those people. A judge may have heard a lot more testimony, on the one hand, but juries have strength in numbers on the other. The advantage isn’t clear, which to me weakens the case for a civil jury as a constitutional right. If it’s not about government power, and juries aren’t clearly better fact-finders than judges, why go through all the bother of time, expense, missed work, disruption, etc. of hauling in jurors?

I agree that judges have biases, too, but there is a system for recusal where interests are too closely linked. And a system of appeals to panels of judges, who can overturn clearly erroneous factual findings or order new trials. Not to mention that the “bias” argument could apply equally to questions of law as to questions of fact, but we don’t argue for turning legal analysis over to the jury on that ground.

]]>
By: Brown M&M’s and Hot Coffee | Kansas City Legal Examiner | Kansas City Missouri Personal Injury Lawyer http://overlawyered.com/2014/05/liebeck-v-mcdonalds-another-round/comment-page-1/#comment-284831 Wed, 14 May 2014 18:24:26 +0000 http://overlawyered.com/?p=45839#comment-284831 […] still making news.  Just this week, stories about this case have appeared at blogs Abnormal Use, Overlawyered, and the New York Personal Injury Law Blog.  Ezra Klein wrote about the case just yesterday on […]

]]>
By: Turk http://overlawyered.com/2014/05/liebeck-v-mcdonalds-another-round/comment-page-1/#comment-284816 Wed, 14 May 2014 17:27:37 +0000 http://overlawyered.com/?p=45839#comment-284816 Why is it necessary that the fact-finding power rest in a jury rather than in the judge…

I presume, without going to look in the Federalist Papers, to stop judges from becoming too powerful. There are plenty of litigants with very significant interests that appear in courts.

And I do find it odd that some people think a judge would be any better at deciding who is telling the truth on the witness stand and who isn’t.

Judges have biases also, you know. Remember that, to become a judge, you have to know the right people, regardless of whether the position is an appointment or s/he needs go get onto a ballot through a political party.

]]>
By: Robert http://overlawyered.com/2014/05/liebeck-v-mcdonalds-another-round/comment-page-1/#comment-284759 Wed, 14 May 2014 15:16:45 +0000 http://overlawyered.com/?p=45839#comment-284759 Thanks Turk – I kinda get the justification for the provisions in the Fifth and Sixth Amendments, as they related to criminal prosecutions where it is a citizen facing the state. But a civil trial is citizen v. citizen. The state is usually not a party. Why is it necessary that the fact-finding power rest in a jury rather than in the judge, a guy whose occupation is adjudicating disputes? I guess I’m struggling to see what “distrust of the government” has to do with litigating a personal injury claim in state court.

]]>
By: Turk http://overlawyered.com/2014/05/liebeck-v-mcdonalds-another-round/comment-page-1/#comment-284745 Wed, 14 May 2014 14:44:09 +0000 http://overlawyered.com/?p=45839#comment-284745 Why are we sitting lay juries in civil trials? It’s in many state constitutions, I know, but what’s the policy rationale?

In England, it was King George III that was the sovereign.

When we broke from England, the Founders wanted to make sure that power resided in the citizens, not a head of state. Thus, the Bill of Rights.

Three of the amendments set forth explicitly that it is the community (a jury) that retains power:

5th Amend (Grand Jury)
6th Amend (Criminal trial by jury)
7th Amend (Civil trial by jury)

That distrust of government that existed at the time of the Revolution still exists today, as can be seen in many political movements.

]]>
By: Robert http://overlawyered.com/2014/05/liebeck-v-mcdonalds-another-round/comment-page-1/#comment-284725 Wed, 14 May 2014 14:12:55 +0000 http://overlawyered.com/?p=45839#comment-284725 Why are we sitting lay juries in civil trials? It’s in many state constitutions, I know, but what’s the policy rationale? Serious question here. I’ll admit that in most cases juries are, as the post suggests, capable of grasping both the facts and the law, but isn’t it also possible that the mere chance that a jury can be swayed by emotional appeals employed by an adept plaintiff’s attorney (particularly in certain jurisdictions, with certain plaintiffs and/or with certain injuries) driving much marginal litigation? The fact that the judge often has the power to overturn the jury verdict afterwards, or to reduce a high award, makes it seem even less useful.

As for the Liebeck case in particular, although the public generally appears to agree that the outcome was unjust, blame is usually cast on either trial lawyers or the plaintiff herself, rather than on the jury that entered the verdict. Tort reform efforts seem to reflect that mindset.

]]>
By: McDonalds’ Coffee Case, 20 years Later — And Why It Is Still Important – New York Personal Injury Law Blog http://overlawyered.com/2014/05/liebeck-v-mcdonalds-another-round/comment-page-1/#comment-284664 Wed, 14 May 2014 11:01:54 +0000 http://overlawyered.com/?p=45839#comment-284664 […] it pops up this week via postings at Abnormal Use and Overlawyered, among other places, claiming there are myths that need debunking, as if 20 years of analysis […]

]]>
By: David Schwartz http://overlawyered.com/2014/05/liebeck-v-mcdonalds-another-round/comment-page-1/#comment-284655 Wed, 14 May 2014 10:30:15 +0000 http://overlawyered.com/?p=45839#comment-284655 This was a horrible freak accident. Nobody did anything wrong. McDonald’s has served tens of billions of cups of coffee. Several one in a billion accidents would be expected to have happened and one in 10 million accidents number in the dozens per year. The list of products comparably dangerous to McDonald’s coffee is long and includes jeans (zipper injuries, really) and nachos (even more dangerous, and served to children at parks around the country every day).

]]>