Last Saturday afternoon Jaime Jaramillo, batting coach for the Irving Irrelevants, was pitching during batting practice when the Mountain Ranch practice facility collapsed on him. Several Irrelevant players and some twenty members of the media who were covering the practice were inside the facility with Jaime when it collapsed.

Initial media reports implicated Irrelevant management for purchasing and using the practice facility, Cowboy Contractor who erected the facility, Eager Engineering Company, Dilatory Design Company and the various companies that manufactured components used for construction of the Mountain Ranch practice facility. Investigative reporters suggested that the Eager Engineering Company was unlicensed and that Cowboy Construction Company previously erected several similar, defective facilities. However, when asked if they knew of these problems, Irrelevant’s management and its attorneys refused to comment.

The Irving Irrelevants’ insurance defense attorneys insisted that all media questions be answered, “No comment.” Yet, over the next few days thoughtful, concerned responses were issued by the Cowboy Contractor, Eager Engineers and the various component manufacturers – everybody but Irrelevants’ management. Hungry for more details, local media published each and every comment, noting that Irrelevant management remained unavailable for comment.

Who loses the trial in the Court of Public Opinion? When the case is tried by a jury of local citizens who were saturated with watercooler talk of the practice facility collapse, who starts from behind?

Litigation Practice Points: Without a doubt, attorneys for the Irving Irrelevants should be mindful of protecting the attorney-client privilege and ethics rules that restrict public comment by attorneys. Yet, issuing nothing but “no-comments” statements is often perceived by the public as arrogant. It sends a message of disinterest, a message of confusion and lack of leadership. Obviously, this neighborhood perception will not help the Irrelevants in the marketplace where they will continue to sell their product (game tickets and advertising) nor in the Court of Public Opinion that is chock full of potential jury members when the case actually comes to trial.

Employees in the company are waiting and watching to see what management will say – how it will react to the crisis.  Even if management and its attorneys believe they are skirting the risk of being damaged publicly, rest assured a “no comment” approach will affect the attitude and morale of company employees. The result will almost certainly have at least a short-term yet undeniably profound effect on company productivity and, quite likely, an impact on the future success of the company.

How does one balance the importance of protecting your legal interests versus protecting your public image? Does a thoughtful, effective response to this kind of crisis come about easily? Almost certainly not!  Check back next month as we will address some of the methods and options available to help in a time of crisis.

If you have been visiting Tilting the Scales for any length of time, you know by now that we are big fans of quirky lawsuits and the incredible facts from which they are spawned.  In fact, over the past couple of years, we have spent countless hours scouring the web for the most ludicrous cases we could find.  So, imagine our delight when a friend e-mailed us the 2009 Stella Awards with a subject line reading, “Those @#$%* Lawyers!!”  As I read the e-mail, a big smile immediately came to my face because I knew that Tilting the Scales would have material through 2010 when the next Stella Awards were presented.  What a treasure trove of unbelievable cases!

This year’s Stellas did not disappoint.  One case involved a Philadelphia restaurant that was ordered to pay Amber Carson of Lancaster, Pennsylvania $113,000 after she slipped on a soft drink and broke her coccyx (tailbone).  The beverage was on the floor because Ms. Carson had thrown it at her boyfriend 30 seconds earlier during an argument.  Another case involved the unfortunate tale of one Terrence Dickson of Bristol, Pennsylvania, who was leaving a house he had just finished robbing by way of the garage.  Mr. Dickson ended up accidently locking himself in the garage and as the family that owned the house was on vacation, Mr. Dickson found himself locked in the garage for eight days and had to subsist on warm Pepsi and a bag of dry dog food.  He then sued the owner’s insurance company claiming the situation caused him undue mental anguish.  The jury agreed to the tune of $500,000.  My favorite case, however, is that of Merv Grazinski of Oklahoma City, Oklahoma.  Mr. Grazinski purchased a brand new 32-foot Winnebago motor home.  On his first trip home, having driven onto the freeway, he set the cruise control at 70 mph and calmly left the driver’s seat to go into the back and make himself a cup of coffee.  Not surprisingly, the RV left the freeway, crashed and overturned.  Mr. Grazinski sued Winnebago for not advising him in the owner’s manual that he couldn’t actually do this.  The jury awarded him $1.7 million plus a new motor home.  Wow! Who are these idiots and just what were these juries thinking?

As I started researching these cases, I quickly realized that they were completely fabricated.  Someone, with too much time on their hands, and perhaps a fanatical tort reform agenda, simply made them up.  But although these stories were false, real lawsuits of equal stupidity are filed each and every day.  For example, a university student sued his school after a fall from his third-floor dorm window.  The student had been mooning other students when the window gave way.  His lawsuit contended that the university failed to provide a safe environment for students or to properly warn them of the dangers inherent to upper story windows.  Or there’s the case of a San Diego man who sued the city and Jack Murphy stadium for $5.4 million for emotional distress.  The man claimed the stadium’s unisex bathroom policy at a Billy Joel and Elton John concert caused him embarrassment because he was forced to share the public bathrooms with women.  The man claimed that after trying 6 or 7 bathrooms in the stadium and finding women in all of them, the man was forced to “hold it in for 4 hours.”   These cases, although real, were eventually dismissed.

Although nothing stops a ridiculous lawsuit from being filed, it is rare for a ridiculous lawsuit to result in a plaintiff’s verdict, let alone a runaway jury award.  Frivolous cases are usually dismissed on summary judgment or result in a verdict in favor of the defendant.  Moreover, those cases which may appear on first blush to be ridiculous (e.g. the McDonald’s lawsuit), often are not so ridiculous when the true facts come to light (e.g. McDonalds knew its coffee was served dangerously hot, had settled hundreds of scalding cases and the woman involved suffered very serious 3rd degree burns.  By the way, while the reports correctly stated that the initial damage award was approximatly $2.9 million, few reports admitted that the final judgment, after appeal, was for $160,000 in actual damages and $480,000 in punitive damages). So, while there is always room for improvement in our legal system, do not despair!  Juries, for the most part, do a remarkable job of getting cases “right” and we/I should not be so quick to believe an obviously frivolous scenario resulting in a windfall for some moronic plaintiff.  

The Stella Awards were inspired by Stella Liebeck.  Although you might not remember her name, you remember her case.  Stella was the 79-year-old woman who spilled a cup of McDonald’s coffee onto her lap and burned herself.  She sued McDonalds and was awarded $2.9 million in damages by a New Mexico jury.  Ever since, the “Stella Awards” have been synonymous with ridiculous and outrageous lawsuits.

The 81st Texas Legislature that began in January ended with an exhausting five-day filibuster of the voter identification bill, a legislative logjam of other major legislation left for debate until late in the session, a frantic last ditch attempt to save much of that legislation, and a final-day meltdown in the Senate. The 2009 session is defined more by what did not pass than by what did pass. Texans and humorists, alike, may be sighing with relief that the legislators went home before they could do anymore damage!

As Will Rogers mused, The only difference between death and taxes is that death doesn’t get worse every time Congress meets; and, This country has come to feel the same when Congress is in session as when the baby gets hold of a hammer.

Laws of Interest to the Real World:

Seat Belts. Children must now ride in booster seats until they reach age 8 or a height of 4 feet 9 inches. All occupants of a vehicle must now wear a safety belt, no matter the age or where they are seated.

Cell Phones While Driving. All drivers are prohibited from using a cell phone while passing through an active school zone unless they are using a hands-free device. Drivers under 18 are prohibited from using a cell phone at any time, with or without a hands-free device. Bus drivers are prohibited from using a cell phone when a minor is on the bus.

Teen Tanning. Minors younger than 16 ½ may no longer use a tanning bed in Texas, and minors between the ages of 16 ½ and 18 must have parental consent. Any surprise that the author of this bill has a teenage daughter?

Schools and Colleges. Top 10 percent Rule Changed. The University of Texas at Austin is now required to admit only 75 percent of each incoming class under the Top 10 Percent Rule, giving the school discretion in selecting the other 25 percent. High School Curriculum. Texas students will now have to take only one year of physical education and may take other electives other than the previously required health, speech, or technology classes.

Mandatory Warrantless Blood Tests. If an officer’s request to the operator of a motor vehicle or watercraft to submit to the taking of a blood specimen is refused and: (1) a third party was transferred for medical treatment; (2) the operator is under arrest for DWI with a child passenger under 15; or (3) the operator was previously convicted of DWI two or more times, then law enforcement can take a forced blood draw without a warrant. So, if you refuse to blow, you still may go!

Divorces and Children. If a respondent in a divorce proceeding has been convicted, received deferred adjudication or is under an emergency protective order as a result of a finding of family violence, the court may grant the divorce prior to the 60th day after filing.  If a child 12 years or older wishes to express a preference for a parent with whom to live, a written designation is no longer allowed; the child must do so to the court in chambers.

Bills that Failed. Some of the proposed legislation that failed to be approved: authorization for sobriety checkpoints, permitting concealed handguns on college campuses, legalizing casinos and slot machines, increased penalties for illegal cockfighting, securing a court order before dying to bar a person from contesting your will, and shooting feral hogs from helicopters. Darn the bad luck. That just makes bringing home the bacon a little bit tougher!

Laws are like sausages, it is better not to see them being made. Otto von Bismarck

Special thanks to the following contributors to the September 2009 Texas Bar Journal: Royce Poinsett’s “General Review,” Kristin Etter, David Gonzalez and Allen Place’s “Criminal Law,” Jack Marr and Warren Cole’s “Family Law,” and Bill Pargaman’s “Probate, Guardianship and Trust Law” updates.

Experiencing a malaise from mold, allergy-ridden Jayda Byrd believed that her apartment was infested with the filthy fungus. Unfortunately, Jayda’s landlord Sylvester ignored her pleas for deliverance from the mold. At her wit’s end, Jayda twitted her twenty twitter compatriots. The tweet read, “Who said sleeping in a moldy apartment was bad for you? Sylvester thinks it’s okay.” All atwitter, eight days later Sylvester filed a lawsuit claiming that Jayda “maliciously and wrongfully published the false and defamatory tweet on Twitter, thereby allowing the tweet to be distributed throughout the world.” Sylvester, who owns over 1500 apartments, demanded damages “in excess of $50,000.”

When asked why he filed the lawsuit, Sylvester fanned the flames by declaring that he was a “sue first, ask questions later kind of guy.” Not surprisingly, the blogosphere exploded. Responding to the online outrage, Sylvester quickly issued a news release, and described his “sue first” comment as “tongue in cheek” and offering lengthy details to explain his conduct.

Tilting the Scales Your Way.
When does gossip cross the legal line to become defamation that damages a person’s reputation? Believe it or not, the story of Sylvester and Jayda is true (though the names have been changed). Whether it is written (libel) or verbal (slander), a plaintiff generally must first show that the defamatory statement was published (yes, email and tweets count), that it was false, and that it caused injury. Often, the greatest risk associated with a defamation lawsuit is the cost to respond to the litigation, which may well be what Sylvester intended under these circumstances. Nevertheless, his litigation strategy most certainly backfired!

Do you think that the blogosphere cares to read Sylvester’s detailed news release attempting to justify his conduct? Was it worth it for Sylvester to appear to throw his weight around by suing Jayda? Does any businessman or company want to have the moniker, “Sue first, ask questions later?” Perhaps the “tilting the scales” advice is obvious this month. Sylvester is not the first to find himself in public relations hot water for stray comments that find their way to the public through the internet. While the question for the state court and judge may be whether these facts amount to evidence of defamation, Sylvester has already been tried and found guilty in the court of public opinion. While we as trial lawyers would love to think otherwise, “Sue first and ask questions later,” may need some rethinking.

Related Stories & Resources

I have 20 followers and I got sued over a Twitter Post?

KRLD Report on Libel Through Twitter

Twictionary: The Dictionary for Twitter!

For Jayda’s lawsuit, check out Horizon Group Management, LLC v. Amanda Bonnen, filed in the Circuit Court of Cook County, Illinois on July 20, 2009.

Bonnen is not the first to be sued for defamatory tweets. Courtney Love, a Celebritweet,  had a tweezure and unloaded on her clothing designer who responded with litigation, Dawn Simorangkir, aka Dawn Younger-Smith, aka Boudoir Queen v. Courtney Michelle Love, filed in the Superior Court of the State of California for the County of Los Angeles on May 26, 2009.

Even T.O. made the blogosphere when he tweeted his disappointment that his Buffalo leasing agent provided details about his favorite new house prospect to the media.

“Can I Say That? Defamation Law Made Simple”

During far happier times, Jessica Simpleton purchased a front row, 50-yard line ticket for a Cowboy’s game at their new $1.1 billion Arlington stadium.  At the time, Simpleton was dating Tony Roentgen, the Cowboy’s team radiologist.  However, as a result of their recent (and messy) breakup, Simpleton is no longer a Cowboy’s fan and is anxious to sell her ticket.  Simpleton knows that the November 22nd Cowboys-Redskins game is sure to be a hot ticket and she plans to “scalp” the ticket for at least twice its face at the stadium on the day of the game.  Is that legal?

In Simpleton’s case, ticket scalping laws are complex and vary significantly from state to state.  Scalping – basically defined as reselling tickets for greater than face value – is legal in Texas, but illegal in many states.  Although scalping is legal in Texas, local municipalities may choose to regulate the reselling of tickets.  Unfortunately for Simpleton, Arlington has a city ordinance that prohibits the public scalping/reselling of tickets at any price.  (The City of Arlington does permit the resale of a ticket in a person’s residence if the ticket is for the buyer’s personal use and if it is being sold at face value.)  While scalping laws are typically not strictly enforced, Simpleton‘s violation of the Arlington ordinance would constitute a class C misdemeanor with a fine up to $500.

It is interesting to note that any amount paid to a scalper in excess of the face value of a ticket is not a deductable entertainment expense for IRS purposes. For a more detailed treatment of the topic, go to “Watch Out for the Pitfalls of Business Entertainment Deductions”.

Arlington Ordinance Section 15.05

On the Fourth of July, Jerry Jetski was operating his brand new 250 hp Kawasaki jet ski on Lake Woebegone. Jerry spotted his good friend, Sarah Splash, near the shore. In a playful mood, Jerry took off accelerating at a high rate of speed on a collision course with Sarah only to make a last second “power turn” showering Sarah with smelly lake spray.

Unfortunately for Jerry, his reckless actions were witnessed by Deputy Dawg who took immediate action. Dawg moved his wooden patrol boat on a parallel course with Jerry. However, the two crafts were separated by a large cigarette boat. Not seeing Dawg, Jerry jumped the wake of the cigarette boat only to strike the patrol boat broadside, sinking it!

Jerry was ticketed for operating his jet ski “within 50 feet of another vessel” and for “jumping the wake of another vessel unnecessarily close to that vessel.” The Town of Lake Woebegone also filed a civil lawsuit against Jerry for the loss of its patrol boat.  To make matters even worse, Jerry discovered, to his lament, that his homeowner’s insurance policy did not cover damage caused by or to his jet ski.

Tilting the Scales In Your Favor:

  • Know the Personal Watercraft Rules (PWC) rules, which covers laws regulating jet skis and other water crafts.
  • Get insurance!  Homeowners insurance does not cover powered watercraft.

Check out the Texas Parks & Wildlife Department site and the Water Safety Requirements.

See Hayes v. Patrick, 45 S.W.3d 110 (Tex. Civ. App. – Ft. Worth, 2000, no pet.)

With unemployment rates skyrocketing, Ivana Hyre, the HR manager for Binge and Purr Cat Food Company, was facing a swell of well-qualified job applicants for three recently advertised positions.  With her department already short-staffed, Hyre knew that interviewing all of these candidates would take weeks.  To sort through the mountain of resumes, Hyre searched social networking sites such as Facebook, MySpace, Linkedin and Twitter to learn more about the applicants.  Based upon her research, Hyre was able to cull almost half of Binge and Purr’s job seekers for postings she found offensive.  Were Hyre’s actions illegal?

Maybe.  As unemployment rates and the popularity of social networking sites continue to grow, more and more employers are turning to the internet to vet potential hires.  A recent study found that one in five employers uses the internet to conduct background checks of potential hires, and that one in three applicants were dropped from contention after internet screening.  While no law prohibits Hyre from using Facebook, MySpace, Linkedin or Twitter to conduct applicant background checks, Hyre’s research might create liability if Hyre uncovers and acts upon information that Binge and Purr is not legally entitled to ask or know about.  Simply put, Binge and Purr risks legal exposure if, after surfing the net, Hyre uses information to cull applicants who are members of a protected class (e.g. applicant is a minority or a homosexual or disabled or pregnant, etc.).

Given this potential liability, some employers have implemented a “no peeking” policy and prohibit the mining of social networking sites as part of their hiring process.  Other employers, such as the City of Bozeman, Montana, are taking the complete opposite approach, and requested that job candidates provide usernames and passwords for social networking sites so that they can conduct more thorough background checks.

Tilting the Scales in Your Favor:
In a poor economy with fewer employment options, unsuccessful job applicants may view discrimination litigation as a last hope.  While it is always wise to conduct a criminal background check of potential hires, the use of social networking sites to learn more about an applicant may be risky.  If companies choose to use such information as part of their hiring process, policies should be implemented to ensure that HR personnel do not use such information in a discriminatory manner.

Times were good in the coal business and Conspiring Coal’s cost benefit analysis revealed greater profits could be had if it could run Noharmin Mines out of business. A jury found that’s exactly what Conspiring Coal did and awarded Noharmin Mines $50 million in damages. Desperately needing to dig out of this deep hole, Dastardly Don, the owner of Conspiring Coal Company, turned to the judges to “tilt the scales” in his favor. His $3 million in campaign contributions to Supreme Court candidate Icahn B. Baught eclipsed all other favored funds combined. After Baught won by fewer than 50,000 votes and cast the deciding vote to reverse the $50 million judgment, Noharmin Mines cried foul.

Icahn B. Baught refused to recuse himself; there was no proof that he was biased or prejudiced. He assured his fellow justices he was fair and impartial. The United States Supreme Court disagreed. Noharmin did not have to prove bias. It only had to show the appearance of impropriety. Would a reasonable and prudent person, knowing the objective facts, harbor doubts about Justice Icahn B. Baught’s ability to be fair and impartial? The Ultimate Supremes found that the probability of actual bias on the part of Justice Baught was too high to be constitutionally tolerable. They reversed.

Tilting the Scales Note. Yes, there still is “justice” in the world. It’s one thing to try to understand the law and to adjust your behavior to try to tilt the scales of judicial opinion in your favor. It’s quite another thing to bend the post that balances the judicial scales. The standard requiring Justice Baught to recuse himself was the appearance of impropriety or impartiality. It doesn’t look or smell like it will be fair. That’s not the same thing at all as a criminal case of bribery (or even a civil claim, for that matter). In that circumstance, objective proof of bias must be shown.

Whether judges should be appointed or elected has long been a topic of debate across the country, particularly Texas. We are in the minority of states that seat judges by election. As recently as last week, the Dallas Morning News ran an editorial “Ruling Should Push Texas to Reform Judiciary.”

For more information, see the West Virginia case of Caperton et. al. v. A.T. Massey Coal Co., Inc. et. al., decided by the United States Supreme Court on June 8, 2009. This article is a parody on the reported facts of that case and is not intended to be a reflection on the character or judgment of the actual parties.

I have always enjoyed a good prank, particularly one with an element of revenge.  Maybe it’s just the “good old day” syndrome, but it seems like kids’ pranks these days lack creativity.  As I drive my 6-year-old to his T-Ball game each Saturday morning, we count the number of houses between mine and the field that were tp’ed or “rolled” (as my son likes to say), sometime after I went to bed.  The number is usually 2 or 3, but on a good weekend it can be as high as 5.  While I’m sure the little miscreants had fun doing it (and while I’m also sure some dad is going to be just a little peeved that he has to devote a Saturday morning to plucking sheets of toilet paper out of a 50 foot Live Oak), as a prank, tp’ing ranks really low on the creativity scale.

Back when I was 9, kids put thought into their pranks.  I spent one summer at a camp in New England.    One of the counselors, Keith, was particularly unpleasant.  For him being at camp was tantamount to a prison sentence.  His parents must have landed the job for him, because he clearly didn’t work his way through any interview process.  I guess he thought that if he was in prison for 6 weeks, he might as well be the warden – and a strict one.  We called him the “Warden,” a moniker he seemed to like.  Extra laps, no desserts, early lights out, you get the idea.  It wasn’t fair, summer camp was supposed to be fun.  This guy was a jerk and something had to be done.

(Now before I proceed, and just so the record is clear, I didn’t participate in this prank, but I did watch it with a certain amount of glee and admiration.)  One night, around 10:30, while the Warden was out probably trying to get one of the female counselors to go skinny-dipping, a determined group of 9-year-olds gathered up every fire extinguisher in the dorm and proceeded to empty the contents of each of those red canisters in his room.  His bed, his clothes, everything.  As each of us lay in our beds, pretending to sleep, we waited for the yelling to come.  And it did.  The Warden was furious, not because he had undoubtedly struck out with the female counselor, but because everything in his room had been thoroughly drenched with a chalky, white liquid.  Needless to say, it didn’t take him long to wake us up and try to extract a confession.  He brought us outside and the inquisition began.  The Warden started by saying that he would “get to the !@#$%^ bottom of this” and that “your parents will pay for the damage.”  And after making us sit on our hands, outside, in our underwear, under a yellow halogen light for about 2 hours (we were prohibited from swatting or otherwise defending ourselves from the swarming insects), the guilty parties tearfully fessed up. Camp ended about 2 days later, and I always wondered whether their parents really did have to pay for the damage to the Warden’s belongings.

Most states have adopted laws that make parents vicariously liable for the action of their children.  In Texas, a parent is liable for any property damage caused by the (1) negligent conduct of the child if the conduct is reasonably attributable to the failure of the parent to exercise their duty of control and reasonable discipline; or (2) willful and malicious conduct of a child who is between 10 and 18 years old.  Based on this statute, it appears as though the young freedom fighters were too young to make their parents vicariously liable for their wrong doing.  In the mind of a 9-year-old, that certainly seems fair.

See Texas Family Code § 41.001.

Ward and June recently received their property valuations from Comfort County. Their broker son Beaver Cleaver told them that, because county property valuations are intended to reflect the market value of the property as of January 1 this year, widespread foreclosures, declining building permits and high office vacancy rates should send Comfort County property values noticeably downward for the first time in years. Beaver also tells Ward and June that because of an unusually high number of abandoned and foreclosed properties, the latest sales of all properties shows many market values dropping by 33% or more.

Despite the slumping real estate market, the Cleavers’ latest property valuation shows their property (and their taxes) will go up almost the annual maximum of ten percent.

When Ward and June called to complain to their friend Knoe “Lafin” Mater, the Comfort County tax collector, he told them that simply having a foreclosed property nearby does not guarantee a tax protest will be successful.

What should the Cleavers do?

Common Sense Considerations –

  • File a written protest by May 31.
  • Get their broker Beaver to check “comparables” – the sales of properties similar to theirs in their area.
  • Ask Comfort County for the sales comparables that were used to value the Cleavers’ property. Is there a big difference in values?
  • Consider asking Beaver or a real estate appraiser friend to create an independent appraisal using the comps found. If not, secure documents or sworn statements from the person providing the sales information using sales closest to January 1st. Then, weigh the time and cost of preparing a protest against the projected, potential tax savings.
  • Know that even if Comfort County does not give them a fair property valuation close to the comparables, the Cleavers can still complain in court if their potential tax savings will justify the likely cost, and if they timely file their written protest.
  • Be persistent. Be thoughtful. Neither Comfort County nor any other county wants to lose property tax revenue, especially in a down economy. Now might be a particularly good time to carefully review the valuation presented by your county tax assessor collector.

For more information on property tax protests, see Texas Property Taxpayers’ Remedies: How to Protest Your Property Value for Property Taxes on the Texas Comptroller of Public Accounts web site.