The Court Of Public Opinion

In one of the most widely misreported and misunderstood cases in recent memory, a Albuquerque, New Mexico jury awarded 79 year-old Stella Liebeck $2.9 million for severe burns suffered after she spilled a cup of McDonald’s coffee, which she had placed between her knees.

The jury’s award was for $200,000 in compensatory damages and $2.7 million for punitive damages (because of McDonald’s callous conduct). The jury also found Mrs. Liebeck 20% negligent, reducing the compensatory damages to $160,000. The trial judge also reduced the punitive damages to $480,000. Mrs. Liebeck did not receive $2.9 million, or $2.86 million, or $740,000. The parties entered a post-verdict settlement for a undisclosed amount.

(States have different legal standards with respect to negligence. New Mexico uses a comparative negligence rule, which assigns blame and, therefore, judgments proportionally. Other states such as North Carolina use a contributory negligence standard, which bars a plaintiff from recovery if their actions contributed even 1% to the accident!)

THE FACTS OF THE CASE

Mrs. Liebeck, while a passenger in her grandson’s car, purchased a cup of coffee at the drive-thru window at McDonalds. While the car was stopped, she placed the cup securely between her knees and attempted to remove the lid. The cup accidentally tipped over and poured the scalding (180-190? Fahrenheit) hot water onto her lap.

She suffered third-degree burns over 16 percent of her body. During her eight day hospitalization she underwent skin grafting and painful whirlpool treatment for debridement (removal of damaged tissue) of her wounds. She has extensive scarring and was disabled for more than two years.

Despite these very painful and debilitating injuries and their expensive medical treatment, Mrs. Liebeck offered to settle with McDonald’s for $20,000.

McDonald’s refused to settle and the case went to trial.

FACTS PRESENTED AT TRAIL

The jury heard the following evidence in the case:

? McDonalds’s coffee sales are $1.3 million per day.

? By corporate specifications, McDonald’s sells its coffee at 180 to 190 degrees Fahrenheit; Coffee at that temperature, if spilled, causes third-degree burns (the skin is burned away down to the muscle/fatty-tissue layer) in two to seven seconds; Third-degree burns do not heal without skin grafting, debridement and whirlpool treatments that cost tens of thousands of dollars and result in permanent disfigurement, extreme pain and disability of the victim for many months, and in some cases, years;

? The chairman of the department of mechanical engineering and bio-mechanical engineering at the University of Texas testified that this risk of harm is unacceptable, as did a widely recognized expert on burns, the editor in chief of the leading scholarly publication in the specialty, the Journal of Burn Care and Rehabilitation;

? McDonald’s admitted that it has known about the risk of serious burns from its scalding hot coffee for more than 10 years — the risk was brought to its attention through numerous other claims and suits, to no avail;

? From 1982 to 1992, McDonald’s coffee burned more than 700 people, many receiving severe burns to the genital area, perineum, inner thighs, and buttocks;

? Not only men and women, but also children and infants, have been burned by McDonald’s scalding hot coffee, in some instances due to inadvertent spillage by McDonald’s employees;

? At least one woman had coffee dropped in her lap through the service window, causing third-degree burns to her inner thighs and other sensitive areas, which resulted in disability for years;

? Witnesses for McDonald’s admitted in court that consumers are unaware of the extent of the risk of serious burns from spilled coffee served at McDonald’s required temperature;

? McDonald’s admitted that it did not warn customers of the nature and extent of this risk and could offer no explanation as to why it did not;

? McDonald’s witnesses testified that it did not intend to turn down the heat — As one witness put it: No, there is no current plan to change the procedure that we’re using in that regard right now;

? McDonald’s admitted that its coffee is not fit for consumption when sold because it causes severe scalds if spilled or drunk;

? Liebeck’s treating physician testified that her injury was one of the worst scald burns he had ever seen.

? Moreover, the Shriner’s Burn Institute in Cincinnati had published warnings to the franchise food industry that its members were unnecessarily causing serious scald burns by serving beverages above 130 degrees Fahrenheit.

In refusing to grant a new trial in the case, Judge Robert Scott called McDonald’s behavior callous. Moreover, the day after the verdict, the news media documented that coffee at the McDonald’s in Albuquerque [where Liebeck was burned is now sold at 158 degrees. This will cause third-degree burns in about 60 seconds, rather than in two to seven seconds [so that, the margin of safety has been increased as a direct consequence of this verdict.

By Wayne C Walker, President of Capital Transaction Group Inc. a leader in litigation financial services ? www.captran.com.

This information is opinion and not intended to be legal advice. Readers should not act on this information without seeking the advice of a competent attorney. ? 2003 CapTran

By Wayne C Walker, President of Capital Transaction Group Inc. a leader in litigation financial services ? http://www.captran.com.

March 8-9, 2004

The case: Plaintiff sues Defendant for negligence in that her 11 year old son shot neighbor plaintiff’s 10 year old daughter with a BB gun. The BB lodged in the girl’s neck. This happened three years ago and the decision was made not to remove the BB, that leaving it there would be harmless.

The Jury: 8 people; three men five women.

Men:

Me-72 years old, former school teacher, liberal democrat.

Laughing fireman, age about 25-makes a joke about everything, always laughing.

Ex-military, reading a Christian bestseller for his church group, age 70′s-pompous and smirking, self-righteous, wants to bring back corporal punishment.

Women:

Artist, in her 20′s, bright, gender not clear, tattoos burned off arms. Conservative, punitive.

Foreperson by assumption- said she was 22 – very overweight math teacher-to-be, takes over, pushes others around, acts coy, talks incessantly.

Well-to-do, married, in her 70′s, very conservative, intelligent.

PE coach and nurse – in her 60′s, tough, coarse, conservative

Married woman, sensible, caring, in her 50′s, conservative.

The suit charged negligence. I felt that was not true. The mother had taught her son to be careful; the gun was kept in her room until she felt she could trust him, that he was not to use it without her being present. Someone else got the gun from the house, an older boy, and the son picked it up, called to the girl who was playing on the fence between the yards and said he was going to shoot, thinking it was empty. The girl turned, the boy shot, the BB hit.

Doctors agree that BB need not be removed and no future problems should arise.

The other 7 jurors were willing to listen to my argument, then ignored it, did not discuss, did not ponder. They had decided she was negligent, even though each one of them recounted a story or two about their own indiscretions as youngsters, and none was willing to say that their mothers were negligent; it’s just the sort of thing that can happen to kids.

The group felt that there was no reason to award a large amount. We (I had been marginalized since I was not a signer, but I was able to participate) calculated the medical bills and added on $10,000 for pain and suffering and possible future surgery; even though three doctors said there would never be any need for it.

We all thought that the attorneys for the plaintiff were obnoxious, ill-prepared and sarcastic. The judge seemed uncomfortable.

When the clerk read the verdict, she had to ask the judge to verify for her that the figure was correct, seemed to find it unbelievably low.

No emotion was registered by anyone in the court, no smile no frown.

Only one of the jurors who signed the verdict was willing to stay and answer questions. She was the caring married woman and she gave a good summary to the lawyers and litigants. I stayed also and told my point of view.

This was the second jury I served on. The first one was an armed robbery case. The verdict was guilty, and I concurred, but the process was hurried and careless. I had to get them to go over the evidence again so we could have a reasonable discussion. Some jurors expressed thanks that we spent more time on it.

It is not fair or reasonable for me to draw any vast conclusion from these two experiences, but it certainly makes me wonder about the jury system.

Post Script: The day after I prepared this article for eZineArticles I received a notice that I have been called up for jury duty, again.

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In one of the most widely misreported and misunderstood cases in recent memory, a Albuquerque, New Mexico jury awarded 79 year-old Stella Liebeck $2.9 million for severe burns suffered after she spilled a cup of McDonald’s coffee, which she had placed between her knees.

The jury’s award was for $200,000 in compensatory damages and $2.7 million for punitive damages (because of McDonald’s callous conduct). The jury also found Mrs. Liebeck 20% negligent, reducing the compensatory damages to $160,000. The trial judge also reduced the punitive damages to $480,000. Mrs. Liebeck did not receive $2.9 million, or $2.86 million, or $740,000. The parties entered a post-verdict settlement for a undisclosed amount.

(States have different legal standards with respect to negligence. New Mexico uses a comparative negligence rule, which assigns blame and, therefore, judgments proportionally. Other states such as North Carolina use a contributory negligence standard, which bars a plaintiff from recovery if their actions contributed even 1% to the accident!)

THE FACTS OF THE CASE

Mrs. Liebeck, while a passenger in her grandson’s car, purchased a cup of coffee at the drive-thru window at McDonalds. While the car was stopped, she placed the cup securely between her knees and attempted to remove the lid. The cup accidentally tipped over and poured the scalding (180-190 Fahrenheit) hot water onto her lap.

She suffered third-degree burns over 16 percent of her body. During her eight day hospitalization she underwent skin grafting and painful whirlpool treatment for debridement (removal of damaged tissue) of her wounds. She has extensive scarring and was disabled for more than two years.

Despite these very painful and debilitating injuries and their expensive medical treatment, Mrs. Liebeck offered to settle with McDonald’s for $20,000.

McDonald’s refused to settle and the case went to trial.

FACTS PRESENTED AT TRAIL

The jury heard the following evidence in the case:

McDonalds’s coffee sales are $1.3 million per day.

By corporate specifications, McDonald’s sells its coffee at 180 to 190 degrees Fahrenheit; Coffee at that temperature, if spilled, causes third-degree burns (the skin is burned away down to the muscle/fatty-tissue layer) in two to seven seconds; Third-degree burns do not heal without skin grafting, debridement and whirlpool treatments that cost tens of thousands of dollars and result in permanent disfigurement, extreme pain and disability of the victim for many months, and in some cases, years;

The chairman of the department of mechanical engineering and bio-mechanical engineering at the University of Texas testified that this risk of harm is unacceptable, as did a widely recognized expert on burns, the editor in chief of the leading scholarly publication in the specialty, the Journal of Burn Care and Rehabilitation;

McDonald’s admitted that it has known about the risk of serious burns from its scalding hot coffee for more than 10 years — the risk was brought to its attention through numerous other claims and suits, to no avail;

From 1982 to 1992, McDonald’s coffee burned more than 700 people, many receiving severe burns to the genital area, perineum, inner thighs, and buttocks;

Not only men and women, but also children and infants, have been burned by McDonald’s scalding hot coffee, in some instances due to inadvertent spillage by McDonald’s employees;

At least one woman had coffee dropped in her lap through the service window, causing third-degree burns to her inner thighs and other sensitive areas, which resulted in disability for years;

Witnesses for McDonald’s admitted in court that consumers are unaware of the extent of the risk of serious burns from spilled coffee served at McDonald’s required temperature;

McDonald’s admitted that it did not warn customers of the nature and extent of this risk and could offer no explanation as to why it did not;

McDonald’s witnesses testified that it did not intend to turn down the heat — As one witness put it: No, there is no current plan to change the procedure that we’re using in that regard right now;

McDonald’s admitted that its coffee is not fit for consumption when sold because it causes severe scalds if spilled or drunk;

Liebeck’s treating physician testified that her injury was one of the worst scald burns he had ever seen.

Moreover, the Shriner’s Burn Institute in Cincinnati had published warnings to the franchise food industry that its members were unnecessarily causing serious scald burns by serving beverages above 130 degrees Fahrenheit.

In refusing to grant a new trial in the case, Judge Robert Scott called McDonald’s behavior callous. Moreover, the day after the verdict, the news media documented that coffee at the McDonald’s in Albuquerque [where Liebeck was burned is now sold at 158 degrees. This will cause third-degree burns in about 60 seconds, rather than in two to seven seconds [so that, the margin of safety has been increased as a direct consequence of this verdict.

By Wayne C Walker, President of Capital Transaction Group Inc. a leader in litigation financial services www.captran.com.

This information is opinion and not intended to be legal advice. Readers should not act on this information without seeking the advice of a competent attorney. 2003 CapTran

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The arraignment process involves:

• Being brought before a Judge in the courtroom

• Receiving the criminal complaint with the crimes charged and the factual basis to each charge

• The District Attorney requesting bail or releasing you on your own recognizance (called ROR)

• Pleading guilty or not guilty

The process starts when the court officer brings you from the cell in the back of the courtroom and into the courtroom before the Judge.

If you were unable to contact your family, friends or an attorney when you were arrested then most likely the court will have a Legal Aid attorney appear for you. Legal Aid attorneys are in the courtroom at all times to defend the poor, and most times to appear for the unrepresented.

Usually there will be about three attorneys from the District Attorneys office in the courtroom. One of them will read the charges against you and request the court to impose bail at a certain amount or no bail. If no bail is demanded by the District Attorney then you will hear the word ROR, which means return on your own recognizance.

Bail is determined according to the crime and your personal information. At arraignment the District Attorney will have your personal information obtained from their computer searches on you. They call this your rap sheet. It will include information about you, such as:

• Any Prior convictions

• Any arrests at anytime

• Any pleas to prior arrests

• Parole

• Probation

If your rap sheet is clear of any crimes and this is your first arrest, chances are good that there will be no bail set against you. But even if your rap sheet is clear, if the crime youre charged with is serious (such as involving a large amount of stolen money or violence), bail can be set against you. There are different factors affecting the setting of bail against you, and all are considered by the judge in a matter of minutes.

If the District Attorney requests bail, your attorney should argue that:

• Youre not a flight risk

• You have family, friends and a job in the state or locally

• The charges against you are improper in some way.

Your attorney may even get the whole case dismissed if the District Attorneys criminal complaint against you is not properly drafted or signed by a proper party.

Getting The Complaint Dismissed At Arraignment

The District Attorney drafts the criminal complaint against you from information received from the arresting officer and the victim of the crime. While youre being processed through the Precinct and Central Booking, the arresting officer will fax his paperwork and information regarding your arrest and charges to the District Attorneys office. Someone in the District Attorneys office will then call the victim and get more information so they can properly draft the complaint.

The complaint needs to be signed under oath by the arresting officer or the victim. If it is not signed by anyone when you appear at your arraignment then it is not corroborated and must be dismissed. So check out who signed the complaint: if it was a person other than the arresting officer or the victim then the complaint should be dismissed.

Lastly, if the facts of the complaint do not establish each legal element of the crime charged, or the complaint is poorly drafted then it should be dismissed however, the court usually will give the District Attorney a few weeks to file a properly drafted complaint.

Law Offices of Susan Chana Lask
853 Broadway, Suite 1516
New York, NY 10003
(212) 358-5762
2004 Susan Chana Lask All Rights Reserved

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If youre suspected of a crime, the police can come to your house or work or find you on the street to talk to you. Usually it will be a detective in plain clothes in an unmarked car who will want to talk to you. You might find a card from the detective under your door, or a message on your phone from him asking you to call.

You always have the right to remain silent, as anything you say to a police detective will be used against you in court. You also have the right to be represented by an attorney when talking with the police.

Just because a detective comes around looking for you doesnt mean you have to speak to him or see him at the police precinct. If the detective is at your door, you dont have to open it for him unless he has a warrant. If a detective is knocking at your door, you dont have to answer. You can wait until he leaves if you want and then of course call your attorney.

Usually, a detective will hound you to come into the precinct headquarters to talk. But once you set foot into the precinct, the detective will have you at his mercy, where he can use different routines – such as good cop/bad cop – or violate your rights just enough to be legal to get you to talk. Maybe hell take your backpack from you or other property you came in with like your cell phone, then direct you to wait for him, leaving you alone in a room for what could feel like a lifetime. He may even ask you to write your version of the story down and then use that against you later.

The police are experts trained in gaining your trust and confidence. They know what to say and what tone to use with you. They will lie and misinform you to get information they want. They can tell you they have witnesses when they do not or say they will lower the charges when they will not. The police most likely will not read you your rights because they want to create an informal, relaxed appearance so you will spill the beans voluntarily.

Good Cop, Bad Cop

If youre not talking then detectives may use the good cop/bad cop routine. The first cop sits alone with you in a small room and talks about the crime. If hes not getting the information he wants to hear to nail you, then you may find yourself standing at the fingerprint machine with another more sensitive cop. Once youre at the fingerprint machine you can be sure youre being charged despite the fact that no one explained anything to you, read you your rights or told you what youre being charged with. Part of the game is to keep you disoriented and guessing your situation. If you hear the new cop say just tell the detective what he wants to hear and youll get out of here faster on a lesser charge then you are being played and you definitely need to keep quiet. Don’t say something just because you think it will get you out faster, because you’re already in there and you’re going to go through the arrest process no matter what.

When the police tell you the consequences of a crime they intend to charge you with, or that they can lower the charge, dont believe anything they say. They can and will lie to you to get you to talk so they can make an arrest. The police are not your attorney, they are not your friends– they are there to make an arrest.

The only way to protect yourself is to remain silent at all times. Enforce your right by consistently and politely stating I am remaining silent until I have counsel. The police can not interrogate you once you invoke that right, although they will try to interrogate you. They also cant interrogate you unless they first read you your rights.

When you arrive at the police precinct , the police should have you sign a paper with your legal rights listed on it. They should have you read your rights while they read it to you, and then have you initial each right and sign the paper at the bottom with the time and date. This paper is a good thing for the police to prove they followed procedure and it will coordinate the time of your arrest closely with the time of reading your rights. It is not mandatory that they give you this paper with your rights, because they can by law verbally read you your rights and note in their notebook the time they read you your rights. Of course, they could never read you your rights and later say they did.

Hiring An Attorney

If a detective is hounding you with phone messages and coming by your house leaving cards with your roommate or family, immediately get an attorney. An attorney can determine if the police are going to arrest you. If you are going to be arrested then your attorney will advise you what to do (and what to say or not say), explain the arrest process, arrange for you to turn yourself in and get you through the process quicker. Also, the police will know they cant interrogate you if youre represented by counsel.

A good attorney will fax a letter of representation to the precinct and follow you through the arrest process by calling the proper offices and getting you to arraignment and out quicker. Your attorney should also fax a notice of appearance on your behalf to the Arraignment Clerks Office the minute he or she discovers youve been docketed by the District Attorneys office (meaning theyve drafted and filed a Criminal Complaint against you and assigned a docket number to your case so it can be heard by the court).

If you do not voluntarily turn yourself in then the police will remember you made it harder for them to arrest you and they may purposely delay your arrest process and make you sit for three days in jail before you see a judge. Theyll delay filling out your paperwork and sending it to the proper offices. They may even lose your paperwork.

The last thing you want to do is spend a minute longer being arrested and in jail so here’s a valuable tip: dont turn yourself in or get arrested at night or on a weekend because there are less people working those shifts and the courts close certain hours, so the process can take three days or sometimes longer.

Law Offices of Susan Chana Lask
853 Broadway, Suite 1516
New York, NY 10003
(212) 358-5762
2004 Susan Chana Lask All Rights Reserved

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Our current jury system is ailing. It is beginning to fail us. O.J. Simpson being found not guilty is just one example of that problem. People with loads of evidence against them are found not guilty, while others with far less evidence against them are found guilty. Mass murderers are often sentenced to life in prison, while many others who commit just one murder are sentenced to death. People tried separately for the same crime often get much different verdicts and/or much different sentences. I know the Constitution guarantees the accused a right to a jury of his or her peers, but times have changes over the last 200-plus years and we need to make adjustments accordingly. There are two changes I would suggest we make as soon as possible.

First, we should implement professional juries. There are many reasons why the average person should not serve on a jury. Many of them do not want to serve and find it to be an inconvenience. People with this attitude are likely to focus more on getting the trial over with rather than taking the time to come to reasonable and thoughtful decision. Other people come to a jury with an agenda. They have strong opinions one way or the other about the defendant and/or the case, but will mask these feelings in order to get a seat on the jury. These people are unlikely to be persuaded by evidence which runs counter to their preconceived notions.

Of course, there are many jurors who feel that it is their civic duty to serve and make an honest attempt to seek the truth. But even these people often make flawed jurors. Very often they will use things such as defendants’ courtroom demeanor, the way they dress, the emotions they show or the lack thereof, their facial expressions, etc. to help determine guilt or innocence. So what if someone seems arrogant in court? So what if they show no emotion? So what if they dress inappropriately in the courtroom? While it might be appropriate to take some of these items into consideration at sentencing time, none of these issues make a person any more or any less guilty and should not be considered as a part of making that determination. Professional juries would be trained to disregard everything but the facts when determining whether someone is guilty of a crime. It would be their fulltime job and if they had any kind of agenda, it would come to light over time. They would also be subject to a judicial review board on a regular basis to re-evaluate their fitness as professional jurors.

Second, we should put an end to the deliberating process. Jurors should not be allowed to speak with one another and should vote their conscience by secret ballot. This is needed because many jurors do not have the courage of conviction to vote what they really think, but are often intimidated into voting with the majority or with those who are the most persuasive or strong-willed. Of course, a change like this would make a unanimous verdict almost impossible, so a two-thirds majority should be required for a guilty verdict. Anything less would result in the defendant being found not guilty. There would be no hung juries. In the case of sentencing (except for death penalty cases), a simple majority would determine the sentence, with the judge acting as a tie-breaker. A three-quarters majority would be required to sentence someone to death. If a majority, however less than the required three-quarters, votes in favor of death, the next harshest available sentence would automatically be imposed, regardless of the other votes.

Having an impartial jury reach a just verdict along with making sure an innocent person is never convicted should be the ultimate goal of our criminal justice system. Unfortunately, our jury system is broken and doesn’t deliver this desired outcome nearly often enough. It is due for a much needed overhaul in the form of the changes I have suggested.

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