Social Media Can Hurt Your Case: 12 Rules

At the end of a recent trial ending favorably for my injured client, I learned something. My client had just obtained a verdict over ten times what the last offer from the defense had been. The defense had been unusually stubborn, pursuing a scorched earth defense. When handing me the check for the full verdict amount in his office, my defense counterpart also shared a photocopy of an anonymous e-mail his insurance adjustor had received before the case. The anonymous “tip,” stated that my client was crazy, immoral and lying about the extent of her injury. This unfounded tip informed their defense. The “tip” was entirely founded upon photographs and Facebook information and misguided deductions. I was incredulous. After reading the paper, I looked up at defense counsel and asked: “You relied on this?” He looked down, “Well, the adjustor gave it a lot of weight.”

This all-to-true tale suggests one of the dark sides of social media. People who don’t know you, think they have enough information to make judgments about you. And, to a real extent, we are collaborators in any misunderstandings by others. When we post only the sunny photographs of parties and vacations and happy times with family and friends, undimmed by the grit and gray that touch every life, we give a false impression. “This guy claims to be hurt? Give me a break!”

Now imagine that you have suffered an injury and the only pictures you post are those of you with family and friends on vacation. “Smile!” For the split second that the camera is on you, you look happy. The truth may have been far different as all day, you sat watching others have all the fun while you endured a migraine, aching back, torn meniscus, trying to make the best of it for the sake of others. Few of us want to reveal our sadness, depression, or pain, if not for our own sense of pride or optimism, then, out of magnanimity, choosing not to inflict our misery upon others. Yet, anything we post becomes “evidence” against the post-traumatic impact of an injury upon us. “He claims he can’t work? Here he is in Hawaii!” Truth be told: the tickets had been bought before the injury and for the sake of spouse, partner, or kids, you go along, suffering through what should have be a time of sparkling joy and fun-filled activities. Sure, you can explain this. But, “Ladies and Gentlemen of the Jury, how badly was the plaintiff injured? And I don’t mean by sunburn on Poipu Beach! [pause for laughter]” The vacation just ended up being much more expensive for you as the jury subtracts tens of thousands of dollars from what might otherwise have been a verdict providing fair compensation. Just as a “picture” is worth “a thousand words,” even a truthful picture taken out of context can take many words in an effort to “explain it away.”

What you post can be seen far and wide by friends and foes alike. Insurance adjustors, defense counsel, and jurors all have access to information about you. Limiting access to your Facebook account is a start, but not a cure, as the subpoena power may require you to disclose what you have already shared with friends. Being judicious about what you post is important. But, even removing material posted after an injury or after litigation has commenced can be problematic, making it seem as though you are being less than forthright or even placing you at risk for sanctions from the court if it seems as though you are concealing evidence.

Taking down posts after-the-fact can raise the question of whether you have just engaged in spoliation of evidence. In Painter v. Atwood, 2-12-cv-01215 (D. Nev. 2014), a federal court in Nevada ruled on March 18, 2014 that online social medial posts can be evidence that cannot be willfully destroyed. In The National Law Review (March 11, 2016), an article, “Social Media and Spoliation – Can A Client Delete Her Facebook Posts” points out the danger of thoughtless posts:

Jurors, litigants, and their attorneys are increasingly savvy about social media. At the same time, it seems that many people do not use the same “filters” that they employ in other parts of their lives. Put simply, they are not thoughtful about how their social media activity might be perceived. A classic example of this is a Facebook post at the center of a now infamous case that demonstrates the dangers of social media. In Lester v. Allied Concrete Co., 2011 Va. Cir. LEXIS 245 (Va. Cir. Ct. 2011 Sept. 6, 2011), the wrongful death plaintiff lost his young wife in a tragic accident, yet his Facebook page included a photo of him “clutching a beer can, wearing a T-shirt emblazoned with ‘I ♥ hot moms’ and in the company of other young adults.” Id., 2011 Va. Cir. LEXIS 245 at *12. –

See more at:

If this post has heightened your awareness of this issue, then it may already have served a good purpose. Ask yourself whether a photograph or a post will undermine your version of the case or the seriousness of your injuries. Recognize that the use of social media as legal evidence is a growing trend and unlikely to be reversed. Your blogs, personal websites, or accounts on social networking sites like Facebook, MySpace, Google+, Twitter, YouTube, Vimeo, Flickr, LinkedIn, Foursquare, Meetup or Pintrest, or even dating sites such as, E-harmony,, are all possible sources of information about you. Even though it would be improper in the view of most for a defense investigator to “friend” you to get access to your account, they will still have the information and they may or may not ever be caught.

The following are widely regarded as “best practices” in terms of social media use by clients in litigation.

1. Remember that what you post on the internet can (and will) be used against you. If you have a pending case, you can count on the fact that the other side is searching the internet for information to harm your case.

2. Use the most restrictive privacy settings possible. Review the privacy settings on all your social networking profiles to ensure that only people you know and trust can see your personal information, posts, photos and videos. Check and update your privacy settings every three months.

3. Keep in mind that the internet is a public place. Social media accounts can be hacked. Even the most stringent privacy settings do not keep the people you “friend” from sharing your posts and information on their own pages or elsewhere. Expect that your “friends” will share what you post.

4 Consider everything you post a permanent record. Much of what you post on the internet is permanently recorded somewhere. Facebook keeps all of your information even if you close your account. Search engines such as the Internet Archive Wayback Machine can find old webpages that have been altered or deleted.

5 Think about quitting all social media during your case. Some say the best course of action is to remove blogs, personal websites and social networking profiles entirely. If you don’t want to remove these sites, it’s a good idea to disable them until your case is over.

6 Never post anything on the internet about your case, your incident, or your injuries — ever. Ask your family and friends not to discuss your case on the internet, either on your page or theirs.

7. Never post any pictures or any descriptions of your activities, vacations, work or play that you may have to explain at your deposition — or in court to a jury.

8. Never use social networking messaging platforms to discuss your case. Even private messages can be shared by your friends or discovered by the other side. Discussing your case by e-mail or even in a personal diary can be discovered by the other side.

9. Never “friend” anyone you do not know personally. Sometimes unethical lawyers or investigators will access your webpage under a false name. Make sure you know a person before allowing them to access your website, blog or profile.

10. Never comment on news articles or blog posts about your case. Even if you make comments “anonymously” or with a different username or email, your comments may still be traced back to you.

11. Remember, even if you are totally honest and have nothing to hide – a common excuse for sharing in social media – what you post on social media is almost certain to be taken out of context and can prove to be harmful to your case.

12. Remember to discuss this issue with your attorney, especially if you feel that some of your posts may not fairly represent the state of your life during times material to your case.

Use of social media is just a subsection of revelations and communications about your case, which can be used against you. This ranges from posting videotapes on YouTube to writing in your diary to confiding in a friend or colleague – all of which can become the subject of formal legal discovery in your case. Discretion is a virtue.

Senator Cruz’s “Birther” Issue: Can He be President? Ask Blackstone.

Alexis de Tocqueville noted, in his Democracy in America (1835), that: “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” So, we have been consistent in our national character for nearly two centuries when we consider the eligibility of Senator Ted Cruz for the office of President under Constitutional principles, regarding this political question as one properly left for the judiciary. What follows is an attempt at an even-handed consideration.

Starting with the Constitution.

This is what our Constitution says:

“No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five years, and been fourteen Years a Resident within the United States.”

It is widely understood that the above language pertaining to “at the time of the Adoption of this Constitution” was to address Alexander Hamilton’s problem: he was born in the West Indies – hence, not “natural born” – but was a Citizen at the time of the Adoption.

Our analysis turns on this language alone: “No Person except a natural born Citizen … shall be eligible to the Office of President.” None of the other requirements, such as age or years resident in the United States are relevant.

The Constitution does not define “natural born Citizen.”

Subsequent Statutory Enactments.

The Naturalization Act of 1790 held: “the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural-born citizens.” This does not end the inquiry, however, since a statute saying that children of citizens will be considered as “natural-born” suggests that, absent the statute, they would not be so considered. Certainly, a statute calling children of citizens “natural born” cannot retroactively alter the meaning of earlier Constitutional usage. It is reminiscent of a riddle attributed to Abraham Lincoln:

“How many legs does a dog have if you call the tail a leg?
Four. Calling a tail a leg doesn’t make it a leg.”

One could argue that calling the children of citizens “natural-born” does not make them so, it just means that they will, under the 1790 Act, be treated as though they were so. Of course, no statute can amend the Constitution and tell us what the Drafters were thinking two years before during the debate – which is silent on the meaning of “natural born.”

The authority of the 1790 Act is certainly not enhanced by its later handling.

The original United States Naturalization Law of March 26, 1790 (1 Stat. 103) limited naturalization to immigrants who were free white persons of good character. It excluded, among others, American Indians, Asians, indentured servants, slaves, and free blacks. It provided for citizenship for children of U.S. citizens born abroad, specifying that this right of citizenship did not “descend to persons whose fathers have never been resident in the United States.” The 1790 law says that children of American citizens born abroad “shall be considered as natural born citizens,” the only such U.S. statute to use this language. The 1790 Law was superseded by the Naturalization Act of 1795, extended by the Naturalization Act of 1798, and ultimately repealed by the Naturalization Law of 1802. Using the “Hitler loved dogs” argument as an argument against dogs, I suppose you could say that if you like the language in the 1790 Law, you are choosing language you like from a fundamentally racist document, subsequently repealed for unknown reasons. This is hard to make into compelling authority in 2016 as to what the Constitution was intended to mean. And, again, on an elementary level, its mandate to consider children born abroad to American citizens as natural-born may simply show that without such a law, such children would not be considered natural-born. Put another way, this is a naturalization statute, making citizens out of those not natural-born.


The Common Law as Known to our Founders: Blackstone’s Commentaries.

In the tradition of the Common Law, absent positive statutory enactments, the “law” is derived from the slow accretion of judicial decisions and precedent over the centuries. To this day, we hold that statutes in derogation of the Common Law are to be narrowly construed. The Constitution specifically incorporates the Common Law adverting to it in the Seventh Amendment right to jury trial:

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

So, then, since the Constitution adopts the Common Law, what does the Common Law tradition say about “natural born” citizens?

A summary of early English common law is provided by Sir William Blackstone, whose Commentaries on the Laws of England (1765-1769) were certainly known to our Founders. In David Barton’s Original Intent: The Courts, Constitution & Religion (2011), he notes that Blackstone’s influence in America was so great that Edmund Burke noted it popularity in his famous 1775 speech in Parliament on conciliation with the colonies, and he cited the colonists’ study of law as a source of the conflict with Britain:

“In no country perhaps in the world is the law so general a study… The greater number of the deputies sent to the Congress were lawyers. But all who read (and most do read) endeavor to obtain some smattering in that science. I have been told by an eminent bookseller that in no branch of his business, after tracts of popular devotion, were so many books as those on the law exported to the plantations. The colonists have now fallen into the way of printing them for their own use. I hear that they have sold nearly as many of Blackstone’s Commentaries in America as in England… This study renders men acute, inquisitive, dexterous, prompt in attack, ready in defense, full of resources. In other countries, the people, more simple, and of a less mercurial cast, judge of an ill principle in government only by an actual grievance; here they anticipate the evil, and judge of the pressure of the grievance by the badness of the principle. They augur misgovernment at a distance; and snuff the approach of tyranny in every tainted breeze.” [Emphasis added.]

John Adams and Thomas Jefferson each owned multiple editions of Blackstone: Adams’ annotated copies of the 1771 Bell edition and a 1768 Oxford edition are at the Boston Public Library. Jefferson’s signed, incomplete copy of the 1771 Bell edition is at the University of Virginia; the Library of Congress has two other Jefferson copies, a later American edition and an earlier Oxford edition. In his correspondence, Jefferson frequently recommended the work, calling it “the most elegant & best digested of our law catalogue.”

James Madison mentioned in a 1773 letter that he was reading the work and commented: “I am most pleased with & find but little of that disagreeable dryness I was taught to expect.” Madison included Blackstone in his 1783 list of “books proper for the use of Congress.” When he hear about young Abraham Lincoln studying the law, it was Blackstone’s Commentaries that he was reading. John J. Duff, A. Lincoln: Prairie Lawyer 243 (1960).

So, I am going to conclude that the popular, best-selling Blackstone’s summary of the Common Law will figure very, very prominently in any determination of “original intent” by our Constitution’s Authors. Put another way, the Common Law as described by Blackstone in his Commentaries is likely to be the Common Law understanding of our Founders. What did Blackstone say about “natural born?”

Blackstone on “natural-born subjects.”
In his Commentaries on the Laws of England, Book the First Chapter the Tenth: Of People, Whether Aliens, Denizens or Natives, Blackstone summarizes the Common Law:

THE firft and moft obvious divifion of the people is into aliens and natural-born fubjects. Natural-born fubjects are fuch as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, fuch as are born out of it.

This is the principle of jus soli or ‘right of the soil’: the right of anyone born in the territory of a state to nationality or citizenship and their allegiance to the king. Blackstone then goes on to describes how various statutes, positive enactments by Parliament, extended the rights of the children of subjects born abroad. These are the statutory changes to the Common Law which, like our own American statutes, sought to alter the operation of the Common Law. Reading Blackstone’s Commentaries, it is clear what the Common Law principles are and how Parliament from time to time altered them:

For it is a principle of univerfal law, that the natural-born fubject of one prince cannot by any act of his own, no, not by fwearing allegiance to another, put off or difcharge his natural allegiance to the former: for this natural allegiance was intrinfic, and primitive, and antecedent to the other; and cannot be devefted without the concurrent act of that prince to whom it was firft due.

But by feveral more modern ftatutes thefe reftrictions are ftill farther taken off: fo that all children, born out of the king’s ligeance, whofe fathers were natural-born fubjects, are now natural-born fubjects themfelves, to all intents and purpofes, without any exception; unlefs their faid fathers were attainted, or banifhed beyond fea, for high treafon; or were then in the fervice of a prince at enmity with Great Britain.

THE children of aliens, born here in England, are, generally fpeaking, natural-born fubjects, and entitled to all the privileges….

THESE are the principal diftinctions between aliens, denizens, and natives: diftinctions, which endeavors have been frequently unfed fince the commencement of this century to lay almoft totally afide, by one general naturalization-act for all foreign proteftants. An attempt which was once carried into execution by the ftatute 7 Ann. c. 5. but this, after three years experience of it, was repealed by the ftatute 10 Ann. c. 5. except one claufe, which was juft now mentioned, for naturalizing the children of Englifh parents born abroad. However, every foreign feaman who in time of war ferves two years on board an Englifh fhip is ipfo facto naturalized; and all foreign proteftants, and Jews, upon their refiding feven years in any of the American colonies, without being abfent above two months at a time, are upon taking the oaths naturalized to all intents and purpofes, as if they had been born in this kingdom; and therefore are admiffible to all fuch privileges, and no other, as proteftants or Jews born in this kingdom are entitled to.

The Common Law governing who is a “natural-born” citizen, then, arises from medieval principles of jus soli, citizenship arising from being born on the soil of the King’s domain and an indissoluable allegiance arising themfrom. The very word allegiance and liege refer to feudal duties of vassal and lord, the vassal receiving land and protection in exchange for service due to his lord. It has everything to do with the notion of being bound to the land, just as serfs were agricultural workers bound to the soil. Statutes, preserving inheritance rights in children born overseas to natural-born citizens, permitted children born on foreign soil to be “naturalized” to avoid legal disputes over titles. These statutes, however, are creatures of Parliament, not judge-made Common Law.

It is almost certain that the newly independent United States which expressly adverted to and adopted the Common Law, did not intend to also adopt the positive statutory enactments of the very Parliament from whose governance it had just removed itself by revolutionary means. The young America was not loath to go its own way. In the matter of entails, governing inheritance of property over a number of generations, for instance, the traditional rules that made fixtures attach to the land for inheritance were relaxed, allowing property (such as slaves) to be separated and sold separately from the land. This had the harsh consequence of worsening the conditions of African slaves in post-Revolution America, since families were now broken up whereas before the slaves and their descendants had been fixtures attached to the land and were sold together. The “liberalizing” of the law of entails had odious implications for slaves.

This leaves us with a Common Law, stripped from the enactments of Parliament, strongly suggesting that “natural-born” refers to the jus soli principles of citizenship arising from birth on the soil of the country. All adjustments to that principle would be various species of “naturalized” citizenry – the children of natural-born citizens treated as though they were natural-born, but not actually natural-born.

Previous Encounters with this Question Leave it Unresolved.

One of the ironies of our analysis so far is that we have adopted the analytic framework that Senator Cruz has, himself, championed: that of “originalism” or “original intent.” This irony has been noted by Harvard Law School Professor of Constitutional Law, Laurence Tribe, currently the leading scholar who has raised questions concerning the Senator’s eligibility. Professor Tribe was a popular and respected professor when I was at Harvard in the late seventies and was, himself, in years past, placed on the short-list for appointment to the Supreme Court – although the vagaries of politics and the predeliction for ever younger justices allowed this superb scholar to be passed by. He is one of the best-qualified “liberal” appointments never made and that, in my view, was a loss to the Court. Despite the fact that Senator Cruz was his former student and is unlikely to have the endorsement of Professor Tribe, I have no reason to question Professor Tribes assessment that this is an “unsettled” area of law or that the “original intent” analysis would not likely support the Senator’s eligibility of the Office of President.

I have suggested that the Founders would likely have intended to use “natural-born” citizen in its Common Law usage and, further, that we are quite certain what texts they possessed and esteemed and to which they would have turned to clarify this meaning had the question been asked: Sir William Blackstone’s Commentaries on the Laws of England, published the decade before the Revolution. Professor Mary Brigid McManamon of the University of Delaware very recently published a column in the Washington Post suggesting that the Founders would have referred to the Common Law, not “three radical 18th-century British statutes” noting that “[t]he then-new statutes were a revolutionary departure from that [common] law.”


Professor McManamon makes the clear distinction, as I have here, between the Common Law (judge-made law), to which our Founders would have referred, and Parliamentary enactments, which, independence being what it is, they likely would have rejected. Not all “old” law is alike. Reference to statutes can simply reinforce the understanding that the legislative body in question was seeking to change the Common Law. Our Constitution specifically authorizes Congress in Art. I, Sec. 8[4] “To establish an uniform Rule of Naturalization,” but these subsequent statutes, albeit American, would also have been in derogation of the Common Law. So, we are left with Blackstone and his Commentaries linking natural-born citizenship to birth on the soil of the nation.

I conclude that Senator Cruz has a “principle”-problem. If you subscribe to Constitutonal construction using principles of “original intent,” then our Founders in 1788 probably meant “natural-born” subject or citizen to mean born on the land controlled by the United States. Efforts to suggest that we have dealt with this issue before are largely efforts at misdirection, in the spirit of: “If you have the law, pound on the law; if you have the facts, pound on the facts; if you have neither, pound on the table.”

Republican nominee in 1964, Senator Barry Goldwater, was born in Arizona when it was a U.S. territory, still land controlled by the United States. Likewise, 2008 Republican nominee, Senator John McCain, was born in the Panama Canal Zone, a U.S. territory. 2012 Republican nominee, Governor Mitt Romney, was born in Michigan; President Barack Obama, was born in Hawaii in 1961, two years after its admission to statehood. None of these examples are apposite to Senator Cruz’s situation.

There is one example, however, which is on all fours: Mitt Romney’s father, Governor George Romney, was born in Mexico, and, by the time he dropped out of the 1968 race, serious questions about his eligibility had been raised in the press. The candidate was questioned about this on the program “Face the Nation” in 1966 when he was considering a run. At that time, Governor George Romney said: “I was born an American citizen because both my parents were American citizens.” In 1967, House Judiciary Committee Chairman Rep. Emanuel Celler said he had “serious doubts” about whether Romney was eligible for the Presidency. Romney didn’t get far enough in the race for the legality to be tested.

At that time, some legal scholars argued, as some will today, that he was eligible under the Nationalization Act of 1790. But such a statute, in derogation of Common Law, later repealed, cannot govern the original intent of the Founders when they were writing the Constitution two years before. Such original intent, I have concluded, would likely have been governed by the Common Law as embodied in Blackstone’s Commentaries defining natural born as born on land controlled by the United States.

Those impatient for resolution of this issue may need to reconcile themselves with the prospect of a court challenge with ultimate resolution of the issue by the United States Supreme Court. At that time, strict constructionists will be put to the test of principle versus political expediency, as the most “conservative” justices may be most troubled by the “original intent” of the Founders. In the meantime, we may see some spirited law school moot court debates on the subject – with the outcome being uncertain.

Robot v. Lawyer: Why Besting a Robot Won’t Save Lawyer Jobs.

Lawyers take false comfort from the fact that they cannot conceive of robots doing their jobs.  There are even websites where you can plug in a profession and see what the chances are of being rendered obsolete by automation.  Sure, there may be robot factory workers, driverless cars, robotic mass transit, and even robot surgeons, the reasoning goes, but the skills of lawyers, welI, that’s another story.  This failure of imagination is best summarized by the oft-quoted line from futurist and science fiction author Frederik Pohl who said: “A good science fiction story should be able to predict not the automobile but the traffic jam.”

Let’s start by imagining a world in which factories have few workers. This should not be difficult: check out the photos of a present-day Tesla factory.

Tesla Factory

The reflexive response of colleagues is something like this: “Well, I don’t do that much workers’ compensation work anyway.”  As Pohl might put it, they see the “automobile” but not the “traffic jam.”

Yet, if we follow the impacts of a workerless factory, we must first recognize that reduction in the labor force will reduce not only the number of factory workers and workplace injuries, but the number of workers compensation lawyers, as well.  Those now idled lawyers will now be looking to perform other work, perhaps personal injury cases.  Enter the era of the driverless car.

The non-partisan ENO Center for Transportation, relying on National Highway Traffic Safety Administration (NHTSA) data estimates that driverless cars could  save 21,700 American lives annually and result in 4.22 million fewer crashes out of 5.5 million crashes per year in the United States.  Those displaced workers compensation lawyers will be joined by tort lawyers in the face of an inevitable reduction in auto collision cases.

If you do not regard driverless cars as likely despite the estimated comprehensive cost savings of $355.4 billion, consider the present day driver-assist packages including: radar based cruise control system that can maintain a set speed while also slowing for traffic ahead; blind spot assist; lane keeping assist and active lane keeping assist that can brake to help keep you in your lane; collision preparation that prepares your car for an accident by tensioning the seat belts, closing the windows and roof, and positioning the front seats; collision prevention systems that monitor the distance between your vehicle and the one in front of it, warning the driver and preparing the brakes for an emergency stop; steering assist; brake assist; and pedestrian detection programs. Whether cars are actually driverless may soon become a distinction without a difference in a world where drivers leave the driving to Robby (the Robot)(featured in the film, Forbidden Planet (1956)).

By any calculation, the one in twelve drivers estimated to be intoxicated in certain neighborhoods after midnight are unlikely to be replaced by an equal number of drunk, negligent, or commandeered or “hacked” robots.  This area of tort representation will dwindle much as the longshore injury cases have since the 1960’s when containerization supplanted the riskier break bulk cargo.

A number of benign trends such as democratization of information on the internet, the increase in pro se and self-representation, the decline in jury trials and the growth in alternate dispute resolution, and the advent and expansion of functions performed by Limited Practice Officers (LPOs) and Limited License Legal Technicians (LLLTs) all converge to reduce the scope and necessity for a legal profession as it currently exists.  It is unlikely that the future will be able to sustain lawyers at their current levels of about one-half of one percent of the population of the United States.

While artificial intelligence outright replacing lawyers is a ways off, the scope and volume of legal cases will continue to decline as areas of legal work evaporate.  Our economy and society is being transformed by increasingly competent technologies.  Whether it will usher in an age of comfort and leisure or one of anxiety and massive unemployment remains to be seen.  The legal profession will likewise be under pressure – along with the rest of humanity – to demonstrate its continued competence and usefulness.

The “Eggshell Skull” Rule

What does it mean to take injured plaintiffs “as you find them?”  It is generally easy to see that a wrongdoer should take responsibility for compensating the victim for the injuries that the wrongdoer, sometimes called the “tortfeasor,” caused.  But, what about in cases of particular susceptibility where the injured person is more delicate, suffers more pain, or does not heal as speedily, as another person?  Is the tortfeasor responsible for the pain actually caused the victim even if it is more than the ordinary person would have experienced? 

In Jewish law, the Talmud touches on this very issue when considering compensation for injuries noting:

“Why, perhaps, not say that a person who is delicate suffers more pain whereas a person who is not delicate does not suffer [so much] pain, so that the practical result [for the Scriptural inference] would be to pay for the difference [in the pain sustained]! …. Why perhaps not say that there are people whose flesh heals speedily while there are others whose flesh does not heal speedily, so that the practical result [of the Scriptural inference] would be to require payment for the difference in the medical expenses!”  Baba Kamma 84a

Even the same person, experiencing aging, may be more delicate at one time of life than another.  Consider Michel de Montaigne in his essay “On Principle,” quoting Cicero, as Montaigne complains of his infirmities:

“Likewise I flee the slightest pains; and those that formerly would not even have scratched me, now pierce me through and through: so easily is my habit of body beginning to apply itself to illness.  To a frail body every pain is intolerable.”

Then, Montaigne goes on to quote the Roman poet, Ovid: “Anything cracked will shatter at a touch.”

In our Common Law tradition, the case of Vosburg v. Putney, 80 Wis. 523, 50 N.W. 403 (Wisc. 1891) is a tort case that explains the proposition that tortfeasors must take their victims as they find them.

George Putney (an 11 year old male) and Andrew Vosburg (a 14 year old male) were sitting in the classroom at their school in Waukesha, Wisconsin, when Putney (intending no harm) reached across the aisle and made contact with Vosberg’s shin just below the knee.  Putney was unaware that Vosburg had sustained injury to the same leg about six weeks earlier.  Moments later, Vosbur felt violent pain at the point of contact, became ill, reported vomiting, with severe swelling.  The leg required two surgeries; during the second surgery, the doctors discovered the bone had degenerated to an unrecoverable state.  Experts attributed the damage and loss of use of the limb to the contact by defendant Putney.  The rationale of the case ultimately supported the rule in damages that the wrongdoer is liable for all injuries resulting directly from the wrongful act, whether or not they could have been anticipated or foreseen by the wrongdoer.

Some people may be more susceptible to injury than others.  This means that a defendant tortfeasor (wrongdoer) may have to pay if he hurts that particular plaintiff much more than a different plaintiff.   If Putney had, for example, kicked someone other than Vosburg, the consequences may have been minimal or nonexistent.  Nonetheless, if believe that you “take the plaintiff as you find him,” Putney is liable for the harm to Vosburg.  That is the rule.

Suppose, you rear end a driver in front of you because, contrary to Washington law, you are texting while driving.  You, as the following driver are liable for following too closely and hit the car in front of you.  Perhaps the impact was relatively minor.  Just a tap, you may protest.  Even though you regard it as a minor impact, if the person in front of you has just completed spinal surgery or suffers a rare disorder that prevents clotting of blood (hemophilia) or is otherwise susceptible,  you as the wrongdoer are held liable for the damages caused, even though greater than you intended or expected.  This policy designed to encourage care and punish negligence.

Let me provide an example I have used with juries:

            Imagine that you own a family farm.  You and your kids are gathering eggs and carefully placing them in cartons for sale at the local market.  You load the back of your van carefully.  Then you head off to the market.  A block away from the market, you stop at a traffic signal and are hit from behind by a driver who fails to stop.  All the eggs are shattered.  The at-fault driver who rear ended you doesn’t want to pay for the eggs.  He says: “You should have been carrying bowling balls!”

Is this a good excuse?  Certainly not!  You take your plaintiffs (victims) as you find them.  You were carrying eggs (not bowling balls) and you should get paid for the eggs!

This rule is sometimes called the “eggshell skull” rule, meaning that a tortfeasor is liable for all consequences flowing from his negligence injury another person, even if the victim had a skull as delicate as that of the shell of an egg, and the tortfeasor, unaware of the condition, caused the skull unexpectedly to break, causing injuries far beyond anything contemplated by the tortfeasor – and even if the tortfeasor did not intend to cause such a severe injury.

This rule is provided to Washington jurors as Washington Pattern Instruction 30.18.01:

WPI 30.18.01 Particular Susceptibility

If [your verdict is for the [plaintiff] [defendant], and if] you find that:

(1) before this occurrence the [plaintiff] [defendant] had a [bodily] [mental] condition that was not causing pain or disability; and

(2) the condition made the [plaintiff] [defendant] more susceptible to injury than a person in normal health,

then you should consider all the injuries and damages that were proximately caused by the occurrence, even though those injuries, due to the pre-existing condition, may have been greater than those that would have been incurred under the same circumstances by a person without that condition.

[There may be no recovery, however, for any injuries or disabilities that would have resulted from natural progression of the pre-existing condition even without this occurrence.]

 Every case is different.  Each person is an individual, subject to that individual’s unique constitution, strengths, and vulnerabilities.  For justice to happen, jurors must compensate the victim as they find him or her.  If a frail individual is hit in the crosswalk, it would be unfair to compensate that person only to the extent of harm they would have sustained had they been an elite athlete playing professional football. So, I hope this puts into perspective the reasoning behind the rule that wrongdoers must take their victims as they find them.  

Mediation: Two Central Challenges

Mediation is a user-directed dispute resolution process with the chief features of voluntary cooperation between two or more parties motivated to solve a problem and a neutral intermediary or mediator facilitating resolution.  Even in this definition, we see the outlines of the two structural challenges affecting the effectiveness and appropriateness of the process.  I will call these two challenges: the Neutrality Problem and the Commitment Problem.

1.  The Neutrality Problem is a profound one.  Both parties may trust the mediator to be “fair,” but being “fair” in terms of “process” in no way assures fairness in “outcome.”  Surely, no one should have a legitimate or appropriate expectation that the “fix is in” respecting the outcome. Beyond that, however, mediation is about process, not fairness in result, and it is possible that a fair process may only serve to legitimize an unjust result.  Therein lies a fundamental challenge to the appropriateness of mediation.  The “neutrality” of the mediator does not permit the mediator to interfere in an outcome reached by the agreement of autonomous, competent parties, even if the outcome instantiates an injustice born of the inequality of power of the parties.  In a “pure” mediation, there is process only, with no substantive influence on the equities of the resolution except that it be agreed to by the parties.

Consider an extreme case:  one “battered spouse” in terror of abuse and financial power of the other who feels compelled to make a “deal.”  Inequality of power, wealth, legal resources, emotional vulnerability, and security in one’s own physical safety, can vitiate the underlying premise upon which the mediation is founded: the autonomy and competence of both parties.  Consider the most extreme case where one spouse confides to the mediator:  “My partner says he/she will have me killed if I seek custody.”  A mediator would be hard-pressed to continue ethically.  A mediated settlement would simply be the embodiment of the inequality of power of the parties.  This is not to say, however, that any system, including litigation of the matter, would suffice to equalize the power of the parties.  It is simply to note that the Neutrality Problem that inheres in the heart of mediation is singularly ill-equipped to resolve such a dispute using neutral principles.  The mediator could, of course, distort principles of “neutrality” and impose a rule saying “provided, of course, that the result is fair in my eyes.”   Or, perhaps, a well-intentioned, kind-hearted mediator could say to himself or herself: “The right thing to do is to try to rebalance the imbalance of power since the legal system is unable to do so.”  At this point, we can agree that the mediator has left the field of mediation and has become a magistrate or “Good Samaritan” imposing his or her will and vision of justice onto the dispute between the parties.  It is no longer a mediation.

I have presented an extreme hypothetical as a stark challenge to the core principle of outcome neutrality.   Yet, every mediation, to a greater or lesser degree, partakes of some of the inequality of power and resources between adversaries in most disputes.  In fact, in the common case of a personal injury plaintiff versus an insurance company, one of the most persuasive arguments to favor settlement at mediation is this disparity in power and resources.  The insurance company can litigate and appeal without being constrained by finances unlike most plaintiffs; the insurance company is a perpetual entity unlike all plaintiffs; there are risks and uncertainties in litigation and no assurance that a verdict obtained (even after lengthy appeal) will net out more favorably than the settlement offered today, after deduction for legal fees and the costs of litigation.  In most personal injury tort cases, there is no fee-shifting rule available.  The American Rule applies, leaving each party to bear its own litigation expenses and legal fees.  The argument that the opponent is Goliath to one’s David is a potent – and valid – one.

Although I have posed the challenge to mediation as a problem of “neutrality,” it might with equal force be described as “The Parity Problem” in resolution of disputes by whatever means.  As Cassius said in Shakespeare’s Julius Caesar: “The fault, dear Brutus, lies not in our stars, but in ourselves, that we are underlings.”  The fault, we might say, lies not in the neutrality of mediation, but in the disparity in personal power endemic to the human condition, challenging any justice system to produce the just outcome irrespective of relative power.  Still, a mediator has less ability to level the playing field as regards disparity of power outside of the room than a judge in the context of litigation.

2.  The Commitment Problem.   Mediators have varying degrees of informal authority.  Their authority may derive from force of personality, professional reputation, past experience with the parties, the financial investment made by the parties in the process, and the hopes placed by each of the parties in the successful resolution of the dispute facing them.  But, in the end, it is an informal authority.  The mediator, aside from voluntary deference by the parties to the mediator’s experience and reputation, cannot command or control process or outcome.  The mediator’s armamentarium is limited to the ability to “sit this one out” and declare his or her services unavailable to the parties in the given dispute or, in extreme cases, to report the parties to the judge for failure to participate in good faith.   In short, containment of the parties within the process and commitment to it cannot be mandated by the mediator.

Although in modern practice, mediations are often mandated by the courts as “alternative dispute resolution,” the process is, itself, a cooperative remedy founded upon voluntary, good faith cooperation by the parties.    Hence, the commitment problem, which may be stated thus: assuming you can compel the parties to attend, how do you get the parties to commit to participate in reasonable, good faith negotiations?  I have already suggested that the financial investment of the parties in the process and their hopes for successful resolution (the same things that give the mediator informal authority) may achieve some measure of containment of the parties to the process.

The chief obstacles to a successful mediation arising under rubric of “lack of commitment” are these: (i) lack of preparation; (ii) lack of authority; (iii) truculence or inadequacies of counsel.   A party interested in achieving a mediated settlement can do something to minimize these obstacles.

      (i) Lack of preparation on one or both sides can prevent parties from perceiving the risks of their case through a lack of understanding of the evidence that can be brought to bear against it or the deficiencies in supporting evidence.  Mediation too early can risk an inadequate exchange of information pre-mediation and, accordingly, an inability to assess risks.  Mediation too late, on the other hand, may have involved such a superfluity of litigation expense that only an extreme outcome at trial can lead to any “acceptable” outcome.    It is naturally harder for a party to embrace a settlement embodying what is regarded as certain defeat so long as a party holds forth hope for the possibility of success.  Even a mediation at the early stages, however, has the virtue of being able to anticipate and avoid the inevitable risks, delay, costs, ill will, and uncertainty of litigation.

       (ii) Lack of authority.   In recent years, one pernicious trend has been for mediation to become yet one more burden imposed by professional litigants (defendants) upon plaintiffs.  In the context of personal injury plaintiffs versus insurance defense counsel and insurance companies, all too often the mediation is seen as a court-ordered requirement to be “checked off” without meaningful participation by insurance adjusters with adequate authority to enter meaningful negotiations.  This can be frustrating.  Imagine half a day spent in a room waiting for the insurer to make any offer at all, punctuated by offers so low that they could have been rejected out of hand without the necessity of a mediation process.  Often, insurance adjusters present at mediations have only limited authority and the best that a mediator can ask for is that upper level insurance personnel with adequate authority are available by telephone.

Local Civil Rule 16 in King County Superior Court addresses this issue directly:

(3) Parties to Be Available.

(A) Presence in Person. The parties shall personally attend all alternative

resolution processes, unless excused, in advance, by the person conducting the


(B) Representative of Insurer. Parties whose defense is provided by a

liability insurance company need not personally attend the settlement conference or

other dispute resolution process, but a representative of the insurer of said parties, if

such a representative is available in King County, shall attend in person with sufficient

authority to bind the insurer to a settlement. If the representative is not available in King

County, the representative shall be available by telephone at the parties’ expense.

(4) Failure to Attend. Failure to attend the dispute resolution procedure in

accordance with paragraphs (A) and (B) above may result in the imposition of terms and

sanctions that the judge may deem appropriate.

Assuring that parties with sufficient authority are present to make decisions is essential and an experienced mediator will make efforts to see that this is the case.

(iii) Truculence or inadequacies of counsel can be fatal to the success of mediation.  Here, I must be careful to say that successful mediation to my mind means not only resolution of conflict, but upon such terms as are within the “reasonable range of just outcomes.”  There are many ways of being ineffective.  Being unprepared, already mentioned, is among them.  Counsel whose conduct is bellicose or too fearful of conflict can give poor advice leading to a failed mediation or a mediation with an unjust outcome.  All too often, counsel, unable to have the sort of frank conversation with their clients as to the state of the evidence and unwilling to be the bearers of bad news, will leave this vital communication task to the mediator.  While better than truculence, this can leave the client virtually unrepresented and vulnerable, leading to less than optimal outcomes.

Lack of preparation, lack of authority, and inadequate counsel can undermine effective commitment to the mediation process and lead to poor results.  Knowing this in advance, parties should consider the optimum timing for mediation, be prepared to evaluate the strengths and weaknesses of their case, and ask that all parties conform to the mandates of the Local Civil Rules and have representatives with adequate authority present.  As always, discussing mediation with counsel beforehand and understanding the posture of the case and the approaches to be taken can assure that both counsel and client are “on the same page” and improve the prospect for a productive and happy experience.

Mediation, although a cooperative remedy, is now also mandated by the court.  Understanding its virtues (empowerment, flexibility) and the challenges that commitment and outcome-neutrality present will help parties better succeed in the pursuit of justice in their particular case

Do “Accidents Happen?” What Jurors Need to Know about Legal Responsibility

There is nothing in the jury selection process that is more important for the parties to explore than the internal “architecture” of the minds of the jurors.  The jury is the decision-maker.  This architecture will dictate, in large part, the filter through which the evidence will be viewed.  A simple example may illustrate this point best.  Suppose there are two jurors: one comes from a lifetime of experience which has given rise to the firm conviction that the police would not arrest an innocent person; the second comes from a lifetime of experience giving rise to the firm conviction that police often arrest innocent people.  One would not expect either person to give up their convictions.  And, more important, one would not expect these two jurors to give equal weight to the testimony of the arresting police officer.

There is little that a lawyer can do during the jury selection process to change deeply held convictions of jurors.  Generally, it is foolish – and probably offensive – to try. The most a lawyer can hope to do is to use challenges to (1) remove from the jury those members of the jury venire whose convictions are inimical to his or her case or (2) to shed light upon the juror’s predispositions in the hope that the juror in question will try to rein them in – or, perhaps, that other jurors will be aware of such a bias and discount the juror’s analysis accordingly.  One should not underestimate, however, the many areas where jurors have no firm convictions – areas which have been outside the common experience and where the jurors are relying upon analogies to common experiences to guide them.  If the proper analogy or metaphor can be given, lawyers can offer to jurors a way to reason their way to a just result in situations new to them.

In the context of personal injury or tort cases, there is one notion that often informs the internal architecture of many members of the jury.  It is this: “Accidents happen.” 

The phrase is commonplace.   We all have heard it so frequently that we accept it without question – without thinking.  It has become imbedded in our analytical architecture.  Yet, it is, notwithstanding its currency, quite often, untrue.  This unexamined belief can get in the way of appropriate juror analysis of questions governing allocation of responsibility based upon fault.  It is a “thought-bite” or “thought fragment,” but should not take the place of reflection.  When jurors think about this, there is a chance that they will realize that it simply does not apply to many situations presented in the courtroom.

We, as children, benefited from the notion that “accidents happen,” because it allowed for mistakes to be made without the conduct being regarded as blameworthy.  It is a kindness for those too young to accept responsibility or for whom “blame” would be hurtful to suggest that “accidents happen.”  It is a modest allowance for the unpredictability and uncontrollability of a complex world.  In a child’s world, knocking over a glass of milk may be an “accident.”  Woops.

Is this belief appropriate as an assumption in the courtroom?  Often not.  As adults, like it or not, our daily lives are circumscribed by rules, laws, procedures and expectations.  It is what distinguishes an adult life from that of an infant or young child.  Daily life for adults often involves navigating among rules governing social interactions and activities. In fact, one could, without being charged with the sin of over-simplification, reasonably contend that the single thing that best defines the separation between childhood and adulthood is the subjection of oneself to rules.

Torts are “civil wrongs” and reflect the community consensus that the conduct under review was “wrong.”  Negligence is a tort.  It is a tort based on “carelessness” or, more precisely, failing to comport with the standard of reasonable care to which we all are held as part of the social compact. In the adult world, the rules of responsibility assure that only rarely will injured people be injured by a third party without some element of carelessness.

The truth is this:  in the adult world in which we live, we are much, much safer if we all acknowledge that injuries are most often the result of carelessness or avoidable error.  Why are we safer?  We are all safer, because the tort system, by assigning responsibility and assuring compensation to us when we are injured, deters others from careless or wrongful conduct. We are all safer because, by creating rules in advance and assigning responsibility based on breaking those rules, we encourage creation of a world in which expectations for our conduct and the consequences of violating those expectations are clear.  The consequence: fewer rules are broken.  When they are, those injured are compensated.  It is a safer and better world.

If we lived in a world where we were victims of unavoidable accidents, we would feel less safe.  As victims of uncontrollable circumstances which nothing can prevent, we would be rendered powerless.  Fortunately, we discover, on close examination, that in modern society pure accidents (those occurring without any carelessness) are relatively rare.  This means that, by setting and enforcing expectations for safe conduct, we can all be safer – and victims (sometimes we, ourselves) can be compensated.

Let’s take an example such as, say, being struck by lightning.  At first blush, this could be regarded as a pure accident.  On closer examination, though, is it truly an accident if the injured party is standing atop a hill during a golf tournament?  Let’s ask the National Oceanic and Atmospheric Administration (NOAA) and the Professional Golfing Association (PGA)..

On NOAA’s website at: “,” we are enlightened by the headline: “Lightning Safety: When Thunder Roars, Go Indoors!”  Public Release 2001-070 entitled “Lightning Kills, Play it Safe” was jointly issued by the NOAA and PGA TOUR.  PGA TOUR champion Rocco Mediate states:  “Lightning death statistics are startling…. Whether you’re a golfer, or someone who just enjoys being outdoors, we can all guard against being hit. Education and preparation are key.”  The Release notes: “During the past 30 years, lightning strikes have killed an average of 73 people each year – more than the annual number of fatalities caused by tornadoes or hurricanes. In 2000, 51 were fatally hit by lightning, compared to 37 flood casualties and 29 tornado deaths.”

If you are a juror and you are presented with this information, do you still believe that being struck by lightning is a pure accident?  Or do you now believe that being careful can help?  Do you feel safer believing that lightning is an “accident?”  I bet not.  I think you feel safer knowing that you can be careful and avoid being struck by lightning.

The Joint Release states:

“The PGA TOUR has teamed up with meteorologists from The Weather Channel to help ensure immediate detection of lightning and hazardous conditions that would threaten the safety of players and fans. The bottom line is ‘if there’s lightning in the area, then tournament play is postponed.””

The Release goes further:

“Safety at golf tournaments is of paramount concern. Each of the over 120 events contested on the PGA TOUR, SENIOR PGA TOUR, and BUY.COM TOUR are staffed with an on-site meteorologist from The Weather Channel. As the “Official Forecaster of the PGA TOUR,” The Weather Channel provides crucial up-to-the-minute weather information to tournament staff. Armed with a sophisticated on-site lightning detection system and computer weather data which pinpoints conditions directly over the golf course, The Weather Channel meteorologists help ensure the safety of competitors, tournament staff and volunteers, and thousands of golf fans.”

Armed with this information, would you now agree that even being struck by lightning may not be an accident?  If someone holds a tournament during a storm where lightning threatens – you might now, based upon this information, fairly conclude that the injuries were caused, at least in part, by someone being careless and negligent in planning and implementation of standard safety measures  So, if even being struck by lightning can lead to liability for carelessly failing to take standard precautions, this probably means that there are many other situations that “seem like accidents” but are actually and properly regarded as the product of a known, and avoidable, cause.

So, do “accidents happen?”  In the well-regulated environment of the highways, automobile collisions are almost never accidents.  Those of us who have or will serve on juries should take note that, although calling something an accident in everyday life means that it was not “intentional,”  in the courtroom, something is not an accident (“it’s nobody’s fault”) if it was the result of negligence – someone acting in a way that falls short of the “reasonable standard of care.”

Highways, unlike much of the world, are specially designed with unambiguous rules called “the right of way” and “rules of the road.”  From the point-of-view of engineering, modern freeways at their best are the product of decades of refinement, with smooth, even surfaces, standard design, minimal distraction, and ample signage.  I would go so far as to say, it is seldom the case when an “accident” on a freeway is actually an “accident” in the sense of it being something that “happens by chance or that is without apparent or deliberate cause.”

We must be careful to be clear about what we mean.  In the courtroom, we cannot say that anything that is unintended is “accidental” and therefore “fault-free.” In negligence cases, we are not dealing with intentional acts, but liability based upon carelessness.  To be a “pure accident,” the injury-causing collision must be something that is not only unintended, but something that is without apparent cause.  Calling something “an accident” can be misleading if the jury hears not only that the event was “unintended”  but also rolls into that understanding the notion that “it is without apparent cause” and that, therefore, no one is liable. 

This is important enough to come at again in a slightly different way.  Social rules governing public safety have given rise to the idea that there is an ordinary and reasonable “standard of care,” the breach of which results in liability (legal responsibility) for negligence.  Negligence results in liability based upon fault – based on carelessness -  even though the negligent act is not intended. Jury confusion and error can result unless it is made clear that the defendant’s liability arises from carelessness, not intention.  It would be misleading for someone to suggest that “accidents happen” if they intended the jury to think that this meant that the defendant should not be held liable just because the conduct was unintended even though careless.  Negligence cases are all about unintended conduct: the question is whether the conduct was careless or not.  If it was careless (beneath the standard of ordinary and reasonable care), liability results

If the cause is someone’s negligence (carelessness), then liability of the negligent party must follow.  The negligent person is “at fault” and “blameworthy,”  notwithstanding the fact that the collision occurred as a product of carelessness, rather than recklessness or intentional misconduct.  These are the rules established in advance to protect all of us.  If someone is negligent, they are held accountable even if they didn’t do it “on purpose.”   

When a collision occurs on the freeway, for example, it is nearly always the case that someone is driving too fast for conditions, speeding, changing lanes without first ascertaining that the lane change can be made with safety, distracted, sleepy, intoxicated, following too closely, failing to maintain control of their vehicle, failing to see that which can be seen, failing to use lights or signals, or simply inattentive.  The “rules of the road” are extremely well-defined, particularly on the freeway system.  For an injury-causing collision to happen, there is almost always, on closer examination, a careless driver who is the apparent cause of the collision.  It was not done “on purpose.”  But, it is not an accident, either.

The jury, by holding careless drivers accountable under the “rules of the road” makes everyone – including the jurors, themselves – safer.  Do accidents happen?  On examination, the answer is: “seldom.”  Those seeking to make justice happen, both jurors and lawyers, are well-served by thinking in terms of the applicable “rules of the road” and expectations regarding conduct when considering injury-producing events.  If the event that caused injury is not random and not without an apparent cause, then it is likely the product of someone, somewhere violating social expectations of careful conduct.  Even if unintended, it is not an accident, but properly regarded as the product of negligence.  The rules of society, set out in advance, tell us when standards of conduct have been violated.  Where they are, accountability requires that liability be assigned to the careless person and that compensation be given to the  injured person.  It is what the law demands.  It is what best protects all of us.

The Fifth Thing You Need to Go to Trial: Nosce te ipsum.

There are so many things that one learns in the practice of law. There are few other fields where one is allowed such privileged entry into the confidences of others or better able to observe and learn from the rich pageantry of modern life.  Speaking of the practice of medicine early last century, Sir William Osler (1849-1919) in his Counsels and Ideals said of medicine what also holds true for law:

“The practice of medicine is an art, not a trade; a calling, not a business; a calling in which your heart will be exercised equally with your head. Often the best part of your work will have nothing to do with potions and powder, but with the exercise of an influence of the strong upon the weak, of the righteous upon the wicked, of the wise upon the foolish.  To you, as the trusted family counselor, the father will come with his anxieties, the mother with her hidden grief, the daughter with her trials, and the son with his follies. Fully one-third the work you do will be entered in other books than yours.  Courage and cheerfulness will not only carry you over the rough places of life, but will enable you to bring comfort and help to the weak-hearted ….”

Some of the stereotypes from Sir Osler are awkward to modern ears over a century later, but the sentiment still resonates.  One can argue whether in the modern age lawyers, rather than physicians, have, perhaps, the better claim to access to the anxieties, griefs, trials, and follies of their clients/patients, or whether, under pressure from specialization, economy, efficiency, either has as fair a claim as their progenitors.  Be that as it may, I know that I continue to experience in my practice the privilege of speaking with my clients of their hopes and fears in the face of trial.

Trial and error, trials and tribulations, trial by ordeal.  Trials are a challenge even for those who take pride in their competence in managing their affairs.

As is so often the case, those least familiar with the demands and risks of suit, are loudest and most heedless in their invocation of the remedy.  I do not counsel extremes.  Professionally, I neither take the stance offered by Charles Dickens in Bleak House:  ”Suffer any wrong that can be done you rather than come here!” nor do I plunge into litigation thoughtless of the questions that must first be asked.

I offer now five elements that must be considered, with special emphasis upon the fifth, the last, but not least of them.

1.  Legal Responsibility.  Is the law supportive of the claim? Did the other party breach their legal duty? Example:  Person A takes a swing at Person B, who ducks, with the result that Person C (you) are hit.  It is not clear that Person B owes you a duty to take the hit or not to duck, even though had B not reacted in that way, you (C) would have been spared.  No duty can mean no case, even if harm befell you.

2.  Causation.  Did the breach of duty cause a problem? Example:  It is unlawful to have doors in a school open inward because in the panic of a fire students can get crushed against the door – hence, “panic bars.”  But, if there was a fire and everyone exited from another properly designed exit, the fact that some other unused door opened inward would not be a case for damages.  That breach caused no damages.

3.  Damages.  Did the claimant sustain injury or “damages?” Example: My mother reported being on an airplane where, during turbulence, hot water for tea was spilled and (get this) almost scalded her arm, but missed.  Even if pouring hot water during turbulence may be unwise in the extreme under certain circumstances, if there is no harm, there is no case.  Put another way: no harm, no foul.

4. A Fund to Pay the Damages.  Although this is self-evident to trial lawyers, it bears noting here: if you get a huge judgment having successfully proven breach of duty (liability), causation, and damages, you still need a defendant with sufficient funds to pay.  Usually this is insurance or a defendant with sufficient assets.  In the absence of adequate funds to compensate an injury, your claim may be limited to what funds exist.  Example: You are the victim of a car accident caused by an uninsured driver with few, if any, significant assets.  Your sole compensation may be from your own auto insurance.  Your own Underinsured/Uninsured Motorist Coverage (UIM), Personal Injury Protection (PIP or Medical Pay), Comprehensive Coverage (Property Loss), or Health Insurance may be the only funds available.

And the fifth thing:

5.  Grit. Without the personal stamina, fortitude, mental toughness to pursue a lawsuit, the “band width” to be a party-plaintiff and still carry on with your life with a tolerable level of functionality, the ability to compartmentalize the unavoidable anxieties so that you are not overwhelmed, you cannot go to court.  Life is short.  If the stresses and strains of litigation are so stressful that life is unpleasant, nights are sleepless, and the joys and pleasures of life are severely compromised, you may properly conclude that the matters at issue simply do not justify the choice of pursuing a lawsuit.

I have represented many wonderful people, people performing stressful occupations beyond anything I could ever imagine handling (e.g. test pilot) whose mental configuration was such that litigation was hard on them.  Very hard.  In this, the best advice that can be given is old, very old: Nosce te ipsum. [Know Thyself.]  There is no requirement that you choose litigation as a life-style or tactic.  You may find that just “paying the two dollars” or “turning the other cheek” better suits your personal values.

There is no dishonor in this.  In fact, although a trial lawyer professionally, in my own personal affairs I tend towards the end of the spectrum articulated by Charles Dickens above: “Suffer any wrong that can be done you rather than come here!”  For every person, the choice of litigation is a balance.  It should rightly depend both on your native predisposition and tolerance for the anxieties of the process and the importance of the issue.  On that matter, with the guidance of counsel, you are the proper person to make that choice.

Political Misdiagnosis: The Myth of “Defensive” Medicine.

There has been a myth put forward that suggests that doctors perform unnecessary procedures to protect themselves from malpractice suits, thereby driving up medical costs for all of us.  This myth is pervasive and persistent.  If true, such a narrative could justify political pressures to limit malpractice suits as part of a strategy to reduce medical costs.  But, the evidence shows it is false.  What is the evidence?

The non-partisan Congressional Budget Office (CBO) could find no per capita difference in health care spending when looking at states that had imposed limits to tort damages awardable in medical malpractice cases when it looked into the matter over a decade ago.  Let’s reflect on this a moment.  This means that limiting the recovery that injured plaintiffs get in malpractice suits has no statistical impact on how much is spent on health care.  If the idea of “defensive medicine” – that doctors perform additional, unnecessary, expensive procedures to protect themselves from risks of malpractice suits – means anything, it must mean that when the risk of such suits is lowered, there is less need for defensive medicine.  Yet, the CBO stated: “CBO could find no statistically significant difference in per capita health care spending between states with and without malpractice tort limits.” Congressional Budget Office, Cost Estimate for H.R. 5, Health Act of 2003 (March 5, 2003) (Ordered by the House Committee on the Judiciary).  Available at:

Now the preliminary opinion of the CBO has been vindicated by a private study published today (October 16, 2014) in the prestigious New England Journal of Medicine. N Engl J Med 2014; 371: 1518-1525.  The authors (Daniel A. Waxman, M.D., Ph.D., Michael D. Greenberg, J.D., Ph.D., M. Susan Ridgely, J.D., Arthur L. Kellermann, M.D., M.P.H., Paul Heaton, Ph.D.) in their article “The Effect of Malpractice Reform on Emergency Department Care” conclude: “Legislation that substantially changed the malpractice standard for emergency physicians in three states had little effect on the intensity of practice, as measure by imaging rates, average charges, or hospital admission rates.”  The study was funded by the Veterans Affairs Office of Academic Affiliations and others.

We are once more reminded of the story of Abraham Lincoln who asked a man: “How many legs does a pony have?”  “Four,” the man answered.  “And if you call the tail, a leg, then how many?”  “Well, I guess, five then,” the man said.  “Not so,” Lincoln replied, “because calling a “tail” a “leg,” doesn’t make it so!”  So it is with statistics about medical care and our justice system in the super-heated rhetoric of politics.  No matter how many times you call “defensive medicine” a cost of our justice system doesn’t make it so!  The myth of defensive medicine is simply not borne out by the evidence. 

Unreasonable Failure to Mitigate Damages: The Defense of Last Resort

When people are injured through no fault of their own, a cascade of consequences flow from the injury.  Innocent victims may soon discover that in addition to the pain and disability of injury, they experience wage loss or loss of employment, delay in the administration and adjustment of their claim, impact on their credit from unpaid medical bills, and the frustration of a wrong-doer who will not accept responsibility for the harm caused.  One thing that injured individuals may not expect to have to face is increasingly a part of modern litigation: the claim that they, the injured parties, have themselves “failed to mitigate their own damages.”  In other words, the victim unreasonably prolonged their pain and disability or made them worse than they would have been had reasonable treatment been timely sought.

            Obviously, one of the first things that any person who is injured naturally tries to do is to recover from the trauma and regain their full measure of physical and mental well-being.  It is hard to wrap one’s mind around the idea that the wrongdoer can try to escape responsibility by shifting blame for the injury to the innocent victim, himself or herself.  Yet, this is exactly what can occur if the “mitigation defense” prevails.  The defendant will claim that the innocent victim failed to act reasonably in trying to get better.  The defendant may point to a failure to seek timely treatment, gaps in treatment (time periods where no treatment was sought), failure to follow medical recommendations, or failure to pursue the “right” kind of treatment.  The defendant will claim that had the victim acted “reasonably,” the injuries would have healed faster or more completely, without prolonged or ongoing pain and disability.  This is maddening, to say the least.  It is as though an arsonist is blaming the homeowner for not putting out the fire fast enough!  [But not quite! See below!]

            This defense is not without its merits.  Failing to pursue medical care or to heed the advice of medical providers can make untreated or improperly treated conditions worse.  Should this exacerbation of the underlying condition be laid against the responsibility of the wrongdoer?  The law places limits on this sort of defense and, as you might well imagine, the “unreasonable failure to mitigate” defense depends upon the facts and circumstances of each case.  It is, as lawyers will often say, very “fact-sensitive.”  It may be helpful, however, to examine the rulings of Washington State courts to understand the contours of this valid, but much overused, defense.

            The Burden of Proving the Defense is on the Party Asserting It.

“The doctrine of avoidable consequences, also known as mitigation of damages, prevents recovery for damages the injured party could have avoided through reasonable efforts.” Cobb v. Snohomish County, 86 Wash. App. 223, 230, 935 P.2d 1384 (1997) (citing Kloss v. Honeywell, Inc., 77 Wash. App. 294, 301, 890 P.2d 480 (1995)). Where the plaintiff claims lost wages, such damages are “not recoverable to the extent plaintiff reasonably failed to mitigate his damages by earning whatever he could at another occupation.” Kubista v. Romaine, 87 Wash.2d 62, 67, 549 P.2d 491 (1976). The burden of proving a failure to mitigate is on the party who caused the damages. Cobb, 86 Wash. App. at 230, 935 P.2d 1384 (citing Bernsen v. Big Bend Elec. Coop., 68 Wash.App. 427, 435, 842 P.2d 1047 (1993)).

            The Unreasonable Failure to Mitigate Must be Affirmatively Pleaded and the Party Pleading the Defense has the Burden of Proof.

“Unreasonable failure to mitigate” is an affirmative defense which must be affirmatively pleaded by the party asserting it under CR 8(c), which means that the defendant should plead such a defense in its pleadings (i.e. answer to the complaint):

Failure to mitigate damages is an affirmative defense under CR 8(c). Generally, affirmative defenses are waived unless they are (1) affirmatively pleaded, (2) asserted in a motion under CR 12(b), or (3) tried by the express or implied consent of the parties. Farmers Ins. Co. v. Miller, 87 Wash.2d 70, 76, 549 P.2d 9 (1976); Ebling v. Gove’s Cove Inc., 34 Wash. App. 495, 500, 663 P.2d 132, review denied, 100 Wash.2d 1005 (1983); Rainier Nat’l Bank v. Lewis, 30 Wash. App. 419, 422, 635 P.2d 153 (1981).

Bernsen v. Big Bend Elec. Co-op., Inc., 68 Wash. App. 427, 433-434, 842 P.2d 1047 (1993).  The party asserting an unreasonable failure to mitigate bears the burden of proof. Young v. Whidbey Island Bd. of Realtors, 96 Wash.2d 729, 734, 638 P.2d 1235 (1982).

            Mere Failure to Pursue Treatments that “Might” Prove Beneficial is Not “Unreasonable Failure to Mitigate.”

              Respecting the assertion of the affirmative defense of unreasonable failure to mitigate, “A mere possibility of benefit is insufficient.” Cox v. Keg Restaurants U.S., Inc.,  86 Wash.App. 239, 245, 935 P.2d 1377 (1997)(failure to have shunt removed, take antidepressants, begin physical therapy, seeking speech therapy, seek therapy, all speculative.)  Where a condition, such as tinnitus (ringing in the ears) is not susceptible of cure and treatment consists of a number of reasonable possibilities which each affords a “chance” for relief, failure to pursue one possibility is not unreasonable.

              In Hawkins v. Marshall, 92 Wn. App. 38, 962 P.2d 834 (1998), although there was evidence the plaintiff had failed to follow her doctor’s advice, there was no evidence presented that this omission aggravated her condition or delayed her recovery.  Accordingly, it was held not be error to refuse to give the failure to mitigate instruction.

A defendant requesting a failure to mitigate instruction must show that there were alternative treatment options available to the plaintiff and that the plaintiff acted unreasonably in deciding on treatment. Hogland v. Klein, 49 Wash.2d 216, 221, 298 P.2d 1099 (1956). Because the defendant caused the injury, however, it is the defendant’s burden to show that the plaintiff acted unreasonably. Hawkins v. Marshall, 92 Wash.App. 38, 47, 962 P.2d 834 (1998).

As one might expect, the law does not require a person who was injured by the wrong of another to do anything more than act “reasonably” in dealing with the injury.  In this regard, the courts will defer to reasonable choices made by the injured person:

“A wide latitude of discretion must be allowed to the person who by another’s wrong has been forced into a predicament where he is faced with a probability of injury or loss. Only the conduct of a reasonable man is required of him. If a choice of two reasonable courses presents itself, the person whose wrong forced the choice cannot complain that one rather that the other is chosen.Hogland, 49 Wash.2d at 221, 298 P.2d 1099 (quoting Charles T. McCormick Handbook on the Law of Damages § 35, at 133 (1935)).

Fox v. Evans, 127 Wash.App. 300, 304-05, 111 P.3d 267, 269 (2005); Jaeger v. Cleaver  Constr., Inc. 148 Wash.App. 698, 714-715, 201 P.3d 1028 (2009).

No Failure to Mitigate Defense Exists in Cases of Intentional/Reckless Conduct.

            We started this discussion with the notion that an arsonist could blame a homeowner for not putting out the fire quickly enough.  Well, not so.  Although a negligent driver who rear-ends you can claim that you did not reasonably pursue medical care and, thus, unreasonably failed to mitigate damages, a person whose conduct is intentional (like an arsonist) or even reckless (but not merely negligent) cannot raise the failure to mitigate defense.

“[T]here is no duty to mitigate damages arising from intentional conduct. See Wilson v. City of Walla Walla, 12 Wash.App. 152, 153, 528 P.2d 1006 (1974). ….The exception to the doctrine applies only when the tortfeasor “intended the harm or was aware of it and was recklessly disregardful of it….” Restatement (Second) of Torts § 918(2) (1965) (emphasis added)(cited with approval in Young, 96 Wash.2d at 732, 638 P.2d 1235).

Cobb v. Snohomish Cnty., 86 Wash. App. 223, 232, 935 P.2d 1384, 1390 (1997).

A party injury [injured] [sic] by conduct that is either intentional or reckless is entitled to compensatory damages and is under no duty to mitigate such damages. Desimone v. Mutual Materials Co., 23 Wash.2d 876, 162 P.2d 808 (1945); Champa v. Washington Compressed Gas Co., 146 Wash. 190, 262 P. 228 (1972); Theis v. Federal Finance Co., 4 Wash.App. 146, 480 P.2d 244 (1971).

Wilson v. City of Walla Walla, 12 Wash. App. 152, 153-54, 528 P.2d 1006 (1974).

            An innocent victim of personal injury has a duty not to unreasonably fail to mitigate damages, which is to say, to avoid the consequences of injury that can reasonably be avoided.  A person cannot, however unlikely this may be, exacerbate their own losses just to increase the burden on the wrongdoer.  While it is important that an injured person be reasonable in their post-injury conduct, they are not required to undergo every possible treatment that might afford some benefit.  Sound medical judgments are left to the injured person, after consultation with their physician.  A physician can advise you to have a surgery, but, in doing so, they will list the risks and the benefits.  It is not unreasonable for a person to, after considering the choices available to them, make an informed decision.   No matter what you decide, such a decision is likely to be respected.

            The unreasonable failure to mitigate defense is weakened by the fact that it is, at base, an attempt by the wrongdoer to shift the fault for the injury caused by the wrong back upon the innocent victim.  It is overused.  Nonetheless, it is an increasingly prominent feature in the landscape of modern litigation.  An injured person would be well-advised to run decisions to forgo treatment, delay treatment, or pursue treatment through the filter of what a “reasonable” person would do under the circumstances.


Mediation, Part II: “The Phantom Tollbooth”

The classic pattern of mediation is set out in the children’s story, The Phantom Tollbooth. Once upon a time, there were two kingdoms, Dictionopolis (the city of words) and Digitopolis (the city of numbers), the kings of which had stopped speaking to one another because they disagreed on whether words or numbers were more important.  They disagreed, consequently, on everything.  In effect, they agreed to disagree.

This slender reed is all that is required, however, for them ultimately to reconcile their differences. With the assistance of an intermediary, a boy named Milo, who, with their permission undertakes the rescue of the Princesses Rhyme and Reason, the kings resolve their differences: words and numbers, they conclude, are of equal importance.  This humble parable contains within it the elements of classic mediation: a dispute, a breakdown in communication, an intermediary, an agreement to a common process, and a reconciliation.