Letters for the week of November 2-8, 2005 

How the legal establishment keeps everyday people down. How everyday people can beat the energy establishment.

"Bug Juice," Feature, 9/7

You bring the Woody, we'll bring the termites
Excellent article; thanks. If you had one of those old "Woody" station wagons, could it power itself?
Robert Webster, San Francisco

"A Man Named Sue," Feature, 9/28

McDonald's got off easy
I commend the Express for its cover story on vexatious litigants. As a plaintiff's attorney, I am appalled by these people and I'm pleased to see light shed on their abuse of the legal system.

That said, shame on Mr. Harper and the Express for perpetuating the insurance industry spin regarding the suit filed by Stella Liebeck against McDonald's as a result of being burned by a cup of coffee. The article clearly implied this was a frivolous lawsuit. It was anything but.

Stella Liebeck was an 81-year-old woman who had never filed a lawsuit in her life until she attempted to put cream and sugar into a cup of McDonald's coffee. When the coffee spilled in her lap, she sustained third-degree burns of the groin, inner thighs, and buttocks. She endured seven days in the hospital and multiple skin-graft surgeries. But the severity of an injury does not, by itself, establish the validity of a lawsuit. For that, the jury had to consider whether McDonald's could have foreseen that such an injury would occur. On that issue, the evidence presented was truly staggering.

Company documents admitted into evidence demonstrated that McDonald's knew of at least seven hundred reports of coffee burns in the decade preceding Ms. Liebeck's injury. The burns in those reports ranged from mild to third-degree. Moreover, by company policy, the coffee served by McDonald's was at least twenty degrees hotter than coffee served by other fast-food restaurants.

In addition, McDonald's had ample opportunity to settle this case. A retired judge who conducted a mediation in advance of the trial recommended McDonald's settle for $225,000. They refused.

Ultimately, the jury awarded compensatory damages of $200,000, which they reduced to $160,000 because they found that Ms. Liebeck was 20 percent responsible for the injury. The jury then decided to punish McDonald's with punitive damages of $2.7 million. Some of the jurors apparently wanted to award much more in punitive damages.

There was nothing frivolous about Ms. Liebeck's lawsuit or the jury's decision. Having caused third-degree burns on Ms. Liebeck's labia, and having known of at least seven hundred prior cases of people being burned by their coffee, McDonald's got off easy.
Mark Vickness, Esq., Oakland

Pricing the people out of court
Once again a member of the communications media has utterly botched an opportunity to tell the truth about why so many men and women in the US are being forced to go to court without representation by a lawyer and why, when they do so in California, they are being victimized by a discriminatory, draconian law that is right out of a chapter of Hitler and the Nazis.

Instead of writing a story that presents the broad picture and the true picture, the author of the article chose to single out one individual who has filed a lot of lawsuits that are completely different from the litigations which the majority of self-represented persons pursue in the courts. In other words, his article is hype rather than bona fide journalism. Nowhere is that practice more prevalent than on the subjects, sometimes connected but most often disconnected, of persons in court without a lawyer and "vexatious litigants."

The true story begins with a stunning statistic: More than one hundred million Americans cannot obtain a lawyer to help them when they are in dire need of a lawyer. What the statistic means is that there is a breakdown of democracy in the legal-judicial apparatus of the US. More and more, our courts become playgrounds for the opulent in civil law, while poor and middle-class Americans are shut out of the process. Meanwhile, the most heinous elements of society get lawyers to represent them: murderers, child molesters, rapists, thieves. But there is no mandate (except in certain cases such as children and mentally ill or otherwise incompetent persons) in law or the Constitution for representation by a lawyer in civil cases. The result is that in around 80 percent of cases (from a study commissioned by the American Bar Association), if an aggrieved poor person wants to seek redress of grievances in court under her or his First Amendment right to do so, he or she is forced to go it alone without an attorney because he or she cannot afford to hire a lawyer and cannot find one to work otherwise. There are indications from a few studies that the percentage is even higher for middle-class persons, because at least there are a few pro bono outlets for the poor in certain types of cases.

Instead of correcting that enormous disgrace, the California Legislature -- egged on by the big insurance companies, the California State Bar, and the attorney general of California -- enacted a law falsely and fraudulently entitled "California's Vexatious Litigant Statute" to prohibit and punish people when they decide they are not going to be shut out of the court process just because they cannot afford a lawyer. The law is full of a whole bunch of technical claptrap used to throw self-represented persons out of court without a hearing or trial of the issues, or the merits of their claims, that they bring to court. It is applied only to self-represented persons; so long as you have a lawyer representing you, you can file a hundred worthless lawsuits and both you and your lawyer will remain free of the provisions in this egregiously discriminatory statute.
Burton H. Wolfe, San Francisco

"One Power the People Don't Need," City of Warts, 10/5

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