I am rather busy with real life matters at the moment, but I can not resist commenting on something I noticed in a post by Jesse at Pandagon.
Jesse discusses a Texas tort reform provision that prevents litigation over residential construction disputes. He links to this L.A. Times article. Pandagon has the issue covered well, as does Kevin Drum and I have little to ad to their commentary.
Nonetheless, I did notice the following in the Times story:
Developers and home contractors say juries cannot be trusted to fairly resolve these disputes between a builder and a buyer."The last place you want to go is the civil court system. The facts don't matter to a jury," said Bobby Bowling IV, a builder from El Paso and president of the Texas Assn. of Builders. "In court, the plaintiff's lawyer makes it rich versus poor. It's about the redistribution of wealth."
I make my living talking to juries and I sometimes represent the little guy against the big guy. I never, ever, ever make that argument. Legal lore has it that there was a time then the David vs. Goliath argument was effective, but it certainly has never been one that juries have been willing to accept in the nearly twenty years that I have been trying cases. It just does not work.
Ask yourself a simple question. If you were on a jury, would you decide a case based on the evidence presented or based on the economic status of the parties? How would your spouse decide, your friends, members of your church, co-workers, or boss? Do you know anyone who would ignore all the evidence in order to decide a case as a statement of class solidarity? I have never met a single juror like that and, in the unlikely event that such a juror appeared, he or she would be quickly struck from the panel by the defense.
The argument that I do make is ripped from the lexicon of the conservative political movement. The case, I often argue, is about accepting personal responsibility for the consequences of one's choices.
If an ambulance company chooses to have its drivers operate on 36 hour shifts and a dead-tired driver in the thirty-second hour of his shift causes a wreck that kills a 27 year old woman, the company should accept responsibility for the consequences of its choice. If an apartment complex chooses to leave its swimming pool full of water all winter, fails to lock the gate the the pool, and allows a red ball to float in the water, it should accept responsibility for its choices when a two-year old suffers brain damage from a near drowning. If a trucking company choses to save a little money by deferring maintenance on the brakes of its trucks, it should accept responsibility for causing the disability of a young husband and father.
Those are actual arguments I made in actual cases. In every one, I represented a little guy against a big guy. In each of those cases, I could have argued that my client should recover because he or she was a little guy and the defendant corporation had plenty of money. I chose not to do so, preferring to make the personal responsibility argument instead. Which of those arguments would you find more compelling?