EP202: Don’t Cross The Yellow Line

Episode Notes

Transcript

Christine Byers:

And the judge said, “I am telling you to stop talking. Welcome to the Case Doctors. I am in control of this courtroom, not you. ” With John Simon and Alvin Wolff.

Alvin Wolff:

That happens with me and my paralegal all the time.

Christine Byers:

The show where two of the greatest legal minds offer you advice on your cases.

Alvin Wolff:

I say, “Just stop. This is my office.”

Christine Byers:

The case doctors will see you now. Welcome to The Case Doctors. I’m your host, Christine Byers of Simon Law and I’m joined by the case doctors, John Simon and Alvin Wolf. Now between them, they have more than 80 years of experience as plaintiff’s attorneys, so there really isn’t a scenario they haven’t already encountered in a case and figured out how to handle it. Now they’re offering you the chance to tell them about the various problems or issues that are coming up in your cases and hear how they would handle it. And I also want to point out that you are both wearing new shirts. John, let’s see what yours says.

John Simon:

Oh, Wolff trial lawyers. How about that?

Alvin Wolff:

That is an awesome law firm.

John Simon:

Yeah, it is. It is. I recommend them.

Christine Byers:

And Alvin, how about you? Which one are you wearing today?

Alvin Wolff:

I have a shirt that says Simon Law, another excellent firm.

Christine Byers:

Highly recommend.

Alvin Wolff:

Highly recommended.

Christine Byers:

Love it. Sounds great. Five

Alvin Wolff:

Star Google reviews.

John Simon:

Sounds great.

Alvin Wolff:

Five star Yelp. All of it.

Christine Byers:

It’s all there.

Alvin Wolff:

Right.

Christine Byers:

But first, let’s turn to some of the civil cases making headlines and hear what the case doctors have to say about them. Our first hot topic is an interesting showdown in the courtroom. Basically, tensions boiled over in a Philadelphia courtroom at the end of an emotionally fraught trial over a man’s fatal opioid overdose with a judge and lawyer shouting at each other about how to figure out an inconclusive verdict spurred by a seemingly confused juror. On the second day of deliberations at the conclusion of the nearly two-week trial, the jury returned its verdict clearing the defendant of liability. It became clear after the court pulled the individual jurors that only nine of them agreed to the verdict. The judge then sent them back to deliberate again and they returned later with the same verdict, but some of the juror’s answers as to who was negligent and whether that negligence caused the plaintiff’s death appeared to change from the previous reading of the verdict.

John Simon:

Not a surprise.

Christine Byers:

The defense attorney asked the judge to declare a mistrial arguing the confused juror did not know what she was doing, which tainted the rest of the jury. The judge disagreed that one juror’s confusion should form the basis for a mistrial at times speaking over the defense attorney who complained about not being able to complete a sentence without the judge interrupting. And the judge said, “I am telling you to stop talking. I am in control of this courtroom, not you.

Alvin Wolff:

” Well,

John Simon:

Wow.

Alvin Wolff:

That happens with me and my paralegal all the time. I say, “Just stop. This is my

John Simon:

Office.” Well, I guess it’s like the last one counts. It’s kind of the way I’m looking at

Alvin Wolff:

It. Yeah, I’ve had inconsistent verdicts before that the judges sent them back to deliberate and they come back with a consistent verdict. They get it wrong the first time and get it right the second time.

John Simon:

Another big issue there is the yelling with the judge. I mean, I can’t remember yelling with a judge and I can’t imagine being in that situation and then not turning out poorly for you.

Alvin Wolff:

It will never end well if you’re getting in a fight with a judge. I mean, if he’s bringing a knife to the fight, you better have a gun, but you’re not going to win in the end.

John Simon:

There’s no winning. And the other thing too is getting that heated that a judge tells the attorney not to speak anymore. I think I would just kind of be … I don’t know, man. That makes me nervous just hearing about that. Much less having

Christine Byers:

It happen. Can you imagine

John Simon:

Being that attorney? Yeah.

Alvin Wolff:

Yeah, I can. But I think the main problem with these cases is the lawyers start acting like it’s their own money and it’s not. They’re representing a client. That’s it. And for a defense lawyer, they don’t have any money in the case.

John Simon:

I mean, there had to be quite a bit of escalation probably before the judge would get to the point where he tells them, “I don’t want to hear you speak anymore or talk anymore.” I’ve had cases where lawyers on the other side have gotten into arguments with the judge over different things. But yeah, I guess maybe that happened to me a few times as a younger lawyer and I’ve learned my lesson

And there’s no upside to that. I mean, arguing with the judge, there is no upside. I had a case where, I’m not going to mention the judge, but it was a case where we were losing every ruling and they were wrong. They were wrong. It was a substantive area of the law that I practice, been practicing for years. I figured we’re going to end up trying to case over again. And so I was trying it with a younger lawyer and the younger lawyer in this office was all upset and visibly upset and signing and getting the judge aggravated. And so we kind of calmed down a little bit. I waited till the end of the day and I asked the judge for some time whenever I could get it to re-argue a point that I thought he had gotten wrong. And he said, “You want to make a record?” I said, “Nope, I want to get you to change your mind.” And I did it politely and professionally.

The judge at the end of the day gave me 15 minutes, 20 minutes, listened patiently and said, “You make some really good points. I’ll look at those cases and I’ll give you ruling in the morning.” Next morning he came in and said the same ruling.

Christine Byers:

So after

John Simon:

All that- So he ended up ruling against me, but in a very nice professional way and which I appreciated, I guess a litle bit more. Sure.

Alvin Wolff:

So at least he gave you an attaboy.

John Simon:

Yeah, that’s it.

Alvin Wolff:

And he felt heard.

John Simon:

Right, right. And there are judges that many judges that I’ve been in front of that have ruled against me and I’ve walked out of their courtroom feeling, not happy, but not pissed off.

Alvin Wolff:

Do you feel like the older you get, the judges are becoming more deferential to you because they think you know more?

John Simon:

Absolutely. Really? No question. No question at all. And rightfully so. I mean, right now, nine times out of 10, I’ve been doing this longer than the judges have. The other thing too is the judges have a greater bandwidth of the legal issues that they handle. They’re doing criminal stuff. They’re doing all kinds of things. Business litigation, I mean, I spend 99% of my time on 2% of the law and if it’s a product liability case or a med mal case or an injury case, we know what we’re talking about. And I think judges too, I mean, primarily I would be motivated in part of it as a judge by wanting to get it right. And if you’re really not certain about a topic, how would you not be influenced? If you had two lawyers arguing in front of you and one was more experienced, you had good experiences with that lawyer, how would that not cause you to lean toward that lawyer a little bit?

Alvin Wolff:

What really helps is if you’re in front of a judge who refers you cases. That’s the best thing.

Christine Byers:

That is the best scenario.

Alvin Wolff:

And if you have a little bit of an edge.

John Simon:

Yeah. But yeah, that’s a hole you’re not going to climb out of. When you’re arguing, yelling back and forth with the trial judge, I see a poor outcome for you.

Christine Byers:

Do you guys think that this should be a mistrial when you have a verdict come back slightly different and a juror that seems obviously confused?

John Simon:

No. I don’t either. I think they sent them back. The judge made a decision to send them back because he thought the first round something happened that shouldn’t have happened. And so that’s what you do. You give them a second chance to go fix it or address whatever issue was raised. It sounds like they did that and they came back with a result that the other attorney didn’t … He won the case. He won the case the first go round. You send it back and he lost it.

Alvin Wolff:

It’s like blowing a lead.

John Simon:

Yeah. And I had a case, this happened to me more than once where the verdict screwed up and one case I had the judge would not give me punitives in the case. I don’t know. I think he was wrong, maybe he wasn’t. And we tried the whole case, but I got to voir dire on punitives because it was still in the case at that time. And so the jury’s out and they come back and no, they came back with a question saying, first question was, “Can we award punitive damages?” And so the judge said, “Follow the instructions.” Didn’t say no. So when the verdict form came back, they wrote in the compensatory and then they wrote in, “In addition, we award punitive damages in the amount of, ” and they wrote it in. Oh, wow. And so we didn’t know that. The bailiff gives the verdict to the court and judge looks at it and says, “Counsel, come to the bench, what do you want to do about this?

” And I said, “Well, just send them back and tell them to rework it because there’s no punitive.”

Alvin Wolff:

Tell them to take the punitive and add it to the general.

John Simon:

Exactly. But there was a good smart defense lawyer on the other side of the case and said, “Judge, we’re fin with it because obviously you can’t collect the punitives

Christine Byers:

If it

John Simon:

Wasn’t submitted.” And so I said, “I don’t know if I’m okay giving them another shot.”

Christine Byers:

So what happened?

John Simon:

So we just took the verdict and then obviously we didn’t get the punitives, but I thought with that jury, I’ll let them take a second, third shot if they want. No problem.

Christine Byers:

Alvin, do you have experience with judges and voicing your maybe displeasure or disagreement with their rulings?

Alvin Wolff:

Well, two trials ago I did say to the judge, “It appears to me that you’re favoring the other side with your rulings.” And the judge- Would

John Simon:

You have said that as a young lawyer?

Alvin Wolff:

No, of course not. And the judge said to me, “I’m not going to put up with this. I’m going to leave the bench. I’m going to give you five minutes to think about it. And if you want to mistrial, I’ll give you a mistrial.” He comes back, says, “Do you want to mistrial?” I said, “No, but then I got the next five rulings.”

Christine Byers:

Well, it worked out.

Alvin Wolff:

It worked out fine.

John Simon:

So what was your tone of voice when you said that-

Alvin Wolff:

Very calm. Yeah. I mean, I don’t get really upset anymore. Get your act together and just stay grounded. You don’t want to get ungrounded in these cases. I used to get really upset and really hysterical, but not anymore. I think getting beat up enough is taking the fight out of me.

Christine Byers:

Thank you, gentlemen. Time now to turn to our email inbox for the cases our viewers have sent in for the case doctors to diagnose. Now, just so everyone knows, we’re not going to reveal where these cases came from. We’re not going to reveal any names or firms to protect the confidentiality of the cases. Instead, the case doctors are just going to focus on the issue in each of them. So as they say, the case doctors will see you now. All right. So first up, dear case doctors, my client’s wife is suing a fitness influencer over a “detox tea” that caused such catastrophic gastrointestinal distress that she missed a nationally televised job interview. Do we lean into the physical injury or the lost career opportunity? And also, how far can we push influence or liability before the jury decides you drank internet tea? What did you expect?

Alvin Wolff:

I’m seeing some dangerous stuff on the internet with these influencers. I mean, there’s a lady on there that is pushing anorexia.

Christine Byers:

This

Alvin Wolff:

Is how you get through a meal without eating anything. And you see her drinking a martini and she’s got hundreds of thousands of followers and it’s not cool. And these companies that sponsor these websites really should be paying some attention to what they’re allowing out there.

John Simon:

I think are they really selling products for the most part or they just …

Alvin Wolff:

If they’re selling a product, they’re getting something for it. Tiger Woods is Nike. Okay. He gets 45 million a year for that. Is he an influencer? Does he have anything to do with how many shirts, hats, balls, clubs, Nike sells? I don’t know. Probably.

John Simon:

Probably. So if he says something about the product that’s not true, if he’s doing a commercial, it’s still sort of a stretch. It’s a litle bit removed. If I’m doing a commercial for a product and I’m being paid for the time to do the commercial, does that create some liability or

Alvin Wolff:

Duty? Hypothetically, George Foreman sells those grills when he was alive. Let’s say the grill caught on fire and burned up a person who was grilling a sausage in their kitchen. I mean, does he have liability for that?

John Simon:

I don’t know. I don’t know.

Alvin Wolff:

Well, I want you to handle that

John Simon:

Case. Well, I would find out who actually manufactured it, designed it and sold it, received the money for it.

Alvin Wolff:

Well, but don’t you go down the whole line for privity?

John Simon:

Yeah, I guess if it would be a misrepresentation, maybe, but somebody who’s doing an ad for the product for the Grillmaster, whatever it is, if there’s a hidden deal, if it’s defective and unreasonably dangerous just by nature because it’s caught on fire, is that something that the person on George Foreman’s response? I don’t know. I don’t know. I don’t see that. I don’t see that going that far. So it depends on whether this influencer is pumping a product or whether it is her product that she’s selling first. As far as the damages, I think I need more information about … It sounds like she had some stomach problems or something from it and her career’s over.

Christine Byers:

She missed a nationally televised job interview.

Alvin Wolff:

Why couldn’t she reschedule?

John Simon:

Yeah. I’m not liking that one. I think it’s thin, thin and thin. It’s

Alvin Wolff:

Kind of like real life. We get all these calls for things that we just don’t like.

John Simon:

Yeah. And I like the ones that come in where … And I get these a lot. Went to the pharmacy and they gave me this stuff and it was terrible. It was the wrong prescription and all of this and it goes on and on in the email and then I almost took it. Okay. But it just goes to show you how lawyers think about things like liability, causation and damages. The rest of the world doesn’t. The rest of the world is like, look, they effed up here and they should pay something so they pay closer attention. They’re just as concerned with what could have happened.

Alvin Wolff:

And they don’t want it to happen to anybody else.

John Simon:

Exactly. Which is the good thing. That’s what it’s all about. But

Alvin Wolff:

When you push them, it’s about the money. I don’t want it to happen to anybody else. I don’t want to get

John Simon:

Paid

Alvin Wolff:

For

John Simon:

It. Right. And it’s just like this. I’ve said this for years and it’s been my experience that jurors don’t give money, they take it. And by that, I mean, I know jurors would love to punish somebody, but ask them to actually give your client money, that’s a heavier lift. They don’t want to give anybody any money, but they’ll punish you. I had a case where an alternate who I didn’t like and he knew I didn’t like him.

Alvin Wolff:

He

John Simon:

Didn’t like you. He didn’t like me. I could just tell, by the way, the way he answered his question, I spent two hours talking to everybody. And so the jury’s out and he comes up to me while the jury’s out deliberating and he says, “Mr. Simon, I’m sure you knew that I wasn’t with you. ” And I said, “Yes, sir, I did. I gathered that based on your scowling at me and your nasty, snarky answers that you gave me during For Dyer.” He said, “However, I wouldn’t want to give your client any money, but I certainly would be up for hitting these people for some punitive punitive damages.”

Alvin Wolff:

Nice.

John Simon:

Very

Alvin Wolff:

Nice

John Simon:

Guy. We have a nice ride home, sir, and we’re the best to you. Thank you for your service. Thank you for your service. So there’s that.

Christine Byers:

That’s great. Okay. Our next letter comes to us. “Dear case doctors, my client owns a semi-autonomous vehicle that when faced with a downed tree refused to cross a double yellow line and instead drove directly into it like a law abiding missile. Defense is leaning hard into the car followed the rules. Question, how are we explaining to jurors that blind obedience is not in fact a safety feature? Is algorithmic stubbornness a thing yet or do I need to invent that in voir dire?

John Simon:

It’s a product liability claim. That’s what that is, a product claim. The program algorithm, whatever it is, is … I mean, there’s case law out there that says it could be a negligence claim or a product claim, but we’re starting to see that now with the self-driving cars where they have the accident of accident resistance technology.

Alvin Wolff:

Don’t they have people in these cars?

John Simon:

I guess the person could … Yeah,

Alvin Wolff:

Somebody

John Simon:

Was in. Maybe they’re in the backseat.

Alvin Wolff:

What were they doing? I don’t know.

Christine Byers:

Well, semi-autonomous.

Alvin Wolff:

Sounds like someone’s in there.

Christine Byers:

It’s possible.

Alvin Wolff:

I would go back to when I was a parent with my kids, just because everyone else is doing- Well, you’re still a

John Simon:

Parent.

Alvin Wolff:

Well, yeah, but my kids don’t listen to me anymore.

John Simon:

Did they listen to you when they were younger?

Alvin Wolff:

No, but I could still say things to them. But just because everyone else is doing it doesn’t mean that you have to. And if you’re in a semi-autonomous vehicle and is doing something that you don’t think is right, you need to jump in and do something about it. Wouldn’t you think?

John Simon:

I just wonder what they were doing. They’re in the car heading down the road and basically there’s a tree across the road and the car ran right into the tree.

Christine Byers:

Because it didn’t want to cross the double yellow to avoid it.

John Simon:

Well, I guess if you’re looking and you see the tree, if you’re in the driver’s seat, I’m sure there’s a brake in the car. Those cars do. I’ve been in at least one where you can override by actually turning the wheel or stepping on the brake. So that’d be interesting to see what was going on. Yeah.

Alvin Wolff:

You turn the car off if the brakes don’t work. There’s a lot of things you could do.

John Simon:

And who knows? You go across the yellow line, maybe there’s something coming the other way that’s also a semi-autonomous vehicle.

Christine Byers:

Very true. And then what?

John Simon:

Who knows?

Alvin Wolff:

I like your idea. Just stop the car.

John Simon:

Stop it. Yeah.

Alvin Wolff:

Put the brakes on. Stop, look, and proceed.

John Simon:

Stop look and listen, right?

Alvin Wolff:

Yeah. Except you’re not listening, you’re looking. Stop, look, and look again.

John Simon:

There could be a claim there, but I think there’s some issues about who was in the car and what were they doing, right?

Christine Byers:

Yep. Those are the other questions. All right. So our next letter comes to us and it’s from someone who is saying, “Dear case doctors, my client’s smart refrigerator logged late night snack patterns and synced with a family app. Her spouse used the data in a divorce filing exposing her affair. We are claiming the manufacturer failed to adequately disclose how behavioral data could be shared and misused causing emotional distress and reputational harm. Do we lean more into invasion of privacy or is the emotional distress angle stronger with a jury? Okay, gentlemen, that will do it for this episode of The Case Doctors. If you have a case that you would like case doctors to dissect, send us an email at [email protected]. Once again, we will be keeping all names and cases confidential and thank you for joining us and we will see you next time on The Case Doctors.

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