It’s Impossible

by Joe Eliseon

Some plaintiffs are fearsome. They strike fear into the heart of defense counsel. That’s what I was, a defense counsel. I went to court, defending big corporations that made things. The things they made usually worked pretty well. But sometimes they didn’t. Sometimes they exploded or crashed into other things or chewed up the landscape and everyone in it or just burst into flames. Stuff happens.

When it happens, people point the finger of blame. I’ve pointed the finger of blame myself, most often at the person using the thing my client made. When you can blame them, they’re not so fearsome. These blameworthy individuals come in all shapes and sizes.

There was a man who, failing to take seriously the lessons of Bugs Bunny cartoons, looked down into his gas tank with a lit match to see how much gas was inside. I need not describe what happened to him. There was the barbecue chef who decided to light his charcoal grill with gasoline instead of lighter fluid; he set not only his but three of his neighbors’ houses on fire. Another was the handyman who bypassed one of the safety handles on his drill press because he wanted one hand free; he ended up one hand short. Yet another was the lady who, during a blackout, put her camp lantern atop her gas stove’s pilot lamp; she subsequently complained that the lantern’s maker had failed to warn her that lantern fuel is inflammable. Such people do not make fearsome plaintiffs.

The fearsome plaintiffs ones are those who 1) have done nothing to cause their own injury and 2) have some special vulnerability, something that makes a jury want to protect them by beating the stuffing out of somebody. The stuffing to be beaten out consists of money and the fearsome plaintiffs are usually children, blonde children, most dangerously little girls with blue eyes.

Once, I questioned an adorable tyke of said description. She had burned her foot in an exploding automobile.

“Melissa,” I asked, just to get her talking, “what do you want to be when you grow up?”

“Oh,” she answered, fingering her six years of golden curls, “I want to be either a lawyer or a psychiatrist.”

Surprised, I did what no attorney should ever do when surprised. I asked another question. “Why do you want to be one of those?”

She batted her blue eyes. “So I can help people who get afraid when their cars blow up and burn in a fire.”

Whoa! Attorney, back off. No more questions. Leave room swiftly. Memo to client: open checkbook; throw large number of zeros at child; head for hills.

Among adults, the most fearsome plaintiff I ever encountered was a woman, a woman who must have been drop-dead gorgeous when young. She had a gentle manner and a disarming smile; cream white skin; long, light brown hair tied in a loose bun behind her head; big, round, warm brown eyes; an hour-glass shaped torso; and long, well-formed legs. Still, a beautiful woman.

But she was starting to get a bit fulsome in the hips; her bosom had started to sag ever so slightly. At the corners of her eyes, the beginnings of crows’ feet showed faintly through her restrained makeup . The skin above her full lips crinkled just a little. She had recently passed her fortieth birthday. She was holding off middle age as best she could, but it was coming and she was still single and my client’s roto-tiller had scarred her right leg like a roadway scored for re-paving.

The woman had been preparing the soil in the vegetable garden she kept with her widowed mother in their backyard. She claimed that, when she pulled the roto-tiller’s starter cord, the machine by itself shifted into reverse and crawled up her right leg, slicing and dicing her creamy white flesh, showering her mother with her blood, and leaving the woman herself traumatized and hideously disfigured. Of course, the accident occurred a mere three weeks before she was to have embarked on a Mediterranean cruise, her dream trip of a lifetime.

Did I mention she was an elementary school teacher and that children and small animals loved her?

Let us tick off the salient points any defense counsel worth his salt would consider for purposes of evaluating the woman’s claim:

  1. she is a school teacher;
  2. she is pretty;
  3. she is pleasant;
  4. she is single;
  5. she lives with her mother;
  6. they grow their own vegetables in a backyard garden;
  7. she is over forty;
  8. she is single (worth repeating);
  9. she was going on a cruise vacation, likely her last chance to find a husband; and
  10. her leg is so scarred that she can’t wear a dress or, even more horrific, a bathing suit.

Put all ten items together. They add up to the conclusion that your client is the bum who screwed up this sweet, innocent woman’s last chance for happiness and got blood all over her mother.

Not good.

Bear in mind that defense lawyers think this way because juries think this way. At the close of the case, the jury will retire to the jury room, realize that no amount of money can compensate the woman for her pain, anguish and misfortune, and therefore award her an amount of money your client cannot afford. That’s how justice works. Ka-ching!

The law books say that the plaintiff has the burden of proof; that she must prove that there was something wrong with the roto-tiller. But, under these particular circumstances, any defense counsel who chose to rely on the letter of the law would be suffering from denial. No jury would believe that anything this woman could have done would cause a roto-tiller suddenly to shift into reverse. You better be able to prove there was nothing wrong with the damned thing. You better show up with a ton of expert evidence and a real nice client.

Unfortunately, I had neither. My client’s CEO – let’s call him “Roger” – was a Type A aggie-buster from Down South. (The South is full of nice people, but when you hit a bad one, it’s bad.) We would have telephone conversations like this:

Me: Roger, she says she could not have shifted the thing into reverse by mistake. I’m inclined to believe her. It takes some effort to move the shift lever. You can’t do it by mistake.

Roger: She had to do it herself. It’s impossible for that machine to shift by itself. It’s impossible.

Me: Why is it impossible?

Roger: Because it’s impossible. It’s just not designed that way. It can’t happen. It’s impossible! It’s physically impossible!

Me: Isn’t it conceivable the drive belt could somehow get knocked out of place?

Roger: No! It’s impossible, I tell you, I’ve been running this company for 25 years and it’s never happened. It can’t happen. The design precludes it. It’s impossible!

Me: Well, she says that’s what happened.

Roger: She’s lying! It’s impossible!

Me: I don’t believe she’s lying.

Roger: She’s got to be lying. What she’s saying is impossible! You’ve got to crack her on the stand.

Me: She’s not the type of witness you can knock around on the stand. The jury’s going to feel very protective toward her. They won’t like it if we’re too tough on her. It’ll look like bullying.

Roger: Damn it! It’s just impossible, what she’s saying.

Me: The best thing for us to do is to hire an outside expert, a good one, who can testify that the machine can’t behave the way she says it did. It’s got to be someone who’s very knowledgeable about the design and has no connection with the company.

Roger: There’s no one who’s very knowledgeable and has no connection with the company. The best people in the field work for me. They say it’s impossible! We don’t need any outside experts.

Me: How do your people know it’s impossible?

Roger: They know. We’ve tested the thing every which way. We’ve dropped it off roofs, out of moving trucks. We’ve got special machines that shake’em like cans of paint. This does not happen It can not happen. It’s impossible! I tell you, it’s impossible!

Roger, as you may have gathered by now, was convinced that the accident was impossible as described. I had some reservations.

The roto-tiller had been impounded by the court and was being held under lock and key at a private storage facility. There were five defendants: my client, the manufacturer and every wholesaler and distributor that composed a link in the supply chain down to the retail store that sold the thing. No one had gotten a chance to observe the roto-tiller working. So we all agreed with plaintiff’s counsel to hold a demonstration.

On the appointed day, plaintiff’s counsel and all the defendants, their lawyers, experts and insurers, turned up at the storage facility. A court officer attended. But the judge’s order, only the officer was allowed to touch the machine. He rolled it out of storage, set it up on a pair of concrete blocks, shifted it into neutral and started it. The lawyers and experts were limited to examining the machine and watching its engine run. The court officer set up a video camera and recorder to put the whole episode on tape. (That’s how long ago it was.) So that no one could say that things weren’t conducted on the up-and-up, each party would get a copy of the video-tape.

Roger had decided to act as his own expert. He had previously decided to act as his own insurer. After all, why insure yourself against something that’s impossible? He had flown in that morning. Originally, I was supposed to pick him up at the airport and take him directly to the test site. He wanted no wasted time.

But I didn’t do it. I was nothing but the senior associate attorney assigned to the case. I did all the legal research, read all the technical papers, interviewed or deposed all the witnesses, dealt with all the other lawyers, and showed up at court for motion hearings. But really important things, things that required no knowledge of the law or familiarity with the facts, were handled by the case’s partner-in-charge.

Let’s call the partner-in-charge “Art.” Art was a round little man with a bald head fringed with graying hair and a thick, similarly colored moustache. He was known for his people skills. On any given day, Art could take three insurance company adjusters to a Chinese restaurant for a $45 lunch and come back with two or three cases worth $50,000-$75,000 in billables. As legal rain-making skills go, Art’s ability was not spectacular, but steady. His client relation skills were of a similar, prosaic but generally reliable nature.

So I talked to Art about handling Roger at the test.

“I think we better let me do this,” he said. “I’ll meet him at the airport and take him to the demonstration site. This guy’s a fire-cracker. We’ve got to handle him with care.”

In truth, I was pleased to be relieved of responsibility for Roger. I briefed Art on the test and then summed things up with a final warning. “Don’t trust him, Art. He believes this case is total bullshit. He’s got no patience. He’s absolutely convinced that the machine can’t possibly shift itself into reverse. Whatever you do, don’t take your eyes off him while that machine’s running.”

Art showed no concern. “Don’t worry. I know how to handle guys like him. We’ll be OK. I’ll see you when I get back.”

I left him, confident that things were under control or, at least, not my problem.

Several hours later, toward the close of the business day, I was standing at the main reception desk for some unrelated reason when the elevator doors opened. Art tumbled out of the elevator, alone, his suit-jacket rumpled and hanging open, his tie askance, his collar sticking out on one side. His briefcase looked battered, with paper protruding, as if he had slammed it shut in a hurry. He mopped the sweat from his forehead with a handkerchief. His face and his skull were the color of a cherry Lifesaver. His eyes were wild, but he said nothing.

“Art, what happened?”

He held up his hand. “Don’t ask!” He pulled a VHS videotape out of his jacket pocket and flung it at me. I deflected it up into the air, juggled it, finally caught it. “Look at it,” he growled over his shoulder as he shambled off to his office.

I went directly to a conference room, set up the VHS player and turned on the television. The picture that appeared was a static shot. The camera had obviously been set up on a tripod and allowed to run without interruption.

In the foreground was the roto-tiller, propped up on its cement blocks. In a semi-circle around it, facing the camera, stood about twenty men in suits and a court officer in a blue uniform. Five or six of the men held clipboards. I assumed they were the experts. They furrowed their brows, intent on examining the roto-tiller from every conceivable angle. Each had his own camera and was taking his own photos. The lawyers were less intent, but watchful. Art stood among them. Beside him, arms folded, legs apart, eyebrows narrowed, stood a man who looked like Roger sounded.

The videotape droned on and on. As the engine ran, the experts pointed at this or that, but nobody touched anything. After awhile, they drifted away to confer with their separate clients. Art chatted with some of them himself. The court officer had disappeared, perhaps done in by boredom. The machine chugged along.

Only one man still watched the roto-tiller’s workings. Roger prowled along the edges of the experts, his eyes always fixed on the machine. Finally, he ambled closer to the roto-tiller. He paused; he glanced around. No one was watching him.

He stepped still closer. Now he reached for the control handles. The engine ran, noisy but steady. Roger touched the handles. Unperturbed, the engine ran still. He pressed down on the handles. The roto-tiller angled down toward him, tilting on the concrete blocks. He released the handles. The machine tilted back. He pressed down with more force. The tiller tilted at a greater angle. He let go. It fell back. He grasped the handles and shook the machine. It bounced on the concrete blocks. He lifted the handles up and let them fall.

The machine bounced against the concrete blocks and bounced again, fell off the blocks, struck the ground, shifted into reverse and chased him out of the picture.

The case never went to trial. The other five defendants’ insurers came up with about three hundred thousand between them. Roger’s company, which had no insurance, had to fork over more than $600,000. In those days, it was big money.

The schoolteacher took several cruises in slacks.

The Board of Directors, composed of Roger’s grandfather, father and four uncles, removed Roger as CEO and replaced him with his cousin Arlo. Later, Art visited Arlo to try to get some more business from the company.

But it was impossible.

(c) 2016 by the Author. All rights reserved.

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