Listen carefully
A group of partiers was on its way up by elevator to the 96th floor of the John
Hancock Tower on Michigan Avenue in Chicago. It is an express elevator, meaning
it goes from the lobby to what everyone calls "the Top of the 'Cock" without
stopping. (If you are new to Chicago and are there on a clear night, I strongly
recommend you spend an hour or two in the restaurant and bar on the 96th floor of the
Hancock; if you don't already like Chicago, you will after that.)
But the express car did stop this particular evening before it got
to the 96th floor. Something trivial in the electronics that
controlled that car
failed, and all the safety devices kicked in, rendering the car motionless. Elevator
systems are quite complicated, and they require constant maintenance, and they are by far
the single safest form of transportation ever, way safer than, say, walking. Because
the safety devices kicked in, the car did what it was supposed to do, which is
come to a firm but gentle stop.
The six partiers on that car that evening, all of whom eventually
became plaintiffs in the lawsuit against Otis and the Hancock, did what you would
expect. First they pushed a bunch of buttons – no harm done. Then they
raised someone on the telephone inside the car. They reached a night guard, who
phoned the in-house Otis elevator repairman assigned to
the Hancock.
Yes, there was always at least one Otis elevator repairman assigned
permanently to that one giant building, 24/7/365. The Hancock, like all other really
sky-scraping skyscrapers, has not just one bank of elevators but several, and each knows
what the others are doing. For the long trips you go up or down a certain ways on an express
car, and then you have to switch to a local bank to go the rest of the way, because the structure is
stronger if the shafts don't go all the way from top to bottom. The Hancock is
populated by really expensive stores on the bottom few floors, then by really expensive
office space, and then, on the top fifty floors, by 1,400 of the wealthiest people in
Chicago; those fifty floors are among the most expensive residential space on the
planet. The Hancock is so tall that the people living on the top floors are
sometimes literally above the clouds when they look out their windows, so if they want to
know whether they should carry an umbrella they call down to a doorman to ask about the
weather at ground-level.
Anyway, the partiers had to wait about two hours before it was
decided the fire department should rescue them. The hallway doors one floor above
the car were forced open (they can always be forced open, did you know that?), and a
couple of firefighters dropped down to the top of the car. The hatch at the top of
the car was opened and a ladder was lowered down. The six soon-to-be plaintiffs were
escorted up the ladder and out onto the next floor up. They all left the premises under their own steam, and in their
depositions later they admitted they went directly from The Hancock to other bars to
continue partying.
But -- guess what -- shortly after their plight made a small splash
in the newspapers, a suit was filed against The Hancock and Otis. Their Complaint At
Law -- a document they all had to swear is true to the best of their knowledge and belief
-- claimed that they suffered emotional trauma for which they deserved to be compensated.
Their main complaints, if you read it carefully, were that the elevator car got
stuffy and that a few of them started to smell bad. Two of the women alleged that
their dresses had been stained in the axillary region. Plus which, they were
inconvenienced for two hours. Apparently a lot, to the tune of hundreds of thousands
of dollars per hour.
Oh, but their lawyer knew about the common law rule that said you can't collect for
mere mental anguish in the absence of physical injury. The problem was, all six of
them had affirmed over and over that they were not physically injured when they talked
into the elevator car telephone, right up to the point where they were rescued. So,
how could they possibly collect?
By getting a cleverer-than-average lawyer, that's how. It
turns out that every single one of them was injured as a result of being taken up
the ladder through the hatch and out through the door to the floor above, which opened up the door to claims of merely emotional trauma.
- This despite the fact they were led up and out one by one.
- This despite the fact they had all the time they needed. I
mean, it's not like the car was on fire or on the verge of plummeting to the ground in any moment.
- This despite the fact that big, burly, experienced firefighters were
there to shepherd each one of them the whole short way.
- This despite the entire distance they had to travel was only maybe
fifteen feet in full light at a soft angle, not like going up
ten floors in the dark on narrow vertical ladders.
Yep, they all sustained a physical injury during their departure,
although they all later admitted in depositions that not one of those injuries required
medical attention until the two weeks it took for them to hire a lawyer.
According to our lawyer's assessment of them at their depositions,
they appeared to be overly confident that their claims were meritorious, they didn't take
the depositions seriously, and they had been rehearsed.
Advice. So, here's some advice if
you're thinking of becoming a perpetrator of insurance fraud: You should try a little
harder than these people did, no matter what a scumbag lawyer tells you. If the case
goes to suit you may be sure the insurance company's lawyer will depose you, which means
that you meet in a law office with your lawyer and a court reporter, and the insurance
lawyer asks you a bunch of questions. Although a judge is rarely present, you're
still under an oath of truth as administered by the court reporter.
After your deposition, the lawyer who took it provides to the
claims department not just a summary of the facts as alleged and the important tactical
points but also an assessment of your demeanor. Sometimes these assessments go on
for several paragraphs, and they can have a dramatic effect on how the claims department
handles your case thereafter. Basically, good witnesses get paid more than bad
ones. Sometimes, fair or not, it's not a question of the truth, it's a question of
credibility. I cannot tell you how many times I made the argument to a claimant's
lawyer, during settlement negotiations, that his client will come off as a poor witness
whereas mine will come off well. When that's the truth, it's a powerful argument
that no scumbag lawyer can respond to effectively. It's also a good reason that we claims
adjusters at Liberty got in touch with claimants as soon as possible after we got the
first report of an accident.
We got in touch with a new claimant as soon as possible, even
if we knew she had already hired a lawyer or was planning to. (In fact, the rule at
Liberty was that we had to establish contact with a claimant within 24 hours of receiving
the first report or come up with a heck of a good excuse why we didn't.) The way it
works is, unless the claimant or her lawyer has told you she's represented, as a claims
adjuster you may legally and properly approach her and talk to her as much as you
want. Sometimes in the first thirty seconds you're talking to her, before you
mention why you're there, you can learn a lot that you can use later. Did she forget
that there'd been an accident that very morning? I detected that several
times. Did she forget which part of her body was injured? Pretty common.
Did she forget to limp or appear to be in pain or limp on the wrong side? Happens
all the time. Just in the few moments during which you're introducing yourself to
the claimant, you can learn a lot before she finally figures out who you are and remembers
that she was told by her lawyer, quite emphatically and several times, to tell you she is
represented. Here's a rule: The more insistent your lawyer is that you not talk to
an insurance adjuster, the more likely it is you're a participant in fraud.
Anyway, according to the Otis repairman on the scene that night, the
six claimants were well-dressed, arrogant, childish, and drunk. No doubt he
exaggerated.
So, the case finally comes to trial, because Otis hates to settle
any case, no matter how cheaply, if there's no merit to it. This is a courageous
position for a company to take, because it means they are trading short-term profits for
what they hope is a long-term advantage. What is that advantage? It's that
they gain a slowly growing but undeniable reputation among the plaintiffs' bar that Otis
will not pay even one dime more than it owes, no matter what it costs them to defend no
matter how many frivolous lawsuits. The effect, over the long run, is that
plaintiffs' lawyers stop taking questionable cases against Otis, where they might take the
same case against some other elevator manufacturer. In the case of Otis, as a claims
adjuster I could not settle any elevator accident for more than $1,000, I could not settle
any claim in suit for even a dollar, and I could not settle any escalator claim at all,
without getting prior written approval from Otis, which I got maybe twice in four years
and many dozens of cases. Otis was a most demanding policyholder, but also a most lucrative one.
Listen carefully. Anyway, the six
partiers' lawyer is convinced that he has a winnable case, and because
Otis won't pay even nuisance value, it eventually goes to trial. Otis's litigator in that case was
one of their best. But you know what? He had a hare-lip. Yep, that's
right, the guy they put in charge of talking to the witnesses and the jury was born with a
cleft palate, and when it came time for him to make his opening statement, here's how he
started: "Good morning, ladies and gentlemen. As you can already tell, I have a
speech defect because of a congenital condition. I know it's difficult to understand
me, so I'd like to ask you a favor. Whenever I speak, please be sure to listen very
carefully."
That's the best generic opening statement opening statement I've ever
heard.
If you're expecting to go to trial in front of a jury, you want a
lawyer who is not only smart and well-prepared but also likeable. Right or
not (not), many
jurors care about the lawyers' personalities, at least to some extent, when it comes to
voting for or against a defendant. A saying I often heard used by litigators is,
"When it's a close call, they vote for the lawyer."
The plaintiffs' lawyer called his clients to the stand one by one
to have them describe what had happened. And after each one testified on direct, our
lawyer calmly asked them to describe again their various damages. "Upset.
Inconvenienced. Smelled body odor. Dress stained. Needed to
urinate." It got monotonous, and the jury started to realize what he wanted
them to, which is that these plaintiffs were not aggrieved victims of some cruel accident
but rather whiny little babies who wanted lots of money for what amounted to nothing. As a
former claims adjuster I can tell you that there are literally tons of people out there
right now who are cooking up a scheme to defraud an insurance company and the policyholder
behind it, and there are tons more, like these six, who are hoping to get paid extra for exaggerating the degree of their suffering. It seems to me
that people who experience what these six did should shrug it off as a part of life -- a couple hours of inconvenience and a good story to tell at cocktail
parties -- and not even consider trying to make money out of it. But maybe that's just me.
The most memorable moment in the trial came after the plaintiffs' lawyer had elicited from all six of his clients that the hatch in the ceiling was locked.
After the sixth plaintiff had testified on direct, our lawyer opened his cross
with, "You said that you tried to open the hatch but that you couldn't do so, is
that correct?"
"Yes, I tried, and so did the other two guys. It wouldn't
budge. We were trapped."
"Your Honor, I move that the court take judicial notice of the
elevator code for the City of Chicago."
Asking a judge to "take judicial notice" means, "As
part of our case, we want the court to agree that certain facts exist." Here we
were asking the court to agree that Chicago's elevators were covered by certain parts of
the city building code, and to accept as evidence that selfsame code even though the code
itself, as a document, wasn't offered as an exhibit.
The judge granted the motion, and our lawyer picked up a sheaf of
papers and approached the witness. "Are you familiar with Section 25.713.808 of
the Chicago city code?"
Looking helplessly at his lawyer, the witness said, "No."
"Then would it surprise you to learn that that section requires
that hatches on all elevators in the city be locked from the outside?"
(Those hatches aren't for escape, they're for repairmen; and they're
locked from the outside so vandals and kids and creeps don't get into the
shaft and do stuff.)
I looked at the plaintiff's lawyer, as did everyone else in the
courtroom, and I must say he did a good job of keeping his crest from falling, but by this time
the jury was beginning to dislike not only the plaintiffs but their lawyer as well.
In his closing argument our lawyer stood really close to the jury,
and he reminded them that they promised to listen very carefully to what he said. He
pointed out how the elevator system was entirely free of defects except the original one
that immobilized the car; how the system had detected the defect and responded perfectly,
by locking the car in place and thus ensuring that it would not plummet to the
pit below the third
basement; how the hatch was supposed to be locked; and, most importantly, how the
plaintiffs weren't really hurt much. He didn't actually use the term "sniveling
snots," but that was the picture he painted so well.
The jury came back with a Not Guilty on four of the six plaintiffs,
but they did award monetary damages to two of the women.
For the entire total of their dry-cleaning bills. (Of course,
their lawyer gets a third of that.)
Who says juries don't have a sense of humor?
Sometimes scumbag lawyers admit they are.
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The Projects
Mrs. Smith's leg
Free surgery
Scalpels
Trocar
Bad surgery
Margo Staples
Police report
Ricky Taylor
"Listen carefully"
Honest scumbag
"It's my baby"
True story
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