All Things In Moderation: The Serving of Alcohol By Bars In The City Of Boston

June 1, 2014

The classical Greeks lived by the proverb, ” All Things In Moderation.”  The City of Boston is ignoring that historical advice when it comes to the serving of alcohol in its bars and restaurants. The newly elected mayor has proposed that the time for serving alcohol and the time for bars and restaurants to remain open be extended from their long-standing schedule. At the present time, the serving of alcohol by a commercial establishments in the city of Boston must terminate at 1:00 a.m.; and the establishment must close by 2:00 a.m. The 1:00a.m. deadline is usually referred to as “last call.” A customer must place an order for an alcoholic drink by 1:00 a.m. and he must finish drinking it by the 2:00 a.m. closing time. He is not allowed to depart the premises with a drink in his hand.  The new proposals which must be approved by the city council would permit alcohol to be served until 2:30 a.m. and permit closing time to be extended until 3:30 a.m.

Why the change? What are the pros and cons of such a change? Is this good public policy? How will this change effect the approximately 50,000 college and university students that go to school within the metropolitan confines of Boston and Cambridge, Massachusetts? What is the reaction of organizations such as “The Mothers Against Drunk Driving? What do the university and college Presidents and Deans think about these changes. It seems likely that these serving changes will make their already difficult job more onerous when it comes to consumption of alcohol by their students. Binge drinking is already at epic proportions among teenagers; and university students are mainly teenagers. The late night availability of alcohol beverages to minors is already a problem for bars and restaurants to control. Who is being harmed by the late night and early morning curfews? Is the risk worth the benefit? Is this a short-sighted attempt by commercial establishments to increase their income while ignoring the fact that  the current schedule is already difficult to enforce.  The consumption of alcohol in the middle of the night and early morning by adults also increases the risk of injury by drunk drivers many of whom arrive and depart by car. Just because we can do something does not mean we should do it. A little more moderation is in the public’s interest.

Arthur F. Licata, Esq.

Copyright 2014

All Rights Reserved

 

 

 

The Lawsuit Discovery Conumdrum

February 9, 2014

What happens when the parties to a lawsuit refuse to follow the rules? In a civil lawsuit (non-criminal) the plaintiff and defendant can request information, called “discovery,” from each other. The procedures governing this exchange of information is called “The Massachusetts Rules of Civil Procedure.” Every state and the Federal courts have similar rules. Each side in a lawsuit can request answers to interrogatories, in layman’s terms, “questions,” documents and depositions which are the taking of witness statements under oath. The Rules rely on the good-faith and ethical behavior of the parties and their attorneys. The Rules only work if everyone agrees to tell the truth. Attorneys, as officers of the court, have a special duty to follow the discovery rules and to advise their clients to act in a similarly truthful manner. However, as the Romans came to understand ” Who will guard the guards?” What happens when attorneys stop following the discovery rules and when winning trumps everything else? Federal District court judge, Michael A. Ponsor, in Massachusetts, was faced with that very problem in the case of Angiodynamics, Inc. v. Biolitec, AG, and others, C.A. No. 09-cv-30181-MAP. The plaintiffs  filed a motion seeking entry of default on the issue of liability based upon the defendants continuing failure to comply with their discovery obligations. After repeated disregard of the court’s discovery orders by the defendants and their lawyers, judge Poser granted the plaintiff’s motion. The court stated that it allowed the plaintiff’s default motion… “[b]ecause the defendants’ misconduct during the course of discovery has travelled well beyond the boundary of what is even remotely acceptable in the conduct of litigation.” The court also stated, in explaining its decision, that  the plaintiff …” has been attempting to conduct discovery to prepare for trial. Plaintiff has been thwarted at virtually every turn by Defendants’ outrageous misconduct.” The judge’s decision was especially revealing in that it found the defendants and their attorneys had conspired to impede the plaintiffs discovery and to block the court’s enforcement of the discovery rules.  The disregard of the discovery Rules has now become almost routine. Defense attorneys grind out one motion after another in an effort to deny plaintiffs’ attorneys the evidence they need to properly prepare their cases for trial. The defense team rarely gets sanctioned for its obstreperous conduct and therefore the risk is worth the benefit. Until the courts begin to vigorously enforce the discovery Rules delay and obfuscation will become the order of the day. All the while lining the pockets of defense lawyers who assert frivolous objections to legitimate discovery requests by plaintiffs’ counsel.

Copyright 2014

All Rights Reserved

Arthur F. Licata

Jurors: What Are They Thinking and What AreThey Doing?

May 15, 2013

THE GOOGLE EFFECT

Jurors, and Social Media: When jurors base their verdict on information outside the facts offered as evidence at trial.

Social networking is influencing jurors’ decisions at trial. For example, instant messaging gives no one time to think and the opportunity to deliberate. In text messages the human voice is missing with its subtle tones and inflections. The human voice and its variety of sounds convey a variety of meanings which are unspoken.

Did you ever wonder what a potential juror is thinking when he is waiting to be selected for jury duty? Typically, a juror is ushered into a large courtroom by a court officer; numbers are called at random by the court clerk. These numbers match the numbers of individual jurors. Once a person’s number is called he is asked questions by the judge and the attorneys who represent the parties in the lawsuit. These questions are designed to eliminate jurors who are biased; and who are unable to objectively decide the case upon the facts presented as evidence; or who are unsuitable in some manner to the attorneys representing the parties. If they meet all the criteria, the first 12 qualified jurors are seated in the jury box along with two alterative jurors. There are alternates in case one of the 12 jurors is unable to perform his or her duties, e.g., illness.

It is then that jurors have a chance to start looking around. They usually try to figure out who are the parties and who are their attorneys. They also want to know why the parties were unable to settle their differences instead of going to trial. In the past, the judge would admonish the jurors not to talk about the case with one another until they began their final deliberations. Jurors had a hard time obeying the court’s instructions because for as long as the trial lasted the only people who were available to chat were their fellow jurors. Today, those same instructions by the judge are impossible to enforce; and  very difficult for jurors to obey.

Jurors come to court with many different types of electronic devices: they have smart phones; they have Ipads; they have laptops; and they have big and small tablets. Each person may have several of each electronic device.  All these devices can perform a multitude of functions.

Many are inappropriate for the jurors to use at court; and many of which allow jurors access to information that may prejudice their deliberations. Jurors can send telephone messages, text messages, emails, etc. They can talk to their friends at lunch time. Many succumb to the temptation to talk about the demeanor of the judge, attorneys, witnesses and the parties themselves. They can publicize their opinions on all types of social media such as Facebook, LinkedIn, Google, Yahoo and Apple. There is also the possibility that jurors ‘personal electronic devices could be “hacked.” There is the real possibility that the jurors’ deliberative process could be revealed if they made notes about their discussions on their smart phones, Ipads and tablets. Even “cloud computing” has unappreciated risks since the information about a jurors electronic information is being stored on a remote servers that are also vulnerable to “hacking”. Another scenario is the “hacking” of a judge’s computer system in order to get confidential information that provides a glimpse into the judge’s thinking and jury instructions. If a jurror has a question during their deliberations it is also likely the judge may give the jurors instructions about how to proceed. Lawyers could influence what is told to the jury by the judge if they got advance warning about what the judge was thinking as reflected in notes made on his computer. In the recent past those notes would not have been electronically accessible to ‘hackers” and those that retain them.

Jurors frequently use twitter to convey every day experiences to their friends. Can you imagine the temptation of a juror to twitter her friends about what was going happening at trial and what her fellow jurors were saying to each other? There is also the concern that jurors could be intimidated or unknowingly tracked by “hackers” gaining access to their personal information. In high-profile organized crime cases the ability to “reach” a juror or influence his or her decision may be enhanced if it is known that a juror is in financial trouble or in debt to mob associates.

Jurors can electronically visit the site of an accident or a murder and draw conclusions that are unsupported by the evidence. Is the information on the internet reliable? Is it accurate in time and place? The judge may rule that  something is inadmissible at trial but the jurors may be able to see it by “googleing” it.

What no one foresaw was the unanticipated, outside interference upon the jury system from all this technology. Jurors can “google” the judge, the parties, their attorneys, witnesses, employers, friends of the parties , prior arrest records, and even the issues under dispute. For example, if the case was about the death of a driver under the influence of alcohol jurors could access the print and electronic media which reported the story when it happened. The news stories may or may not have the accurate facts. Many times the facts only become available after a full investigation. Even then, it may depend upon  who performed the investigation and who paid for it. Think of the BP oil spill in the Gulf of Mexico.

The following are proposed supplemental jury instructions that the trial  judge should explain to the jury before the opening statements by the plaintiff and defendants’ attorneys:

  1. jurors should not use social media to perform any independent research relating to any issues in the case, the parties, witnesses or experts;
  2. jurors should not use any electronic devices to research any topic in the case or any person listed as a party, witness or expert;
  3. turn “off” electronic devices while in the courtroom;
  4. Jurors should not communicate with outside influences by using electronic devices , e.g., family, friends, co-workers, other jurors;
  5. do not communicate, during jury deliberations, with anyone by any means including electronic devices.
  6. do not perform any independent research about issues in the case using electronic devices. Only consider in your jury deliberations the information admitted into evidence at trial.

Judges are reluctant to intervene in the personal lives of jurors and what they do when they are not in court. However, the pervasiveness of the internet and social media enable jurors to decide a case on what they think is important even if their judgment is contrary to the judge’s instructions.

Copyright 2013

All Rights Reserved

Arthur F. Licata, Esq.

Alcohol Liabilty At Concert and Stadium Events: Who’s In Charge?

April 25, 2013

In the state of Massachusetts, a trial judge has decided that relatives of two deceased persons, ages 20 and 19 years old, and an injured person age 24, can bring a lawsuit against the Kraft Group for contributing to their deaths after a country music festival. The concert was held at Gillette Stadium on July 26, 2008. Robert Kraft is the owner of the highly successful New England Patriots football team, and the owner and operator, through his affiliated companies, of Gillette Stadium in Foxboro, MA.

The three woman were drinking in the parking lot of Gillette Stadium. The parking lot is also controlled by the Kraft Group. The Kraft Group handles parking and security at Gillette stadium for football games and other non-football events throughout the year. The plaintiffs claim that the Kraft Group failed to provide proper oversight and supervision of the parking lot and that it failed to have sufficient and proper security. The plaintiffs are likely to allege at trial that the Kraft Group knew or should have known that minors were drinking alcoholic beverages in the parking lot before, during, and after the event inside Gillette Stadium. The plaintiffs’ attorney stated that the “[v]enues for sports and entertainment have always thought they were insulated from liability…” The court’s decision will allow the case to proceed to a jury trial; it will be decided by 12 people after hearing all the facts. The case will also raise issues about providing a safe environment on one’s property when it is used for profit-making activities. The plaintiffs are also likely to allege that the Kraft Group permitted minors into the parking lot whether or not the occupants of the cars had tickets to the concert. It was in effect one big party from which the Kraft’s received compensation for parking on its property. When minors started drinking in an atmosphere in which thousands of people were drinking alcoholic beverages all day long an accident was just waiting to happen. It was not a question whether someone was going to be injured it was merely a question of when it would happen.

The case may affect the way the Kraft Group and similar operators conduct their businesses. They can no longer turn a blind eye to illegal activity on their property. A decision for the plaintiffs will likely affect the scope of alcohol consumption inside the Gillette stadium whether by adults or minors. A company in the entertainment business usually knows what type of audience it attracts. The Kraft Group should be aware about the prevalence of minors at football games and musical events. The Kraft Group must act reasonably under all the circumstances to monitor and prevent under-age drinking on property it controls. The liability of the Kraft Group is more likely than not because there had been prior complaints by others, including the town of Foxboro, about the dangerous alcoholic activities being permitted in Gillette stadium parking lots. There are punitive aspects to the case and probable multiple damages under the consumer protection laws, M.G.l..93A and 176D.

The case will likely address the issues of  excessive alcoholic drinking at tail-gait parties during football games and musical events at Gillette stadium. It likely will also raise issues about where alcoholic beverages should be permitted and what steps are mandatory to protect minors from obtaining alcohol. and Their blatant drinking in the parking lots before, during and after entertainment events was foreseable.  The case may even raise questions about serving first class passengers excessive alcohol on commercial airlines. Surely the airlines know some of their first class passengers are leaving their planes and walking to their cars inebriated and over the legal limit for operating a car. The Kraft Group makes hundred of millions of dollars every year at events which use Gillette stadium and its parking lots. It should be required, by law, to have adequate, and well-trained security to prevent the consumption of alcohol by minors, and drunk adults at events on its property.

Update: On November 5, 2013, the Boston Globe newspaper reported that the wrongful death cases against the Kraft Group were settled on the eve of trial for an undisclosed sum of money. As a result, the theory of the case against the Kraft Group will not be resolved; it was likely that the Kraft Group  would have been found negligent. By settling the Kraft Group maintains the present ambiguity in the law until a jury decides otherwise in a future case, and the jury verdict is upheld by a Massachusetts appellate court.

Copyright 2013

All Rights Reserved

Arthur F. Licata, Esq.

12 Post Office Square

Boston MA.

www.alicata.com

617-523-9977

What’s Going On In A Trial?

October 12, 2012

How does it begin? What are the steps that lead to the selection of a jury? Who participates? What are the criteria for arriving at a decision?

A trial is a story. It is primarily about who is telling the truth. The plaintiff, the person(s), commencing the lawsuit, has the responsibility of producing witnesses and documents to convince a jury by “a preponderance of the evidence.” that his story is true. The defendant, in a civil case, has the option to produce witnesses and documents to disprove the plaintiffs story and to undermine the plaintiff’s credibility. The judge is similar to a referee in a boxing match. He explains the rules to the contestants and the jury. He makes sure everyone is playing by the rules. The judge can exclude evidence from either side if it does not meet the requirements of the court rules, and laws. The plaintiff’s attorney begins the trial by making an opening statement. He explains to the jury what the case is about; he tells them about the evidence they can expect to hear from witnesses and through documents. The use of exhibits is very effective for modern-day jurors. They have brief attention spans as a result of the technology they personally use at home, at work and at all social occasions. The plaintiff is well-advised to use photos, video, computer animation and models to help explain to a Star Wars generation the story he is trying to tell. In the last 10 years there has developed a significant threat to the sanctity of the jury and their oath of confidentiality. All types of hand-held devices permit the jurors to surf the web, to talk to their friends and to independently explore the backgrounds of the parties to the lawsuit, e.g., the judges , the attorneys and the technical aspects of any type of evidence at issue in the trial. To put it more bluntly jurors are not limiting their decision-making to the evidence produced in the courtroom under oath and under the supervision of the judge. Under the rules of the trial court, it is supposed to be the judge who determines whether the evidence produced is appropriately admissible at trial. After the Opening statements by the attorneys (usually the plaintiff goes first in the Opening and last at the Closing Argument), The plaintiff calls his witnesses one at a time to testify in front of the jury. The jury not only evaluates the credibility of the testimony but also examines a host of unconscious clues that form a person’s character and demeanor. Sometimes videotaped depositions are shown to the jury. This is usually done when the witnesses and experts are outside the state where the trial is held. Each person who testifies for the plaintiff is subject to cross-examination by the defendant’s lawyer. After the plaintiff’s attorney concludes the presentation of evidence it is the defendant’s turn to present evidence. The defendant attorney challenges the plaintiff’s story about how the accident happened and the severity of the plaintiff’s damages. The defendant is not required to present evidence but in a civil trial the defendant’s attorney usually chooses to do so. This is in contrast to criminal cases where the criminal defendant frequently decides not to take the stand for fear of cross-examination by the government’s attorney. In criminal cases this is called the right to remain silent. It is up to the state’s attorney to prove the government’s case beyond a reasonable doubt. The defendant does not have to “prove” anything; he is presumed innocent until proven guilty. In a civil case, the burden of proof is significantly easier. The standard is that the plaintiff must prove his case by a “preponderance of the evidence. In laymen’s terms it means “it is more likely than not;” it is “probable” that the evidence presented is persuasive under law. The classic illustration, in a civil case, is to imagine the scales of justice evenly balanced. The scales of justice have to be tilted ever so slightly for something to be probable. The criminal case must prove the defendant guilty “beyond a reasonable doubt.” It is a significantly more difficult burden to prove. These key differences are frequently misunderstood by non-lawyers and laymen who read about notorious cases in the newspapers, television and the internet. After the defendant concludes the presentation of his evidence, the judge  “charges the jury.” This is a fancy way of saying he tells them what laws to apply in this particular case. He tailors what he says about the law to help jurors with their deliberations. Many times this explaining the law to the jurors is more an exercise in hope than in practice. Jurors are frequently confused by the legal jargon read to them. This where a good judge can make an important contribution by explaining the law in terms that jurors can understand. It is then up to the jurors to deliberate, that is, to decide and come to a decision. In a criminal case the verdict must be unanimous. In a civil case usually 10 jurors out of 12 must agree on a verdict . It is also up to the jurors to decide the amount of monetary damages to award the plaintiff. It must be be based upon the evidence presented at trial. In a civil case, each side may appeal based upon an error of law read to the jurors by the judge. In a criminal case only the defendant can appeal the verdict absent some unusual circumstances. What makes the jury trial system so powerful is that these decisions are made by a cross-section of people in the community in which they live. It is not made by a king,  a dictator, a ruling elite or even by government officials. It means that even the most powerful people and corporations in the world can be compelled to appear in a U.S.A. court and give evidence. It is the great power of the people to do “justice.” However, in recent years those noble goals have been tainted by all the justice that money can buy.

How Do You Define The Word Merge?

May 21, 2012

When two roadways angle toward each other in the same direction the drivers are urged by traffic signs to “merge”. What is meant by this instruction? Merge signs are supposed to warn drivers that the lane in which they are driving will gradually narrow into another lane. The traffic sign puts drivers on notice that extra caution is required and that there is the possibility of a speed reduction or acceleration. Merge signs call for extra courtesy to those who will be converging into your lane from another lane of traffic. Why would anyone bother to obey a merge sign. Safety is surely a consideration and efficiency is certainly another. Perhaps courtesy is based upon a vested self-interest. We all proceed more quickly if we cooperate. If only Congress would learn to merge their ideas, that is, compromise and cooperate in doing the people’s business.

“Reply To All”: Use At Your Own Risk

May 16, 2012

Microsoft has made a mistake and it has gone uncorrected for too long      Did you ever hit “reply to all” when you meant to hit only “reply.” This particular feature of Windows has created more trouble and unintended consequences then all the other Windows features. This email option should come with an “on” or “off” switch that can be set according to the user’s preference. This would be similar to the privacy settings on a computer. You can set the degree of privacy according to your wishes. Another way to fix this problem is to incorporate a prompt feature in which a small box appears and it asks the user “are you sure you want to do this?” These prompt boxes are already a feature in other parts of the Windows program. The “reply” and “reply to all” buttons are too close together and it too easy to hit one while meaning to it the other. This is not an insignificant problem. It is not like a spelling mistake nor is it  like a grammatical error. Hitting “reply to all” by mistake usually has embarrassment written all over it. It frequently affects relationships, business and personal, in adverse ways. When you reply to an individual person there is an expectation of privacy. The people communicating with each other tend to assume that their conversation will not be over-heard or subject to gossip by others. The “reply to all” immediately negates those assumptions. More importantly the mistake is instantaneous. It is in writing and it cannot be taken back. The unintended recipients get an immediate shock which frequently leads to embarrassment and, in many business situations, the loss of a customer or the cancelling of a deal. On a more personal note, people’s feelings can get hurt and relationships destroyed. There is no longer the luxury of an off-hand remark. All of these unfortunate consequences could be obviated by a “prompt screen” before sending a”reply to all” email. Please reply!

Students’ Rights: Do They Have Any?

April 20, 2012

Student Rights: Grammar School, High School, Colleges and Universities

What is the reach of the law inside a grammar school? Can a policeman go into a grammar school without the principal’s permission? Does it make a difference if the grammar school is a private school instead of a public school? If the school is a high school are the students’ legal rights more extensive than they were in grammar school? Is there a difference between public and private high schools.? In colleges and universities are student rights more expansive than they were in high school? One of the earliest legal concepts applied to students while at school was the Latin phrase “in loco parentis”  It translates into English as “in place of a parent.” The legal premise was that students were required to listen and to obey their teachers and principal as if these educators were taking the place of their parents while at school. This authority was diminished during the student rights movement of the 1960s. Today , this concept has all but been abandoned in colleges and universities although it still has some resonance in private institutions and in public grammar and high schools. “In loco parentis” allows educational institutions to act in the best interests of their students as they see fit. The pendulum may be swinging back toward reintroducing a modified form of ‘in loco parentis” in the wake of the shooting and killing of students at Columbine High School and Virginia Tech University. The 1942 Supreme Court case that was responsible for the limitation of ” in loco parentis” was West Virginia State Board of Education v. Barnette. The court ruled that students cannot be forced to salute the American flag. However, in 1969 the Supreme Court decided the case of Tinker v. Des Moines Independent Community School District in which the court held that “conduct by the student, in class or out of it, which for any reason – whether it stems from time, place, or type of behavior – materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.”  In 1985, in the case of New Jersey v. T.L.O. the Supreme Court upheld the search of lockers and other personal space while on school property. It indicated the court’s thinking that students are not afforded the same rights as adults while they are at school. In the 1989 decision of Hazelwood School District v. Kuhlmeier the Supreme Court ruled that ” [f]irst Amendment rights of students in the public schools are not automatically coextensive with rights of adults in other settings, and must be applied in light of the special characteristics of the school environment.” Schools may sensor school sponsored publications,  such as a school newspaper, if the content is “…inconsistent with its basic educational mission.” Some form of “in lococ parentis” continues to be applied in primary and secondary education; it has been diminished in higher education. In 1961, the Supreme Court, in a landmark decision, held in the case of Dixon v. Alabama that Alabama State College could not summarily expel students without due process. Some of the issues that currently arise with practically all students in all types of schools, public or private, are the following: underage drinking, security, privacy and social media, roommate behavior, drugs, mental health issues, suicide; and the concern of parents to know what is happening to their child at college versus the student’s expectations to be treated as an adult with the right of privacy and confidentiality. Each of these issues is handled differently depending upon whether the student is in grammar school, high school or college and whether the educational institution is public or private. The germinal case in Massachusetts concerning college security is Lisa Mullins vs. Pine Manor College 389 Mass. 47 (1982). The Supreme Judicial Court held that colleges have a duty to take reasonable measures to protect their students against foreseeable criminal acts of third parties. Under Massachusetts law, the college was considered a charitable institution. Its liability on damages was capped at $20,000 but the security officer of the college was also sued in his individual capacity. The court held that an officer of a charitable institution is not immune from liability for negligence in the performance of a discretionary function. The court stated that the defendants were negligent in permitting certain deficiencies in the college’s security system.

Copyright 2012

Arthur F. Licata

Why Do We Stop On Red and Go On Green?

April 4, 2012

As you approach a red traffic light you place your foot on your car’s brake pedal. Perpendicular drivers place their feet upon their accelerators because their light is green. This orchestrated movement happens millions of times every day. It allows people to safely use the roads. Why does this system work? Why red-why green? Why do all drivers agree to obey these symbols? The system works because the governed consent to be governed. There is a consensus about the terms and conditions for using cars based upon the concept of providing the greatest good for the greatest number of people. We, as citizens, have determined that these simple devices are the most efficient means for controlling the motoring public, even if some ( such as blind people) are excluded from driving and are therefore inconvenienced. What would happen if we started to disregard these regulations? What if we drove forward or stopped regardless of the colors shown on the traffic lights? Certainly there would be some accidents. We currently see intersection accidents every day. However, what would happen if everyone decided , in the exercise of their individual freedom, to do exactly what they wanted to do? We would expect to have accidents – horrible , needless accidents, occurring with more and more frequency. The police would be stretched to the limit in order to control the lawbreaking. Yet, we all know that there are not enough police in the entire United States to make people “stop” at red and “go” on green. The people basically govern themselves. The police merely reinforce that consensus. The police ticket and occasionally arrest the small minority who disregard the rules of the community. Suppose it wasn’t a small minority who disobeyed the rules. Suppose it was a majority of the citizens; and there was no consensus about the meaning of red and green signals. The government would be powerless to supervise its citizens without their consent, or without the necessity of imposing martial law, as it does in times of national disaster or civil insurrection. Why do citizens stop on red? It appears to be based on some of the following: education and training, custom, law enforcement, safety, and the consensus concerning its utility. Citizens seem to acknowledge that this “give and take” system wherein you go and then I go provides for an orderly and efficient movement of traffic. This system ultimately promotes an individual’s own enlightened self-interest by preventing traffic gridlock. Without such a system no one could go anywhere. There would be no communally accepted guidelines for behavior. In recent years, we all have experienced situations in which this consensus has broken down. The following scenario is typical: drivers are stuck in the middle of an intersection. They are unable to go forward or backward. More and more drivers continue to inch into the intersection  as the traffic light alternately turns red and green. Drivers facing the “go” signal lean on their horns in indignation as their turn to drive forward is denied to them. The result is gridlock. Gridlock occurs when drivers ignore traffic rules for an intersection and, as a result of the anarchy created, no car can move. These irrational acts of  individual aggressiveness have become so common that traffic signs are now posted at major intersections in New York city admonishing drivers to avoid gridlock. The traffic signs urge drivers to obey the law so that they can get home more quickly. A rather simple idea that would seem self-evident. In Boston, the traffic situation has so deteriorated that policemen now patrol major intersections at rush hour to control traffic movement. This is necessary because there is no longer a consensus by drivers as to when to go and when to stop. A driver’s decision currently seems to be based upon situational ethics: can I get away with it; will anyone catch me; will I get a ticket; or will that other driver really hit me as he seems prepared to do, or will he, in the rush-hour game of “chicken,” turn away at the last possible moment. What rage and anger are festering in our fellow citizens that leads mature men and women to risk life and limb in 4000 lb. cars that are powered by huge engines? They are isolated and alienated from each other’s concerns by tinted glass, stereo systems, sunglasses, over-sized utility vehicles mounted on tremendous tires, and talk show-powered adrenaline. Where do people learn to govern themselves? How do they come to the goal of being informed citizens? How long does it take to become an educated person, that is, not someone who is formally educated but someone with knowledge of the rights and obligations of a citizen? The old wives’ tale is probably true. “Attitudes are shaped at your mother’s knee.” They begin with the non-verbal examples of one’s parents. Imagine the following scenario: As a two-year old child you are sitting in the front seat of your father’s car. He backs out of the driveway of your house. He enters the street and drives forward. He comes to an intersection. At the intersection there is a steel pole at the corner with a box on the top and lights within the box. You notice that the light which is illuminated and facing you is red. Your father stops the car. Up to that point your father has said nothing to you. Over dozens, perhaps hundreds of times, this occasion repeats itself each time you enter the car. As a three-year old you notice the light even before it is illuminated. You point to it and your father begins a familiar pattern. He says to you the words: “Light, red, stop; light green, go.” You learn the meaning of these symbols but it takes a long time, and it requires constant reinforcement. On other occasions, you walk to the store with your mother. She comes to a street corner and waits. She points to that light again – red and green. It must be important because your mother stops walking when it is red. Cars drive by when it is green. It is just like the situation with your dad in his car. The child begins to learn he is not an island but a social being who will develop, mature and flourish in a social environment. He or (she) will realize that society has rules that will in many ways limit, control, shape and even impinge upon his actions. He will understand that he does not have unlimited freedom. The United States is unique because the overwhelming majority of its citizens are immigrants or the descendents of immigrants. The process of consensus building therefore is important and useful. As immigrants arrived in the United States they were assimilated into the “melting pot” of American society. Whether Irish, French, Jewish, Spanish, Italian or a person of African descent, upon entering the country the different characteristics of each group combined to create a unique, zesty and powerful stew that nourished unparalleled growth and prosperity for all citizens. In contrast to the past, we now emphasize not what we have in common but what divides us. We promote separateness, differences, diversity, and excess individualism to the exclusion of the commonness necessary to bind us together as one people. The glue that held us together combined the best traits of each heritage’s accomplishments. It made a uniquely democratic people and very prosperous ones too. Why do we now act in the very manner likely to destroy these healthy underpinnings?

Why do we go on red and green?     

Copyright 2012

Arthur F. Licata 

www.alicata.com   

arthur@alicata.com                             

Punitive Damages: What Is The Appropriate Amount

March 7, 2012

Why Punitive Damages Should Remain 2X or 3X The Amount Awarded By A Jury

In previous posts, we have discussed the many factors of punitive damages. It is a deterrent, and a punishment for an insurance company’s bad faith, and its unfair and deceptive claims settlement practices. These public policy decisions by the Massachusetts Legislature were discussed in the recent Massachusetts Supreme Court decision of Rhodes, el v. AIG Domestic Claims, Inc, et al. The court found violations of the Consumer Protection statute. Pursuant to the statute, the court ordered the jury award doubled. Since the case involved a truck rear-ending a car there was no issue concerning liability. The passenger was severely injured. The jury awarded damages for her life-long care in the amount of $9,500,000, and with interest, it amounted to $11,300,000.  In deciding that the amount should be doubled the Supreme Court stated that “[we] recognize that $22,000,000 in c.93A  damages is an enormous sum, but the language and history of the 1989 amendment to c.93A leave no option but to calculate the double damages award against AIGDC based upon the amount of the underlying tort judgment.” The court went on to say that “[t]he Legislature may wish to include more than a single, but less than double, damages; or developing a special measure of punitive damages to be applied in unfair claim settlement practice cases brought under c.176D, section 3(9), and c.93A that is different from the measure used in other types of 93A actions.” It is almost as if the Supreme Judicial Court was apologizing or embarrassed by its decision. This impression is unfortunate. It undermines the very public policy principles that gave rise to consumer protection statutes. The Legislature understood the unequal bargaining power between a multinational insurance company and an individual claimant. The statute encompassed the rightly held view that monetary sanctions are the only way to change the unlawful behavior of an insurance company. As to the appropriate amount of punitive damages to be awarded, the $22,000,000 in the Juliano v. Simpson case is not typical. It should not be used as the criteria or as an example of a fair punitive sanction. Juliano is a catastrophic injury case with life long medical care and lost earning capacity. The more typical cases are those that are the bread and butter of personal injury practice. The parties are usually negotiating cases that are between $100,000 and $500,000. These types of cases are the ones that cumulatively save insurance companies millions of dollars each year when they refuse to settle them, even though liability has become reasonably clear. If one obtained a jury verdict for $100,000, the doubling of the jury award would amount to a punitive damage award of $200,000. If one obtained a jury award of $250,000, and it was doubled in punitive damages, the award for unfair and deceptive claims settlement practices would be $500,000. These are hardly “enormous” or “shocking figures.” They reflect a more realistic likelihood for future punitive damage awards consistent with the Juliano case. These punitive awards have just enough bite that insurers will realize it has become more expensive to ignore the law in Massachusetts than to obey it. If one multiplies these medium size cases over the course of a year or five years, the insurers will lose too much money. They will be exposed to too many potential punitive damage awards for them to maintain a “stonewalling” business model. The public policy behind c. 93A and 176D has just become effective. Neither the Court nor the Legislature should now gut the law’s abilty to protect consumers. As a result of the Juliano decision, Massachustts courts are no longer paper tigers when asked to enforce the state’s consumer protection laws.

Copyright 2012

Arthur F. Licata


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