Archive for December, 2012

Why $100 million suit over Sandy Hook trauma is a good thing

December 31, 2012

Connecticut attorney Irv Pinsky has filed a $100 million claim against Connecticut, on behalf of an anonymous mother of a 6-year old survivor of the Sandy Hook High School, for “emotional and psychological trauma and injury, the nature and extent of which are yet to be determined.” Comments sections around the internet are already filling up with sneering attacks on the crassness of it, the exploitation of it, the greed of the lawyers and sometimes even the greed of the family – but, what else is new? People hate lawyers, especially personal injury lawyers, and people hate so much as the appearance of profiteering off of tragedy, usually perfectly commensurate with their misunderstanding or lack of discernment about the issue at hand. This is just such a case. The two issues relevant here are why it is such a good thing for society that people are able to file lawsuits such as this (regardless of any appearance of crass enterpreneurialism on the part of lawyers), and the relative strength or weakness of the present action.

It is a good thing that people are allowed to sue parties who seem to be only distantly related to tragedies shortly after those tragedies because society should permit economic weapons to be used to incentivize increased care by those parties. In this case, the defendant entity is the one that we hold far and away to the highest standard of any group in our society – the state. It is the party that profits off of our hard work through taxes, that we trust to pool social risks and to protect against foreign invaders, that we empower to delineate the contours of our duties and freedoms, and that we (usually rightly) blame first when something goes wrong. It should be easy to file suit, if not win suit, against the state, because we want juries and judges to have as many opportunities as possible to punish the state, through both the economic damage and the public shaming ritual of losing a lawsuit, for failing to live up to our very high expectations for it. If a competent court or the duly chosen members of a jury decide that the state has failed in its charge, then it deserves to be punished just as much as anybody else. And since the state plays such an integral role in protecting, controlling, and managing our lives, it owes us a corresponding level of access to its own goings-on, and access to the courts is our most useful kind of access perhaps second only to access to legislatures.

But we also want judges and juries to be able to say that what is perceived to be a failure by the state is actually an unjust assignment of blame. Not long after the attack, the state was accused of a litany of failures: failure to regulate firearms, failure to screen out potentially violent or mentally ill children (that everyone blamed the state for failing to discriminate against the mentally ill without any clear evidence of mental illness in the shooter is a disgusting feature of our discourse about the Sandy Hook tragedy, but perhaps that is best left for another day). For the same reasons that we want it to be easy to blame the state for its failures, we want to be able to recognize when the public has unfair expectations of the system.

And, of course, we want parties that have actually been wronged to be made whole by compensatory damages and to deter their trespassers by punitive damages.

But as to the present case, laudatory as I have been for the right of lawyers to file such suits, this particular suit is of questionable merit. If I read the news articles correctly, Attorney Pinsky has chosen a particularly difficult theory to prove – negligent infliction of emotional distress. I won’t get into the details of it, because 1) it has several ins and outs and 2) those ins and outs vary by state and Connecticut is not my home turf, but to truncate the analysis considerably, showing NIED requires showing that the defendant, through either negligent action or inaction, caused the plaintiff to suffer a “sensory and contemporaneous” emotional shock that objectively harmed the plaintiff. There’s a lot of qualifiers there, and they all stack up against the plaintiff.

When you read Pinsky’s comments, you see that his case is doubly difficult because his chosen nexus is not the shooting itself, but specifically the broadcast over the loudspeakers of the initial shooting in the Sandy Hook Elementary lobby office. So instead of proving that the entirety of the attack caused emotional harm to the anonymous child, Pinsky must convince either a judge or a jury that:

  • the state could reasonably foresee, or should have reasonably foreseen, that, during a school shooting, someone would turn on the overhead loudspeakers to warn others in the school,
  • there were reasonable steps the state could have taken to mitigate the harms caused by the element above or to prevent them entirely,
  • that the elements above caused the plaintiff’s child to suffer serious objective harms (say, stress-induced digestive problems, diagnosable depression or PTSD, not merely “feeling sad” or “being scared”) because of a sensory experience contemporaneous with the results of the defendant’s negligence.

In short, good luck, Attorney Pinsky.

As an aside, there are certain strategic aspects to this case that you should know are standard tools of the trade. Specifically, the $100 million damages sought. Even if the anonymous child in this case went out was diagnosed with every emotional disorder from depression to hysterical pregnancy as a known direct result of the shooting, if Pinsky proved every other element of his case, there’s no way in hell that $100 million would pop out of that case. What Pinsky is doing is highballing his figure because he’s hoping to settle for a catastrophically lower sum. The state knows that it would almost certainly win any lawsuit, but Pinsky can save face and look like the reasonable one because he has plenty of space to revise his settlement proposal downwards until he meets something that will probably be slightly higher than his expenses, if the case proceeds at all. When you see a damages figure far out of proportion to any reasonable interpretation of a case, you are seeing the preliminary settlement offer broadcast to the defendant. By starting at $100 million, Pinsky is hoping that he can look reasonable and accommodating when he gets talked down to less than $1 million, because he knows and the state knows that the suit is likely to fail, but less than $1 million is better than nothing.


Anti-Westboro Baptist Church petition is legally meaningless

December 29, 2012

Media excitation continues to grow over a petition created on the White House’s “We the People” page calling for the White House to “Legally recognize the Westboro Baptist Church as a hate group.” Go and read the petition; it’s quite brief, and is apparently the most popular petition ever posted to that page.

In its terseness, the petition seems to leave out certain crucial details, such as what the petition actually hopes to accomplish. I have asked various friends who have signed the petition what they think it would mean for the White House to “legally recognize” the WBC as a hate group, and invariably the answers reduce to either a shrug, or a statement of the bizarre notion that, apropos of the holiday season, the White House keeps some kind of master naughty-or-nice list, and the petitioner wants to see WBC firmly filed away (“legally”) in the naughty category.

The term “hate group” is not a thing, not even “legally.” The petition itself notes that private groups such as the Southern Poverty Law Center do just fine categorizing our moral distastes for us, but the government does not. The government keeps various security lists (FBI’s most wanted list, various terrorist watchlists, etc.), but it does not keep a “These Guys Are a Bunch of Assholes” list.

Attaching the word “legally” onto the front of the petition is the strangest part. It’s as if the petition’s author envisions a committee somewhere, presumably of men in nice suits, sitting around a table debating whether or not someone belongs on the naughty list. They pass around dossiers, exchange motions and objections, the pass a sheet of paper to the oldest, wisest man in the room. He swipes his pen across a huge signature line at the bottom, nods sagely, and then church-bells begin to ring somewhere as the Westboro Baptist Church, widely believed to be a hate group is now officially, certifiably, legally a hate group – as though there is some judicial body out there somewhere that converts subjective opinions into objective facts and they just haven’t gotten on this one yet because, dammit, there hadn’t been a petition yet!

And then the Westboro Baptist Church presumably realizes the error of its ways and converts from church to monastery, its members sealing themselves inside for penitence beneath the shaming glare of a society that finally, officially, legally recognizes them to be a hate group.

Unfortunately for slacktivists nationwide, the law will not solve the WBC problem if a petition gets enough signatures. It is simply a cathartic exercise for everyone too lazy to join a counter-protest or petition the legislature for legitimate redress to express a condemnatory opinion that everybody else already agrees with. Hating the Westboro Baptist Church is the ultimate non-controversial opinion. The WBC is frequently referred to as “controversial,” but in reality, it is not controversial at all: nobody disagrees that the Westboro Baptist Church is  a roving circus troupe of mentally malformed assclowns. There’s no controversy about them whatsoever; what’s controversial is how we deal with them.

People line to get up in arms whenever they hear about the government making some kind of list, but now they want there to be that list. People want the law to reflect their moral preferences when it simply does not and cannot. The law is for ordering society, not conforming it to our moral preferences, and it would be a disordered society indeed that tells the government to tally up our shared disdain for certain groups. How long would groups like American Atheists, the Center for Inquiry, or even the Catholic Church be able to stay off that list? How many NRA members do you think would be ready and willing to label the entire Democratic Party as a “hate group,” and vice versa for Planned Parenthood and the Republicans?

The petition against the WBC is a legally meaningless exercise in expressing a non-controversial opinion that’s just fun to say. It relies both on the laziness of its signers and a cartoonish understanding of the law and the government, and makes people feel like they’re part of the solution when really there is no solution other than to either radically revise our free-speech principles or to just start ignoring the hell out of the Westboro Baptist Church.

I shall endorse the latter proposition promptly and legally.