Who Wants $100,000?

                Remind me never to piss off John Uustal. Or, if I do, remind me that I should get him angry at someone I don’t like. The Florida litigator is so furious just now, he’s putting his money where his mouth is. If you have the information he is looking for, he will pay you up to $100,000.

            Uustal is a Florida plainitffs' lawyer. When he smells injustice, he goes into attack mode. His clients are glad he does. He’s a David in search of deep-pocketed Goliaths.

            Now plaintiffs’ lawyers get a bad rap. The business community regards them as gold-diggers – lawyers bent on making a buck from other people’s sorrow. That has a fine moralistic tinge to it. But let’s be real: when a corporation makes a mistake, it typically has a budget for legal fees that no little guy can match. Skilled plaintiffs' lawyers take cases on contingency fee because they assume the risk of failure.

            Folks like to talk about the McDonald’s coffee verdict years ago as an example of civil litigation run wild. You recall that suit, don’t you? That’s the case involving Stella Liebeck, who, at age 79, was badly burned when a cup of scalding coffee offered at a McDonald’s drive-through spilled into her lap. A jury awarded her almost $3 million in punitive damages.

            The case has been the staple of late-night comics and corporate mockers for almost a quarter of a century. I mean, millions of dollars for spilling a cup of coffee? Plenty of folks think that if you drink hot beverages and drive, you’re assuming the risk of a mishap.

            But here’s the story that rarely gets told: McDonalds is a massive corporation. It was aware of risk of customer’s being burned by coffee. Indeed, it estimated the number of such cases that would occur in a given year with the help of an actuary or two. It then had to decide just how hot to serve its coffee. The economists, marketers and actuaries got together and made a decision: If McDonald’s wanted to keep market share for piping hot coffee, it had to serve coffee at a temperature far hotter than its competitors. But that carried a risk of additional injuries for the inevitable spills.

            In the end, the jury in the McDonald’s case heard that company executives made a cost-benefit analysis. It was willing to risk serious burns to customers so long as it made more money in profit selling coffee than it paid out in injury claims. The $3 million paid to Ms. Liebeck represent an estimate of one day’s profit from selling coffee.

            That’s a trifling sum; hardly the boon to Ms. Liebeck propagandists make it out to be.

            But in an era of fake news, the headline is the thing. Why not another McDonald’s suit to fan the flames of animosity to plaintiffs and plaintiffs’ lawyers?

            A new McDonald’s suit was recently filed in Southern Florida. The basis of the suit? McDonald’s charges the same price for a quarter pounder with cheese as it does for a quarter pounder without cheese. The lawyers have filed a class action suit so that those who eat their meat without cheese get a rebate of some sort. The lawyers, of course, can rack up big fees. That is if the case survives a motion to dismiss.

            The suit is asinine, and lawyers who filed it should be ashamed. They give ambulance chasers a good name.

            But what if the lawyers aren’t doing this because they actually believe that they can win this silly suit? What if they are doing this as corporate dupes? Tongues are wagging in Florida, and the hunt is on for information about who is funding this stupid stunt.

            So if you have information about who is financing this execrable nonsense, contact Uustal.

            “We know that big corporate interests have successfully attacked the credibility of our civil justice system by highlighting frivolous lawsuits. They do it so they can eliminate truly righteous lawsuits,” Uustal says. “Frivolous lawsuits are poison. They not only create unfair costs for innocent defendants, they also allow powerful corporate interests to create a smoke screen to hide their truly despicable conduct.”

            Do you have any idea who is behind this latest McDonald’s suit? If so, contact Uustal at JohnUustal.com/conspiracy-evidence. He’s offering as much as $100,000 to the first person who offers proof that leads to a judgment finding that the lawsuit is just a corporate scam.

            Tell him Norm sent you his way.

Cosby's Appeal Comes Next

         There is a special place in Hell for those who cheer sending a person to prison, so mark today as a special day for the keepers of the roll in the underworld. The chorus of those cheered by the guilty verdicts against Bill Cosby deafens.

         "Guilty," the jury said, three times after brief deliberations in the second trial against the 80-year-old comedian. A man once affectionately called “America’s dad” will soon, after sentence is imposed, be a convicted felon. (Judgment does not enter in a criminal case until sentence is imposed, so he's not a felon yet)

         There is dark humor among defense lawyers when a jury returns a guilty verdict.

         “What do we do now?” one story goes. A defendant turns to his lawyer uttering this after hearing the word “guilty.”

         “You’re going to go to prison,” the lawyer replies. “I’m going home to have a stiff drink.”

         Such are the consolations the law offers amid despair.

         Cosby will no doubt fight his conviction on appeal. He has the funds to hire the best talent available. Here are issues that you can expect to hear more about.

         First, was his deposition testimony properly admissible? Normally, the admissions of a defendant are permitted under several exceptions to the hearsay rule. The statements may be against penal interest; they may also be admissions of a party opponent.

         But in this case, Cosby gave the deposition amid what sounded like assurances that the words would not be used against him in a subsequent prosecution. The trial court held that promise void. Expect appellate lawyers to challenge that ruling.

         As a practical matter, it was a mistake for Cosby to give the deposition at all. The Fifth Amendment yields a privilege against self-incrimination. Plead the Fifth. Sure, you risk an adverse inference in a civil proceeding; jurors will be told that they can hold an invocation of the Fifth against a civil litigant in certain circumstances. But better to lose a little, or even a lot, of money, then head to prison.

         Next, the law is ridiculously liberal when it comes to admission of evidence of other bad acts in sex crimes. Why this special status for sex offenses? Due process requires proof of the elements of the offense for which you are charged. We generally prohibit what is known as propensity, or character, evidence. Showing a jury that a defendant committed other bad acts predisposes the jury to believe the defendant did what he is charged with doing. Such evidence is strictly limited, except in sex cases. It makes no sense to have special rules of evidence for sex cases. The parade of accusers was prejudicial. Period.

         And what of the extended statute of limitations in sex cases?  Try defending yourself sometime against an accusation that took place, allegedly, more than a decade ago. The statute of limitations never runs in a murder case. That’s because of the seriousness of the crime, and the fact that the decedent cannot speak. Cosby’s accusers are still very much alive. Sex, unlike murder, is ubiquitous.

         Finally, the corroboration provided by the accuser’s publisher, who was permitted to testify that the accuser wanted to put allegations of Cosby’s sexual misconduct in her book, but the publisher spiked it, was most likely offered for the limited purpose of showing that the accuser wanted to make the allegation public, not for the truth of the assertion – that Cosby raped her. That’s the sort of distinction judges ask jurors to draw all the time. I have my doubts about whether jurors follow the law. This so-called constanncy of accusation evidence is a flashpoint in the law just now.

         Now that claims of sexual misconduct have captured the imagination of the chattering class, the Cosby appellate lawyers ought to take pains to educate the public about the law governing prosecution of sexual assault claims. Today it is Cosby who was laid low. Who will it be tomorrow? There’s plenty of ambiguous bumping and grinding going on in the night. Will these acts, too, be called crimes in the distant future?

         I’m rooting for you, Bill Cosby. The groupies delighting in your conviction are an angry mob. #MeToo is sated today with blood lust. It’s more than a little creepy.