Contributory Negligence

As regular readers know, I’ve spent the last two weeks trying a case with Francis Malofiy. [If you googled in looking for him, skip to the bottom of this post.] Last Friday, after 15 hours of deliberations, the jury returned a verdict in favor of our client on all six questions — relating to the nature of the agreement, damages, whether our client breached his obligations, whether defendants would get a set-off, and when the statute of limitations began to run — and awarded him $4.17 million in damages. The vote was 10–2, which is good enough under Pennsylvania law. The judge kindly let the attorneys talk with the jurors (assuming they wanted to talk, of course), so I went back to figure out what happened with those two holdouts.

Post-verdict discussions with jurors often reveal a handful of surprising and insightful comments that sometimes make me re-think how I tried the case. Jurors tend to take their duties very seriously, and so lawyers can usually jump right into detailed questions about the facts and what they thought about various issues. We were fortunate to have a number of invigorated and candid jurors who were happy to talk to us about the case.

In our case — in which our client alleged that he was frozen out of his ownership interest in an industrial business after spending two years building the business’ physical plant — there were a lot of issues, from the disclosure requirements for SBA Loans to the right type of saw for a particular cutting machine, but one issue loomed large: the lack of a written agreement. We had documents (including one signed by all the parties) supporting our claims, they had documents (signed by them, but not our client; we alleged they were created after the lawsuit was filed) supporting their claims, but there was no single document that purported to be the agreement among the parties. It was mostly our client’s word against the defendants’ word, with each side portraying radically different circumstances surrounding the agreement, chiefly differences over the work our client did in those two years.


Continue Reading Doing Business On A Handshake

When I first start working as a personal injury lawyer, I didn’t grasp how most “dram shop” lawsuits worked in practice. Most everyone agrees that, if a bar keeps serving a customer alcohol until they’re intoxicated, and the customer gets in a car accident and injures someone, then that other person should be able to sue both the bar customer and the bar. But what about the drunk driver? Why would a jury believe that the bar, and not the drunk driver, is responsible?

I thought about the answer as I read three separate stories of unsympathetic plaintiffs who played a role in their own injures, two at Walter Olson’s Overlawyered and one at Daniel Cummins’ Tort Talk.
Continue Reading Why Drunk Drivers File Lawsuits For Their Own Accidents