A man named Ken Walton recently wrote a facebook post that gained a great deal of attention. He alleges that, due to the fact that the rental car he was driving had its license plate stolen, he and his young daughter were pulled over. An officer pointed his gun at Mr. Walton, ordered him out of the car, threatened to shoot him, handcuffed him, and placed him in the police vehicle. Mr. Walton was eventually let go after it was learned he had done nothing wrong.
In his post, Mr. Walton writes, “Will I sue? I doubt it. I don’t want money from this (I can afford to send my daughter to counseling) and anything a settlement would generate would be trivial to me, and not worth the time it steals from my life.”
Mr Walton’s post got a great deal of attention. As of today, there are over three thousand comments to Mr. Walton’s post. For the purposes of this post, there are a couple of things to note from those comments. First, there are a great number of people encouraging him to file a lawsuit. In both the comments to the post and the post itself, there seems to be a presumption that a lawsuit would be successful. Second, many of the people encouraging him to file a lawsuit instruct him to find a lawyer to do it pro bono or to use GoFundMe to fund the lawsuit.
This post brings to my mind a few things that I’ve been thinking about recently regarding how lawsuits are evaluated and decided.
I. Myths promoted by advocates of tort reform make individuals more litigious.
The majority of the clients who come into my office for personal injury cases state that they are not litigious. They want me to know that they are not like the thousands of people out there filing frivolous injury claims. They have only come to a lawyer because they are actually hurt. They have bought into the myth promoted by tort reform advocates that the personal injury system is broken and needs to be fixed. They buy the myth that even a bogus personal injury claim will result in a lot of fast money.
Because these individuals believe that others are getting large amounts of money for fraudulent claims, they believe that their legitimate claim will net them ungodly amounts of money. They are often shocked and angered when told that they do not have a case. I’ve heard on more than one occasion, “That woman who spilled coffee on herself got billions of dollars, and you think I don’t have a case?”
I suspect that the commenters to Mr. Walton’s post have this same attitude. They are outraged by the police misconduct that he describes, so they immediately assume that a legal remedy must exist, and it must be one that would make him rich. Tort reform advocates have bashed us over our heads with stories about the ease with which one can win big money in a lawsuit. Unsurprisingly, this has led people to assume litigation is a fruitful solution to any problem.
II. Myths promoted by advocates of tort reform make juries less generous to plaintiffs.
Even though tort reform myths might increase litigiousness, I suspect that they decrease the amount awarded by juries. Juries are much less generous than people realize. For example, in 2015 in Pennsylvania, 78.2% of medical malpractice jury verdicts were defense verdicts. In each of these cases, the plaintiff won nothing and the plaintiff’s attorneys lost tens or hundreds of thousands of dollars in costs alone.
People do not hear about these losses. They hear about the isolated big verdicts and assume that they are more common than they really are. Proponents of tort reform enforce this belief in their effort to make people think that tort reform legislation is necessary. I suspect that this belief makes people who serve on juries initially skeptical of any personal injury plaintiff.
III. You will never be able to see the weaknesses of your own case. An attorney will.
When rejecting a case, I often explain to people how the case would look to a jury. In the medical malpractice scenario, I explain that the defendant will have a very professional, likeable expert physician who testifies on his/her behalf. The same likeable qualities that made the plaintiff present to the defendant physician in the first place will be on display for the jury. In a he said/she said battle, a jury already skeptical of personal injury claims will be predisposed to find for the defense.
In Mr. Walton’s case, it is important to imagine the officer’s testimony. He has valid reason to think that the car was involved in a crime. He did not fire his weapon or use physical force. His instructions, while harsh, were necessary to ensure that the driver did not have and use a weapon. After the situation was straightened out, the driver was let go.
As noted above, a number of commenters to Mr. Walton’s post encouraged him to find a lawyer willing to take the case for free or for cheap. They assume that a GoFundMe page is all that is needed to get the process started. Litigation takes a great deal of time and money. Although you might be outraged by the conduct of another, do not assume that you have a good case and that a lawyer will waste his/her time and money on it.
Also, if a lawyer does take a case like this for free, be worried. The lawyer might have too much time on his hands and be looking to be paid in publicity.
IV. What’s my point?
Do not take the word of your friends or a commenter on the internet regarding whether you have a valid lawsuit. Do not talk about your case on the internet. Do not assume that, because you are outraged, you have a lawsuit that an attorney will waste time and money on. Drop your preconceptions and go to a lawyer to have your case evaluated.
Many of the same folks encouraging Mr. Walton to file a lawsuit would find for the defense if serving on his jury.