Outrageous - They Sued For $100 Million

Ok, not really outrageous.  The devil is in the details.



The insurance-industry funded “citizen’s groups” are going slightly bonkers over the just-filed lawsuit from the family of someone who was killed in a recent Missouri “duck boat” accident.

I wasn’t on the water that day.  I don’t know what happened.  But the little bit of video and the history of duck boats say this was preventable.

First, let’s dispose of the silly objection to “how much they sued for.”  It’s utterly meaningless.  It might be the product of an over-active lawyer’s imagination.  Or it might be that the plaintiff HAS to put some number in the suit, and they haphazardly came up with that.

HOWEVER - If it goes to a jury, the jury will never hear about the $100 million.  They might award each family $100,000.  Maybe $1 million.  Maybe $10 million.  Beats me.  But if a lawyer stood up and said “We are suing for $100 million,” s/he would cause a mistrial and the next time the case came to trial, that lawyer would not be part of it.  

When I practiced personal injury law, my lawsuits read “The Plaintiff requests a judgment in excess of the jurisdictional threshold of this Court.”  In other words, just enough to be there and we’d let the jury decide how much.

Some people have already talked about “justice for the victims.”  Balderdash.  Pure fantasy.  The victims won’t get justice on this Earth.  They remain dead and their hope is on a higher plane.  It is peculiar that we try to say how much a life is worth.  That’s the only readily possible remedy, assuming that the operator was negligent, but it still does not bring them back.

Will the family buy a Mercedes and think, “Hey, this makes Mom’s death A-OK.”  Not likely.

Duck boats are accidents waiting to happen.  They have a terrible safety record.  The recent sinking was not the first, nor the first time 10+ people have been killed in a cutely painted duck boat.  Nor, unfortunately, is it the last. 

The duck boats were built in World War II. The term “duck boat” comes from the Army’s designation, “DUKW.”  It is a highly modify “deuce-and-a-half” (2-1/2 ton truck) which is moderately waterworthy.  Around 20,000 DUKW’s were produced.  After the war, they were sold as surplus.  You can STILL buy a DUKW.

They were never intended for civilian use.  They were used to transport troops and materials across water.  Directly across - like from ships near a beach to the beach or a river crossing.  They could not function in rough water.  They had no roof.  They were designed with one propeller that drove the DUKW at less than 5 knots.  On land, the operator sits very high - like 10 feet - and has oceans of blind spots.  So when they were converted to civilian use, they had a lousy record on land and on water.

The National Transportation Safety Board has been trying to get rid of DUKW’s for years.  They have tried banning roofs or awnings, what apparently led to lots of people being caught underwater when this duck boat sank.  They have urged operators to install cameras to limit blind spots.  They have urged more buoyancy.  A DUKW is not very buoyant.  It’s a little larger than a truck, it weighs nearly 7 tons empty, and rides low in the water at the best of times.  

Maybe a verdict will cause the insurance companies to price duck boat insurance out of reach.  Maybe operators will find another sort of boat and use a bus for land tours, all from a sense of obligation and embarrassment. 

But that’s not the way to bet.  

Mizpah!

The Supreme Court; or, What I'm Doing With My Summer Vacation

In 2010, I posted about the Senate “hearings” for then-Judge Sonia Sotomayor, a Justice-designate to the United States Supreme Court.

The point was that it the process was a total bunch of blather.

Now, President Trump  has named Judge Brett Kavanaugh of the D.C. Circuit as a Justice-designate.

I hear Judge Kavanaugh is a right-winger.  Well, what a surprise.  The laugher of the discussion process was when Sen. Schumer suggested to the President that he appointed Judge Merrick Garland (President Obama’s pick which the Republicans stalled on to the Democrats dismay) to “unify the country.”

By the way, if the Democrats were able to stall hearings on Judge Kavanaugh, they’d do it in a heartbeat to await the 2018 elections. 

You expected maybe consistency?  Pull the other one.  It’s got bells on it.

So I decided to reprise the earlier post, with a nip here and a tuck there. 

This is all pre-determined, staged blather.   Unless someone pops up with an Anita Hill - Clarence Thomas “Long Dong Silver” Three Ring Circus, Judge Kavanaugh will be confirmed.  Likewise, damn near every word of these so-called hearings is predictable. The nominee will present a suitably humble “I like me” presentation.   He’ll promise to be fair, deciding each case on it’s merits and respecting the past Court decisions.  He’ll hint what he things of Roe v. Wade even though antiquated judicial selection rules say that he cannot say so publicly. (Ho, ho, in the private vetting process that got him this far, do you suppose that the President’s advisors forgot to ask that?) He will assure the Senate Judiciary Committee that his life is the law, and yet her log-cabin upbringing and dogged determination to defeat the unique vicisitudes that life threw at him because he is a white guy who went to Harvard make him incomparably qualified to sit on the highest Court.

Blah, blah, blah.

Then, he will be “questioned.” Committee Republicans.  They will not throw softballs, they will let him play T-ball and agree unpretentiously with their paeans of esteem and wonder.

Then Committee Democrats will cross-examine him with all of the skill that convinced them that the Courtroom was no place for them so they needed run for the Senate. They will shoot a few blanks, make noise, huff and puff, shed tears for the nation, and then the vote will be taken and result in the same tally as it would have without one word of “testimony.”

Well, isn’t everyone on the Supreme Court “well qualified”? I wonder. Certainly, a Justice can have a really rotten personality and be good at his/her job.  A person can be decent but absolutlely suck as a judge. I’ve known examples of both.  All that I actually know about the Supreme Court is what I’ve read, so making some sort of Wise and Unchangable Declarations about the sitting justices would be ill-informed and stupid. But I hope to God that they don’t sitting around thinking that they are “well-qualified.”

For some reason, the lesson of Caligula comes to mind – He selected his  horse as a member of the Roman Senate.

Let’s go straight to fantasy land. A robe is something one wears right after a shower in the winter.  I will never be on the Supreme Court.  My practice has not been of the “correct” type, my personality is too grating, my definition of success is peculiar (and even I fall far short of that), my humor is odd, my prose is blatant, blunt, blustering and blue, and I come from a law school that is not in the “first tier,” much less being in the Elite Six (or however many are considered elite now.)

So this is pure fantasy – the opening statement of this ink-stained wretch at his confirmation hearing before the Senate Judiciary Committee.

Hello? Hello? Is this damn thing on? Oh, ok.

Good morning. Ok, maybe you call it morning, it’s 10 AM, and you’re just getting started, must be a government thing.  If you don’t show up by 0700, I think there’s something wrong with you.

If I was going to read an opening statement, I’d have just mailed one over. I’m going to talk to you, ok?

Um, ladies and gentlemen - here’s the first thing you ought to ask me and the first thing you ought to know. Am I qualified to be sitting on the United States Supreme Court.

Hell, no.

Anyone who says “I’m qualified to be here, I’m the one who should be making decisions, I’m the one who should be judging my Fellow Man,” well, that person has no business even filling in for Judge Judy.  At least she’s funny when she gets cocky and the “litigants” each get a paycheck.  You won’t get justice except by accident from such a judge, you will get self-righteous, elitist bilge water. Frankly, I’m thinking you’re batting about .500 in my lifetime with Supreme Court nominees.  When’s the last time we saw someone nominated like Oliver Wendell Holmes, Jr., Thurgood Marshall, William Brennan, Louis Brandeis, Felix Frankfurther or even William Howard Taft.

Also, I’ve gotten a few belly laughs out of everybody who’s been saying with a straight face that they just want the smartest, fairest judge, no matter what that judge believes.

NOBODY really wants justice. Got that? NOBODY. EVERYBODY wants to win, EVERYBODY wants to advance their political agenda and personal beliefs and EVERYBODY wants 6 extra pieces of the American-Dream-Pie. So they’ll figure how a nominee will vote in about 10 categories, and figure which one will sell to the rubes, and send the PR train down the track. You might ask yourselves, if you've been appointing so many "best-of-the-best," "well qualified" justices, how come we have been getting so many 5-4 decisions in big cases? That seems a tad odd, don't you think?

Oh, everybody wants to know how I’ll vote on a case to affirm or reverse Roe v. Wade. The rules say I can’t tell you. [Pause.] And goodness knows, the President’s people never asked me. [Long pause.] So shall I do the cryptogram thing and send you the answer in code like everyone else for the past 30 years? No, Lord knows I’ve been a hypocrite too many times myself, but I do try to recognize when I’m doing it.Roe v. Wade bothers the hell out of me. I’d probably vote to affirm it. And damn your black souls for sticking that issue in the Courts where it doesn’t belong, just so you can blame the Courts for what you don’t have the guts to face.

Oh, my, I violated the rules.

Anybody with a computer can find a few hundred blog posts I’ve written and a few hundred legal briefs. I will not explain any of them. They stand as is. Anybody who cherry picks them is telling an intentional lie. If you quote me, quote all of me. I stand by it all as being a reflection of what I believed when I wrote them.  I’ve changed my mind about some things.  I will continue to change my mind about things.  Live with it.

What do I believe? You don’t have a right to know over and above what people do. But people do.

I believe in America.

I believe that West Virginia is a great place.

I believe in God and Jesus Christ and why He made that sacrifice for me is a total mystery, ‘cause there is no way I deserve it - - I’ve screwed up more ways than there are sizes & types of screws.

I believe in a good joke, and if it offends someone, they’re an intolerant bigot.

I believe that you shouldn’t execute someone for using “practical jokes” for the first offense.

I believe that if you require kids to be polite from Day One, they’ll be using “sir” and “ma’am” when they’re 80.

I really like to see our flag flying.   I love to see the flag flying from the back of a fire engine responding.  People have the right to burn the flag, but they’re assholes when they do.

I believe that people can change, but only when they’re willing.

I believe in the power of reason.

I believe that which gender adult wants to screw which other adult is boring and making a big fuss over it is a diversion from important things.

I believe that an argument that has no purpose is idiotic.

I believe that some people are just plain mean.

I believe that most people are mostly nice.

I believe about 95% of everything that Theodore Roosevelt ever wrote.

I believe that The Secret, think about something and it’ll happen, is New Age babble.

I believe that if you quit learning, you better be dead.

And I believe I’m headin’ out for a beer. I’m buyin’. Anybody with me?