|Oregon State Bar Bulletin DECEMBER 2007|
As lawyers who litigate, we are trained to help our clients navigate legal minefields. We spot issues, evaluate claims and defenses, and direct clients to what we perceive to be the best result. We settle cases when it is appropriate to do so and try cases that need to be tried. Most of us pride ourselves on having a good sense of what will fly. We do this in our representative capacity, with the comfortable distance that comes from not being emotionally involved.
But what happens when we are on the other side of the desk and we become the client? When we are the plaintiff or defendant in a civil lawsuit, absolutely convinced of the correctness of our legal position? How do we handle that, and how does being vested in the principle of the case affect our ability to analyze the facts and get it right? I had a chance to find out recently. And I did not fare well.
A Fairly Simple Case
A fairly simple case, really. A breach of contract claim arising out of a rental agreement for a van my wife and I rented for a family trip. Well, my wife rented. More about that later. A brand-new car, rented within an hour after my wife had a fender-bender in our family minivan the afternoon we were to leave for a Memorial Day weekend camping trip with our three teenagers. We were anxious to get out of town for the long weekend. My wife, being the take-charge person that she is, called the car rental agency and spoke with a woman named "Sue." (Her name should have been a sign.) Yes, they had a van, 12.7 miles on it, with a roof rack to boot. "Come on down," she said. Maybe we will salvage the weekend after all!
We drive on down. My wife races through the paperwork, barely reading it. Who does, really? The vehicle damage form? No problem. It is a brand-new van; what could be wrong? She signs without even looking at the car. How could there be any damage to mark on a new car? While she initials, signs, declines and pays, I walk around the van and give it the "once over." Everything looks great. And then we are off for home to load up our gear and kids. Two miles and 10 minutes later up Broadway, and we are home. Then, the saga begins.
As I stand in the doorway of the center sliding door and try to attach our Sears X-Cargo rooftop carrier to the roof rack, I notice we have a problem. The bolts on the front end of the roof rack that should attach it to the roof on the driver’s side have pulled clean through the sheet metal of the roof. It is still attached in the back, but loose, and will not be solid enough to anchor the carrier. Uh-oh. My kids relay the bad news to my wife, who calls Sue. We have a problem, what to do? Return the car for a replacement? No, it’s getting late. So we ask — or tell — Sue that we will unscrew the rack so it won’t further damage the car or fall off, continue on our way, and deal with it later. Sue says "OK," either agreeing with my wife, or at least acknowledging my wife’s plan.
I unscrew the damaged rack and stick it in the basement. We load up and hit the road. We have a wonderful weekend, everything else on the van works like a charm, and we return it after the weekend with the damaged rack left inside. Sue needs more information. What happened again? Corporate will want to know. I tell her. She writes it down. Case closed? Of course not. Case just beginning!
A week later the demand letter arrives. A brand-new vehicle entrusted to us is now damaged. The roof rack requires replacement, repainting, loss of use, etc. Please pay us $2,000. Well, you know how we lawyers are. Not so fast. I call Sue. What happened? You know how this all came about. Why is the company now demanding that we pay for something we did not do? In my best lawyerly fashion I write back to the company: "Sorry, but we will not pay for damage that we did not cause and which predated our rental."
Then, two weeks later the summons and complaint arrive. Here is the only good news: They sued my wife, but not me, as she signed the rental contact. That was the end of the good news. My wife is a businessperson, not a lawyer, and she is not very happy about being sued. And she lets Sue know about it using her best longshoreman’s English. My wife doesn’t want to hear what her husband-lawyer has to say about this. We turn it over to our insurance company. The $2,000 demand now is a $2,000 lawsuit with, you guessed it, a contractual attorney fee provision. We will pay the $500 deductible, and our company will be on the line for the rest.
The litigation begins, headed to court-annexed arbitration. Depositions follow for my wife and me. We state the party line: It was already damaged when we rented it. We depose Sue, the rental car lot guy, the mechanic, the fleet inspector. They all say the van was in perfect condition when they rented it to us. It was brand-new, remember? Their systems would have noticed any damage before the rental. Because they didn’t find any damage in their inspections, we must have caused the damage. If the rack was damaged as we say it was, the damage should have been "apparent" to us as lay people, even though it wasn’t obvious to them, the experts.
We arbitrate. The company waffles: "We are not sure if the renters did or did not cause the damage, but even if they didn’t, they should have noticed the apparent damage before they left the rental lot, so they are responsible, regardless." How can this be, we argue? What if the engine had fallen out as we drove off the lot? Would that be our fault too? Apparently so: The arbitrator holds us responsible. We are incredulous. How can this be?
Our attorney decides we will appeal and ask for a jury trial. Twelve people can’t get it wrong, can they? The jurors would see things our way. We know we were in the right. If we tell our story they won’t let the big, bad rental company get away with this. Or so we think.
My wife is not happy. We have to try the case again? She disparages the legal system and all of us bottom-feeders who dwell there. She tells our insurance company to settle it. (Enough is enough. Just pay the claim and let me get on with my life.) Not so fast, the company says. We are in this too deep. There is a principle here, and we must cooperate or be faced with denial of coverage. We get the company letter threatening to deny coverage unless we go forward with the trial. We blink. We resign ourselves to trial. We will lose another day, but at least the jury will get it right.
We Are Judged
Sixteen months after our ill-fated rental, we are set for trial. It will take a day if the case moves quickly. The jury is selected. It is now late morning. After opening statements, they call my wife as their first witness. Then the same company witnesses testify. By mid-afternoon, the company rests. I am our last witness. I describe my discovery of the damage. I am sure that they now understand. It is 4 p.m. Closing arguments, and the jury is instructed and retires to deliberate. We feel good about our case and anticipate a quick verdict. The jury will want this over today so they can go home. A quick verdict we get, but not what we expected: 12-0 for the rental car company and a finding that we caused the damage. 12-0? My jaw drops. Unbelievable! How could this happen? How had I misread this case so badly? How could we have been betrayed by the jury system? How is it that we (well, our insurance company, anyway) will have to pay for this?
Because of the late hour, we did not get to hear from the jury. I wish we had. I felt unsettled. I needed to sort this out for myself, to make sense of it. I knew we had not damaged the vehicle. So why the adverse verdict? What was it about this case, about us, that made the jurors see it the other way? As I tried to see it from their perspective, a new clarity emerged. I tried hard to find support in the case for the verdict. I made a list of facts or impressions the jury must have formed to find as they did, and once I did, I came up with a long list. A little too long:
As the bad facts piled up, the answer became somewhat clearer: The jury had focused on our actions and found them wanting. Bad choices? Bad acts? Something. They did not like us as much as we liked ourselves.
I have been a lawyer for 21 years. I am not a full-time litigator, but I have tried my share of cases and have a sense of what works and what doesn’t. How did I not see this coming? What lessons could I take from this experience?
My wife ran into the alternate juror the day after the verdict while buying her morning coffee. It was the alternate’s opinion that the rental car company had caused the damage, not us. But there were missing facts, even for her. She didn’t say what. What might the result have been if she had been on the jury? One Angry Woman? Then I thought: Did she really side with us? Or was she just telling my wife this to avoid conflict and give her the "A" response?
With the benefit of hindsight, what had seemed so clear and right was less so. We had blood on our hands; well, maybe not blood, but something foul. Stupidity. Arrogance. Innocent in our hearts, but empty in our heads. Maybe the lesson is as simple as this: Not doing harm is not enough. You have to take your blinders off and be free of the narrowness of vision that we employ on a daily basis to explain and justify our actions in the face of conflicting information and choices. We are judged by our actions, from the seemingly harmless and insignificant to the concrete and substantial. If we are not mindful of how our actions are or may be perceived, our peers will judge us, perhaps fairly, perhaps not, but judge us they will. And their collective will is the final truth.
ABOUT THE AUTHOR
Larry Beck is a sole practitioner in Portland with a general civil practice. He notes that the attorneys for both the rental car company and his insurance company are Oregon State Bar members, experienced litigators and may recall the facts of this dispute differently. He notes that he has attempted to present the background facts and legal positions as fairly as possible, without spin. To the extent that the attorneys’ recollection of events differs from his, they are mistaken. Thanks to Jody Beck, the author’s sister, a journalist and legal writing instructor, for her editing assistance.
© 2007 Larry Beck