Ron Miller at Maryland Personal Injury thinks the filing of suits only days after an event like the Long Island Wal-Mart trampling, at a point when key facts relevant to the nature and extent of liability have yet to be brought out, “don’t help the clients and also don’t help the general public perception of personal injury lawyers or their clients.” There are, of course, numerous tactical reasons for a race to the courthouse in various legal situations, particularly in likely class actions where lawyers who file early may seize control of the management of a collective suit. Where class action handling of cases is unlikely, however, as in the trampling case, I’ve long suspected that the main reason for the race to the courthouse is that it enables the lawyer to get his own name in the papers, thus pulling in other claimants, including some who might otherwise have signed up with less noisy lawyers.
Bill Childs at TortsProf speculates that another reason is to obtain discovery immediately before memories fade or evidence becomes unavailable in some other way. Again, I’m sure there are some cases where this factor is at work, but I also suspect there are many where the lawyer does not follow up on the hasty filing by plunging into discovery as rapidly as is practicable.
P.S. Some new reporting out on the events leading up to the shopper crush that morning, and a blog roundup from Carolyn Elefant. At “Freakonomics”, Ian Ayres: “To say that the low prices were a but-for cause of this man’s death is not to say that Wal-Mart should be legally or morally culpable for low prices.” Further thoughts from White Coat Rants. And from commenter “Dan”, below, a naughty suggestion for how to treat the claims from not-especially-injured crowd members:
…how about this idea. Everyone who self-identifies as being in the trampling crowd so they can share a jackpot for the psychological horror of it also gets put on the list of people included in a share of a manslaughter charge. Seems like a good trade; a coupon for $10 off your next Wal-Mart purchase in exchange for a few years in prison. Any takers?
P.P.S.: Eric Turkewitz advances an alternative motivation for haste, in that it might encourage potential witnesses to get in touch with the lawyer; yet another possibility, he says, is that the plaintiff family might have demanded haste.
6 Comments
I’m not a lawyer, but how about this idea. Everyone who self-identifies as being in the trampling crowd so they can share a jackpot for the psychological horror of it also gets put on the list of people included in a share of a manslaughter charge. Seems like a good trade; a coupon for $10 off your next Wal-Mart purchase in exchange for a few years in prison. Any takers?
Good idea dan!
Or at least, place them in the pool for liability for the trampling. That way, when the Jury decides it was 40% Wal-mart and 60% crowd, they will be on the hook for some of the cash.
Dan for Solicitor General!
Several reasons to file swiftly:
1. This makes it much harder for Wal-Mart corporate officials to destroy evidence related to the event in the ordinary course (such as crucial surveillance tapes). Also, keep in mind that many Black Friday employees are likely to be seasonal workers, so the prospect of losing track of witnesses is not theoretical.
2. The facts that give rise to a likelihood of liability are typically apparent almost immediately. But, any additional evidence related to liability is likely to be solely in the possession of the defendants which may not be available voluntarily. In short, there is little likelihood that waiting will strengthen the case.
3. An uninsured client may need a prompt settlement in order to receive care, and may be in a better position to receive forebearance from medical creditors, or receive financing secured by a settlement for medical assistance, if there is a realistic prospect of a P.I. settlement which a filed suit makes credible.
4. The sooner a suit is filed, the greater the likeilhood that defects can be cured within the statute of limitations.
5. The sooner a suit is filed, the less time there is to devise a novel defense.
Another commentator also notes that in New York, unlike most states, that there is a “grave injury” exception to the worker’s compensation bar on bringing a lawsuit that includes an on the job death, but only if no worker’s compensation benefits are received first. This matters because under the “Special Employee” doctrine of New York Worker’s Compensation law, there would normally be an employee-employer relationship between Wal-Mart and the worker for worker’s compensation purposes, even though the employee was a temp employed for tax purposes by a temp agency.
A quickly filed suit makes the election in favor of a suit over worker’s copmensation right away. The worry is that acceptance of assistance of some form by the family, thinking it is gratituous assistance from the Company perhaps, could be deemed an election to accept worker’s compensation benefits, rather than to sue. This matters because there is a much smaller maximum award of about $56,000 available under the worker’s compensation system, while the tort award would be set by a jury and could be much higher.
A quick suit also gives the Plaintiff a choice of forum that might otherwise be available if someone else sues Wal-Mart and the cases are consolidated or there is a joinder motion. The Bronx is a better place to sue for wrongful death than Long Island.
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