I recently had a case that was settled for much less than the client or I would have wanted. What started out, by all appearances, to be a strong plaintiff’s case unraveled as unexpected evidentiary issues plagued us. To say this outcome was a disappointment would be an understatement. I felt terrible that I was not able to do more for my client.

Yet I took some relief in knowing that I kept my client fully advised throughout my representation, that my client knew that this could be the outcome, and that I did everything I could do to advance my client’s case. I reminded myself that, despite my efforts, we simply cannot win them all.

Oftentimes our clients want us to tell them what the outcome of their case will be. They want to hear that they have got a slam-dunk case and that everything is going to go their way. They believe that, by virtue of retaining a lawyer, they are going to obtain the relief that they seek. They believe that, because they are on the “right side” of the case, justice will prevail.

Yet, lawyers don’t have crystal balls or magic wands. The fate of a case rests with a judge or jury and with what you can prove. Thus, the vast majority of cases settle because the client is able to maintain control of settlement negotiations and the ultimate outcome. Most clients are simply not willing to “roll the dice.”

We have all been before a judge or jury who we thought got it wrong, whether legally or factually. We have all had cases that looked to be an easy win that turn out to be anything but easy.

There is a mantra in the business world to under-promise and over-deliver. Yet, if we under-promise too much, we run the risk of losing the client to an attorney who expresses more optimism about the case. Conversely, if we over-promise, we run the risk of proceeding with a client who has an unrealistic view of the case. This may cause unintended consequences, like a client who will not accept a fair settlement offer and insists on going to trial, certain the million dollar verdict is a foregone conclusion.

So how do we realistically manage our clients’ expectations without losing business? How do we toe the line between being a counselor and being a business person?

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This week, like so many in Maryland and around the nation, I awaited the jury’s verdict in the trial against George Huguely V for the murder of Yeardley Love in Charlottesville, Va. While the jury deliberated, many legal analysts and talking heads speculated about the verdict and attempted to predict the jury’s decision.

I, too, wondered what would be debated in that jury room and what facts or elements would be most important to them in rendering their verdict.

I have observed several jury trials during my clerkship. There have been many cases that I thought for certain would go one way but ended up going another. It appears that even the most seasoned trial lawyer can be surprised by a jury’s verdict: what seems critical to lawyers is often not what is most important to jurors.

The experience has caused me to question whether I’ll be able to effectively relate to and persuade juries in the future.

Lawyers spend three (or four) years breaking down the way they used to process information and rebuilding their minds to think in terms of “issue-rule-analysis-conclusion.” When lawyers start trying cases before juries, as Baltimore City Circuit Court Judge Marcus Z. Shar told my trial advocacy class, they must remember who they were before they went to law school. Lawyers must tell the story, not just clinically present evidence that proves the elements.

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Just so we’re clear, I like the courtroom. I like juries, even when they don’t vote my way.  I like the Founders’ idea that we should have regular people from the community come and decide disputes between people. I think juries overwhelmingly get it right.

I’m also against damage caps in civil lawsuits. Juries were given the power to decide issues of fact in the courtroom, and most states have taken that right away to some degree. The majority have caps on punitive damages, many have caps on non-economic damages and a select few have a cap on all damages. This means that those courts put a ceiling on the amount of money a plaintiff is reimbursed for a harm caused by another.

HBO aired a documentary Monday that is getting a lot of press. Hot Coffee is the story of Stella Liebeck, the woman who spilled McDonald’s coffee on her lap. The documentary talks about some of the public’s misconceptions about that case. But these are the facts:

• Stella did not have trival burns, but serious burns requiring skin grafts and over $10,000 in medical expenses
• Stella was not driving the car when she was burned – she was in the passenger seat, the car was stopped and she was attempting to put in cream and sugar when the coffee spilled
• McDonald’s initially offered her only $800 for her medical expenses
• The jury did not solely blame McDonald’s, but observed that Stella was 20 percent at fault for her own injury.  The other 80% was attributed to McDonald’s (side note – here in Maryland, Stella would have been prevented from recovering any money given that apportionment of fault, a topic for another day)
• When assessing damages in the case, the jury considered evidence showing that McDonald’s had a long history of complaints involving coffee burns (over 700), and didn’t seem to care one bit about it
• Stella was awarded awarded at $160,000 in compensatory damages and $2.7 million in punitive damages
• The jury came up with the punitive damages number because it equaled two days of coffee sales at McDonald’s
• The judge in the case reduced the punitive damage award to $480,000. He agreed with the jury that McDonald’s acted with “willful, wanton and reckless behavior”
• The case was later settled for an undisclosed amount, presumably to avoid the necessity of appeal
• The temperature of the coffee that burned Stella was 180 to 190 degrees (fun science fact – water boils at 212 degrees)

The documentary was not limited to this one case, however. It paints the picture of the civil justice system with a broad brush, discussing damage caps, judicial elections, marketing of “tort reform,” and other topics.

One thread throughout the film was that businesses use marketing and lobbying efforts to secure caps on damages. One advertising slogan used after Stella’s case was something to the effect of, “Taxpayers don’t need another million-dollar cup of coffee.” The idea is that taxpayers pay for lawsuits like this with increased cost of products.

The film pointed out, however, that damage caps hurt taxpayers in other ways. A child harmed by medical malpractice was featured. The jury awarded $5.6 million in damages, but state law reduced the entire verdict to $1.25 million. Case expenses were paid, leaving the boy with a few hundred thousand dollars.

The parents were extremely concerned about what would happen to the boy when they died. With the $5.6 million they would have been able to secure his medical and other care for the rest of his life, all paid by the negligent doctor (or, more likely, her insurance company). But now, the boy receives most of his medical care through state funding (paid by taxpayers). And when his parents die, he will probably have to be institutionalized (at taxpayer expense).

Is that better than making the negligent party pay for it? This is a boy who needs constant care, will never have a job, and will never have a family of his own. We’re paying for him now, and we’ll really be paying for him in the future.

There is no lack of opinions about tort reform and lawsuits. We all have them, and all of us have some rationally-held beliefs and some irrationally-held beliefs. “Hot Coffee” gives another perspective, along with some facts to help us in forming or reforming our stances.

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Over the course of the past week, all four members of my family have been stricken with some permutation of fever, coughing, vomiting, chills and runny nose.

As a parent, there are few things that I enjoy less than checking my baby’s temperature rectally.  We’ve tried our best to quarantine everyone as much as possible, and today everyone is finally back to work/day care except me.  I’m doing the telecommuting thing, and I might catch one of my afternoon appointments and just call it a day while the antibiotics continue to do their thing.

So, here’s some good Monday reading:

• Avoid becoming a medication error statistic:  Virginia lawyer Ben Glass gives six tips for all of us to prevent medication errors.
• Cloud computing:  Noted tech lawyer Bob Ambrogi discusses the California bar’s recent opinion on the ethics of cloud computing (essentially, storing confidential client information in some form on the Internet).  Every firm should evaluate what they are putting out there.
• Model jury instructions for “plugged in” jurors:  One lawyer took a stab at some proposed jury instructions to instruct jurors on conflating their trial responsibilities and social networking opportunities.
• Typography:  This is what passes for fashionable lately among us nerd lawyers.  There are a whole host of articles and books being written about the use the type, white space, margins and everything related to typography, as a complement to the persuasion of our actual words. Click the link and click “One-Click Download” to get a recent paper on typography by the University of Colorado’s legal writing professor, Derek Kiernan-Johnson.

Stay healthy, everyone.

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I had the privilege last week of carrying the briefcase for my senior partner, Bruce Plaxen.

In a Prince George’s County trial we represented a woman who was injured when an undercover police car, driven by an off-duty police officer, moved into her lane of travel and hit her head-on. Her medical bills were nearly $400,000.

She had fractures in her hip, her pelvis, her right foot and her jaw. She needed double knee surgeries. She spent three months in the hospital, and another two months in a wheelchair. Our 45-year-old client now walks with a cane, and is not able to work. More than two years after the collision, she still goes to physical therapy three times a week.

The jury’s verdict: $3,091,291.67.

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Over the summer, the U.S. Supreme Court revealed that it had no idea what a text message was.

The case is City of Ontario v. Quon, and the issue was “simply” whether the police department has the right to read personal text messages from an employee using a work page.

(In this case, a pager capable of sending text messages which, honestly, I had never heard of. Are people still using pagers?)

The transcript is a fascinating read. Here are some nuggets from the bench:

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