It is my studied yet humble opinion that America is about to embark on a Golden Age of Civil Litigation. The lawsuits are going to be plenty, confusing, uncivil, and each will require at a minimum of the appointment of an Officer of Obfuscation.
Consider the tantalizing possibilities: Now, thanks to Texas’ horribly cruel new anti-choice law, any housewife in a Texas suburb, say Pigeen (that’s the housewife, not the suburb), can hear gossip that Doris down the block is pregnant.
But Doris absolutely can’t have this child: she has six kids already, or her doctor has told her she can’t get pregnant again or she’ll die, or it’s an ectopic pregnancy, or the amniocentesis revealed that the fetus is horribly deformed, or she was just about to leave her husband who beats her with a whip and a hammer all day and she has no other source of support.
Pigeen investigates and believes that Doris has found a sympathetic doctor who, given Doris' horrible situation, agrees to perform an abortion.
I can just see Pigeen marching down the street with a summons and taping it to Doris’ door. And then driving to the doctor’s office and shoving another copy of the summons in the doc’s chest.
So much for the abortion.
But, uh oh, Pigeen is really going to regret this. Welcome, Pigeen, to the world of American litigation. Do you know about discovery, Pigeen? You and everyone you know will have to sit in a sterile (mean-spirited pun intended), airless conference room for weeks at a time having their depositions taken. And the first question will be, “Please state your name.” Trust me, it doesn’t get a lot more interesting.
You done fucked up, Pigeen. Doris has money, and so does the doc’s insurance carrier. You’re in for the most expensive ride of your life. I hope your redneck husband, inevitably named Eugene or Randy, doesn’t have to sell his 4X4 to pay the legal fees.
Now that I think about it, this is turning into a pretty good day! Pigeen gets to learn about the bland, boring underbelly of American litigation. Maybe the law firm where the depositions take place has really good coffee in the conference room. Or maybe, if Doris’ doc has a lawyer at a real BigLaw firm, one of the most profitable 200, the conference room will be on the 40th floor of a building in Houston so you can gaze out the huge windows at….Houston.
Hey, but don’t worry, you can dismiss your case if it begins to cost you too much…unless the doc’s lawyer was clever enough to file a claim against YOU (defamation? a privacy claim in tort? interference with contract haha?) In North Carolina, the only state where I have courtroom experience, if Doris has filed a claim against Pigeen, she can’t dismiss her complaint. Pigeen is in for a dime, in for a hundred thousand dollars.
I am thrilled from the top of my stoned head to my aching feet! I hadn’t thought this through before. This could be Fun, though not for the unsuspecting Pigeen.
This scenario recalls a case that Nancy and I explored in our book Seeking Civility: Common Courtesy and the Common Law). A Cincinnati radio station (not WKRP, sorry), put on a show during the specific day that used to be designated as The Great American Smoke-Out, when Americans were asked not to smoke for just one day, dammit.
The radio host, Cunningham, invited the self-anointed anti-smoking advocate Leichtman to come on and debate. Another radio employee, Furman, was invited as well. He showed up and immediately lit up a cigar and blew the smoke into Leichtman’s face. Not so fast, Furman!
Leichtman sued the radio station in the very simple tort of battery: Furman just had to have intended to and touched Leichtman in an unwanted and offensive way. Furman didn’t even have to break the Leichtman’s jaw. You don’t have to injure the bugger at all.
So the court hadn’t seen this before, but its reasoning seems perfectly OK: Furman blew smoke in Leichtman’s face, and he meant it. It didn’t matter that he was kidding as Leichtman found it offensive and he sure didn’t want to smell Furman’s breath, probably nasty even without the smoke.
Wait, isn’t it just smoke? I mean, air? Ah, but since this case occurred, we all have learned about our world of wildfires and air pollution: smoke carries particulates. They made contact with Leichtman’s face. Verdict for Leichtman. Leichtman v. WLW Jacor Communications Inc., 634 NE.2d 697 (Ohio App. 1994).
Hahaha, I love seeing the cigar smoker get his, not because I have too much against cigars (except that when I was in my 20’s I had a “friend” force one upon me on occasion, and I never felt OK the next day) but because Furman was so arrogant and if there’s one thing that sets me off is arrogance. If making yourself noticeable is an invitation to a fall, arrogance is just plain asking for it. (See this blog, “Pride: It Goeth Before a Fall“, January 31, 2020)
Steady on, this is all about to be pulled together.
That case put me in mind of a lawsuit we could all bring, just like the Pigeens of Texas. OK, let’s say we have another pandemic (likely) and a mask mandate (more likely.) So I’m in Safeway (I don’t have enough money for Town & Country, knuckleheads, though apparently my wife does) and I walk down the aisle and someone without a mask sneezes and I am hit by, um, the particulates.
Yes! Shirley here without a mask goes ha-CHOO and sprays me but good. I will have been eagerly anticipating this occurrence.
I whip out a form Summons, the paper that tells someone that he/she is getting sued, and I ask Shirley her name. She foolishly tells me. I write it down on the defendant’s line (having already filled out the plaintiff’s, i.e. mine), sign it, date it, and hand it to her. In North Carolina, anyway, all you had to put on a summons was the kind of action it was—tort, breach of contract, trespass, whatever. I hand it to her and she is SUED.
Who knows how many lawsuits (or LOLsuits as my new favorite blog, Above the Law, describes Trump-related litigation) can I feist on our already over-burdened court system at once? Any plaintiffs’ lawyers out there?
The idea that one only has to file a summons (no idea if this is the rule in WA) comes from my time in a mid-sized law firm in Greensboro, NC. (I unconsciously typoed it every time as Greensobor.)
An old general in the Marine reserves was the oldest and toughest of the old partners in the firm. He kept a couple of flags behind his desk, and I’m afraid one of them may have been a Marine flag. Let’s call him General Hagan, because that’s his name, and what we were supposed to call him, and he’s dead, so he can’t sue me in defamation.
(This gets him back for calling all of us associates into a conference room and telling us that the firm was raising our billable hour requirement—from 1600 a year to an actually more realistic 1800. I billed 1860 that year so fuck off. He was nearly bald, unnaturally dark, with big brown eyes behind his glasses. He was very slender. At the end of the very brief meeting, he said, “And I don’t want to hear any bitching about it.” And got up and stalked off, insofar as a 70-something can stalk. That place would have been a plantation except that there weren’t any people of color around.)
Anyway, once upon a time, he said he had a long-term client whom we’ll call Barley. Gennul (as that was how it was pronounced) Hagan received a Summons in the mail one day from a lawyer he knew—yeah, everyone knew everyone in Greensobor,at least in those days. The plaintiff was named Johnson, and it named Barley as the defendant, and the cause of action, or what the lawsuit was about, was “tort.”
Gennul Hagan happened to know that Barley was shtupping Johnson’s wife. Way back then, many states had civil actions for what they called “criminal conversation” or “alienation of affection”—which, in Johnson’s case, meant Barley doing Johnson’s wife. So those torts were about, you know, adultery. Johnson was allowed to sue Barley for stealing his wife. Kind of retro, what?
Gen’l Hagan picked up his phone, called Johnson’s lawyer, and said, “Good morning. I received your request for a settlement offer this morning.”
Money paid for a mere Summons! What a side-splitter!
That’s a really quaint story when you consider the shitrain of litigation that’s coming, Pigeen! I can’t wait to sue a gunshop for selling some deranged 18 year old an AK-15. I’ll even move to California to do it.
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