Letters for the week of November 2-8, 2005

How the legal establishment keeps everyday people down. How everyday people can beat the energy establishment.

“Bug Juice,” Feature, 9/7

You bring the Woody, we’ll bring the termites
Excellent article; thanks. If you had one of those old “Woody” station wagons, could it power itself?

Robert Webster, San Francisco

“A Man Named Sue,” Feature, 9/28

McDonald’s got off easy
I commend the Express for its cover story on vexatious litigants. As a plaintiff’s attorney, I am appalled by these people and I’m pleased to see light shed on their abuse of the legal system.

That said, shame on Mr. Harper and the Express for perpetuating the insurance industry spin regarding the suit filed by Stella Liebeck against McDonald’s as a result of being burned by a cup of coffee. The article clearly implied this was a frivolous lawsuit. It was anything but.

Stella Liebeck was an 81-year-old woman who had never filed a lawsuit in her life until she attempted to put cream and sugar into a cup of McDonald’s coffee. When the coffee spilled in her lap, she sustained third-degree burns of the groin, inner thighs, and buttocks. She endured seven days in the hospital and multiple skin-graft surgeries. But the severity of an injury does not, by itself, establish the validity of a lawsuit. For that, the jury had to consider whether McDonald’s could have foreseen that such an injury would occur. On that issue, the evidence presented was truly staggering.

Company documents admitted into evidence demonstrated that McDonald’s knew of at least seven hundred reports of coffee burns in the decade preceding Ms. Liebeck’s injury. The burns in those reports ranged from mild to third-degree. Moreover, by company policy, the coffee served by McDonald’s was at least twenty degrees hotter than coffee served by other fast-food restaurants.

In addition, McDonald’s had ample opportunity to settle this case. A retired judge who conducted a mediation in advance of the trial recommended McDonald’s settle for $225,000. They refused.

Ultimately, the jury awarded compensatory damages of $200,000, which they reduced to $160,000 because they found that Ms. Liebeck was 20 percent responsible for the injury. The jury then decided to punish McDonald’s with punitive damages of $2.7 million. Some of the jurors apparently wanted to award much more in punitive damages.

There was nothing frivolous about Ms. Liebeck’s lawsuit or the jury’s decision. Having caused third-degree burns on Ms. Liebeck’s labia, and having known of at least seven hundred prior cases of people being burned by their coffee, McDonald’s got off easy.
Mark Vickness, Esq., Oakland

Pricing the people out of court
Once again a member of the communications media has utterly botched an opportunity to tell the truth about why so many men and women in the US are being forced to go to court without representation by a lawyer and why, when they do so in California, they are being victimized by a discriminatory, draconian law that is right out of a chapter of Hitler and the Nazis.

Instead of writing a story that presents the broad picture and the true picture, the author of the article chose to single out one individual who has filed a lot of lawsuits that are completely different from the litigations which the majority of self-represented persons pursue in the courts. In other words, his article is hype rather than bona fide journalism. Nowhere is that practice more prevalent than on the subjects, sometimes connected but most often disconnected, of persons in court without a lawyer and “vexatious litigants.”

The true story begins with a stunning statistic: More than one hundred million Americans cannot obtain a lawyer to help them when they are in dire need of a lawyer. What the statistic means is that there is a breakdown of democracy in the legal-judicial apparatus of the US. More and more, our courts become playgrounds for the opulent in civil law, while poor and middle-class Americans are shut out of the process. Meanwhile, the most heinous elements of society get lawyers to represent them: murderers, child molesters, rapists, thieves. But there is no mandate (except in certain cases such as children and mentally ill or otherwise incompetent persons) in law or the Constitution for representation by a lawyer in civil cases. The result is that in around 80 percent of cases (from a study commissioned by the American Bar Association), if an aggrieved poor person wants to seek redress of grievances in court under her or his First Amendment right to do so, he or she is forced to go it alone without an attorney because he or she cannot afford to hire a lawyer and cannot find one to work otherwise. There are indications from a few studies that the percentage is even higher for middle-class persons, because at least there are a few pro bono outlets for the poor in certain types of cases.

Instead of correcting that enormous disgrace, the California Legislature — egged on by the big insurance companies, the California State Bar, and the attorney general of California — enacted a law falsely and fraudulently entitled “California’s Vexatious Litigant Statute” to prohibit and punish people when they decide they are not going to be shut out of the court process just because they cannot afford a lawyer. The law is full of a whole bunch of technical claptrap used to throw self-represented persons out of court without a hearing or trial of the issues, or the merits of their claims, that they bring to court. It is applied only to self-represented persons; so long as you have a lawyer representing you, you can file a hundred worthless lawsuits and both you and your lawyer will remain free of the provisions in this egregiously discriminatory statute.
Burton H. Wolfe, San Francisco

“One Power the People Don’t Need,” City of Warts, 10/5

Take the power back
Chris Thompson tries to convince voters that Proposition 80 is far too complex for their feeble little minds to grasp, so we should just take his word for it and vote “No.” It’s the same argument Enron made when the company was trying to convince California to embrace electric deregulation and leave the details to smart guys like Jeff Skilling and Ken Lay.

Sure, energy policy is complicated. But the fundamental choice Californians must make is quite simple: Do we continue with the deregulation experiment and the wholly unproven idea that “competitive markets” can predict and plan for our future energy needs, or do we make sure electric service is reliable and plentiful?

The members of my union, IBEW Local 1245, know how to keep the power on. We’ve been doing it for generations. Before Enron pissed in California’s pond, electric utilities were regulated in the public interest. They were required by regulators to predict future demand and to meet that demand through building new power plants and/or promoting efficiency. Under this system, the number of blackouts caused by energy shortages was zero. Anybody can build a power plant. PG&E knows how; some of the unregulated companies know how, too. We have a choice. We can cross our fingers and hope that unregulated companies will start investing billions of dollars to keep power supplies up and prices down. Or state regulators can instruct the traditional utilities to assess future need and take immediate steps to meet that need.

We don’t need electric deregulation to keep the lights on. Quite the contrary. Proposition 80 restores the regulatory oversight that is essential to restoring reliability to our electric system. It’s not a mystery, Chris. Voters are smart enough to know they want reliable power, because once upon a time they had it. With Proposition 80, they can get it back.
Eric Wolfe, communications director, IBEW Local 1245, San Francisco

Bring back regulation
California voters should vote for Prop. 80, which was written by consumer advocates who have spent years fighting on behalf of ordinary citizens for affordable, reliable electricity. The sad reality is that energy companies still haven’t learned the lessons of the rolling blackouts of 2000 and 2001. Every year, big energy companies lobby the Sacramento legislature to go back to the old rules from that era. They want a system with less oversight, poorer planning for the future, and where a few large corporations get breaks on their energy bills even though it increases the costs for the rest of us. You don’t have to understand complex energy policy to appreciate that when corporate special interests lock up decisions in the Capitol, the people should have the chance to decide their own future.

Emily Rusch, consumer advocate, San Francisco

“War Pornography,” News, EastBayExpress.com, 9/21; “US Soldiers Swap Gore for Porn,” City of Warts, 9/28

Try Bush for high crimes
A friend of mine sent me your article and asked if this could be real. Yes, it is real. And an old man like me cries to be reminded of the absolute horror of war. As a combat veteran of the ground invasion of the first Gulf War, sadly, I thank you for having the courage to publish the disturbing and graphic article and pictures about the true nature of war. Impeachment is too mild for the religious lunatic who intentionally started the Iraq War based on lies: Arrest and try George W. Bush for high crimes for the deaths and wounds of our soldiers as well as for the tens of thousands of Iraqi civilian casualties.

A two-hour visit to the Holocaust Museum in Washington, DC, along with reading the autobiography Night by Elie Wiesel, ought to let everyone in our nation know what’s in store over the next few years with the fanatic currently destroying our democracy.
P.S., Fairfax, Virginia

Look in the mirror
The appearance of your column about a pornographic Web site in a publication which contained eight pages of salacious advertisements for “escorts” and “masseuses” struck me as ironic. Critically examining your piece, one wonders whether the practice it condemns is as widespread as you sought to portray it, or even that it originates in country military personnel. How did you check Wilson’s claimed membership? If the Pentagon blocked access to the site, why would the troops in [another] country want to have memberships? By disseminating the image of a “Cooked Iraqi,” hasn’t your own publisher also violated the spirit if not the letter of the Geneva Conventions? Didn’t Wilson himself and not a US soldier caption the image of the woman’s foot?

Your column seems to take whatever Wilson told you at full face value without strongly condemning him for instigating this whole thing in the first place. Could it be there’s less difference between EBX and Wilson’s publication than you care to acknowledge?
John McDougall, Berkeley

Editor’s note
The site’s membership estimates should have been attributed to Wilson. But the military has not denied that US soldiers posted the photos, although its initial criminal investigation proved inconclusive.

Double Whammy
For the second straight year, Express staff writer Kara Platoni has won a Clarion Award for best newspaper feature story (circulation under 100,000). Platoni’s story, “The Ten Million Dollar Woman,” documented a Cal law student’s battle to reclaim his family’s Picasso, which was stolen during the Nazi occupation of France. She won last year for “The Making of a Martyr.” The contest is administered by the Association for Women in Communications.

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