sticks and stones

By, and republished with the permission of: Ian Connor Bifferato, Esquire, of Bifferato Bifferatto & Gentilotti, as published in, In Re (The Journal of the Delaware State Bar Association) Volume 26, No. 5, December 2002

It seems like the general public’s fixation with lawyer bashing goes back almost as far the beginnings of our honorable profession. How many times have you been assailed with William Shakespear’s most mis-quoted line from King Henry VI (“The first thing we do, let's kill all the lawyers”) by some misguided guest at a social gathering? Some lawyers are probably tempted to respond by saying “most educated people know that Dick the Butcher’s line from that play comes from a discussion among rebels about how they would have overthrown the government and made themselves lords.” In the end though, most of us come to the conclusion that the irony of that retort would likely be lost in the ensuing discussion, and we simply let the comment slide.

Most Americans have heard the sensationalized story of the lady who received a jury award of 2.9 million dollars after she spilled hot coffee in her lap. When retold completely out of context, that story is generally predicated with some statement along the lines of “the problem with America today is . . ..” I did not even know the real story of Stella Liebeck of New Mexico until relatively recently. Apparently in 1992, Ms. Liebeck, then seventy-nine years old, purchased a small cup of coffee at a McDonald’s drive through. She parked and placed the coffee cup between her knees to remove the lid when the contents of the cup spilled into lap causing third degree burns over 6% of her body, including her inner thighs, pertineum, buttocks, groin and genitals. She was hospitalized for eight days where she underwent skin graft and debridement treatments.

At trial, evidence was presented that McDonald’s company policy required their coffee to be served at 180-190 degrees, just short of boiling, and that in the ten years prior to Ms. Liebeck’s 1992 accident, McDonald’s received at least 700 complaints per week of burns from their coffee. A McDonald’s executive testified at trial that McDonald’s was aware of the danger of serious burns from their coffee, but that they decided not to warn customers or change their stated policy regarding the temperature at which their coffee was served. Ms. Liebeck tried to resolve her claims against McDonald’s prior to retaining counsel for $20,000, probably to help defray her medical expenses. Jurors who were interviewed following the trial claimed that it was the seriousness of Ms. Liebeck’s injuries coupled with the callous attitude of McDonald’s that resulted in their verdict. What about that verdict? The $200,000 in compensatory damages awarded to Ms. Liebeck was reduced to $160,000 based upon a finding of 20% comparative negligence and the 2.7 million in punitive damages, which was apparently based on the company-wide revenue from two days sales of coffee, was reduced by the trial judge to $480,000. Take from these facts what you will, but it doesn’t seem to me to be evidence of a legal system run awry.

Civil litigators are not the only subject of lawyer bashing. Criminal defense attorneys, prosecutors and judiciary alike are most often attacked for “letting criminals run free.” I was recently out of town, sharing a cab with another Delaware lawyer on our way to a hearing. We happened to be talking to each other about the then recent arrests of the snipers in Montgomery County, MD. The cab driver chimed in with something along the lines of “it doesn’t matter anyway. They’ll just plead insanity and some lawyer will have them out on the streets in no time.” The underlying tone of that comment was indicative of the biggest prejudice and misconception in certain segments of our society: lawyers protect the guilty while the innocent suffer. Would it have made a difference to that cab driver if one of us had launched into a dissertation about how the provision of a competent defense to every person put on trial for a crime carrying significant penalties is really intended to protect every innocent person, not the criminals? Probably not.

None of us can ever single handedly take on the task of changing deep rooted mis-perceptions about lawyers. In reality, many people just love to hate lawyers. They do not really know why. No one can ever rationally explain or justify a prejudice. Maybe it is just because it is one of the few remaining prejudices in America that have not finally become morally unacceptable or politically incorrect. In my opinion, at the heart of the matter, every prejudice is really just an irrational means by which people target the intangible frustration and hatred that festers when they feel at a loss to control the things that they do not like about society. Everyone wants someone to blame.

It is difficult to say what we can do to improve the public’s perception of our image. Obviously, not being the stereotype is the first step, but that is rarely a problem in Delaware. Maybe during this holiday season you will not let that “harmless,” but disparaging comment from a distant relative at a family gathering slide without a quick but friendly reality check. One thing that is certain, however, is that we can never tolerate any of our own members acting to exploit or proliferate the irrational misconception that the public carries about our profession. Tolerance of that type of behavior is tantamount to acceptance of the concept that there is something wrong with what we do, rather than something very laudable and necessary.

Derogation of lawyers never sounds so offensive as it does when it comes from one of our own. Perhaps even worse, it is never so accepted as true in the public’s eyes and ears as when it is advertised by a fellow lawyer. As lawyers we are so often vested with the public’s trust that we have become a very highly self-regulated profession to ensure our integrity. As members of the Bar of the Supreme Court of Delaware, we should also be confident that we can trust one another to be honorable.