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One nice thing to know if you’re a lawyer — lawyers write our laws, and they do seem to keep an eye out for their own.
The Reader’s story by James Merriner tells the tale of a family of humble means, the Pinnicks, who back in 1995 retained a law firm of formidable reputation, Corboy & Demetrio, to argue for multimillion-dollar damages in a liability suit arising from a fatal auto accident on an interstate in Indiana.
But things went wrong. The critical evidence in any case arguing that a catastrophic failure of the family’s rented Mitsubishi Diamante caused the accident was the car itself. But Corboy & Demetrio didn’t take the steps necessary to preserve the smashed-up Diamante, and it disappeared. The suit faileld, and the Pinnicks wound up suing Corboy & Demetrio for malpractice.
But what a hill the family now had to climb! The Pinnicks had to show that the missing Diamante would have proved their liability case. How could they possibly show that without the Diamante? The Pinnicks hadn’t been able to win without the car even with the mighty Corboy & Demetrio on their side. Now the firm was working against them!
Merriner’s story tells us that 13 years after the accident, the Pinnicks are still in court and have never received a penny. Their malpractice claim was rejected in circuit court, and this defeat was twice upheld in appellate court. Now the family’s appealing to the state supreme court, while making the extraordinary request that four of the seven justices recuse themselves. The Pinnicks’ argument is the justices’ impartiality is compromised because of contributions to those justices’ political funds made by various partners at Corboy & Demetrio.
I’m making available here a PDF of the most recent appellate order rejecting the Pinnicks’ suit. Ask yourself how the Pinnicks could possibly have met the standard of proof that the court imposes. “This is like a Catch 22,” I thought as I studied the order.
The Pinnicks sued Mitsubishi, which made the car; Goodyear, which made its tires; and and the Atlanta agency that rented the car. “Damages are not presumed; they must be proved,” says the appellate order. “Plaintiffs must show that had their attorneys pursued the product liability and negligent maintenance claims against those defendants, they would have prevailed in those claims.”
The law calls this the “case within a case.” If you want money from a law firm for screwing up your case, first you’ve got to prove that if they hadn’t screwed up they’d have won it. Said the appellate court, “Plaintiffs contend, because the defendants are responsible for their inability to prove their ‘case within a case,’ this court should shift the burden of persuasion to the defendants.”
Doesn’t this seem reasonable? The Pinnicks can’t prove the car would have been a game changer because they don’t have the car. So at least put the burden on Corboy & Demetrio to argue that the car wouldn’t have made the difference. The appellate order examines a California case, Galanek v. Wismar, that did just that — it put the burden on the law firm.
“We decline to follow Galenek,” says the appellate court. “No Illinois court has accepted the plaintiffs’ argument.”
Instead, the appellate court let itself be guided by a 1995 Illinois case, Boyd v. Travelers Insurance Co. In this case, a propane heater exploded, injuring a man who then filed a workers compensation claim. But the insurance company investigating the claim lost the heater, and the man wound up suing both the manufacturer of the heater and the insurance company.
The case wound up before the Illinois Supreme Court, where two justices reached what strikes me as an obvious conclusion. “The heater may have been perfect in every way. It may have been an accident waiting to happen. No one will ever know. It is gone. Gone with it is the plaintiffs’ case against the manufacturer, the Coleman Company.” In which case, the court should assume that “loss of the heater deprived the plaintiffs of their lawsuit.”
But the majority blithely disagreed. No assumptions necessary, it asserted, and for a couple of reasons. The appellate order rejecting the Pinnicks’ liability suit reminded us what those reasons were. “First, if plaintiffs could prove their underlying lawsuit without the missing heater, Travelers’ loss of the heater did not cause their injury. [Because there’d be no injury.] Second, if plaintiffs would have lost their underlying claim even with the missing heater, Travelers did not cause their injury.”
For Travelers, substitute Corboy & Demetrio — and if you ever have a day in court you should hope it’s half as cushy. If the Pinnicks had won without the car, no harm done. If the Pinnicks had lost without the car, which they did, who’s to say they wouldn’t have lost even with it? So no harm provable.
Court’s adjourned. Sorry to have troubled you gentlemen. Have a nice day.