Public Service Announcement: Lawsuits Are Not Worth The Amount Specified In The Ad Damnum Clause


Prayer for Relief

Recently, the Michigan Uber driver accused of murdering six people during a shooting rampage filed a lawsuit against Uber alleging that the transportation company is responsible for his incarceration. Was the headline “Accused Murderer Files Two-Page, Handwritten Lawsuit Alleging that Uber Ruined His Life”? For some media outlets, yes, for others, no. Various media outlets reported the story under headlines such as “Michigan driver charged with murder files $10 million lawsuit against Uber.” When Erin Andrews’ lawyers filed an amended complaint specifying that Andrews sought $75 million in damages, some media outlets reported the story under headlines such as “DWTS’ Erin Andrews files 75 Million Dollar Nashville lawsuit.” Hulk Hogan’s lawsuit against Gawker has been similarly reported as the “$100 million Hulk Hogan vs. Gawker lawsuit.” In our opinion, the goal is to suggest that these cases will ultimately be worth this much money in order to illicit eye rolls and comments regarding jackpot justice. The end result is that negative stereotypes regarding lawyers and the legal system are unfairly reinforced. We would ask our readers to ignore these misleading headlines and to see them for what they really are.

What is are these dollar figures based on? They are based upon the “ad damnum clause” in the Plaintiff’s complaint, which in some states, is used to specify an amount of money sought by the Plaintiff. In most states, this number is meaningless. In some states, Plaintiffs must specify that the amount is greater or less than $75,000.00, because if damages exceed $75,000.00, the amount in controversy requirement is met for federal court jurisdiction (if the parties on opposite sides of the lawsuit are completely diverse). In some states, Plaintiffs are not allowed to specify an amount of damages. In states in which a specific amount may be pleaded in the complaint, Plaintiffs occasionally include an exorbitant amount in order to generate publicity for the lawsuit. The bottom line, though, is that a lawsuit is worth what a jury awards (or the judge in the case of a bench trial), not a penny more, not a penny less, and further, the proportion of the jury’s (or judge’s) award that can actually be collected.

In the Erin Andrews case, the “$75 million lawsuit” tag turned out to be misleading. The Plaintiff’s attorney did not ask the jury for a specific amount of money in closing, and the jury ultimately awarded $55 million. Of the $55 million, the hotel owner defendant was required to pay $26 million when its share of the verdict was reduced proportionate to its percentage of fault. The $28 million portion of the verdict that the jury assigned to the individual defendant (who is currently serving time in prison) might as well be forgotten, as that will never be collected. With the uncertainty of what will happen on appeal, and potentially applicable insurance policy limits that are well below the amount awarded, the case will likely settle for significantly less than the jury awarded. As to the Uber driver, there is no cause of action for ruining someone’s life by not inviting them to company parties. That lawsuit will likely be dismissed almost immediately, despite the request for $10 million on the handwritten complaint.

The takeaway: We urge our readers to look past these misleading headlines, and we urge the media to be more accurate when reporting on civil lawsuits. The reality is that Plaintiffs can ask for whatever they want, and the Plaintiff’s desired outcome is certainly something to consider in civil lawsuits. However, Defendants have the ability to hire lawyers who are able to chip away at the Plaintiff’s case during discovery, and to present the facts favorable to the Defendant at trial. And good defense lawyers can significantly reduce the amount actually awarded or otherwise paid, occasionally to zero.

Let’s not describe lawsuits by their ad damnum clauses.

Happy Birthday, Charlotte Office!

Five years ago today, on March 15, 2011, we here at Gallivan, White, & Boyd, P.A. opened our office in Charlotte, North Carolina. It was our second office counting our headquarters in Greenville, South Carolina, where our firm has exisited for sixty years. Now, all these years later, we have four offices in two states (having opened a third office in Columbia, South Carolina and an office in Charleston, South Carolina).  The Charlotte office began in a temporary space with a single lawyer and paralegal, and now, a five years later, it hosts eight lawyers. How about that?

Above, you’ll find a photograph from a past birthday party celebrating the Charlotte office.

We wish a happy birthday to our Charlotte office and congratulate them on all of their hard work over the past year.

(You can read our original 2011 press release on the Charlotte office here).

And . . . Boom Goes the Toilet

When you are most vulnerable is when you need to feel the most safe. The bathroom is no exception, I assume, it’s the reason that the doors lock. A person will spend, on average, 14 days a year in the bathroom, according to this ABC News article from 2001. (Seems a little high, but whatever). So imagine the trauma Angela Wright felt when the toilet in her home, on which she was sitting, exploded in November of 2014. Apparently, the sewer lines in her neighborhood were being cleaned with high pressure hoses when the explosion occurred. Not only was Ms. Wright sent flying into the air, covered in whatever, but she has an estimated $14,000 in damage to her bathroom, which apparently hasn’t been repaired. Ms. Wright has since filed a lawsuit against the Baltimore mayor, two city council members, and two city contractors.

I can only imagine that whenever she sits on a toilet, probably for the rest of her life, she has to wonder if it will explode when she flushes. I will say that from the photograph, it does not appear that anyone was sitting on the toilet or that she would have been violently ejected since the mess doesn’t seem to hit the toilet seat lid, but it’s disgusting regardless.

Friday Links


Rest in peace, Nancy Reagan, who passed away earlier this week at age 94. To most of us here at Abnormal Use, she was the first lady in the 1980’s, an era when we were first coming of age and learning about the world. As you know, we often published comic book covers here on Fridays, and even Nancy Reagan made it into the comic book world. Above, you’ll find the cover of Female Force: Nancy Reagan #1, published not so long ago in 2013.

Don’t forget that a new album of Jeff Buckley material is released today. If you’ve not yet investigated it, be certain to listen to the cover of The Smiths’ “I Know It’s Over.”

Gallivan, White, & Boyd, P.A. is pleased to announce that attorney Carson Bacon Penney has joined the firm’s Greenville, South Carolina, office. She will practice as a member of the firm’s Business and Commercial Litigation Group and Workplace Practices Group.

Our favorite legal tweet of late involves the law of wine:

Lessons in Trial Advocacy from Donald Trump

What can Donald Trump teach us about being better trial lawyers?  Thomas Friedman, in a recent New York Times column, commented that “The voters listen through their stomachs.  If a leader can connect with them on a gut level, their response is: ‘Don’t bother me with the details.  I trust your instincts.’”

Reading Friedman’s column reminded me that jurors also listen with their stomach, or gut. I am remembering the things my law school trial advocacy professor, the late Steve Morrison, might have said: Be prepared. Keep it simple. Do not over-promise. Personalize your client. Tell a story. Ask the jury for what you want. In the end, whatever you do, make a connection, so that their gut tells them that you can be trusted.

Friedman also said Trump “has already gone places no candidate ever has . . . .” As Friedman further noted, Trump may ultimately go too far and “sever his gut connection with voters.” Another good reminder for jury trials: Don’t go too far. Know when to stop.

Thank you, Donald Trump, for teaching us how to be better trial lawyers.

$55 Million Reptilian Verdict in Erin Andrews Peephole Video Trial

The Nashville jury in the Erin Andrews peephole trial has reached a verdict. The jury has reportedly awarded $55 million. Our recap of the trial leading up to closing arguments is here. After our trial recap post, we had the opportunity to watch the live stream of the closing arguments. What struck us was the Plaintiff’s lawyer’s Reptilian closing. We have previously written on the Reptile Strategy here, here, and here. In the Erin Andrews case, the Plaintiff’s closing argument repeatedly harped on safety rules, safety rule violations, and public endangerment, all of which are tenants of the Reptile Strategy. We also noticed that the damages discussion in the Plaintiff’s lawyer’s closing was reminiscent of the strategy taught in the popular Plaintiff’s lawyer strategy book, David Ball on Damages 3.  That strategy involves tying noneconomic damages to something concrete. Here, the Plaintiff’s lawyer reminded the jury that the video had been viewed 16.8 times over five years and that it would be viewed millions of times in the future. The Plaintiff’s lawyer asked the jury whether it was worth $1, $5, or some other amount every time a stranger was able to watch a video of Erin Andrews without clothes. Our takeaway: This is yet another cautionary tale as to the effectiveness of the Reptile Strategy and the need for defense lawyers to be prepared to defend against it. It will be interesting to see how much Erin Andrews is actually able to collect and whether the verdict will survive any appeal.

ABA Free CLE Webinar on Suicide Prevention

The ABA Free CLE Series will present a webinar on suicide prevention on March 21, 2016. Participants are eligible for 1.5 hours ethics / mental health / substance abuse CLE credit. The program will provide education on how to recognize the warning signs of suicide, and effective ways to help those who may be at risk for suicide. Participants will also hear personal stories from lawyers in recovery from depression and other mental illnesses.

The CDC has reported that suicide was the 10th leading cause of death for all ages in 2013.  There were over 40,000 suicides in 2013 in the United States, at a rate of 1 every 13 minutes. Suicide results in an estimated $51 billion dollars in combined medical and work loss costs. An estimated 9.3 million adults reported having suicidal thoughts in the past year. The percentage of adults having serious thoughts about suicide was highest among adults aged 18 – 25.

We have previously reported on how lawyers are particularly vulnerable to depression and suicide. Almost a third of lawyers suffer from depression. Left untreated, depression can lead to suicide. We can prevent suicide among lawyers by learning to recognize the signs of someone at risk, taking those signs seriously, and knowing how to respond to them.

Our very own Stuart Mauney will be participating as a panelist. Stuart is a mental health advocate and volunteer with the South Carolina Lawyers Helping Lawyers Program.  He is a former member of the ABA Advisory Committee for the Commission on Lawyer Assistance Programs.  Other panelists include Kate Bender, Programming Director with The Dave Nee Foundation, in New York, and Lynn Garson, a lawyer with Baker Hosteltler in Atlanta, Georgia. The moderator will be Terry Harrell, the Executive Director of the Indiana Judges and Lawyers Assistance Program.

Please join us for this important free CLE.

Friday Links

Um, so Kiefer Sutherland is going to be performing live music in Charlotte this year. That’s kind of odd.

We can’t really comment on the Oscars. We can’t say we saw too many of the nominated films. What can you do?

Don’t forget that you can follows us on Twitter at @GWBLawfirm!

Our favorite legal tweet of late comes from our own Stuart Mauney, who recently spoke to the IADC meeting in California. Behold:

Erin Andrews Peephole Trial Recap

For those who live in a windowless basement with no access to the Internet or television, we are pleased to be the first to inform you that Erin Andrews, well-known sportscaster, model, and reality show co-host, is currently involved in a trial.

Erin Andrews

Andrews filed suit (see original complaint here) against Marriott International, Inc. and various other defendants in the Circuit Court of Cook County, Illinois in 2010, alleging that the Defendants were all involved in a series of events which ultimately led to Defendant Michael Barrett booking a Nashville Marriott hotel room next to Andrews’ room, surreptitiously obtaining video footage of her nude through a peephole, and posting the video on the Internet. On December 1, 2011, the lawsuit was apparently re-filed in Davidson County, Tennessee, and the Tennessee complaint included a damages demand of $10 million. On October 16, 2015, the Complaint was amended to include a damages demand of $65 million.

The following is a recap of the trial to date.

Day 1 – February 22, 2016

Trial began on February 22, 2016 in the Davidson County Courthouse in Nashville with Judge Hamilton Gayden presiding. Twelve jurors were selected, which included nine women and five men. The judge originally barred media from the courtroom, but the judge reconsidered shortly thereafter and allowed media in the courtroom.

Day 2 – February 22, 2016

Andrews attorney, Randall Kinard, delivered his opening statement, telling the jury that: Andrews suffered humiliation when the peephole videos were posted in 2009. Kinnard pointed the finger at hotel staff for telling Barrett which room Andrews was staying in, and subsequently allowing Barrett to book a room next door to Andrews. Marriott’s attorney, Marc Dedman, told the jury that the stalker was solely to blame for the video and subsequent posting, and that Andrews actually benefited from the incident, because her career thrived thereafter due to the ensuing publicity. The first witnesses were Marriott employees who testified that it was Marriott’s policy not to give out room numbers. However, a call center employee apparently noted that Barrett requested a room next to Andrews, and another employee confirmed that it would not be unusual to accommodate a guest’s request to stay next to another guest.

Day 3 – February 24, 2016

On the third day of trial, Andrews’ standard of care expert testified that Marriott violated the relevant standard of care by identifying Andrews as a guest in the hotel, by not ensuring that guest room door peepholes were secure, and by not providing adequate security. Steve Andrews, Andrews’ father, also testified regarding the emotional damage that Andrews experienced as a result of the incident. The day ended with a former front desk supervisor at the hotel testifying that she was never given a guest privacy training manual, but that she was told not to give out guest room numbers.

Day 4 – February 25, 2016

On day 4, the jury saw the 4.5 minutes of footage.  A computer expert testified that his Internet research suggested that the video had been viewed by more than 16 million people between July of 2009 and January of 2016. Andrews’ therapist provided testimony regarding the emotional damage experienced by Andrews.

Day 5 – February 29, 2016

Barrett testified by video, explaining the process by which he was able to obtain a room next to Andrews.  Barrett also apparently filmed approximately nine other women through peepholes. Andrews took the stand herself on Day 5, testifying about the anxiety that she has experienced, the fear, and the “jeers” she receives at games regarding the video.

Day 6 – March 1, 2016

Andrews’ direct testimony continued into day 6, and her cross examination continued thereafter. A video of portions of her cross examination can be accessed here, but the cross examination touched on, among other things, the benefits to Andrews’ career that resulted from the publicity. The crescendo of the cross examination was the listing of the endorsements that Andrews has picked up since the incident. Andrews rested her case following her testimony, and Marriott then began its case. A talent coach, Patrick Donaher, testified via video deposition that Andrews continued to perform well at her job after the incident. Lewis Kay, Andrews’ publicist and manager, provided similar testimony via video deposition.

Day 7 – March 2, 2016

Stephen Barth, Marriott’s standard of care expert, testified that Marriott did not violate any policies or procedures as alleged.  A former manager of the hotel denied that any rules or procedures were violated, and that the hotel had passed a secret inspection with flying colors three months prior to the incident.  A psychologist who evaluated Andrews testified that she indeed suffered from mild PTSD, but that the symptoms would resolve with treatment. The front desk worker who checked Barrett in on the day of the incident did not recall details, but she testified that she would have checked with Andrews before placing another guest in the room next to Andrews.

Day 8 – March 3, 2016

The defense ended its case by calling former NFL player and ESPN sportscaster, Jesse Palmer. Palmer testified that Andrews did very well in her first game back after the incident and that Andrews received jeers from fans before and after the incident. The defense then rested its case.

Closing arguments will be made on March 9, 2016, and the jury will get the case shortly thereafter.


Gun Manufacturer Liability: Legal Issue or Political Posturing?

If you have been following the presidential campaign, you have undoubtedly heard talk about the issue of gun manufacturer liability. Under the current state of the law, gun manufacturers are immune from suit except under special circumstances. With the number of mass shootings in recent years and the press coverage surrounding the lawsuit filed against Remington by the families of Sandy Hook victims, the issue of gun manufacturer liability has understandably been one of the hot button variety. How a person feels about gun manufacturer liability is often co-mingled with the much broader (and often politicized) issue of gun control and the Second Amendment. But, we here at Abnormal Use must ask the question:  How does gun manufacturer liability stand up when stripped away of its political overtones?

To set the stage, today’s issues involve the Protection of Lawful Commerce in Arms Act (“PLCAA”), signed into law by President George W. Bush back in 2005. The PLCAA affords gun manufacturers and sellers immunity in state and federal lawsuits. The immunity, however, is not absolute. For example, there is no immunity in cases in which the seller knew the gun would be used in a crime, the gun buyer was obviously unfit to own a gun, the sale violated the law or the injury resulted from a manufacturing defect. Proponents of the PLCAA claim that the law is necessary because manufacturers should not be held responsible when a rogue gunman misuses the product. Opponents argue that the law provides manufacturers free rein to market and distribute guns like “assault rifles” that needlessly endanger the public. If you want to buy guns for your protection, with legal support,  Tulster offers a wide selection of concealed handgun holsters. Check them out !

Admittedly, we can understand both sides of the issue. On the one hand, holding gun manufacturers liable for the misuse of non-defective products appears to defy basic product liability principles. Product liability typically rests on three theories (1) defective design, (2) manufacturing defects, or (3) failure to warn. If a person uses a product for a malevolent purpose, but the product is free of defects, then in most instances the manufacturer would be free of liability. If the product is defective and the defect results in injuries, then the manufacturer may be liable. The PLCAA recognizes this and contains an exception to immunity for defective guns. Guns like “assault rifles” are currently legal to sell, own, and possess. In some ways, holding a manufacturer liable for the crimes of others would be akin to holding Cutco liable for a knife attack or Louisville Slugger for an assault involving a baseball bat. On the other hand, guns like assault rifles are different than a kitchen knife or a baseball bat. The AR-15, the gun used in the Sandy Hook shootings, is a military grade assault weapon marketed to civilians. While technically legal, the weapon, unlike a kitchen knife or a baseball bat, arguably is not fit for any reasonable civilian use and needlessly endangers the public.

Josh Koskoff, the lawyer representing the Sandy Hook victims in the lawsuit against Remington, recently stated:

This case is about a particular weapon, the AR-15, and its sale to civilians.  It has nothing to do with the firearms industry as a whole. The AR-15 is to guns what a tank is to cars — uniquely dangerous and not suitable to public use. The AR-15 was designed and manufactured for the military for the purpose of killing the enemy with maximum efficiency. The families’ lawsuit does not contend that Remington should be held liable simply for manufacturing the AR-15. Indeed, Remington and other manufacturers’ production of the AR-15 is essential to the military and law enforcement. But Remington is responsible for its choice to sell that same weapon to the public, and for highlighting the military and assaultive capacities of the weapon in its marketing.

While we do not necessarily agree with all of Koslkoff’s contentions, he makes an interesting argument. What do you think?