Santa Ana, California, June 17, 1997: “We the jury in the above-entitled action hereby find the defendant not liable for plaintiff’s claim of negligence.” My heart skipped a beat. How could this be? I was a young lawyer who had been called in by a friend from law school to help try a mold case against a homeowners association.
Three weeks earlier, my friend had called me and explained his “great mold case” with much excitement. He wanted to bring me on board for the trial and invited me to a meeting with the client in his office. He thought the case was a surefire winner. But when I met the client, I was concerned. She was a highly emotional and inflexible entrepreneur. Despite the fact that her condominium had experienced major flooding and mold contamination, apparently due to no fault of hers, I was concerned that her harsh personality would be a major detriment in the presentation and appearance of the case.
After conveying my misgivings to my friend, he said he would handle the entire case if I would just handle the examination of the mold and medical experts. He was going to “take care” of everything else. I was planning on being in the courtroom to watch the trial anyway, as a jury trial in a mold case was an extraordinary occurrence in 1997, so I agreed.
The Path to Victory
To prevail in a civil case, a plaintiff must generally prove three things: liability, causation and damages. Liability can be proven using a variety of different theories, such as breach of contract or negligence. Negligence basically means that the defendant did not perform according to the standard of care and failed to act as a reasonably prudent person would under similar circumstances.
In the Santa Ana case, I was only dealing with the mold and medical experts, so I was only responsible for proving causation and damages. However, if a plaintiff fails to establish liability, causation and damages just don’t matter. My friend had to prove that the homeowners association breached the CC&Rs or was negligent.
The first few days of the trial dealt with liability and proceeded in my absence, but I was told it was a real slugfest. I had poured over all the environmental and medical data and spent days working with the experts, developing the causation and damages theories and refining the presentation.
When it was time to go on, we were “loaded for bear,” as they say. Our experts performed well and we impeached the defense experts several times. I felt certain we had successfully proven that the mold contamination in the condominium caused the plaintiffs’ health problems.
In the hallway after the trial, I asked the jurors if they thought that the mold caused the plaintiffs’ illnesses. And they said “yes, but we just thought she was so unreasonable that we could not find in her favor.”
The Human Factor
The experts and I walked into that courthouse so confident that we were going to win (on the scientific issues), the industrial hygienist joked: “Wouldn’t it be bizarre, after all of this, if we lost?” We laughed, but in hindsight, it was not so bizarre. The experts and I were fascinated with the science, but the reality is that cases rarely turn on the science, or even the law. What many fail to recognize, is that the results of a trial are usually about one key factor: the people. From the man or woman in the black robe, to the people who take the witness stand and their advocates, and the people on the jury, each brings a set of life experiences, attitudes and prejudices into the room that can have a ripple effect throughout the environment. Sometimes, it can have a positive effect. Other times, as in this instance, it was devastatingly negative.
So what happened? The jury did what juries often do: they reacted with their gut. They heard totally different versions of the story from the two sides. The stories were both well-prepared, so the jury had to rely more on instinct than logic.
It’s All About Likability
The president of the homeowners association was a salty old man with fuzzy white hair. He had been on the board about 10 years too long. Although he wasn’t especially pleasant, he was able to keep his cool. Late one night in the middle of the trial, my law buddy was going over the transcripts of the president’s testimony earlier that day, and I heard my friend make a statement you rarely hear an attorney make about an opposing witness. He said: “He’s telling the truth.” And the jury could sense it.
In contrast to the president’s calm demeanor, the plaintiff was angry and spent much of her time on the stand crying. When they come out naturally and at the right time, tears from the witness stand can be very effective, especially from an injured plaintiff. But that was not the case here. These were tears drawn from excruciating frustration and profound anger. Making matters worse, she had to testify through an interpreter, which greatly-hampered the rhythm and flow of the testimony. I only caught the tail end, but it was agonizingly tedious. I’ve had root canals that were more fun than this experience. And it all took place in front of a jury in Orange County, California, where the juries are known for being extremely conservative. The bottom line was…they just didn’t like her. She too was telling the truth, but the defense skillfully framed the issue in terms of whether she unreasonably impeded the association’s efforts to investigate and repair the unit. When she appeared unreasonable, it tipped the scales against her, and the jury decided the association was not negligent. So they never got to my beautiful scientific evidence. In the weeks and months that followed, I pondered the fact that the jury thought we had proven causation and damages, (i.e., that the mold made her sick). On one hand, that was gratifying. On the other hand, it made the memory more frustrating, like something had been taken away from us.
Although we didn’t get the million-dollar verdict, I learned a lesson that was worth a million dollars, but which I will share with you now for free - it’s virtually impossible to win if they don’t like you.
Skeletons in your Closet?
Now think about your business. How will it look when all of its dirty laundry is strewn about the courtroom? Will a jury like the way you’re doing business? How will your technicians present? Ask yourself what a skeptical jury would think of your contracts, documentation, billing practices, customer service, workmanship and quality control, especially when they are sharply criticized by an accomplished advocate with a well-rehearsed team of expert witnesses. Be brutally honest.
The Crucial Factor: Optics
On the first day of law school, they told us we will win cases we should actually lose, and we will lose cases we should have won. Fortunately, there are some proven techniques to help minimize the uncertainty. Perhaps the most important is to manage the optics of the case, that is, the way it “looks.”
If we have a witness who is not very likable, we do what we can to minimize the amount of time that witness spends on the stand. Conversely, the likable witnesses will become the emphasis of the presentation, like on Broadway, where the best actors get the bigger parts, and the actors that aren’t as good get fewer speaking lines. But a trial is more than a play. It is war, with a separate battle over each witness. What many fail to recognize is that the parties acquire their ammunition long before the trial, and long before a lawsuit is even started. In fact, it starts before the parties even meet for the first time.
The restorer acquires ammunition to shape the look of the restoration business when it is in its earliest stages of initial formation. The ownership and management create a corporate culture that permeates every element of the business and all of the relationships it enters - good, bad or otherwise. This culture affects the hiring decisions, business philosophies and ethics of the organization, which in turn affects everything else - the attitudes of the employees, the style of customer service, the level of customer satisfaction and the overall harmony within the system. Happy employees treat customers better, and well cared-for customers are less likely to file lawsuits. One bad apple spoils the bunch (due to mold, by the way), and a small nick in an apple can make an apple rot. And so it goes in the restoration industry.
The Butterfly Effect
In Ray Bradbury’s story A Sound of Thunder, a man travels back in time and is warned not to disrupt anything in the environment, as it could cause a chain reaction of events that could dramatically change the course of history. In a moment of weakness, he veers off course and steps in mud. When he returns to the present, things are strangely different. Words are spelled differently. There was a different president. People behaved differently. Looking at his muddy boots, he discovers he stepped on a butterfly in the past, forever altering history.
The butterfly effect is described as “the sensitive dependence on initial conditions.” It refers to the idea that a butterfly’s wings might create tiny changes in the atmosphere that may ultimately alter the path of a tornado or delay, accelerate or even prevent the occurrence of a tornado altogether. Bradbury’s time traveler begged to go back in time, but his error could not be undone. He learned how seemingly minor events in the past can snowball into catastrophic changes in history. Similarly, by the time a case gets to court, the restoration company has already painted a huge landscape of color and detail, much of which is indelible.
Many restorers find themselves in very sticky legal predicaments, where, for example, the customer claims to have received an invoice for vastly more than an amount quoted, or the customer was unaware that the restorer took an assignment of the insurance policy proceeds. These are not difficult problems to address, but they may require a few steps out of the comfort zone.
Plan for the Worst, Hope for the Best
Every restoration project should be approached as a potential legal case. Understanding how a case will play out in court is the essence of effective risk management. You may be 100% correct in your position, and your workmanship may be second-to-none, but jurors can be especially suspicious of contractors. You’re not likely to get the benefit of any doubts unless your opponent appears to be a true monster.
Now is the time to smooth out the rough edges on everything from the way your staff responds to initial phone calls to the way projects are closed. Avoid even the appearance of impropriety at virtually any cost. Walk into court with a solid foundation of evidence showing integrity, honesty and compassion and you will have the upper hand.
And don’t step on any butterflies.