Tick-tac-dough. I’m standing. It’s a courtroom where the photocopier is wheeled against the clerk’s desk and justice is mostly mechanical and pedestrian. We’re seeking the Court’s blessing of a settlement involving a minor. I’m idling aside the teenage client. She’s tall and quiet. A guardian (an attorney appointed to review the settlement we’d obtained) explains our (awesome) efforts to the judge and the dialogue devolves into a discussion of her injuries and lingering limitations. The girl is sad and starts to cry. I feel the tremor of her shoulder against mine. Big crocodile tears. I tilt my head and tell her I can beat her in tic-tac-toe. She smiles through a watery lens and I flip my yellow pad over and draw a grid. We play with one pen, reverently, picking up and laying it down between turns. She stops crying. The judge makes kindly noises and we all leave happy as such circumstances allow. It’s my greatest courtroom moment. Really.
I like this side of the fence for these moments. There’s a certain amount of scale balancing that those of us who fight for the injured accomplish. Sometimes you have a case where your lawyering alone results in a recovery. Where you know that without your skillset the client wouldn’t have recovered any money. Where your easy willingness to tilt at a windmill a la Don Quixote resulted in something few others would’ve accomplished – such was this case. Every lawyer should push to find these types of cases where proving fault is tough or where the elements of the claim don’t fit perfectly. I say stop calling those cases “dogs” and “money losers” and focus on trying to help someone.
I don’t respect the factory-firms because, in my opinion, their endeavors are a welfare side-hustle settling cheap and undermining the efforts of the talented few who claw for every dollar our clients deserve. That said, I’m not spurring my steed forward on altruism as I get paid (sometimes well) for what I do. But, I take risks. On occasion I take a case because I like the client more than I like the claim. I think that’s how all good and confident lawyers tend to act. We know the risks, but sometimes we’re not comfortable with the way life landed on the client. We believe in a better balance.
I risk sounding unintentionally smug, fatuous and entitled in sharing these thoughts so I’m tacking around for some salty COVID-19 talk – a quick and easy distraction.
Let’s say you’re idling aboard a cruise ship or chartered yacht and develop the Corona illness. The dry cough remains just that and with time on your hands, you recoup in the ship’s library hunting down a legal theory to recover the cost of your passenger ticker or charter. This is what you find.
As a passenger, the vessel owner owes you a duty of reasonable care. As a passenger, you’ll argue the owner breached this duty by not properly maintaining the vessel, that you weren’t properly warned of these hazards or that the owner’s actions and/or inactions breached this duty in other ways. You write these nuggets down and next consider the elements of negligence. You’ve got an injury (the Corona bug) and you have damages because you’ve suffered some and you’re out of pocket various costs. Things are looking pretty, pretty good until, an hour or so into this legal sleuthing, you realize there’s a proof that might prove prickly. That is, as with any negligence claim (and the bane of tort lawyers!), you need establish the defendant (in this case, the vessel owner) caused your injuries. “Damn causation!” you mumble. You rub your face (because it doesn’t matter anymore) and a fever ripples through your torso.
What you need to do is establish your exposure to the Corona virus occurred aboard the vessel. You need an expert witness to opine that you didn’t get it in the city, or at the firm’s luncheon two weeks ago or on the airplane. Maybe a fellow passenger spent the last ten weeks in a remote Maine woodland and took a charter flight to the vessel and now she, too, is sick. These facts, you see, will allow you to build a case seaworthy enough to get you to a jury. And that, friends, is what a claimant’s attorney like me wants. He or she wants an opportunity for the community to rule on your claim. We don’t have to ‘prove’ your claim to get to a jury (we do, when we meet them); we just have to raise, at least, one genuine issue of material fact sufficient for the Court to deem the fact requires determination by a jury.
With good and determined lawyering (and some luck), you can sometimes take a very tough case and get it into a position where it’ll be heard by a jury. However, there are a fair number of decisions dismissing cases involving virus exposure aboard cruise ships making me think these types of claims would be a tough slog. I’d want a client who I liked before I’d agree to get on this stagecoach.
Anyway, don’t read any glibness in my Corona comments. This is serious business and for someone who stood covered in soot following the 9/11 tower collapses, I thought I’d fulfilled a life’s quota of horror, making me uneasy in the current times.
This article is provided for your general information, is not legal opinion and should not be relied upon. Always seek legal counsel to understand your rights and remedies. Underway and making way. ■
John K. Fulweiler, Esq. is a Proctor-in-Admiralty representing individuals and small businesses in maritime matters including personal injury claims throughout the East and Gulf Coasts and with his office in Newport, Rhode Island. He can be reached at 1-800-383-MAYDAY (6293) or email@example.com, or visit his website at saltwaterlaw.com.