My colleague and friend, Tom Young has an exceptional piece today about the now infamous defective thong lawsuit against Victoria’s Secret. If you haven’t yet read the Complaint follow the link. I think this young lawyer means well, but his judgment is not yet ready for the practice of law. Of course the pundits will have a hay day with this one and the late night talk shows are provided with what they need for a good humorous monologue. But realistically non-lawyers have to ask if there is something wrong with the legal system.
Realistically there isn’t anything wrong with the court system. There is with this lawsuit but not with the legal system. First let’s put our young lawyer in perspective. We were all young and inexperience early in our careers. We all made mistakes that in hindsight looked pretty stupid. We learned and moved on to rewarding careers. But there was a time when we had few clients and cases and were hungry to learn how to litigate. There was that time in our professional lives when we saw injustice in every case, in most client interviews and we were eagerly awaiting the opportunity to apply what we had learned in law school to a real client.
Law schools don’t teach law students about how to identify a “serious damage case”. They teach all about the law concerning liability, but when it comes to damages they barely scratch the surface. From his interview this young lawyer is quick to hone in on the liability issues of product liability litigation. Product liability litigation sounds sexy to say, but hiring experts and coming up with the money it takes to litigate one is an enormous undertaking. But in this set of facts the damages issue is not there and sooner or later he’ll get around to realizing the fourth element of any tort case, damages.
Now let’s examine the actual “wrong” and see if it’s really as far out as at first blush we might think. If we honestly look at what this young lawyer is doing it’s not all that far fetched from what the Consumer Products Safety Commission does with toys. Small objects that can come loose and be a choking hazard for children can be a serious problem. Of course in this instance Mrs. Patterson isn’t young, inexperienced and this decorative object isn’t a choking hazard to her. (Okay, I’m not going there, this is a serious piece.) So stepping back from the embarrassing aspects of our thoughts, they being a thong and our minds going to a naked Mrs. Patterson putting on a thong and the object flying off into her eye, and wondering did she fall over holding her eye? When we get by the nakedness issues and how embarrassing it is to talk about it and we look instead at what this really is about, then it can become a more serious discussion. So let’s look at the thong video and all get over the laugh.
There are those that watch this and say, hey let’s turn this into a windfall and line our pockets. This is the kind of launch that Madison Avenue dreams about. It’s there Super Bowl of fact patterns from which hundreds of millions of dollars in advertising revenue will be made. I’m sure the powers that be in manufacturing, pharmaceutical, tobacco and toys have already contacted Madison Avenue to come up with a publicity campaign designed to further poison the jury pool of America so that people with good cases will have a harder time obtaining fair treatment. Google alone is selling $6.1 billion in ads this year.
This year, Google will sell $6.1 billion in ads, nearly double what it sold last year, according to Anthony Noto, an analyst at Goldman Sachs. That is more advertising than is sold by any newspaper chain, magazine publisher or television network. By next year, Mr. Noto said, he expects Google to have advertising revenue of $9.5 billion. That would place it fourth among American media companies in total ad sales after Viacom, the News Corporation and the Walt Disney Company, but ahead of giants including NBC Universal and Time Warner.
And make no mistake about it the powers-that-be at Victoria’s Secret love every bit of this attention. They couldn’t buy this kind of advertising. While watching sales perk up they are fondling each other with excitement.
Legally Underpinnings - But let us change the fact pattern somewhat and see if it changes your perspective about the legal underpinnings of this law suit. What if instead the same woman was in a store and while contemplating the purchase and examining the piece of underwear the same piece of metal broke off and flew off. And you being a customer of that same store were struck in the eye and blinded by the metal object. If you earned your living using both eyes and now were out of a $100,000.00 per year salary, would it still have the same humor to it? Or what if the person being blinded were your 4 year old daughter who was with Daddy buying Mommy a present for Valentine’s Day? Would you still be angry if Mommy were the one bringing the law suit against Victoria’s Secret for her 4 year old being now blind in one eye? There is a side of me that can’t totally blame the young lawyer. His law suit does have somewhat of a meritorious and engaging legal point.
The explanation for this lawyer's "enthusiasm" and the resulting lawsuit is pretty simple. Law schools teach men and women how to "think like a lawyer". After law school, good mentoring by a practicing trial lawyer in the first five years of practice can teach them “how to practice law". Ten years into the practice the difference between a lawyer who received good mentoring and one who did not becomes pretty obvious. Perhaps the law firm where he works needs to rein in his "enthusiasm" a wee bit. The senior partners, assuming there are any might want to exercise closer mentoring of this young and eager lawyer. I think he means well, but to anyone watching the TV interview it should be obvious that as a practicing trial lawyer his judgment is not yet fully developed.
There is nothing wrong with our legal system. What there is in this instance is a lack of good mentoring in a Los Angeles law firm. So criticize the law firm all you want but leave the legal system out of it.