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United Airlines Lawsuit

Attorneys Justinian Lane, Dustin Fox, and Erik Walker get together today to discuss the United Airlines controversy and the forthcoming lawsuit.

Justinian: I know, Dustin’s been taking a look at some of the issues surrounding the United Airlines Debacle. You’re going to...

Dustin: Yeah, sure. Obviously, that’s been the news here quite a bit lately. Everyone knows about the United passenger that got kicked off. You know, that’s actually not too uncommon of an occurrence. I read somewhere in the statistics about 50,000 folks a year actually get kicked off the airplane even though they’ve already bought their ticket. And it’s– it’s actually a little rare according to one statistician– statistician, excuse me, that to get compensated more than $1300.00 for this.

And, you know, they’ve already come out and said that lawsuit is going to be filed. However, they haven’t really said exactly how much they’re going to be seeking. And, you know, the three of us were behind the scenes over here talking before we started filming. And, there’s a lot of issues coming up with this case and even us, we were trying to wrap our heads around exactly what approach we would go with. And, you know, Erik, being the most experienced attorney. Do you have any file to like where some pit stops might be on this one?

Erik: Well, it’s interesting. When you first hear about the case, you think that this is just egregious. They– they’ve got a clear lawsuit. But if you look at it more carefully, it’s going to be an uphill battle for the plaintiff in terms of showing what duty United had that they breached. They do have– typically, these airlines will have a contractual right to remove people from the airline. And in this instance, you could say, well, they’ve removed them in a very rough way.

Actually, United didn’t do that at all. United asked the authorities to come on board and to remove the flight. It’s akin to if you had a trespasser in your yard and you called the police to remove the trespasser and the police bloodied him up or abused the trespasser. Would the homeowner be liable for the police abusing the trespasser? Probably not. Not as long as the homeowner had a valid reason for asking the trespasser to leave. Arguably, this gentleman was, at the time, he was asked to leave, he could be deemed a trespasser.

I know it’s horrible to think of the fact that United was kicking a man who had paid for his ticket, had received a seat assignment, had already been seated and they’re kicking him off the plane so they can have a couple of their employees make the flight to a location. It sounds horrible. But whether or not United did anything that was illegal, it’s very questionable. I think that if a lawsuit is filed, United will settle the lawsuit just because of the public relations nightmare of this thing staying in the news for much longer. But I don’t know whether United would be really facing liability from a legal sense if they let this thing go all the way.

Dustin: Sure. I mean, I think it’s more of a PR issue than it is a legal issue at this point. I mean, if you go to the Department of Transportation, which is transportation.gov, they talked about overbooking and specifically state overbooking is not illegal and they have an entire section that talks about involuntary bumping. So.

Justinian: And for me, there’s a couple of things that are disturbing. Of course, the violence and deflects on the passenger, it feels morally repugnant to me but the policies behind that the government allows airlines to do overbooking and then allows them to still charge for the person who missed their flight. I mean, that’s totally having your cake and eating it too while we sold this seat three different times and only one passenger took it and we got paid three times. How great is that for the airline, right?

That’s what happens with, you know, the lobbyist for the transportation industry to have a lot of clouts so they get things the way they want. And they do have the power to remove passengers for almost any reason. I mean, I figured, wasn’t that long ago that some girls were denied boarding because they were wearing leggings? And the airlines determine…

Dustin: Yeah, I did read about that.

Erik: On the same airline.

Justinian: Yeah.

Erik: United.

Justinian: Oh, United. Wonderful, yeah. I haven’t flown United for many years because of bad experiences that I had. I tried to avoid it too. Thankfully I was never, you know, beaten or denied boarding. But, it was just never a very pleasant thing. And, unfortunately, right now I think that’s all that people can really do is vote with their dollars and just choose other airlines is just what I do. Dustin was talking about if they do settle this– this case, you know the PR issues.

The firm that the victim has hired is a very respectable firm in Chicago and it’s, you know, one of the best firms available, I’m sure they’ll handle this. They’ll dig and they’ll find any dirt that they can find on United through the discovery process. And, who knows how many people have been injured in these processes. What kind of internal emails or policies they have, I mean, for all we know that the– come of the crew members were sending text about how funny this was. We don’t know what will come out until the trial.

But that sword cuts two ways, unfortunately. And, the United is going to do their best to paint the victim in a very bad light. And that’s something that’s not unique to United. So, as offensive, as it may be, it’s not their own special thing. Erik, can you talk a little bit about how that always affects our clients?

Erik: Well, that’s– that’s the unfortunate thing. Whenever– and they teach this, by the way, in seminars that defense lawyers, corporate defense lawyers go to– they go to these seminars– I think the group is called– is it called DRI? I’m not even…

Justinian: Yeah.

Erik: Yeah, I’m not even–

Justinian: Defense Research Institute

Erik: Something of that nature. But they have these meetings where they tell them how they can avoid liability for their clients. How they can– and they have different things. Some of them you’d be amazed that they actually have that they can say with a straight face given that it’s very questionable what they are suggesting they do in terms of– in my opinion, ethically questionable.

But one of the things that I think that defense lawyers learn at different conferences, I don’t know whether it came out of one of these DRI ones or not is they learn that you had to find a way to blame the victim. The victims always– either blame the victim for their own injury or trash the victim so they don’t look like somebody worthy of compensation. Now, the first one is a legitimate legal ploy to find ways that the victim might be responsible for their own injury. So, for instance, if you have the victim of a slipping fall accident and the person is overweight.

You will have a trial, you may have a trial where they focus on how this person is overweight, they ‘re– they could easily– that could have been part of the reason they fell. If– even if it wasn’t, that could be part of the reasons they sustained damages as severe as they did. They’ll find ways to– now, I frankly like that. I mean, I hope they do that in my trials because I know that I can in a closing argument make them look like the devil reincarnate for trashing my client because she’s heavy or he’s heavy. And so, I don’t really mind that. But that is a strategy they used to some effect with the employers who maybe aren’t as good at shoving their back down their throat when they do it.

The other thing they do is they just try to make the person out to be someone the jury doesn’t like. And they’ll try to do that by getting an evidence that really shouldn’t be admitted. For instance, if the person has criminal convictions that have nothing to do with the injury or that don’t involve felonies or what we call, crimes of moral turpitude. Now, somebody’s convicted of a felony or if they’re convicted of a crime, we call it a moral turpitude. That means that– that varies on their reliability as a witness.

It doesn’t mean they are not worthy of compensation but it means that they may be a less than a candid person. They may not be an honest person. So, courts will allow that in. but if somebody is arrested and convicted of something that has nothing to do with their honesty or something else of that nature. For instance, somebody is– I don’t know, a bootlegger or moonsh– makes home– moonshine for his family at home. Those things are generally excluded from trials. But the defense lawyers will try to get in every negative thing they can about a person. They might try to get in for instance that a woman has had an abortion.

If they’re trying a case in a county where the population is fairly conservative or fairly religious, they might try to get in the fact that somebody is on their fourth marriage even though these things are not relevant at all. They find ways to trash the victim. And we’ve already seen that happen in this United case. We saw that within hours after this whole incident happening, people on social media alone were pointing out that this gentleman has had some questionable activities as a physician in his past. And, might that may be true but that doesn’t justify what United did.

And in these lawsuits when you’ve been injured, you may not be an angel. You may have had your share of runnings with the law. You may have had your share of mistakes in terms of your morality, but that doesn’t mean you deserved to be injured. And it doesn’t make you any less deserving of full compensation for your injuries.

Dustin: Did you hear the particular facts on this one? I do– I assume that you would be able to kind of think about how it be excluded at trial but he had his medical license suspended for 10 years for illegally prescribing painkillers. And, I don’t really see that’s relevant. But, you would assume that the defense counselors are going to try bring this one in.

Erik: I think that would probably be deemed irrelevant unless he was convicted criminally for doing that. If it– if he was convicted criminally of doing that, it’s possible that would be deemed– if it was a felony, it would be admissible if it was within 10 years. One of the things the law in most states employs is a 10 year limit on when you can bring in convictions. Because we figured that after 10 years, a prior conviction is no longer indicative of that person’s moral character. They may very well have overcome whatever character defect led them to commit that crime more than 10 years ago.

But, if it was a felony or if it was deemed the crime of moral turpitude, that defense could argue that his own prescribing of narcotics to people who shouldn’t get them for the purpose of making money is sort of like a crime that suggests he is not an honest person. And they might get that in if he would testify and he probably would have to testify at his own trial once a...

Justinian: You know that’s an interesting point because would he [0:09:54.0] [Indiscernible] he’d testify at the trial. I caught part of the press conference that his attorney talked about.

Erik: Mmm.

Justinian: He talked about that the guy is just, you know, very damaged on this and he doesn’t remember anything from the event. He was traumatized, which makes me, you know, it– it raises some interesting points on what he would be able to testify too. If his–his attorney’s already stated he doesn’t remember the event or whatsoever. And also, what damages would be available to him for the pain and suffering…

Erik: Yeah.

Justinian: …if he doesn’t remember what happens. So I thought that was a couple of interesting things that will surprise his attorney his attorney would go on record…

Erik: Yeah.

Justinian: …he’s saying he has no...

Dustin: …excluded in the future.

Erik: He may be– the attorney may be doing that to try to indicate in advance why they don’t call him as a witness. One of the things you may have gleaned from TV shows is there are many criminal trials, especially, where the defendant, the one who’s been accused to have a crime doesn’t testify on his own behalf. And the reason for that is that everyone under the 5th Amendment to the United States Constitution, everyone in this country has a freedom from self-incrimination. We have the right not to incriminate ourselves. So, the prosecuting lawyer cannot call the defendant to the stand and make him incriminate himself. And consequently, you don’t have the prosecuting attorney asking the defendant all sorts of questions.

The other thing that it does or the other reason they don’t testify, even for their own lawyer is because they don’t want all these past criminal convictions to come out. If the defendant testifies and says, “I wasn’t there” or “I didn’t do it” “I didn’t dislike that person” “I really– you can’t pin this on me. I’m innocent.” Then, the prosecuting lawyer has the right to bring up all of the prior criminal convictions from the last 10 years that involved felonies or crimes of moral turpitude. And he’s doing ti supposedly to demonstrate that the gentleman’s testimony or the lady’s testimony is not reliable. But in reality, it’s just causing the jury to dislike this person.

In a civil trial, it’d be very hard to invoke the right against self-incrimination because you are the one who brought the lawsuit and are seeking damages and you do have to prove your own damages. So, I’m not exactly sure why the lawyer is doing in here. But, you’re right. That will certainly bear on the damages if he doesn’t remember any of the incident. It’s hard to say that you suffered a great deal of pain and suffering if you don’t remember the event.

Justinian: Yeah, it’s a bit of very interesting wrinkles, I mean, if it’s– even if it is true for which I assume it is. He’s a reputable lawyer who wouldn’t lie about something like that. He wouldn’t necessarily have to make that statement in advance either to tip United off that, “Oh, hey, our guy can’t even remember the incident.” But then again, maybe it’s not important to your memory since there’s so much video footage anyway which is going to be more credible to me than– even if the guy said he did remember what happened. I’d rather see it with my own eyes.

Erik was talking about the trying to paint the victim in a bad way. And unfortunately, it’s just kind of baked into our culture that people can just be undeserving of compensation and it’s very, very easy for some people to just rationalize, “Oh, well, you know, this doctor is a bad guy. He did drug stuff, so we’re not going to give him any money.” I mean, it’s very unfortunate that so many of us think that way because regardless of what the guy did outside of the airplane, it looked to me like he was just sitting in his seat. He wasn’t expecting to get his face smashed in.

And our clients, I mean represent people who’ve had some problems in the past that have absolutely no bearing, whatsoever. I mean, we have a guy that maybe he was convicted for smoking marijuana five years ago and then he gets rear-ended by a drunk driver.

Erik: Mm-hmm.

Justinian: Who cares? What does but to the insurance companies, of course, the defendants are trying to get that in, “Oh, look! This guy is a druggie, he is not a good person.” “He doesn’t deserve money.” And you know, the law doesn’t work that way. The jurors aren’t told, evaluate if this person is a good person and determine how much money that they should get based on that. I tell you, I wish sometimes all that they did because there are so many companies that I’d love to say, “Look at all these bad things this company has done. Why don’t you go ahead and punish them for just being terrible and just killing thousands or millions of people with their deadly product? We don’t get to make those arguments. And it’s unfortunate sometimes that the other side gets to.

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