Can you spot a liar?

Can you spot a liar? I don’t think you can.

When a witness testifies in court, he/she is being judged on whether or not their evidence makes sense and whether or not it is supported by other evidence. Obviously, if it makes sense and it is consistent with other evidence, the witness will appear more trustworthy.

 

Witnesses are also judged by other factors, such as their speech and their overall demeanour. These factors are often used (in everyday life and in the courtroom) to decide whether or not someone is a liar. However, these factors often have nothing to do with credibility.

So, what are some of the ‘tells’ of a liar? We have heard them all before: not maintaining eye contact, looking down, talking fast, appearing nervous, or becoming angry.

But, are these good indicators? Answer: absolutely not, which is why lawyers and judges know better than to assess credibility wholly based on demeanour.

To start, witnesses are generally resistant to testifying, as court is believed to be a nerve-racking experience. [Thank you, American television.] So, nervousness and fast talking are obviously not good indicators of lying.

How about maintaining eye-contact? Is that a good indicator? Well, recall that direct eye contact is generally seen as a sign of trustworthiness and honesty. But, for some people (including many aboriginals), direct eye contact is improper and disrespectful (and is therefore not a good indicator of honesty).

How about being polite or appearing ‘level-headed’? For the most part, someone who appears ‘level-headed’ (and does not get angry) will appear more credible. But, consider that the actions of someone in the courtroom (i.e. by a lawyer, juror, or member of the public) could elicit a negative response from a witness (with a different cultural background), making the witness appear dishonest.

For instance, for most Canadians, there is no real issue with pointing to something with the second finger. However, using the second finger is very disrespectful to (and could infuriate) someone from Italy.

Also, for Middle Eastern Arabs, it is disrespectful to expose the soles of shoes or to talk with a large amount of space/distance between each speaker. These actions could agitate such a witness.

Also know that Japanese, Chinese, Koreans, and Vietnamese use different phraseology depending on a person’s class or station in life. For example, a sentence in Japanese can be said in twelve different ways, depending on the social status/age of the person speaking and the person being spoken to. As a result, the English language can be unintentionally offensive to a witness (causing the witness to become irritable and appear less credible).

Obviously, it is crucial for lawyers to consider these cultural differences before trial.

Also, consider that some people, for whatever reason, are not able to clearly articulate their story. Does that mean that they are not as trustworthy or honest? Answer: of course not.

Bottom-line: there is no guaranteed way to spot a liar.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on May 1, 2012: Can you spot a liar?

Class action lawsuits

Imagine this: you buy a new car and, shortly after, some electrical equipment fails from faulty wiring/poor design. It costs you $2,000.00 to fix it. You ask the car manufacturer to compensate you, but they refuse. You want to sue the manufacturer; but, it doesn’t make sense to hire a lawyer for a $2,000.00 claim (as legal costs would be more than $2,000.00). So, what do you do?

Well, you could consider starting a class action lawsuit.

A class action lawsuit is a lawsuit that groups people (plaintiffs) with a common claim against the same wrong-doer (defendant). Put another way, it groups several claims that would otherwise be separate.

Class actions aren’t particularly common, but they aren’t exceedingly rare, either.

Class actions often occur when several people have been harmed (physically and/or financially) by a manufactured good, such as a drug or a vehicle. Class actions are also common against governments, banks, and businesses, often for illegal service charges or misrepresentations.

The number of class actions often grows during economic downturns, particularly when it involves banking, financial services, pension, and/or employment.

Class actions are relatively new in Canada, so we take a lot of our cases and precedents from the United States.

Despite some public sentiment, these types of lawsuits benefit the public. To start, it is more cost effective (for the public) to have one court/judge deal with multiple like claims, rather than have multiple courts/judges deal with the same claim. Also, without class actions, a lot of people would be left without justice as legal costs would outweigh the amount of the claim (and, therefore, wouldn’t be pursued). Class actions also modify the behaviour of potential wrong-doers who might otherwise be tempted to ignore their public obligations (as lawsuits discourage bad behaviour).

There are advantages to the plaintiffs, too. For instance, there is safety in numbers: in a class action, a plaintiff is not alone in taking on a government or powerful company. As well, in a class action, a powerful defendant is more likely to play fair (and fairly discuss settlement).

Class actions are good for defendants, too. Defendants can avoid a ‘multiplicity’ of proceedings, meaning defendants don’t have to fight against multiple claims and can concentrate their efforts on a single claim. As well, defendants avoid inconsistent judgments if there is a single claim. Also, if there is settlement, all plaintiffs are bound to the agreement and the defendant does not have to negotiate individual claims.

Of course, despite the advantages, defendants generally resist class actions (and will spend a lot of money and time to fight against a class action from occurring). This isn’t surprising: in many cases, class actions end with the defendant paying A LOT of money.

I appreciate that I may not have convinced everyone that class actions are a good thing; some people may continue to think that class actions themselves (regardless of the claim) are frivolous. To those people: you are wrong.

Without class actions (and the security that comes with ‘not standing alone’), many people (and great, honourable claims) may never see justice.

In a speech recently delivered in Kamloops, The Right Honourable Chief Justice of Canada Beverley McLachlin, P.C. stated, “Our brains are hardwired for justice. To be required to accept that you can’t have justice is to give up a part of yourself as a human being.”

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on April 17, 2012: Class action lawsuits.

You’re fired!

Imagine this: You get your first job working at a fast food restaurant. Your manager, Phil, is 21-years-old. You and Phil don’t get along, mostly because you think that Phil is a jerk. After a few uncomfortable weeks of your personalities conflicting, Phil terminates you. You say, “You can’t fire me!” In response, Phil says, “Oh, yes I can!” Whether or not Phil knows it, he is exactly right.

Nearly everyone has a job at some point in his/her life. With that said, very few people are aware of an employer’s right to fire their employee. This week’s column is a brief introduction to the employer’s right to fire their employee (in a typical, non-unionized work environment).

Put very simply, an employer is free to fire an employee, provided there is just cause (I.e. employee misconduct), reasonable notice, or payment in lieu of that reasonable notice. If an employer does not have just cause or if there is insufficient notice/payment in lieu, the employee may have a claim for ‘wrongful dismissal’.

One of the leading cases on this matter is Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 from the Ontario Supreme Court.

So, what is just cause? Put simply, just cause is employee misconduct. Typical examples of just cause can include disobedience, incompetence, bad off-duty conduct, and sometimes even illness/injury.

You may be asking yourself, “Can an employer really fire an employee for being sick or injured?” Well, an employer couldn’t fire an employee (and claim just cause) simply because that employee has a cold. But, imagine a situation in which an employee is hired for a summer manual labour/landscaping position and then, two weeks later, that employee is off work from a broken bone, preventing that employee from working for several months. Obviously, it is reasonable for that employer to terminate that employee (and hire someone new).

What if the employee just made a minor mistake? Is that enough to fire them (and claim just cause)? Well, the answer is: maybe, but probably not. Dismissal can result from just cause, but there are qualifications. For instance, the punishment should be proportionate to the misconduct. So, minor error will not generally warrant dismissal. The length of the employee’s service, the employee’s track record, and the employee’s explanation of the misconduct are also relevant and impact whether or not the employee will be terminated.

So, what is reasonable notice? It is the period of time that employees are entitled to receive before they have to leave their employment (without just cause and after being given notice of dismissal). Sometimes, instead of working that time period, employees could be paid in lieu of that notice. For instance, an employee could be paid their wages for two weeks rather than actually having to stay in the workplace for those two weeks.

How much reasonable notice/payment in lieu of notice is an employee entitled to? Well, there are a couple methods. Most people are familiar with the formula based on length of service, as indicated in section 63 of the Employment Standards Act. To illustrate, the Act states that an employee is generally entitled to one week’s wages after three consecutive months of service. Another way to determine the amount of notice/payment in lieu is to refer to judge-made law (common law), in which several factors, including the age, length of service, economic circumstances, and education of the employee, are considered.

In conclusion, employment law is complicated. Also, don’t get fired.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on March 6, 2012: You’re fired.

McDonald’s and its hot coffee

Few cases are as infamous (and as misreported) as Liebeck v. McDonald’s Restaurants, P.T.S. Inc., 1995 WL 360309 (N.M. Dist.)). It has gained international recognition and is regularly cited as a symbol for frivolous litigation.

This column is intended to ‘clear up’ the misconceptions that surround this case.

Here are the facts:

  • In 1992, Ms. Stella Liebeck, a 79-year-old woman, ordered a cup of coffee from the drive-through window of a McDonald’s restaurant located in Albuquerque, New Mexico.
  • Ms. Liebeck was a passenger in a vehicle driven by her grandson.
  • After receiving the coffee, her grandson drove forward and parked, allowing Ms. Liebeck to add sugar and cream.
  • She placed the coffee between her knees and, in the process, she spilled the entire coffee on her lap.
  • She was wearing sweatpants, which absorbed the coffee and held it against her skin.
  • Ms. Liebeck scalded her thighs, buttocks, and genital and groin area.
  • She was taken to the hospital and suffered third degree burns to six percent of her skin.
  • She reportedly stayed in the hospital for over one week, underwent skin grafting, lost nearly 20% of her body weight, and suffered from two further years of medical treatment.

Despite her injuries, I can already hear skepticism: “Coffee is supposed to be served hot!” Yes, that’s true. But, we can agree that there are limits on how hot coffee should be served, right? Stores need to ensure that their product is safe; to do otherwise would place customers at risk. So, how hot was the coffee? Was it actually dangerous?

At home, coffee is often served at approximately 140°F (60°C). At trial, it was found that McDonald’s restaurants were serving coffee at 185°F (85°C), plus or minus 5°F, capable of causing serious, third-degree burns in under ten seconds.

McDonald’s cited the following two reasons for serving its hot coffee:

  • Coffee purchased through the drive-through window was typically sold to commuters who drove a distance with the coffee. As a result, the higher temperature would keep the coffee hot during the trip.
  • Keeping the coffee at the high temperature promoted optimal taste.

Some speculate that the higher temperature was intended for a profit motive, such as slowing consumption, thereby reducing the demand for free refills.

So, did Ms. Liebeck just want to get rich? Ms. Liebeck initially tried to settle the matter for $20,000.00; she had not retained a lawyer and requested very minimal compensation for her medical expenses and other losses. However, McDonald’s was only willing to offer $800.00, causing Ms. Liebeck to retain a lawyer. Before trial, there were repeated attempts to settle, requesting compensation for losses, amounts that were less than what was awarded at trial. However, all attempts were unsuccessful.

So, how much money was Ms. Liebeck awarded? A jury, who was composed of community members and who heard from medical experts, awarded $200,000.00 in compensatory damages, compensating Ms. Liebeck for her medical expenses and the significant impact/limitations that she had to endure. However, this amount was reduced to $160,000.00 in recognition that she was also responsible for her injuries.

In addition, the jury awarded $2.7 million in punitive damages. Punitive damages are NOT intended to compensate an injured person; instead, they are intended to punish the defendant and deter it (and other potential defendants) from committing similar wrongful acts in the future. McDonald’s put consumer safety at risk; the judge called its conduct willful, callous, and reckless.

Now, $2.7 million is a lot of money, right? But, the award needs to be high if you want a multi-billion dollar company to take notice. The jury’s intention behind the particular amount was reportedly to penalize McDonald’s for one or two days’ worth of coffee revenues, which, at the time, was approximately $1.35 million per day. However, in the end, the punitive damages award didn’t stick; the trial judge reduced the amount to $480,000.00, three times the compensatory award.

In total, at the end of the trial, Ms. Liebeck was awarded $640,000.00. However, McDonald’s appealed the decision and, before the appeal was decided, the parties settled for an undisclosed amount, reportedly much less than the trial award.

With coffee so hot, this couldn’t have been the first claim against McDonald’s, right? It was found that, between 1982 and 1992, McDonald’s received more than 700 claims of coffee burns, many similar to Ms. Liebeck’s, and McDonald’s reportedly paid out large dollars to settle these claims. At trial, the quality control manager for McDonald’s testified that the number of incidents was insufficient to evaluate its practice; he also stated that they had more pressing issues to be concerned about.

So, Ms. Liebeck won, right? Wrong. While Ms. Liebeck got some money and coffee is now served at lower temperatures, Ms. Liebeck’s injuries and efforts have been mocked and the defendant’s conduct has been trivialized.

My suggestion to those who read about cases in the media: do your own research; if it sounds too good, bizarre, or depressing to be true, it probably is.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought. 

Originally posted on Castanet.net on January 17, 2012: McDonald’s and its hot coffee.

Sue the school for bullying?

Winter vacation is over and children are back in school. For many children, the return to school is less than enjoyable as bullying is common and efforts to prevent it have seemingly fallen short of success.

Bullying can take many forms; it can be physical, analogous to criminal assault, or it can be verbal or mental. Over 30% of students have been bullied and more than 70% of gay, bisexual, lesbian, or transsexual students have felt unsafe while at school. Victims of bullying are more likely to suffer headache/stomach problems, have lower grades, have a poor attitude towards school, and have greater absenteeism. Also, victims of bullying are 2-9 times more likely to commit suicide, the 3rd leading cause of death among youths. Suicide from bullying has been termed, “bullycide” and at least half of youth suicides are related to bullying. Some victims of bullying also develop learned helplessness, post-traumatic stress disorder, depression, fatigue, eating disorders, and insomnia.

 

In a 2001/2002 World Health Organization survey, Canada ranked 26th and 27th out of 35 countries on measures of bullying and victimization, respectively. In a 1993/1994 study, Canada’s rank was relatively higher, suggesting that other countries have improved and addressed bullying more effectively than Canada.

Obviously, bullying is a problem in Canadian schools.

So, how do we fix it? Well, changes to legislation, to school/teacher procedures, and to community/parental resources may be effective. But, aside for those strategies, consider that litigation/lawsuits (i.e. holding school authorities, like the school or school board, civilly accountable for negligence) would also be effective. Please, hear me out…

At present, some parents spend years going through the prescribed channels, meeting with principals, school board officials, and police, hoping to protect their children, but are unsuccessful. For a few of those parents, taking the matter to court is the next step – a courageous move, knowing that they will be subject to criticism by those who do not understand their plight to protect their children.

Put simply, the legal argument is as follows: there is a legal obligation that children receive schooling and, if children attend a public school, school authorities owe a duty to keep those children safe and protected against preventable and foreseeable harm, including harm from other children. If school authorities fail in keeping children safe from preventable and foreseeable harm, then the school authorities should be held accountable. Seems reasonable, right?

It is not suggested that school authorities be found liable for an isolated incident in which a student assaults another with no warning signs – such an occurrence would be unforeseeable and unpreventable. But, consider a child being repeatedly assaulted and/or harassed, often directly in front of a school’s employee, with the bully never being suspended or expelled. Also, consider that, as a result of the bullying, the victimized child suffers physical and/or mental harm. Such occurrences are preventable and, in such circumstances, the school authorities should be held accountable.

Now, what is a victimized child entitled to? Just as it is with other litigation, plaintiffs are only entitled to fair compensation; they are only entitled to recover their losses (contrary to some public sentiment). Compensation for a victimized child could include the cost of necessary counselling, medication (for mental, stomach, or headache issues), tutoring, or transportation to a different school. The child could also receive compensation for having to endure humiliation and the feeling of helplessness. Also, depending on the level of harm and the interruption to their education/schooling (resulting in lost years), the victimized child may also receive compensation for loss of future income.

Okay, so litigation will compensate victimized children for their losses. But, how will it prevent bullying? Well, the answer is this: self-interest. Litigation forces school authorities to be fiscally motivated to better prevent and detect bullying; the school authorities would view the bully’s behaviour as an unnecessary and preventable cost. As well, taxpayers who see the connection between their tax dollars and litigation will exert external pressure on school authorities to prevent bullying.

As a write this, I can already hear skepticism that litigation will prevent bullying. However, it should be remembered that the law shapes behaviour. For example, consider whether all department stores or gas stations would continue to spend large dollars to keep their parking lots free from ice and snow if there was no risk of litigation (from resulting injury). Also, consider whether some people would choose not to commit a criminal act, like impaired driving, if there was no risk of being held criminally liable. Like it or not, the law regularly influences behaviour (and benefits the common good).

Also consider this: you attend a doctor, a lawyer, or a department store and you suffer loss/harm because of their negligence/wrongdoing. You would expect them to be held accountable and compensate you for your losses, right? Why should it be any different for children when attending school?

In conclusion, bullying is not acceptable and it is not a rite of passage. In our schools, some children are committing criminal acts. If it takes litigation to stop this behaviour, then so be it.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on January 10, 2012: Bullies, schools, and lawsuits.

Hit and runs: know your rights

A short time ago, I wrote a column giving you some tips about what to do after being in a car crash. Those tips included 1) taking photographs of the crash; 2) getting witness names and contact information; and 3) getting the contact information of the other drivers involved in the crash.

BUT, what happens if you can’t get the contact information of the driver who caused the crash? What happens if you suffered injuries and the at-fault driver “just drove away”? In other words, what if you are involved in a “HIT AND RUN”?

Well, this is the subject of this week’s column.

 

Here is the law: if you suffer some injuries at the hands of an unidentified motorist, then you may be entitled to some money. “Money” can include an award for “pain and suffering”, for medical treatment, and/or for loss of income. See section 24 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c 231.

So, how does this work? Well, you obviously can’t directly sue the driver who caused the crash (because they fled the scene, right?). But, you can sue ICBC (so you are not totally out of luck).

But, in order to actually get some money from ICBC, you have to jump over several hurdles.

Among those hurdles, you have to show that you don’t know (and can’t get) the identity of the driver/owner of the other vehicle. This is typically the hardest hurdle to jump over…

So, what does this mean? Well, at a crash scene, you need to do your best to learn the identity of the other driver.

But, let’s assume that the other driver flees the scene right away or you were too injured to get the information. Well, if that occurs, you STILL need to take some serious efforts to learn the identity of the negligent driver. These “efforts” include things like promptly reporting the crash to police and ICBC, canvassing the neighbourhood where the crash occurred, and posting notices/signs at the crash site (pleading for witnesses to come forward). It is common for people to make “insufficient” efforts and have their claims denied.

Another big hurdle is that you need to report the crash to ICBC as soon as you can (and no later than 6 months, at the latest). This allows ICBC to protect itself and “investigate” into the crash, trying to find the identity of the driver.

Another big hurdle is that your credibility needs to be very, VERY good. This sounds easier than it is…

Credibility is a big factor in “hit and run” cases. Often, the only evidence of a “hit and run” is your own words. So, as you can imagine, it is problematic if there are discrepancies in your evidence (i.e. in your statements). For example, if your statement to police is different from your statement to ICBC, then you can have credibility problems. So, be very careful with your words and be very honest.

Now, how much are you entitled to? Well, assuming you can jump over all the hurdles (and there are several), you could receive as much as $200,000.00 for your losses. This may sound like a HUGE amount; but, it may not be (depending on your injuries)…

Lastly, if you are injured in a “hit and run”, I recommend getting some legal advice. There are many hurdles to jump over. And, if you miss one, you could be very sorry later.

And now you know.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on February 12, 2013: Hit and runs: know your rights.

Seeing dead people (and lawsuits!)

In your time on Earth, you have probably witnessed some horrific scenes. Hopefully, those scenes didn’t leave you with any psychological scars. But, maybe they did. If they did, you might be able to start a lawsuit.

I’ll back up…

Have you ever driven by a car crash? You probably have. You’ve probably even driven by a car crash in which someone was killed. If you did, though, you probably didn’t see any blood or anything like that. Ambulance and other emergency crews had probably already arrived (and quarantined the shocking bits).

But, let’s imagine that that didn’t happen. Let’s imagine that you saw something horrific.

Here’s an example: you are driving on Okanagan Lake’s floating bridge and, when doing so, you see a school bus, full of children, get in an awful crash. Many of the children are significantly injured and some of them are killed…and you see this. You actually see their final, struggling moments of life.

Or, here’s another example: you are a spectator at a car race and, while there, you witness a horrific car crash…and the horrific and gruesome death of one of the drivers.

Quite obviously, these are horrific scenes. It isn’t hard to imagine that you would suffer some significant mental scars from witnessing these scenes. Maybe you would suffer depression? Anxiety? Who knows…

If you end up suffering a psychological injury as a result of witnessing something horrific, you MIGHT be able to sue (to recover your losses). The key word: MIGHT.

Here’s the law: if you suffer psychological injury as a result of witnessing a shocking and horrific event, then you MAY be entitled to recover your losses, which includes your medical expenses and an award for pain and suffering.

This type of legal claim is referred to as a NERVOUS SHOCK claim.

The shocking event must have been caused by the negligence of another person, like a speeding driver. And, in order to recover, you must have been present for the event, or its immediate aftermath. So, in other words, you can’t sue someone if you happen to see something horrific on television.

Keep in mind, though, that the psychological injuries must be serious and prolonged. Quite obviously, they must be worse than ordinary annoyances, anxieties, or fears (that we all experience in our everyday lives).

These claims have a lot of nuances and are complicated. They are not easy to win.

Here is a recent example of an unsuccessful claim: Mustapha v. Culligan of Canada Ltd., 2008 SCC 17.

Mr. Mustapha saw a dead fly in an unopened jug of water supplied by Culligan. Mr. Mustapha and his family had drunk Culligan’s water for the past 15 years (but did not drink the “fly water”). Mr. Mustapha became obsessed about what he had seen and was concerned about the health implications on his family (for drinking the water in the past). Mr. Mustapha was later diagnosed with major depressive disorder with associated phobia and anxiety. In the end, Mr. Mustapha’s claim failed because his reaction to the dead fly was very unusual (and a typical person would not have reacted the same way).

Here’s some advice: next time you pass by a serious crash or other horrific scene or site, keep your eyes down – it’s a lot easier than starting a lawsuit.

And now you know.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on February 26, 2013: Seeing dead people.