It’s been said that civil litigation is simply another strategy for the redistribution of wealth. In some measure, that’s true, and regrettably suing often evokes a rather negative reaction. Actually the process, assuming the cause of action (i.e., the reason for the lawsuit) is genuinely justified, and the decision maker (judge or jury) objectively weighs the evidence, provides an essential corrective mechanism necessary in the course of human affairs. The same is true with criminal litigation and the ultimate decision to incarcerate a rapist, for example, in prison. So litigation provides a correction to a condition that can and does bring harm and punishes those responsible for the condition.
Here’s an example: A woman is accosted in a dark parking lot. One significant contributing factor to this crime is poor illumination allowing the assailant to hide in the darkness and wait for a victim. The lawsuit stimulates the owner or property manager of the lot to increase and enhance the lighting, according to published recommended lighting engineer’s standards, and future attacks are diminished. So now the dangerous condition is somewhat corrected and it’s a safer environment for others. That same lawsuit awards some monetary compensation to the victim for her medical expenses, loss of work, and pain and suffering. That monetary award will never erase the memory of the event or future nightmares, but it does ease the pain a bit.
Consider the retailer who doesn’t want to incur the costs of training new store detectives. They bypass this necessary requirement and substitute structured and classroom instructions on such topics as the proper use of force, the laws of arrest, etc. with assigning the novice to work alongside an “experienced” detective and call it on-the-job training. Everything the more experienced detective does wrong, or the shortcuts that he or she takes that bypass the rules, are passed on to the newcomer. Later, an innocent person is arrested and jailed, or is injured while being arrested, or worst yet, is killed, albeit accidentally in an arrest or attempted arrest. Some stores have paid dearly for that poorly advised strategy, but only because of civil lawsuits, not because of conscience.
In the Introduction readers learned expert witnesses enjoy a special privilege to offer opinions to the court and jury. That privilege is based on one’s credentials in terms of education and experience. Regrettably, there those who hold themselves out as experts, but they’re not. Honorable attorneys have a special duty to ensure the expert is honest and credible, but not all attorneys are honorable.
One must wonder, how does the expert arrive at his or her opinion? The answer is by analysis of all available material relevant to the incident that drives a lawsuit. Take, for example, the Elanta Department Store rape case as reflected in Chapter 11. I was obliged to read the following reports and documents, which required days of work:
1. Plaintiff’s first amended complaint
3. Depositions of Fred Makin, vols. 1 and 2
5. Deposition of Clint Roemheld
6. Statement under oath of Thomas Last
7. Plaintiff’s second amended complain
8. Copies of colored photographs
9. Items from the prosecutor’s file
10. Public record documents from the city
11. Jason Peters personnel file from Sears
12. Jason Peters criminal transcript
13. Elanta’s video monitoring procedures
14. Elanta’s rules and procedures for security personnel
15. Elanta’s management apprehension guide
16. Confirmation that no job description exists
17. Silver’s emails regarding camera operations
18. Incident reports involving camera operators
19. Elanta’s insurance and safety manual
20. Elanta’s file on Jason Peters
21. Hours for security and camera operators
22. Two videotapes (one for training and one of the incident)
24. Deposition of Catherine Stoops
25. Pages of Fred Makin’s reviews
26. Pages of Fred Makin’s appraisals
28. Defendant’s motion for summary judgment
30. Affidavit of Joseph McDonald
31. Affidavit of Buster Kelley
33. Daniel’s letter of resignation
34. Chapter 309, Oregon Jury Instructions
36. Numerous personal statement reports
37. Deposition of Pam Zimmerman
39. Store operations quick reference guide
At some point the expert forms and offers an opinion. Some opinions are made known in the deposition testimony. Many states require the expert to express his or her opinions in writing, as evidenced as follows in one of six opinions I made about the Elanta case:
As a consequence of my review of all the aforesaid materials and my knowledge and understanding of the industry’s standard of care and widely accepted custom and practice, I have arrived at the following opinions:
Opinion #1: Elanta’s senior management’s failure to appoint and maintain at the senior level a loss prevention executive to develop and administer a professional security/loss prevention program allowed for an unqualified party to develop poorly conceived strategies and policies, which is a reckless disregard for the protection of life and property and falls well below the industry’s standard of care.
This expert knows of no other national or even regional retailer who does not have a security executive at the senior or middle management level of the enterprise. Loss prevention is a distinct discipline that plays an integral role in retail operations, comparable to visual presentations, distribution, merchandising, buying, and auditing, each of which brings experience and expertise to their particular phase of the overall function. A company would never put an auditor in charge of visual presentations and displays, nor would a security executive fare well as a buyer of lingerie.
I have worked “both sides of the aisle” in this “litigation explosion” and can fairly take the position that I and a handful of professional colleagues have contributed in some small way to making our communities a safer place to live by bring about improved security.