APARTMENT CODE: A STUDY IN CODE INTERPRETATION
By Don Keenan
Several years ago, we went out to discover the code for apartment complexes and got a result that was not expected. So let me walk you through the revelations; not teach you how to get the code, because, hopefully, you know that not impossible. The purpose is to show, even if you are given the code, you can misuse the code.
If you do a narrative focus group on apartment complexes, you’re going to find that Bubba clearly believes that safety and security depends on how much rent you pay. And they’re adamant about it.
So if you have an apartment complex rape, armed robbery, fire, carbon monoxide poisoning, etc., and you simply stopped at “it depends on what you pay for rent” then you’ve given up two‑thirds of your case.
We went with quick word association regarding what they thought when they heard the word “apartment” and not once did we hear “well, it depends on how much you pay for the apartment.” Instead, the responses were “a place you can be safe,” “your castle,” “your personal safe place.”
This sounds a bit like strict liability. If you’re in your apartment, you have a right to be safe, notwithstanding how much you pay for it. But how does that square with others’
Now as I’ve written many times, simply the code of “a place to be safe and secure” doesn’t cut it unless you know the specific elements.
The elements of the code are dependent upon what harm occurred, i.e. intruder, fire, carbon monoxide, falling ceiling, etc. I don’t have time to describe the elements of all of those scenarios, so let me just pick the intruder scenario and explain the elements of it.
- The apartment dweller has a right to locks that work.
- An apartment dweller has the right to have locks changed every time a new tenant rents the apartment.
- The apartment dweller has the right to windows that are secure.
- The apartment dweller has the right to adequate lighting around the apartment and in the parking lot area.
- The apartment dweller, if the area is known to be high crime, has the right to either video cameras or security guards.
So therefore, if you have a case involving an apartment-living client and an inadequate security case, that’s your code. If the apartment fails to beyond code, then you’re one step closer to a plaintiff’s verdict because that’s the expectation that Bubba has – their basic rights in their apartment and rent makes no difference when it comes to those rights.
Now some of you may be thinking, “Well, are there instances where the more you pay the more you should be able to get?” You bet. If you’re paying the luxury apartment rent, then Bubba believes there should be background checks of all tenants in the complex, Bubba believes that, under certain circumstances, you get a gate for all
WHICH WAY YOU LEAN – WWYL
How many WWDYL questions are too many? I have MIST trial coming up with several issues I need to test with WWDYL questions: chiropractor tx, pre-existing conditions, fibromyalgia, preponderance, non-econ dmgs, and a very pregnant young defendant. I am Don Quixote.
B. Scott Shipman
Scott,
I try to follow the rule Matt and Ryan suggested. (Thought I’d try to put a touch more meat on the bones).
Don has said at seminars and elsewhere that we should not get addicted to WWDYL questions. We should be using them to find the rats in the case.
Don indicated that once we know, from our FGs what is the killer issue in our case, then we craft a WWDYL question which identifies the rat for us. We don’t want to use them, necessarily, to then have a discussion. I should know going in to voir dire that if I have a poisonous issue, my WWDYL question will find the jurors who are not ever going to go my way. In your examples, these may (or may not) all be topics that are absolute poison:
1) Chiropractic treatment? I don’t know that this would be a rat issue. It may simply be a good “golden rule” topic for voir dire: (Not deeply thought out, or tested, but…) “If you are injured because of the actions of another, would you expect to be able to choose the type of doctor who best addresses that problem, or should you have to see only the doctors the wrongdoer chooses?” “What if you are afraid of pills or needles? Should you have to see a ‘pill’ doctor or an ‘injection’ doctor, if you can get relief somewhere else?” “Who should be making that decision?” (you will likely get some really good feedback on the issue – and even the “Chiro’s are quacks” rats, will probably agree: “I wouldn’t go there, but the defendant shouldn’t be making the decision for the plaintiff…”)
2) I just FG’d pre-existing Degenerative Disc Disease yesterday. My FG heard all of the experts say that my client’s spine was a train-wreck. But they all agreed that if the car wreck made the condition symptomatic, or made it worse, plaintiff recovers. Again, voir dire gives you a great chance to talk about it: “Who here has a problem with their back or knees or neck?” “Ever had to treat for that?” “How do you think that problem would respond to being in a car wreck?” “Can you imagine it would be worse?” “How would you prove to someone that this problem was made worse?”
3) Preponderance: I use a WWDYL question, but I’m less married to it, than I used to be. I like the conversation it starts. I haven’t had too much benefit from the question, however. Most of my jurors say they are ok with the burden.
4) Non-Econ. I have had a couple trials where the juror says they won’t do it, and then get in an argument with the judge. I still use it. I like this one. If I had to pitch it for a more important issue, I might do that.
5) With the pregnant defendant, I’m not sure what a WWDYL question would uncover for you? I think you can use the “just an accident” topic as a substitute for her condition. If you indicate that the defendant isn’t a bad person, but just made a very simple and very explainable mistake, (following too closely, speed, etc.) but now needs to be responsible for that choice, they should know what you are talking about. You want to find out if they can hold someone accountable, even if they are likeable. I don’t know if a WWDYL question would ferret this out, either. In abstract, people would likely tell you they think everyone should be treated equally. What you really want them to do, is put themselves in the place of your client. “What is your expectation about who should follow safety rules?” “Should everyone?” “Should anyone get a pass?” “What if the person is really a nice person? Does that make a difference?” “Who can be hurt or killed, when someone breaks a safety rule? Should we make exceptions about who should follow the rules, when they are so important to protect us all?” “Is it ever okay to violate a safety rule?” This also helps you to make the case about something other than an “event case.” Now you would be focusing on the rule.
My strategy for the WWDYL questions (which is most definitely under construction) is for something I just know will result in some juror, in deliberations, who is not going to come my way: EVER, but who will nonetheless tell the judge, “I’ll follow the law.” (This is the definition of “the Rat.”) Seems like my cases will have one or two (sometimes a lot more…) of those killer issues on at least one of my elements of proof: liability, cause of my client’s injury (I can’t believe anyone can be injured in a collision like this), or on my damages (plaintiff doesn’t need an “Assistance Dog” those are just for blind people). When my FGs tell me I’m getting killed by a couple of hard-hearts, I try to figure out a WWDYL question.
Matthew A. Lathrop
In the trial we did last week we used only one WWDYL question and it got rid of all but one bad juror. I agree that focus grouping your voir dire several times will help limit the WWDYL questions.
Sean Claggett, NV