Morning Ethics Warm-Up, 10/17/18: Travel Hell Edition

Good Morning from Virginia Beach, VA…

…where I am giving a legal ethics seminar to a law firm this morning!

1. Count the ethics issues in Travel Hell…This story is true, and I’m not changing any names, because nobody is innocent.

Last night I had to drive to Virginia Beach after another seminar in D.C., and after yet another road trip on family business. It turned out to be a three and a half hour drive in a pouring rain. Arriving at 2:20 am at the Virginia Beach Westin, where I was supposed to have a room, I was immediately informed by the graveyard shift desk clerk that we could not stay there…because the previous occupants of the room reserved for us (my wife and business partner also made the trip) had “left fecal matter” all over the room, creating a HAZMAT situation. Not to worry, though! The beachfront Hilton would put us up, at the Westin’s expense!

Since I wasn’t paying for the room, this was small consolation.

Of course, we had unloaded the car, and the Hilton was 20 minutes away, and the desk clerk had neither an address nor a phone number, which I pointed out to her was essential. (The point of staying at the Westin was that it was convenient to the location of the law firm.) So we loaded up the car and set out to the new destination, arriving just before 3 am. There, the Hilton desk clerk told us that the hotel had just begun an audit, and we could not be put in a room for at least 20 minutes. I was literally afraid to tell my wife this, as she was in the car alternately fuming and wincing in pain because the endless trip had revived her sciatica.

I was not nice to the Hilton desk clerk, who swore that she told the Westin about the problem, and that they should have told us. I said that I didn’t care whose fault it was, they were now responsible for two weary travelers, and that it was her responsibility to fix the problem. She found a very nice man who got a big tip from me for taking charge of our vehicle and taking our stuff up to our room when the “audit” was over.

Once in the room, we discovered that two of the lamps didn’t work, the desk lamp was missing, and the clock was blinking. I told the clerk to send someone up and have the room in the shape I expect hotel rooms to be in before I walk in the door—including having the clock set and functioning.

On the plus side, no fecal matter was in evidence….

2. Why people hate lawyers…Branson Duck Vehicles and Ripley Entertainment are facing multiple lawsuits in the horrific duck boat accident that killed 17 people in Missouri , including nine members of a single family. In court papers filed this week, the companies’ lawyer cited an 1851 maritime law to limit or eliminate liability for the July tragedy.

In a filing in federal court in Missouri, the defendants denied negligence in the sinking of the boat, and argues that if a court does find negligence, they have no liability because, under that law, “the Vessel was a total loss and has no current value. No freight was pending on the Vessel.”

The reaction was predictable. Human beings have no value? This was a Hail Mary defense tactic to be sure, but if that’s the clients’ best option, it is the lawyers’ duty to argue it, IF they first inform their clients that it is a likely public relations disaster that as a cure could be worse than the disease, and seems unlikely to do anything but inflame a jury.

22 thoughts on “Morning Ethics Warm-Up, 10/17/18: Travel Hell Edition

  1. it is the lawyers’ duty to argue it, IF they first inform their clients that it is a likely public relations disaster that as a cure could be worse than the disease, and seems unlikely to do anything but inflame a jury

    I imagine the insurance company is running the defense and doesn’t care about the PR effect on the defendant. And the jury will never hear about the legal defenses that were raised in the pleadings and argued in front of the judge before the jury was empaneled.

    • Precisely. I frequently have to explain to insurance adjusters that the client’s risk or interest is much more than financial; too often the insurance people are only looking at these cases from a dollars viewpoint that doesn’t assess the other factors–public image, internal morale, etc.–that a company routinely considers.

      • And I am always sympathetic when I hear about those items at risk – they generally are not covered by the commercial policy.

        • Interesting viewpoint–I would say that these intangibles are part of any litigation, and any policy insures against risks to these assets as well as merely financial ones. My experience is that an insurance company that refuses coverage based on a client rejecting a settlement because of potential damage to its reputation or the message sent to its workforce is asking for a bad-faith verdict. But you raise a good question as to whether these points should be expressly stated in a policy.

          • The typical commercial policy does not include any of these intangibles. They may well be of value to the insured, but the carriers generally don’t include them in coverage and for the most part specifically exclude coverage for them. Bad faith claims would not apply to an insurer declining to cover an item that is not included in the policy for coverage. Bad faith claims are normally brought when an insurer is perceived to be avoiding a settlement that could or should be made.

            • I don’t see these exclusions in the policies covering my clients. Perhaps that’s a function of EPLI coverage–these issues are recognized as part of the coverage. Again, I think it would be bad faith for an insurer to abandon a client based on a refusal to take a settlement that didn’t involve consideration of these points.

      • The policies I deal with generally have clauses that allow the company to withdraw coverage if the customer acts “irrationally” in refusing a resolution of the case. Insurance defense lawyers sometimes walk a tightrope between the insurance company that sends them business and their ethical obligations to the insured client.

  2. My wife asked me why people didn’t bail out of the duck boat when it was sinking and why no one had life jackets on. We had taken a trip on one of the Branson duck boats last year. I told her to think about the ride. They showed us the life jackets, then told us we wouldn’t need one. They were very clear about telling us to stay in our seats. She wanted to know what I would have done. I told my wife I would have gotten the life jackets and distributed them to everyone (in our group) once the lake got really rough, since I know neither she nor her mother can swim. I told her that once water started coming over the bow and the gunwhales, I would have put our son on the gunwhale and told everyone to prepare to bail out. Once it swamped, I would have bailed out before it sank and the cover trapped us in. She asked why no one on the boat did that. I told her that the pressure of obeying authority would have prevented them. If I got up to get life jackets, I’m sure the captain would have yelled at me to remain in my seat and stay calm. Distributing the life jackets would have worried the other passengers. I know if I got up to prepare to bail out, the captain would have been yelling at me to stop and threatening to press charges if we didn’t sit down or jumped overboard. Most people can’t just ignore authority in the face of criminal charges, no matter what and believe it or not, that is normally a good thing.

    Now, I don’t know for sure that is what would have happened, but I am pretty sure that is the most likely scenario. This was a terrible tragedy, but we should learn from tragedies. The fact that the survivors did not have life jackets on is inexcusable. The fact that no one took the initiative to put one on themselves shows how conditioned we are to follow authority. We give a lot of power to authorities for safety. From police to flight attendants to boat captains, we give people the authority to legally compel others to follow their orders for the safety of all. In this case, that authority failed them. For the authority that failed those people to try to skirt responsibility threatens the respect needed for such a system to work and therefore threatens the safety of us all. I know it may be a shrewd legal strategy financially in the short term, but I worry about it chipping away even more at our respect for authority in the face of a bureaucracy that seems bent on overthrowing democracy and near-daily examples of people flagrantly breaking the law with no consequences because the law apparently doesn’t apply to them. There aren’t many cultures on this planet where authority is actually respected and people can live in peace and security. When we stop respecting that authority, we will become just another corrupt culture in a world of corrupt cultures. I think this move edges us one step closer.

    • From what I understand, many of those Duck Boats have limited means of egress – roofed over, with small windows or windows that don’t open at all. Apparently, the NTSB recommended the removal of roofs from all such boats decades ago after a similar accident.

        • In this article,
          a witness claims this one had both, and that it impeded the evacuation of the boat:

          When the boat submerged, Keller said the canopy was on and the windows were sealed, but her ex-husband said the captain had a moment of clarity and was able to release the canopy of the boat.

          “They were all closed,” Keller said her daughter told her. “The windows were closed and the top was on. They were all stuck in there until that top came off.”

          And further down:

          ‘It was so hard to get out of the boat, Mom. It was so hard to get out of the boat.’

      • I’ve ridden in such a vehicle exactly once (in Baltimore) and the vehicle was open-topped except for the cab where the driver sits. I can confirm that they had life jackets on board and that we did not wear them during the aquatic part of the ride.

        –Dwayne

    • Good analysis. We are conditioned to obey authority. We used to be conditioned to obey the demands of hijackers but 9-11 changed that. Perhaps, when it comes to personal safety we must rely on our own instincts. If it appears that the authority figure has not assessed the potential danger adequately then we must act. With that said, assuming leadership also means that you seek to preserve calm among the others and be willing to defend the actions you take.

      Now my only question is who in their right mind leaves fecal matter all over a hotel room?
      Do we need to have an instruction from an authority figure not to do so? Also, given that checkout time is usually 11am and check in is after 4pm why didn’t the hotel either notify Jack in advance or if he could not be reached secure his group lodging elsewhere before he arrived? The audit issue would not even had been an issue.

    • My family and I were in Branson the week before and had talked about taking a tour on the Ducks there as well, but decided against it because we’d done the same type of tour in the WI Dells. When I’d heard that no one had life jackets I was shocked because I was sure we’d worn them in WI… until I revied the photos and saw that we had not. Now I’m shocked at myself, my wife and I are both strong swimmers, but the waters that boat found itself in I doubt it would have mattered, not to mention while both of my daughters can swim at 6 and 8, they’re not strong swimmers and have very little stamina.

      There but for the Grace of God.

    • Please, a COTD for Michael R. Obeying authority vs. taking initiative has to be a major problem for everyone from a child to an entire democratic republic. It’s a what-would-Thomas-Paine do situation in these times that try all of us who are not tearing blindly at the thin-stretched fabric that holds us together. For all our “independence,” we are a people who, in our relatively safe and secure lives, have forgotten how to recognize an emergency, much less know how to cope with it, and stand up and take charge.

      I saw it in myself the last time I was in a hotel facing the same kind of situation Jack just described . . . and all I did was stand there in front of the desk clerk (who never said he couldn’t do anything, only that he wasn’t “authorized” to) and think about the letter I was going to write to “the management.” If I’d laid out the problems and told the clerk what needed to be done about them – and when – there might not have been much of a change, but they were reasonable requests that would have satisfied both of us for the time being … and saved him a dressing-down, or worse (I write my complaint letters on asbestos).

      And I saw it during the ’89 earthquake when everyone on the block was milling around outside talking about aftershocks instead of turning off the gas, locating flashlights and Coleman lanterns, filling up the tub, thinking about (real-life) safe spaces, and finding out who had the short-wave. [Full disclosure: the neat piles of dimes I had just been ready to fit into the wrapper fell over: I was really pissed. Nothing else.] As it happened — “moral luck,” (somebody told me) — our area stood firm on bedrock. Walking a few blocks up to a lookout point, we could see an eerie light coming out of the eerier unelectrified darkness over the hills to the north as the landfill shifted under the Marina District, broke open the gas pipes, and set the area on fire. This much someone guessed. Then we noticed that there were no lights at all on the far side of the Bay Bridge, though it never occurred to us that a section of the massive structure had crumbled, collapsing the upper level of highway onto the lower. The darkness seemed to extend further inland, but the phenomenon was blithely dismissed as “just blackout.”

      That was where 42 people died — half an hour after the quake itself — at the other end of the Bridge in the sudden collapse of a section of the Nimitz freeway another two-tier viaduct known locally as the Cypress Structure (and by sociologists as “a white road through black bedrooms”). The event itself was moral luck; it’s outcome was not. It was later easily estimated (“just count the number of cars”) that at least twice that number would have died but for the neighborhood rejection of authority. Spontaneously, along the whole of the 1.6 mile wreckage, just about every able-bodied man and boy, (some not so abled but still willing) in the area, against all orders or advice from police, their families and onlookers, immediately began scaling the still disintegrating concrete and steel superstructure and crawling as far as they could into the carnage, following the sounds of cries, screams and moans, using crowbars and muscle to extricate as many of the living, the unconscious, (and finally, even some of the dead) from the mangled cages of their cars, risking more dangerous cave-ins. People took charge of whatever they knew best. The fire-trucks and EMTs came along about the same time the media mob showed up, triggered by footage from helicopters overhead … in time to watch the professionals – firefighters, EMTs — follow dramatically in the footsteps of the self-motivated rescuers.

      It’s easy to figure out what makes people reluctant to break laws, sometimes no-matter-what. We’re trained that way. But what drives people to stand up for themselves in all situations when they’re in the right, or to stand out from the crowd when they’re needed to direct or lead, even when the crowd isn’t interested, or is actively opposed …. that is not so well understood. The most I can tell about it – speaking as one who has faced down bullies and others abusing myself or those I have chosen to protect – is that that kind of behavior is socially sanctioned. (And so is cowering behind cultural norms, such as “not causing trouble” or “not hurting feelings” under ordinary circumstances, such as dealing with recalcitrant desk clerks). This kind of stand-up courage, however – and it does take immense courage to be willing to fail to help when it is neither social nor legally sanctioned — has to be jump-started somewhere, preferably in childhood. You need opportunities to practice. You can’t fake this kind of thing, but you can be taught, best by example. Opportunities like the “Cypress-climbers” had are once in a lifetime. To act in such a way requires focus, shutting down fore-thought, and muffling any voices, inside or out. Otherwise, it takes a person with more self-confidence than I have, Gunga Din.

      A post-script on “moral luck” though:
      The estimated death tolls for both San Francisco and Oakland commuters supposed to be on the Bay Bridge at that time of day occupying all five lanes of the part of the bridge that fell was 300. Emergency response – just getting to the scene through five lanes of rush-hour traffic – was not expected to be successful. But that wasn’t what happened. The single fatality on the Bridge itself was a driver who had turned back toward Oakland after she had been ordered to exit along with everyone else on one of the islands. One instead of 300: not the 20% of the usual number for that time of day who were at first estimated to have fallen or crashed through the barriers from the upper level or been crushed on the lower.

      The luck came in the shape of a baseball game, of course. Game 3 of the World Series (the game of a lifetime for many: San Francisco Giants vs. Oakland A’s) was in its pre-game commentary just a few minutes before its scheduled start when the quake hit at 5:04pm. Candlestick Park was at stadium capacity with 160,000, with most of the commuters (estimated coincidentally at the same number — 160,000) — staying put, still in their offices, at the local bar with TV or home early or having played hookey, glued to a transistor radio, but not on the BART trains (Another 50,000 not to worry about — no cell phones to operate in the tunnels!) . As a result, the San Francisco-Oakland Bay Bridge was having one of the lightest rush-hour traffic days in its history as the two cities prepared for battle.

      When the dust cleared, the Giants and A’s played out the Series. The Giants lost (for those few of you who don’t follow important baseball stats). Hard as it is to say it, that’s a small price to pay for saving all those lives.

        • Thanks, slick. I enjoyed writing it. And you reminded me:

          ATTENTION BASEBALL FANS The first footage of the Loma Prieta earthquake (just recently appearing on YouTube) comes from ABC/Channel 7’s video, beginning a few minutes before the interruption of the pre-game commentary at Candlestick Park (the first World Series game to be played there in 27years, and the first ever meet of the two teams that had been facing each other across the Bay. The first video has the the “before” picture:

          which will shortly cut back to the newsroom, which will run on generator power for the next 45 minutes until the newsreader begins to babble the repetitions EXCEPT for baseball bits at: 4:51 for fans crowding in back of the serious reporter, laughing, shoving, jumping and making faces at the camera — man, it’s just another quake, y’know; and at 16:19 (back to the Stick where cracks have been discovered in the upper tiers but many are sticking to their seats playing the-game-must-go-on in their heads; and, at 33:47 (this is a full half-hour since the quake occurred) when, finally, the Baseball Commissioner is declaring the ballgame is actually cancelled and demanding the remaining (estimated 12-14 thousand) fans clear the stadium , stat.

          and there’s now a compilation of the whole disaster with all the most disastrous footage narrated in the most disastrously purple prose and music (if there was no such thing as “purple” music before, there is now!) … which contains all the, what?, uber-drama of the three days between ballgames, ending with ABC’s same announcer, Al Michaels, ten days later at the ‘Stick prefacing the re-start of Game 3 at 1:25:20:

          not to mention the crowd trying to sing “I left my heart …,” the second least sing-able song (after the national anthem) that a crowd should sing, . . . especially not when crying.

          So, enough sentiment. These are a mob of ultra-leftist progressive-feminist-socio-communo-radicals, remember? Does being baseball fans balance that out? [Don’t answer that!]

          Or — and this is my very last word, a bedtime story, for now: Once upon a time, there was Pacific Coast League born in 1903, the best of its teams, the San Francisco Seals, spawning the likes of Joe DiMaggio, Frankie Crosetti, Lefty Gomez, Earl Averill, Paul Waner, and Lefty O’Doul. (I know, I know: too many Yankees and not a Red Soc among them, but still….)

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