Having spent the last 20 years in and around courtrooms, I have defended against my share of outrageous lawsuits: the teacher who was sued when a kid got injured Tee-Peeing the teacher’s yard; the family fight over an old Studebaker; the nephew who appeared out of the woodwork – after a ten year absence — to challenge his spinster Catholic aunt’s bequest to a charity instead of him. And we have all seen the headlines about frivolous lawsuits. Time and again people ask me, “Why doesn’t the judge throw that case out?”

While judges can, under limited circumstances, “throw the case out,” our system of justice is wedded to the trial by jury. Skeptical of the autocratic power of the crown, our forefathers were very wary of allowing the government (or an appointed or elected government officer, the judge) the power to make decisions reserved for a jury of our peers.

So, when can the judge make the call? If it’s a “legal” issue, the judge has more say. If it’s a “factual” issue, the judge’s power is more restricted. I can hear you all asking, “But isn’t it always a legal issue? If it’s a lawsuit, it’s a legal issue, right?” The critical distinction we lawyers deal with is this. In many cases, if the facts turn out to be a certain way, the plaintiff has a recognized claim for relief. But in some cases, even if the facts are as alleged, the law doesn’t allow a person to sue.

Let’s use the famous McDonald’s coffee case as an example. Most people scoffed over the notion that someone could sue after burning herself by spilling coffee. But this case was really a fact case. Just how hot was the coffee? Whose fault was it that the coffee spilled? The driver or the distracted teen-age drive-through
worker? If a jury found that the coffee was hot enough to give first degree burns on contact, or that the attendant tipped the tray into the lap of the unsuspecting customer, then McDonald’s might well have breached its duty of care under longstanding legal standards. But if a jury found that the coffee’s temperature was within the range of “normal” for a restaurant, or that the driver was talking on her cell phone when she tipped the coffee, then McDonald’s didn’t do anything out of the ordinary that would subject it to liability.

The point I want to draw your attention to here is that the outcome is determined by what the fact finder (normally the jury) decides based on the evidence that is presented. Unless he or she finds that there is simply no evidence that would allow the jury to reach a verdict for the plaintiff, the judge is going to let the case go to trial. For example, if three experts say, “The temperature was normal,“ while one says, “It was way beyond normal,” the judge will probably let the jury decide which expert to believe.

Now let’s change the scenario just a little bit. Assume the person who got sued for spilled coffee wasn’t McDonald’s, but was the President of the United States, who was hosting a reception in the East Room of the White House for the Super Bowl Champion New York Giants. Eli Manning gets burned by spilled coffee, and he sues Barack Obama. Shouldn’t the same fact specific inquiry control? Probably not. Government officials are protected by either qualified or absolute immunity in most circumstances. Here, you could expect the judge to say, “It doesn’t matter if the coffee was in fact way too hot, I am telling you as a matter of law that we do not allow the president to be sued in this kind of circumstance.”

Our system isn’t perfect, and there are plenty of reasons we get frustrated with both judges and juries. Your preference may depend on your personal experience or political biases, or it may in fact change depending on whether you find yourself the plaintiff or the defendant. For all its flaws, our system is closing in on its 250th birthday, and it has kept us from resorting to bloodshed and violence as the preferred means of solving our differences.

If you get frustrated by the jury system from time to time (and I think we all do), my best advice is this: when you get that little notice that you have been selected for jury duty, don’t call me and ask me what to say to get out of it. Do your part. Go to court. And make sure that justice prevails.