As the Curmudgeonly Clerk
and Prof. Bernstein
continue their exchange on the jurisprudence of spilled coffee, it grows increasingly obvious why this particular meme has taken such firm root in the American psyche. Discuss the McDonald's coffee case, and deeply held convictions come quickly to the fore.
Our own deeply held conviction, reported in an earlier post
, is that McDonald's doesn't sell actual "coffee." It sells an insulting and debauched facsimile, produced by adding artificial styrofoam flavoring to hot camel bile and straining the resulting mixture through a patented fungus. Anyone who contemplates tinkering with the temperature of this putative "beverage" in an attempt to optimize its "taste" is simply living in a dream world. Some readers have seemed uncertain how seriously to take our views on this point, but the Curmudgeonly Clerk is right to have taken them as very seriously intended. In contemplating coffee in the abstract, it may seem plausible to suppose that some balance must be struck, between the enhanced palatability afforded by higher temperatures, on the one hand, and the elevated risks of third-degree burns, on the other. But we're not discussing Starbucks, or even a pot of 8 O'Clock from the A&P. We're discussing drive-through McDonald's coffee, which no rational human consumer would voluntarily purchase or imbibe except for the potential coma-mitigating effects of any caffeine it may contain. Defending its temperature by appealing to considerations of palatability has a decidedly false ring, to our ears. It is the sort of ingenious argument that only lawyers could concoct. It tries to get the coffee off on a technicality.
But Professor Bernstein puts a different set of convictions on display, when he comments on a McDonald's executive whose testimony may have damaged the company's cause. "I don't know any theory of Torts," writes Prof. Bernstein, "that suggests that liability should depend on whether the jury likes the attitude of a particular witness or not."
Read this last quoted sentence aloud. Now think of the last trial you attended. What on earth can Professor Bernstein be thinking?
First, let us peel away some rhetoric, starting with "theory of Torts." We all know, of course, that the Committee of Tort Theoreticians gathers annually, to consider possible means by which American jurors can be made to adhere to the norms of Fundamental Common Sense, which jurors so sorely lack, and which Theorists of Tort uniquely possess. No one supposes that any member of this august body has ever advocated a uniform jury instruction that would read: "Select a random witness, and assign liability depending on your reaction to his or her attitude." No one, in other words, proposes that defendants whose witnesses have unlikeable attitudes should be liable, for that sole reason, as a matter of law.
If that were all that Prof. Bernstein meant to say, he would be quite correct. But he seems to be saying more. He seems to be expressing some tacit yearning for a happier world in which Theories of Tort would do all the work of mapping fact patterns into outcomes, at least where scalding coffee is concerned. The problem, of course, is that the rules of tort liability, standing alone, are insufficient to determine all outcomes, and so we rely on juries to do what work remains. This brings us to the issue of whether a jury's decision "should depend" on whether the jurors "like the attitude of a particular witness or not." That manner of characterizing the jurors' judgment seems unduly dismissive, if not unrealistically puritanical. For one thing, it presupposes, without argument or support, that the jury's conclusion will have hinged entirely on its reaction to one single witness, to the exclusion of all other evidence. For another, it imports the uncritical supposition that the jurors' reactions will have been founded on irrational emotional considerations, rather than rationally defensible practical judgment. But let us say, for example, that a McDonald's executive takes the stand and exhibits an absence of apparent concern about consumer safety. Is it really so illegitimate for the jurors to notice and take his "attitude" into account? Mightn't his "attitude" fairly be regarded as one piece of information, among others, from which to infer an irresponsible corporate culture?
However that may be, the practical and inescapable truth is that jurors have visceral reactions to all kinds of witnesses -- to corporate executives, to criminal defendants, and even (here's why we get to discuss this, in a weblog about expert evidence) to paid experts. It would be naive to suppose otherwise, and impracticable to expect anything different. The strong likelihood is that jurors even have visceral reactions to ladies who sue McDonald's for large sums over spilled cups of inexpensive coffee. There is room for debate about how far such reactions typically embody an underlying rationality that the jurors might or might not be able to articulate at a level of precision and rigor acceptable to Tort Theoreticians. What cannot reasonably be debated is that trial outcomes are and inevitably will be affected, sometimes decisively, by the myriad and ineffable ways in which factfinders respond to witnesses.
Does this really operate to McDonald's disadvantage, in the larger coffee-spilling scheme of things? The tenacity with which the McDonald's coffee litigation clings to its perch in popular legal discourse is itself the product of a visceral reaction. The story is a hardy perennial precisely because it seems to violate "common sense," that someone could sue because the coffee was hot. It seems safe to assume that the McDonald's jurors may have come to the problem, initially, with exactly that reaction. Evidently they heard something, during the trial, that overcame it. Maybe they heard that the coffee was hotter than they felt coffee of that caliber had any good reason to be.
The urge to believe that there is one correct solution to every practical controversy is powerful, even among persons who concede, in the abstract, that reasonable persons could often differ. From this urge can spring an equally powerful impulse to regulate discourse as a method of controlling, by means other than rational persuasion, the inferential habits of persons whom we are not content to leave to their own inferential devices -- an impulse, to be fair, of which Professor Bernstein is himself a keen critic in other contexts. The whole law of evidence, and in particular the modern law of expert evidence, can be seen as one product of just such impulses. Whatever the legitimacy of such projects, there are fundamental limits beyond which they cannot proceed. One such limit arises from the stubborn human propensity to rely on intuition. Another arises from the stubborn human sense of the absurd -- which recognizes, for what it is, the claim that McDonald's coffee is engineered with the human taste bud in mind.