When you're part of a team who makes winning dram shop cases seem simple, it's easy to take for granted how elusive this area of the law is to other firms. But a recent encounter with a man who initially hired an attorney who didn't know what he was doing reminded me just how unfamiliar a lot of lawyers are with these cases.
Background
A few weeks ago, I was contacted by a gentleman who'd suffered the loss of his daughter and grandchildren at the hands of a drunk driver. It was clear after speaking with him for only a few minutes that his persona was (and I mean this as a positive) that of a fairly typical Texan; tough as nails, not wanting to let his emotions shine through. Though he spoke in a very collected and professional manner as to conceal his heartache, beneath the facade there was genuine anguish that shone through.
But there was another layer to it. This wasn't as simple as the pain a man feels when his flesh and blood are unceremoniously destroyed by the selfless actions of a few bad actors. No, in this man's voice you could hear the pain of betrayal, of defeat. Before he even finished explaining what happened, I knew he felt let down by the justice system.
As it turns out, the drunk driver who killed this man's family was so drunk that he'd practically stumbled into a convenience store shortly before the wreck. And though any fool could see that this man was dangerously drunk, the clerk sold him a substantial amount of alcohol in direct violation of Texas law. The drunkard then consumed the provided alcohol and drove the wrong way down the highway, causing this terrible wreck. Additional research and a sting operation conducted by the Texas Alcoholic Beverage Commission revealed that the convenience store who provided the alcohol had no qualms about breaking the law.
The Legal Case
As the gentleman disclosed the details of his case, it quickly became apparent that this is the kind of dram shop case that could not only be won but could be knocked out of the park. At center, the case featured several people who acted in concert to produce a terrible result, and, more specifically, the bad actors' conduct neatly met all of the legal requirements necessary to hold them accountable. This case was free from the entanglements and technicalities that plague other cases, which can often work to the advantage of alcohol providers. Yet, despite the fact that he had such a winnable case, he went on to explain that it was in major trouble.
Shortly before our phone call, his case was mediated. For those of you unfamiliar with mediation, it's essentially an informal sit-down meeting between both sides of a lawsuit and their attorneys. In this meeting, a mediator (usually a retired attorney or judge) hears the grievances of both parties, dissects the strengths and weaknesses of their cases, and then tries to broker a settlement. If a case is handled properly, you go into mediation with a lot of leverage, and mediation represents a very good chance to get the case settled and avoid the uncertainty of trial.
Unfortunately, this case had not been handled correctly, so the mediation went very poorly. The defendants, who had been caught about as red-handed as one can be, were emboldened and were certain that they would win at trial. As such, they made a rather low offer to settle the case. Rather than tell the defendants to deposit their offer where the sun doesn't shine, the attorney representing the grieving man spent the better part of the day trying to convince his client to take the lowball offer. He kept harping on the "fact" that they would certainly lose if they rejected the offer and went to trial.
What this attorney hadn't counted on was that his client was not persuaded by the offer for one simple reason: He doesn't need the money. Many clients are desperate enough that a lowball offer will appeal to them. Not this man. Whether a single cent went into his pocket or not was beside the point. He simply wanted the defendants to be forced to part ways with their assets to ensure that they thought long and hard in the future about breaking the law. Since the offer they made amounted to a self-imposed slap on the wrist, he instructed his attorney to reject the offer, despite the lawyer's protestations.
Out With The Old Attorney, In With The New
By the time he reached out to our firm for help, his attorney had already withdrawn from representation. Said lawyer sent him a letter that tried to make it sound like he was acting in the client's best interest to dump his case in the 11th hour. Once we got hired and dug into the file a little bit, we realized that it was actually far worse than the client was aware. His former lawyer didn't just withdraw from representation for lack of faith in the man's case. As we learned, he withdrew, because he was about to sink the whole thing.
At the time the lawyer withdrew, a motion for summary judgment had been filed by the defendants, and the attorney had failed to respond. The reason he hadn't responded to the MSJ was that he'd basically done nothing to gather the evidence needed to defeat it. Evidently, he just hoped to get a quick settlement and close the file, because he most certainly was not prepared to respond to the motion or appear at the hearing.
He hadn't taken a single deposition or conducted any type of independent investigation, and what little discovery he engaged in was lacking in several respects. In short, he had set his client up to fail at in the motion for summary judgment hearing, meaning that they walked into mediation with no leverage. When the inevitable lowball offer came and he couldn't convince his client to take it, he pulled the ripcord and withdrew from the case. Had the client waited at all to find a replacement attorney, it is incredibly likely that the MSJ hearing would have proceeded without him, and the man would have had his case thrown out.
If you're thinking, "Wait a minute. A lawyer can't just withdraw from representing a client on the eve of a major hearing," you're right. In some circles, like, oh, I don't know, the legal profession, that's referred to as "malpractice."
Looking over the pleadings and case file with Keith Purdue, our firm's dram shop guru, we couldn't help be be shocked at the approach taken by the client's former attorney. The file was pretty much a field manual for how not to handle a dram shop case. Out of curiosity, we researched the attorney and learned that he's actually a fairly prominent lawyer with many years of experience under his belt, albeit in a different field than dram shop law. We both kept saying, "How could he have done such a poor job on this case?"
And then it hit me. We have handled so many of these cases that we take for granted all of the subtleties and intricacies that most firms would be completely blindsided by. Whereas in some cases a lawyer can exploit the inherent value (I use that term reluctantly) of the case, rest on their laurels, and still get a decent settlement, that is not true of dram shop law. In dram shop cases, you must fight to establish every single element. It is a detail-oriented and somewhat excruciating exercise, and one that our firm's unique repertoire of cases has prepared us to excel at, whereas others are simply in over their heads. This case is a reminder of just how equipped we are to help people who have lost loved ones in these accidents, and how other firms really are playing with fire by trying to learn how to handle dram shop cases as they go.
I don't yet know if we will be able to undo the damage that was done by the previous attorney. And it's too soon to tell whether we'll be able to get our client in the best position to win his case, but I like his chances.