Lawsuits: You Can’t Always Get What You Want

By John G. Browning


A recent headline reminded me of the endless struggle for compromise that so often characterizes the civil justice system. The Rolling Stones were recently on the receiving end of a complaint filed with the New York State Division of Human Rights on the grounds that the band is discriminating against its disabled and aging baby boomer fans with the ticket prices for its latest tour. The complaint was filed by 60-year-old Michael Boyajian, a retired administrative law judge, who uses a walker and needs a wheelchair-accessible seat. But when he tried to purchase a ticket to the Stones’ New York and New Jersey tour stops, he discovered that some accessible seats cost five times the price of non-accessible seats. Boyajian says he just wants more accessible seating made available. It seems odd that a band of geriatric rockers like Mick Jagger, 75, Keith Richards, 75, Charlie Watts, 77, and Ronnie Wood, 71, wouldn’t be sensitive to the plight of such fans. It remains to be seen whether this legal battle will end in satisfaction or will come down to a classic case of you can’t always get what you want (but if you try sometimes, you just might find you get what you need).

Sometimes, it all comes down to taking a stand—even if that stand happens to be on an escalator. While the U.S. Supreme Court was deciding weighty issues like free speech and health care, last fall, the Supreme Court of Canada agreed to hear the case of a woman ticketed and arrested for refusing to hold an escalator handrail at a subway station. Bela Kosoian chose not to heed a pictogram with the instruction “hold the handrail,” resulting in not only two tickets but being removed “by force” by a police officer. All I can say is, it must be really slow for law enforcement in Canada.

And the “if at first you don’t succeed, try try again” award goes to newly elected Cook County, Illinois, Judge Shannon P. O’Malley, elected as a Democrat to a Chicago-area judicial seat. The interesting thing is Judge O’Malley wasn’t always a Democrat or even “Shannon P. O’Malley.” It seems that after losing a bid for judicial office in 2010 as a Republican under his actual birth name of Phillip Spiwak, in 2012, he not only changed parties but also changed his name to the Irish-sounding and more gender-neutral “Shannon O’Malley” (studies have shown that Irish surnames give Cook County judicial candidates an electoral edge). Why didn’t Spiwak/ O’Malley run in 2012? It seems that such “name changes” have become so prevalent in Cook County that Illinois passed a law requiring candidates to be listed under their old names if the name change was made three years or less before the election. Ah, Chicago—the Windy City, the City of Broad Shoulders (and sudden name changes).

And finally, I think virtually every lawyer has experienced impatience and frustration with purported expert witnesses at some point in his or her careers. It’s particularly irksome when the witness is held out as an “expert” in some area that really smacks of pseudoscience or “junk science.” After all this is why we have Daubert challenges. But back in 1995, former New Mexico state Sen. Duncan Scott was so aggravated by what he perceived to be the questionable testimony of psychologists and psychiatrists in cases, he tacked on a “protest amendment” to a bill requiring such testifying experts to “wear a cone-shaped hat that is not less than two feet tall. The surface of the hat shall be imprinted with stars and lightning bolts. Additionally, a psychologist or psychiatrist shall be required to don a white beard that is not less than 18 inches in length and shall punctuate crucial elements of his testimony by stabbing the air with a wand. Whenever a psychologist or psychiatrist provides expert testimony regarding a defendant’s competency, the bailiff shall contemporaneously dim the courtroom lights and administer two strokes to a Chinese gong.”

Holy sarcasm, Batman! Surprisingly, this cheeky “wizard amendment” passed unanimously in the Senate (it was ultimately removed before the House vote, though). I guess you really can’t always get what you want.TBJ


is a partner in Passman &?Jones in Dallas, where he handles commercial litigation, employment, health care, and personal injury defense matters in state and federal courts. He is an award-winning legal journalist for his syndicated column, “Legally Speaking,” and is the author of the Social Media and Litigation Practice Guide and a forthcoming casebook on social media and the law. Browning is an adjunct professor at SMU Dedman School of Law.

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