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Washington Lawyer

Legal Spectator: Bottled Water

From Washington Lawyer, June 2004

By Jacob A. Stein

spectator It is September 1975. I am attending the deposition of a plaintiff who has sued five accountants. He claims they defrauded him. Each defendant is represented by a lawyer provided by his insurance company and each has his own personal lawyer. The room is filled with lawyers. Each lawyer is set up with a yellow pad with the questions to be asked of the plaintiff. To the right of the pad are two packs of cigarettes. To the left of the pad is a bottle of Coca-Cola. Ashtrays are everywhere. The caffeine and the nicotine contribute to the undisciplined jocularity.

The plaintiff smokes contraband Cuban cigars. After a clicking roll of his dental castanets, he bites off the end of the Montecristo Grande. He lights up and takes a few puffs that produce a full atomic mushroom cloud in the middle distance between him and the lawyer asking the questions. It is apparent the witness believes he can outsmoke anybody in the room.

Before he answers a question, he pauses dramatically. He then gives his answer. “I do not recall.” He is proud of the answer. He looks around the room to see how his response is received. His audience is unimpressed. As the deposition goes on, the witness demonstrates impressive resources of evasion to meet the slippery questions of the battery of lawyers. In other words, it was a well-done, good-old-boys deposition.

Now it is 1995. I am attending another deposition. Things have changed. All cases are now document cases. Each lawyer has a stack of documents. There are briefcases on the floor with yet more documents. Each question is fastened to a document. Each lawyer has two or more sherpas assisting in the climb. Each lawyer has his own computer. It is connected to the court reporter’s computer. As the court reporter writes up the testimony, it appears at the same time on each lawyer’s screen. It is all business. Nobody is smoking. There are no ashtrays. Yes, there are Cokes, but they are in cans. In addition there is bottled water everywhere.

I first saw bottled water in the Stafford Hotel in London. The label designated the contents as mineral water taken from some mountain spring known for its medicinal value. J. B. Priestley in one of his essays describes such water: “It will have been awarded gold medals and diplomas. It will attempt to cure rheumatism, catarrh of the stomach, urinary complaints, obesity and gout, gravel and stone.”

Coca-Cola originated in the South and became the South’s own mineral water. It claimed its secret formula had therapeutic value. It cured infants of upset stomachs and strong men of the blues.

A. J. Liebling was sent down south to write a hostile article about Huey Long’s brother, Governor Earl Long of Louisiana. Earl Long converted Liebling to a believer. In Liebling’s book about the governor he describes Long’s use of Coca-Cola to protect him from an attack of heat exposure during a long, rambling stump speech. Governor Long paused and dipped his handkerchief in Coca-Cola and applied it to his brow and it brought immediate relief.

The switch from bottled Coke to Coke in cans must be noted. When Coke was sold in bottles, anyone who claimed competence as a personal injury lawyer had to be able to say he had tried a Coca-Cola exploding bottle case.

The theory of such a case is wrapped up in the doctrine of res ipsa loquitur (“the thing speaks for itself”). Here is a typical res ipsa jury instruction:

Ordinarily, the fact that an accident happens does not mean it was caused by negligence. However, if each of the following circumstances is more probable than not, you may conclude that there was negligence: first, the Coke bottle would not ordinarily explode without negligence; second, the cause of the event was within the defendant Coca-Cola’s exclusive control; third, no action by anyone else, including the plaintiff, was a cause of the explosion.
    Should you find that it is more probable than not that Coca-Cola was negligent, Coca-Cola is then called upon for a satisfactory explanation and may explain to your satisfaction that there was no negligence on its part which was a cause of the explosion.
    If you are not satisfied with Coca-Cola’s explanation, then your verdict should be for the plaintiff.
     Coca-Cola had trouble with exploding bottle cases. An exploding glass bottle causes serious injury. When I tried my first exploding bottle case, I used a closing argument other plaintiff’s lawyers had perfected. Here is a part of it:
I wish this little bottle could talk (holding up the bottle for the jury to see). Do you know what it would say? It would say, “Ladies and gentlemen of the jury, Coca-Cola didn’t give me a strong body. You couldn’t tell by looking at me that I was defective. One side of me was not as strong as the other. They let me go to the store. I knew I might hurt somebody. Every place I went I was dropped, kicked, and suffered because of the way I was treated. Mr. Jones the plaintiff was a very nice fellow. He didn’t mishandle me at all. I knew I couldn’t hold together. I made a lot of noise and went to pieces, and here I am in Mr. Jones jaw. I wish they could take me back and give me a new life and give him a new jaw.”
     Such poetic eloquence is out of style today. Real litigators look down on it. But in its time it gave one a feeling of having participated as a player in the high drama of the courtroom.

Jacob A. Stein can be reached by e-mail at jstein@steinmitchell.com.