Response re. George Smith's Disappearance

[woodofpine]

I didn't mean to dump on you, but this is a civil case. Only the "state" can bring criminal charges (as in United States v. Martha Stewart, State of Connecticut, Florida v. ___). The negligence claims require "proof" that under the facts present RCI failed to provide a "reasonably" safe environment (the 2 point test I indicated of, created danger, or failed to act "reasonably" to prevent known danger). Given almost undisputed circumstances of excessive passenger alcohol consumption present that's almost impossible case for the plaintiff. The "murder mystery" is a sideshow...

 

Once in litigation, as this case is, for myriad reasons outside counsel will handle it. The fact a firm is "on retainer" doesn't mean that legal fee discounting is present.

 

Given the weakness of the case RCI might want to fight it to the end. But generally, if it cost $100K to get rid of it today with certainty versus $200K to fight it to an uncertain result, the prudent business decision is to get rid of it. But generally speaking, historically, cadavers are cheaper than the severely injured in the world of litigation so under the facts present 'Ole George might not be worth many cruise fares...

[bob278]

I, too, thought that only the "state" (governmental body) can bring criminal cases.. All a civilian can do is "press charges" such as assault if someone were to hit or injure them.

 

But I agree with hermang that there is more to the business decision of settling than just the cost of giving them $100K versus a trail that might cost $200K to win. The downstream liability could be devastatingly expensive, not just by opening the door on precedent, but by practically inviting nuisance suits by everyone who has a complaint.

 

I really don't like to generalize about people or occupations, but the nature of the business lawyers are in gives them incentive to pursue any case they think might have a positive financial outcome. Whether they win on fact or get "nuisance" money to go away, it all looks good on the balance sheet.

[woodofpine]

My comments about settlement were addressed somewhat generally; more toward commercial disputes. The Smiths have a poor case and RCI has told them so and turned them away. I suppose they've rushed to the media because they've gotten nowhere with RCI. Absent some genuine evidence of crew member criminal activity involving the Smiths, they're not likely to get anything in settlement or otherwise.

 

The notion of "nuisance money" is sort of a myth. Proof positive is the Smiths, where's their nuisance money? Nuisance money is NOT attractive in a law firm's bottom line, it costs too much to make. There's an old lawyer saying, "When your case is weak on the law, pound on the facts! When your case is weak on the facts, pound on the law! When you case is weak on both, pound on the table!" The Smiths are pounding on the table. Personal injury attorneys that pound on the table a lot go bankrupt.

 

For instance, medical malpractice cases generally involve well over $50,000 in out of pocket costs to take to trial. If the plaintiff attorney loses, he eats that out of pocket which does NOT include his time to be compensated by part of the recovery. Guess what, 85% of medical malpractice cases result in a defense verdict. Plaintiff attorneys can't afford to lose very many cases, they have to be selective. Despite insurer railing about contingent fee agreements, contingent fees act as a disincentive to bring bad cases. Tort reform is a bunch of insurance industry nonsense.

 

Juries aren't easy for plaintiffs to sway; they are just as give away resistent as the folks on this board. For instance, liberal old John Kerry actually acted as a jury foreman in an injury case a couple months ago in liberal old Massachussetts. Kerry thought it was a great experience, so did the jury. The plaintiff didn't, defense verdict.

[hermang]

I didn't mean to dump on you, but this is a civil case. Only the "state" can bring criminal charges (as in United States v. Martha Stewart, State of Connecticut, Florida v. ___). The negligence claims require "proof" that under the facts present RCI failed to provide a "reasonably" safe environment (the 2 point test I indicated of, created danger, or failed to act "reasonably" to prevent known danger). Given almost undisputed circumstances of excessive passenger alcohol consumption present that's almost impossible case for the plaintiff. The "murder mystery" is a sideshow...

 

Once in litigation, as this case is, for myriad reasons outside counsel will handle it. The fact a firm is "on retainer" doesn't mean that legal fee discounting is present.

 

Given the weakness of the case RCI might want to fight it to the end. But generally, if it cost $100K to get rid of it today with certainty versus $200K to fight it to an uncertain result, the prudent business decision is to get rid of it. But generally speaking, historically, cadavers are cheaper than the severely injured in the world of litigation so under the facts present 'Ole George might not be worth many cruise fares...

 

I do wonder however if folks like Congressman Shays - who decides to hold congressional hearings on the Cruise industry - perhaps "invites" the states or federal government to bring such suits. Look at the Terry Schiavo case in Florida - IMHO the state government had absolutely no business in that one - yet Congress and the states took this to the supreme court.

 

I doubt the Smiths can prove RCI was negligent and then there is the question of how much muck do they want to rake over their son. Obviously not a choir boy. And their dear DIL would never pass for Mother Thersa.

 

Don't know if you heard the mother's remarks - but she came off worse than Natalee's mom and to me was guilty of Slander at the very least.

 

STAY TUNED for further BS from the media = there is too much hype for them to let it go

[dileep]

Richard Fain, RCCL CEO was on Greta Susteren's On The Record show on Fox News and he appeared very credible. They also had the ship employee who stayed with the wife all day after the husband was known to be missing.

[c-legs]

:mad: Hi,

 

To all of the above very relevent posts, let's add the following possibilities: How long before '' the Book '' deal....and '' The Movie'' deal ??? You can bet your next cruise's shipboard account on the last night that this whole farcical travesty of facts and law is fuelled on strictly by appetite and greed for a fast buck, damn the reputations !!!!

The '' sensationalistic '' TV Media is milking it, the '' national inquirer''-type media is just around the corner....and, bingo: you then have your '' exclusive offer of $x,xxx,xxx.00 '' by so 'n' so for the rights to the story to be published in xx months....and how long do we have to wait for the '' deal of $xx,xxx,xxx.00 for the exclusive rights to a TV movie'' to be filmed ???

About 3-4 months....

 

What a pathetic scenario.....

 

Cheers anyways!

 

CG

[C 2 C]

Never underestimate the power of human stupidity. Robert A. Heinlein

 

 

Or greed IMHO

[woodofpine]

Where the $"rubber hits the road"$ - the courtroom - this case isn't worth much. George Smith - sleep around drunk liquor store owner's son - no child dependents; Mrs. Smith - sleep around drunk wife. What's known is that drunks bang their heads, and drunks drown... happens just about everyday. Doesn't make much of a movie of the week even on a cruise ship (and they're too expensive to rent as sets...)

 

Given the foregoing, I think this little news blip has a pretty time and money limited media 'shelf-life'. Sintillating to cruisers - for a short time, but not much of a draw otherwise. Smith's attorneys probably now realize (like George) that they're married to a dog so they might as well milk it for all the press it's worth; get a little ad value where the cupboard's empty otherwise. They're just lucky in timing that congress is trying to pay for a war, and few congressmen are hissy that the travel industry's most prominent sector pays extremely little tax...

 

RCI undoubtedly views this situation as a near zero legal liability, but it's annoyed by having to PR manage it. Is wasting the CEO's time with Greta worth cancelling tea with the Sultan of Brunei to discuss fuel oil futures...? That might be worth offering a little cump change. Let the Smith's try to sell their movie rights, they're not worth much and it won't be coming out of RCI's bottom line. The flic isn't going to be produced anyway, and if it is nobody is going to distribute it...

[msiowa]

As a (non-practicing) attorney, I want to thank woodofpine for his (her?) well-articulated posts on the Smith matter and litigation in general.

 

Unfortunately, through television-hype and the well-oiled insurance company PR machine, the American public believes that anyone can get big bucks from campanies if they yell loud enough. Not true. In fact I'd argue the opposite is true - many deserving, truly injured people never get a dime because the system is so stacked against powerless individuals.

 

And for the record, I never practiced tort law, nor have I ever been involved in a lawsuit, so I have (had) no personal agenda in regard to litigation.

 

Happy (and safe!) sailing.

Joanie

[Eliger]

There will be a press conference today on this matter as indicated in the RCCL notice at this link: http://www.corporate-ir.net/ireye/ir_site.zhtml?ticker=rcl&script=410&layout=9&item_id=802658

[dkjretired]

Where the $"rubber hits the road"$ - the courtroom - this case isn't worth much. George Smith - sleep around drunk liquor store owner's son - no child dependents; Mrs. Smith - sleep around drunk wife. What's known is that drunks bang their heads, and drunks drown... happens just about everyday. Doesn't make much of a movie of the week even on a cruise ship (and they're too expensive to rent as sets...)

 

Given the foregoing, I think this little news blip has a pretty time and money limited media 'shelf-life'. Sintillating to cruisers - for a short time, but not much of a draw otherwise. Smith's attorneys probably now realize (like George) that they're married to a dog so they might as well milk it for all the press it's worth; get a little ad value where the cupboard's empty otherwise. They're just lucky in timing that congress is trying to pay for a war, and few congressmen are hissy that the travel industry's most prominent sector pays extremely little tax...

 

RCI undoubtedly views this situation as a near zero legal liability, but it's annoyed by having to PR manage it. Is wasting the CEO's time with Greta worth cancelling tea with the Sultan of Brunei to discuss fuel oil futures...? That might be worth offering a little cump change. Let the Smith's try to sell their movie rights, they're not worth much and it won't be coming out of RCI's bottom line. The flic isn't going to be produced anyway, and if it is nobody is going to distribute it...

 

Wood:

 

Thanks for the excellent explanation to all us mere mortals without a legal education. I would put one caveat on everything you have said and that is that the FBI actually comes up with something other than a drunk falling off the ship. That would make it very interesting.

[woodofpine]

DK - you're right too! There's a lot of money hanging on your "caveat". All our speculation is just that, scintillating speculation in the absence of good information. It appears though that RCI has blown off the Smiths, who seem to be putting enormous energy into the media rather than trial preparation... That alone speaks volumes.

 

Obviously, when ever criminal conduct is perpetrated by crew, liability usually results. Mr. Smith seems to have acknowledged no hard evidence of crew involvement... but the Smiths infer evidence tampering... Of course, they weren't there (and they want $$$) so... It appears there is little hard evidence of much except an injury overboard situation preceeded by a lot of alcohol. The apparent occurance of an onboard rape AFTER the Smith disappearance makes for extraordinarily "fun" media but means little. Actually, the rape victim is almost certainly better positioned than the Smiths (but let's not go there!)

 

Absent crew member involvement, premises security liability generally requires a pre-exisiting pattern of criminal conduct such that the injury was 'reasonably' foreseeable and increased security mandated. That's a very tough case to make (even in the bario). The facts here are so unique - what chance is there of proving a pre-existing pattern (of newlywed murder and body disposal - c'mon!). The rotating pattern of passengers almost precludes pre-existing patterns.

 

On thing that will likely occur, due to this case and the Costa case - more conservative and rigorous alcohol service rules.

 

msiowa - I agree with your general comments. I've been on both sides of the fence. The world and the economy is NOT made of George Smiths or McDonald's coffee. The 'world' - and insurance industry bottom line - is made of $10,000 - $50,000 claims (usually car crash claims on the lower side). It costs AT LEAST $10,000 - $20,000 to try any claim involving disputed medical injury. The insurers know this and the PI attorneys know this. Genuine rock solid $15,000 - $30,000 injuries only generate $5,000 - $10,000 in fees. So the insurance industry offers to settle these tens or hundreds of thousands of annual claims for $0.30 - 0.50 on the dollar - knowing with absolute macroeconomic certainty - that the plaintiff bar and their clients will have to accept. That's what makes the world go round friends; that's how the "solid" claims are handled, ask the Smiths about the dubious ones!

 

At risk of offending insurance types, the problem with the insurance industry is that it has a terrible historical investment record of premiums/reserves coupled with extremely high executive compensation/overhead and marketing expense...

[etoile]

Are you sure that George Smith's estate is that small? I read that his parents are very wealthy, so he may have other assets in the form of a trust. I find it very strange that in her offer for a reward, Jennifer Hagel Smith described herself as the widow and executor of her husbands estate, when he has not yet been found or declared dead. Maybe she knows that he really is.

Actually he has been declared dead. As for his estate, I know he stood to inherit quite a lot of money upon the death of his parents, but I'm not sure that a trust can be passed into the estate of a decedent. I have been doing a lot of probate/fiduciary reading lately, and I'm not very familiar with Connecticut probate law, but wills typically have a clause like "if they survive me" for cases like this. It is more likely that the money would go to his sister, Bree, than that it would enter his estate. However, the state of New York does have a "by representation" provision, quoted below. I don't know if Connecticut has a similar provision.

"By Representation" Distribution. EPTL Sec. 12.16 provides for a new method of distribution known as "by representation," which applies to distributions made to persons who take as issue of a predeceased ancestor. The rule provides that the surviving as well as the predeceased issue of the closest generation to the decedent each take a share. The share(s) of the predeceased issue is divided equally among all the surviving issue of the predeceased issue.

[CruisingChick]

It costs AT LEAST $10,000 - $20,000 to try any claim involving disputed medical injury. The insurers know this

 

Not to get off subject, but Allstate must not know this or your figures are way off. I was sued 5 years ago for a minor auto accident. Allstate would not settle and made me go to court. Yes, we (Allstate) won and the plaintiff got NOTHING. But it went on for 3 1/2 years. The Plaintiff offered to settle a year before it went to trial for $10,000. But Allstate said no and took it all the way to trial.

[msiowa]

Actually he has been declared dead. As for his estate, I know he stood to inherit quite a lot of money upon the death of his parents, but I'm not sure that a trust can be passed into the estate of a decedent. I have been doing a lot of probate/fiduciary reading lately, and I'm not very familiar with Connecticut probate law, but wills typically have a clause like "if they survive me" for cases like this. It is more likely that the money would go to his sister, Bree, than that it would enter his estate. However, the state of New York does have a "by representation" provision, quoted below. I don't know if Connecticut has a similar provision.

 

etoile Now you are in an area of law I practiced . . . it gets fairly complex but, in general, statutory provisions relate to intestate estates (those that do not have a will) - people who have wills (and related trusts) can decide for themselves who will inherit and under what circumstances (for example whether the "by representation" principle will apply or not.)

 

In my experience, in a case such as the Smiths (as I understand it . . . my facts could be way off) - they have 2 children - the decedent and his sister Bree. They most likely provided that after the second one dies (of Mom and Dad) their estate would be evenly divided between the 2 kids. They may have provided that if one of the kids pre-deceased them, that child's children would inherit his or her share - the by representation principle - BUT, if that child pre-deceased them without having had children (the case here), the deceased child's share goes to his sister. It is unlikely that the deceased child's spouse would inherit anything unless specifically provided for in the documents.

 

And, of course, unless they have an irrevocable trust (and not that many

people do), they are free to change the provisions anytime.

 

So Mrs. Smith Jr. gets nothing from Mom & Dad's estate. She could get something from insurance or other investments.

 

And if this was a tv show, clearly Bree "did it" . . . she's the one who stands to benefit most from the decedent's death.

Whew . . . it's like taking Trusts & Estates all over again!

 

Joanie

[cdbaum]

According to my lawyer a couple of the larger auto insurance companies (Allstate being one of them) are known for not settling in lawsuits but instead count on the fact that many people (and their attorneys) don't want to go through a long court case.

 

In my case several attorneys changed their minds about taking the case when they heard who the other persons insurance company was. And even with hard evidence supporting the injury claim the insurance company chose to go to court.

 

The point of this being that it isn't always considered in their best interest to settle, or even in their corporate philosophy. I imagine if it is considered a nuisance suit and it also could be a bad precedent and PR then they would resist settling.

[etoile]

Whew, thanks for that analysis, Joanie! That was exactly what I suspected would be the case. There's no reason to expect the parents wouldn't rewrite their will to leave everything to Bree. You pointed out:

if one of the kids pre-deceased them, that child's children would inherit his or her share - the by representation principle

I had missed that, but I see you're right. For some reason in my head I was interpreting "issue" as "survivors" rather than "children" - even though I know what "issue" means! And of course you are correct about the laws applying to intestate situations...that is exactly the situation I may find myself in after a hearing on the 26th of this month. (Which is why I've been reading so much on probate etc.) I think I need your "Trusts and Estates" class!

[EmJakeBubbie]

...

In my case several attorneys changed their minds about taking the case when they heard who the other persons insurance company was. And even with hard evidence supporting the injury claim the insurance company chose to go to court.

 

...

..so how did the case win out?

[woodofpine]

You're correct Allstate is notoriously tough. So there's stingy or intransigent! Sort of counters the myth the insurers propogate that they are writing checks right and left for "frivolous" suits. Allstate doesn't even really negotiate, they have a computer program (called "Colosus") that determines what they'll pay or fight to the end on. None of this is programmed toward paying "what's fair", it's geared to "how little can we get away with paying" - just like a good neighbor (if your neighbor is a cannibal).

 

Another lesser known fact about the McDonald's coffee case... Everybody heard about the multi-million dollar jury award (without hearing the facts that induced it) and nobody heard that the plaintiff actually ended up with less than $500,000. But - crazier yet, given the public's general disposition - the McDonald's plaintiff offered to settle prior to filing suit for $20,000! Oh well! After all, those injury attorneys are just rolling in dough - eh cruisingchick!

 

The public's perception of injury law is totally insane! For instance, multiple medical association studies (not attorney studies mind you) show that only 10% of medical malpractice results in ANY claim whatsoever, the lion's share is explained away as "complications"!

 

Blaming the victim is so easy! And big business is SO good at getting the public onboard!

 

That said, I think Mr. and Mrs. Smith just had a teensy-weensy drinking problem...

[Sky Sweet]

I know that when an attorney takes a case on a contingency basis, he doesn't get paid a legal fee if he loses that case, but does he get reimbursed from the plaintiff for fees that he paid to expert witnesses?

[woodofpine]

Generally no... Very often seriously injured claimants can't afford to contribute a thing. They've lost significant work earnings and are in a precarious state. In expensive litigation, like med mal the law firms simply pick up the tab and take the risk since out of pocket is going to get very expensive anyway. That factor alone weighs against taking bad cases.

 

With a less severely injured person, many attorneys (myself included) seek to have the client pay for an occassional cost as they come up. But that is primarily for client management and psychology reasons. There is value in reminding contingent fee clients that the litigation process is not "free".

 

Actually, most of my practice concerns real estate, construction, and land use. It may not sound like it, but I don't consider myself an pro-plaintiff ideologue. I've been on both sides and I am presently (in unrelated types of work). There's a lot to be desired in civil litigation, injury especially. For instance, the number of severly injured people that never are compensated because the tortfeaser is uninsured or underinsured. In Florida, drivers only have to carry $10,000 per person, $20,000 per accident liability insurance. That hasn't chaged since I don't know when and nowadays that doesn't even get you through the emergency room in a bad accident.

 

It is amazing though how mischaracterized the system is overall. TV and - yes - lawyer advertising is largely accountable. But there are powerful, highly organized forces, constantly lobbying to take away the rights of the injured (who are largely unorganized).

 

Story from a couple months ago. An attorney related to me that a very well respected and highly experienced colleague had had a very bad year. It was artfully phrased, "He took on a very expensive case, and he believed his client. Unfortunately, the jury didn't!".

 

Soooo... Take it from me! The plaintiff bar doesn't have any weapons of mass destruction!

[woodofpine]

Generally no... Very often seriously injured claimants can't afford to contribute a thing. They've lost significant work earnings and are in a precarious state. In expensive litigation, like med mal the law firms simply pick up the tab and take the risk since out of pocket is going to get very expensive anyway. That factor alone weighs against taking bad cases.

 

With a less severely injured person, many attorneys (myself included) seek to have the client pay for an occassional cost as they come up. But that is primarily for client management and psychology reasons. There is value in reminding contingent fee clients that the litigation process is not "free".

 

Actually, most of my practice concerns real estate, construction, and land use. It may not sound like it, but I don't consider myself an pro-plaintiff ideologue. I've been on both sides and I am presently (in unrelated types of work). There's a lot to be desired in civil litigation, injury especially. For instance, the number of severly injured people that never are compensated because the tortfeaser is uninsured or underinsured. In Florida, drivers only have to carry $10,000 per person, $20,000 per accident liability insurance. That hasn't chaged since I don't know when and nowadays that doesn't even get you through the emergency room in a bad accident.

 

It is amazing though how mischaracterized the system is overall. TV and - yes - lawyer advertising is largely accountable. But there are powerful, highly organized forces, constantly lobbying to take away the rights of the injured (who are largely unorganized).

 

Story from a couple months ago. An attorney related to me that a very well respected and highly experienced colleague had had a very bad year. It was artfully phrased, "He took on a very expensive case, and he believed his client. Unfortunately, the jury didn't!".

 

Soooo... Take it from me! The plaintiff bar doesn't have any weapons of mass destruction!

[woodofpine]

OOPS! Silly computer!

[Sky Sweet]

Generally no... Very often seriously injured claimants can't afford to contribute a thing. They've lost significant work earnings and are in a precarious state. In expensive litigation, like med mal the law firms simply pick up the tab and take the risk since out of pocket is going to get very expensive anyway. That factor alone weighs against taking bad cases.

 

With a less severely injured person, many attorneys (myself included) seek to have the client pay for an occassional cost as they come up. But that is primarily for client management and psychology reasons. There is value in reminding contingent fee clients that the litigation process is not "free".

 

Actually, most of my practice concerns real estate, construction, and land use. It may not sound like it, but I don't consider myself an pro-plaintiff ideologue. I've been on both sides and I am presently (in unrelated types of work). There's a lot to be desired in civil litigation, injury especially. For instance, the number of severly injured people that never are compensated because the tortfeaser is uninsured or underinsured. In Florida, drivers only have to carry $10,000 per person, $20,000 per accident liability insurance. That hasn't chaged since I don't know when and nowadays that doesn't even get you through the emergency room in a bad accident.

 

It is amazing though how mischaracterized the system is overall. TV and - yes - lawyer advertising is largely accountable. But there are powerful, highly organized forces, constantly lobbying to take away the rights of the injured (who are largely unorganized).

 

Story from a couple months ago. An attorney related to me that a very well respected and highly experienced colleague had had a very bad year. It was artfully phrased, "He took on a very expensive case, and he believed his client. Unfortunately, the jury didn't!".

 

Soooo... Take it from me! The plaintiff bar doesn't have any weapons of mass destruction!

 

Thank you, Woodofpine, for such a complete and interesting answer to my question :)

[Eliger]

In case some of you are still interested in the press releases given by RCCL, you can check the following site: http://www.corporate-ir.net/ireye/ir_site.zhtml?ticker=rcl&script=410&layout=9&item_id=803310

 

Certainly keeps the suspense going :)