No! No! Bad employee! No!

A very successful plaintiff’s attorney once told me that there were two keys to getting a settlement in a class action product liability suit.

The first was to find the smoking gun. Somewhere, an employee had told someone not to engage the safety, not to install the part, or not to buy the protective coating because it cost too much. Email is wonderful for such cases, since now you can mine through thousands of ill-advised comments that don’t disappear when someone hits “delete.”

The second key is to get the ear of an executive above the one who created the smoking gun, and who has some decision making authority. This is tougher than it sounds. The one who created the problem is highly motivated to contain it, and is probably telling his superiors “Don’t worry, I’ve got it handled.” The higher execs aren’t inclined to let a litigator go around their own internal containment, or to voluntarily become the new point of contact in a lawsuit.

If you can get the audience, however, he said that it was usually the end of the suit. You say something like “Did you realize that your managers were sending written instructions telling the technicians to disconnect the safety?” There is a pause, and the executive says something like. “Oh my God. I can’t believe it. How much will this cost to settle?”

I was thinking of this the other day when National Public Radio ran a story about BP’s legal department going around Mississippi offering fisherman $5,000 to sign away their legal rights to damages.Of course the slant of the reporting was that BP was a nasty giant oil company trying to dupe poor ignorant fisherman.

Do you really think that BP, scrambling in London or Brussels or wherever in an attempt to contain the damage, was plotting to shake down shrimpers in Biloxi? With a hundred million bucks a day going out the door, and CNN running the mug shots of their rig 24/7, was there a corporate decision to fleece the little guy for a few grand?

Of course not. There was probably some mid-level bozo in a regional office who thought he could make points towards promotion by “showing some initiative.” Moron.

Small business owners envy big corporations, where there is somebody assigned to do everything; but sometimes it may not be all that great.

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