check out the cookie curmudgeon

For a take on the Colorado Cookie Kids that is not as half-baked as you'll find in the major media, and the blogiverse (e.g., Walter and Fedster; Denver Post story; ABCNews/GMA), see the cookie curmudgeon checks in (f/k/a, Feb. 5, 2005).  skepticalEsq presents a fuller version of the facts (Durango Herald, "Friendly gesture ends in court" (Feb. 5, 2005), offers some advice to the young women involved, and concludes:

Do those who mock this case and want to cuddle the baking duo have suggestions about what the justice system did wrong here?  Do they doubt that the cookie-delivery incident caused Young's anxiety attack and that her medical expenses were reasonable?   Do they think the girls acted with reasonable care?  That they are too young to understand that they did something good in an irresponsible manner?  Do they doubt that an in-person apology would have ended all this without a day in court?

• Their parents and their lawyer should have insisted the girls head over to the Young home and apologize. 

Suggesting that this episode means no one should act kindly toward neighbors or strangers, or that doing so in a thought-full, thought-through manner raises unacceptable risks of being sued, is simply asinine.  Almost any case can be made to sound like a miscarriage of justice, or a symbol of what's wrong with our society or legal system, if you leave out enough facts.   I have little hope for the main-stream media, but I wish my weblawg colleagues would try a little harder to present cases in a fair manner. 

Comments

[KipEsquire]

This is all very well and good, but I'm still waiting for someone to tell me what the d*mn tort is! Trespass? Negligence? NIED? I simply do not see a cause of action here, and none of the news reports elaborates the judge's reasoning.

[David Giacalone]

Kip, It sounds like you're assuming there's no cause of action, because the media has not spelled it out for you. That's despite the fact that (1) the girls and their parents had legal advice and Mrs. Martha Zelliti said: "We have no qualms against the judge or Mrs. Young." and, (2) as I assume, you have done no research of Colorado law to see if any of the potential causes of action that you suggest might be relevant here.

Those darn reporters won't even do your legal research for you! I can see why you're so suspicious. Having checked your weblog, I must inquire: does "libertarian" mean freedom from thinking hard and checking the facts and law before kvetching?

[Mike]

It's nice to think that an apology would have ended this. It's also nice to think that the tooth fairy gives money for our baby teeth, and that fairies sprinkle magical dust on us as we sleep.

Of course, it's more likely that this grouchy plaintiff would have used the girls' apology as evidence of guilt.

[KipEsquire]

David,

Oh, yes, like I'm going to drop what I'm doing and search WestLaw for Colorado tort law because second-rate hick mountain town reporters don't know how to write a decent lawsuit summary.

It seems self-apparent to me (that it's not self-apparent to you says more about you than me) that a story about a verdict and damages award might, just might, want to include the cause of action. I apologize for being a New York attorney and blogger with higher standards than Colorado amateurs.

And I'll hold my blog up against yours any day of the week regarding which is more "hard-thinking."

[matthew]

"Do they doubt that an in-person apology would have ended all this without a day in court?"

The story I read suggested that the parents had offered to pay medical bills, but the plf refused. Also, the plf or plf's counsel sought PUNITIVE damages. If I think about comparative culpability, the plf is much worse in my opinion- all this mess, just for an apology? hrmph.

[Aaron]

When I read about this story, it seemed to me to be an example of one of the failings of small claims court - the propensity of some magistrates to "split the difference", whatever the facts and law, rather than actually deciding the case. (Plaintiff gets economic damages, but is denied "pain and suffering" and punitive damages? On what reasonable basis were economic damages allowed, and noneconomic damages disallowed, if not "split the difference"? Does anybody here know of a sound basis in Colorado law for that type of baby-splitting?) Now that I have read more about the case, and what was posted above... Yep. I feel pretty much the same way about it.

The notion that the plaintiff's version of events was unchallenged, or is somehow unimpeachable, makes no sense. Can anybody reasonably dispute, for example, that there was no reasonable basis in fact or law for the plaintiff's allegation that the defendants gift of cookies was "attended by circumstances of fraud, malice, or willful and wanton conduct", such that the petition for punitive damages was anything but frivolous? (See Colo Rev State 13-21-102). And does "[My daughter] cried and cried ... She felt she was being punished for doing something nice" sound like the warm "no qualms" embrace of the judge's decision that has been suggested?

Certainly, any case can be distorted to the point that it looks ridiculous - that's what sites like "overlawyered" do for a living. But the defense of this case very much suggests that this phenomenon is a proverbial "two-way street".

(But Matthew - the Durango Herald article indicates that the Plaintiff expressed that the apology wasn't good enough, because it wasn't made in person. Who wouldn't make an unnecessary trip to court to seek punitive damages, when the apology one wants is merely "in hand" and not also "in ear"?)

[Mark Draughn]

And considering what happened last time the went to see her in person...

[markm]

If the facts are as represented and there is some legal cause for action in there, then sir, the law is an ass.

[Aaron]

With all due respect to Mr. Giacalone's take on killing all the lawyers, I find the Mr. Bumble quote to be interesting. Because within that context (holding a man responsible for his wife's criminal acts) the law would have been an ass - but Dickens presented the line more for audience amusement as Mr. Bumble "gets what's coming to him", even if under an unjust law. Which, as anybody who has read Bleak House can attest, is not to say that Dickens didn't also want to make fun of laws and lawyers.

[Aaron]

(It occurs to me that my prefatory remark was way too obscure - I was meaning to distinguish the Mr. Bumble quote from the mythos surrounding the "Dick the Butcher" quote which Mr. Giacalone attempts to set straight here.)

[David Giacalone]

Aaron, did I miss a step in the allusions to Dick the Butcher and Mr. Bumble? Please help me connect the dots to both of these characters.

It was plaintiff's version of the facts that I asserted was uncontested. I don't think Plaintiff had an attorney and I don't think she understands the concept of punitive damages (far as I can tell, neither do a lot of lawyers, given how often they appear in complaints). That's why the small claims judge is expected to help the parties understand the law and their rights.

KipEsq, As I just did in an email to you, I want to make clear to the readers of this site that I was in no way offering an opinion about the quality of your weblog. I mentioned going there, only to explain how I knew you refer to yourself as a "libertarian." My reply to your first Comment -- despite the absence of suitable emoticons -- was said with what I thought was a clear touch of good humor. My main point remains: Before we make very strong negative comments about a case, we should attempt should do a little research legwork. And, no, I don't expect staff reporters at most newspapers to understand issues like cause of action. I wish they did, but reality suggests otherwise.

Finally, Kip, I'm sorry you've decided to call me "an ass" at your weblog. But, I can handle it.

[Mike]

David - You really need to start using emoticons. I know your sense of humor is wry and dry, but many others don't. Why obstinately refuse to use emoticons at the expense of clear communication?

[Aaron]

David, who (other than you) sees the plaintiff's version of events as uncontested? You read two newspaper articles, ignored the parts that don't align with your perspective, speculate as to how you might still be correct even though the plaintiff's claim for punitive damages and her claim for non-economic damages were rejected by the court, and.... you say that others need to do research before forming strong opinions?

Or is it that your own opinion is merely contrarian - you don't believe your own words, but are trying to be nettlesome to those who have formed an opinion (informed or otherwise)? And why is it that you seemingly raise these objections only to opinions which don't align with your own?

If your version of dry humor is deriving amusement from deliberately getting under people's skin, you seem to be a master of the art. But I'm not sure how the addition of emoticons would make that funny to other people.

[David Giacalone]

Aaron, your propensity for nastiness makes dealing with you quite distasteful. Once again, I will type very slowly and use small words, in the hope that you will understand:

I believe that the plaintiff's version of the facts was not disputed -- the girls stated that they knocked very loudly three times; they did indeed stay quiet when plaintiff asked who was there (wanting to be anonymous); they parked their car quite a distance from the house and out of view (behind a bush); they ran away without identifying themselves or saying that they were just leaving cookies.

The girls did not dispute that the sheriff was called or that plaintiff was very upset and scared; and I have not heard any show that plaintiff never vomitted.

Those seem to me to be the material facts and they were not in dispute. Most people who have graduated from law school are aware that having undisputed facts does not mean plaintiff will win every claim -- especially when those claims are for non-economic damages.

[Aaron]

David, with all due respect, you are one of the nastiest persons I have met in an online setting, you invariably resort to ad hominem when your most knee-jerk of impressions is challenged - and the more fact and logic that is applied, the nastier you get. So, rather than spitting more venom onto me, I suggest that you purchase a mirror and take a good, hard look at your reflection.

Do your bitter, hostile, personal attacks usually scare people off? Do you believe that if you keep it up long enough, the exasperation that makes those you perceive as your foes walk away from the discussion somehow translates into victory? I've had to say this to you before, David, and I am sure you have heard it from many others: Grow up.

[David Giacalone]

Mike, I think the English language has done quite well without emoticons -- the equivalent of Smiley Faces -- and that communicating and interpreting nuances in text, without the need for pictorial cues, is a skill well worth nurturing.

In my reply Comment to KipEsquire, I had points to make, but they certainly were not meant to cut him to the quick. Given my usual writing style, my starting a paragraph with "Those darn reporters" should put the reader on alert that I might be attempting a form of humor -- and the fact that I then make a lame word play on libertarian and freedom from hard work, and end with the word "kvetching" might also be clues.

As for my entire Cookie piece that was the topic of this post, I'd like to point out a few things that should suggest to the reader that I was not stating a doctrinaire position on the law of the case; instead, the major points being made concerned my belief that the girls acted in a way that lacked good judgment, that there were good reasons why a cookie recipient might be frightened by their modus operandi, and that this case should not cause people who want to do acts of kindness to stop doing so -- if they do them in a common-sensical manner that takes into account the likely effects of the recipient:

1. it was called "The Cookie Curmudgeon Checks In";
2. It begins: "Somebody needs to register a cautionary dissent to the tongue-clucking that is going on over the $930 judgment entered this week against two young Colorado women who wanted to surprise their
neighbors with fresh-baked cookies. "
3. The analysis starts: " I guess it's up to skepticalEsq to try to bring a little balance to the story."
4. A major part of the piece walks through some common sense factors to consider when doing random acts of kindness, especially after dark; and
5. The theme sentence in the last paragraph is "Suggesting that this episode means no one should act kindly toward neighbors or strangers, or that doing so in a thought-full, thought-through manner raises unacceptable risks of being sued, is simply asinine." That was the thrust of the "cautionary dissent" to the universal praise for the girls and condemnation of the plaintiff and the judge.

[Mike]

Well, you can use a thousand words or an emoticon. Whatever works...

[Aaron]

I will note, David, that my earlier comments were inspired not by your original post, but by your exchange with Kip, and my most recent by your standard resort to stuff like this: "Once again, I will type very slowly and use small words, in the hope that you will understand..."; or "Most people who have graduated from law school are aware...". But then, as Mike suggests, perhaps I should convince myself that you meant well, but simply forgot to tack on a smiley.