Armchair Expert with Dax Shepard - Flightless Bird: Suing

Episode Date: June 7, 2022

This week on Flightless Bird, David sets out to discover why Americans love suing each other so much - filing over 40 million lawsuits a year. Joined by Dax and Monica, David attempts to figure out how to avoid being sued and talks about the time a New York man sued him... twice. Dax weighs in with his own legal battles and David talks to New York media lawyer Cameron Stracher about what it was like defending the National Enquirer during the Michael Cohen Trump Fiasco. We discover how lawsuits aren’t as frivolous as you might expect - including the famous McDonald's hot coffee incident which saw superheated hot coffee explode on a woman’s lap. Learn more about your ad choices. Visit podcastchoices.com/adchoices

I'm David Farrier, a New Zealander who ended up accidentally marooned in America, and I want to grasp what makes this country tick. Being new here, there's always this thing looming over me, this fear. But like with so many fears I have, I don't know if the fear is justified or not. Because I have so many unjustified fears, like that maybe I'll accidentally leave a tap on when I leave the house so that when I come back, there'll be a flooded kitchen or bathroom. My other big worry here in America, being sued. Are you an idiot or are you just not paying attention? Just answer my question.

Because the legal system in the United States is scary. I mean, Americans file 40 million lawsuits a year. 40 million. Many of those will be frivolous, but that doesn't mean they're not scary. Corporations spend over $20 billion a year on commercial litigation, which makes sense when you consider Walmart gets sued about 5,000 times a year. Literally. So get ready to tell the truth, the whole truth, and nothing but the truth. This is The Suing Episode.

Flightless, flightless, flightless bird touchdown in America. I'm a flightless bird touchdown in America. This is fun because Dax is normally sitting by us and can't talk. But we've decided to stretch the limits of the exclusivity contract we have. Because maybe we'll mic his suit.

Oh my god, what a ding ding ding. What if I got sued for doing the sued episode? I would love that. We'll do like a suing part two episode. Oh my god. We're being sued by Spotify. On the ground, in the field. me and my court case, defending myself. Wow. Do you share my fear of this at all? Because I honestly, walking around, I am kind of just expecting something terrible to happen

or I accidentally hurt someone and suddenly I'm in prison. I don't normally, until we started doing this job. Yeah. I hadn't really thought about it at all. I'm not important enough. I kind of feel like you have to be of some level of importance. I don't think this will shock either of you. I've both sued and been sued.

This is going to be my... I was really curious how you'd answer this. Okay, okay. So I had a very specific idea of suing that I unwittingly had been advertised. And effectively, I thought all lawsuits were frivolous and we should get rid of them. We'll get into that, I'm sure. But I was a huge critic of people suing each other. I also always raved about New Zealand. New Zealand's such a fun place to visit because they'll let you jump off a skyscraper into a box of glass if that's what

you want to do, because there's no lawsuits. We don't really have lawsuits have lawsuits you can but it's so rare that you would sue someone for anything and when it comes to like personal injury stuff we've got this whole other system and the fun side is you can ride in a jet boat you can go zorbing you can go skydive you can do the base jump everything's on the table there you don't have to sign anything they don't give a fuck no go crazy tom cruise shot some of those mission impossibles down in new zealand where he was flying helicopters upside down in the South Island of New Zealand. And I wonder if that's because who was going to do shit? Who was going to do shit down there?

That's right. Also, if Tom Cruise is flying a helicopter upside down in your neighborhood, you write him a fucking thank you letter. You don't go down to the courthouse. It would be to protect the company, not protect Tom Cruise. Yeah, if Tom Cruise goes down in a ball of flames. He might sue or his family might sue. Yeah, might sue the movie company that's making the film. But in essence, Tom Cruise wants to fly a helicopter upside down, right?

And he can't do it here because of that, because of the liability of the company. So the company is not going to pay for this production, this film day. So he can't do what he wants. So he goes, oh, what if we go down to New Zealand, get some Leuces pizza, and I'll fucking put this chopper on its head. Yeah. Okay. I think that's stupid, New Zealand. Oh, no.

I love it. It's not looking out for your best interest. I'll say that. Yes. But let me just say, I'm going to paint the full picture. I was a motorcycle messenger the first year I lived in L.A., so I drove all day long, crazy, crazy, crazy, trying to get packages and things to place. I got off work. I was going to see a movie, a leisurely cruise down Broadway Boulevard, which at the time

was one way with three lanes and then parallel parking on either side of the three lanes. So it was very, very wide. And I was riding in the third lane. There was a woman driving a car in the second lane and right as i was about to pass her she saw a parking spot open in the parallel parking lane to the right of me and she was at the left of me she slammed on her brakes and made a right fucking turn right and hit me and then it shot me in a trajectory into a parking meter, which I bent those, you know, those little aluminum signs around them telling you the hours of operation. Just bent those perfectly around, broke my arm.

I was wearing pants. When the accident happened. That's good. I was wearing, they were from Banana Republic. They were like corduroy-ish. And then I stood up and I was wearing shorts i swear to fucking god both pants vanish in accidents that's a real thing yeah just like off below the knee and then my right leg was just the brightest hawaiian punch red like from kneecap down to my ankle

but i was very much in shock right and i also I also had no medical insurance. Uh-oh. That's another episode. Yeah, absolutely. Oh, right. Yeah, noted. So the ambulance comes. Mind you, the woman gets out of the car. Oh my God, I'm so sorry I didn't see you. She'd be panicking.

Takes full responsibility for this. Because that's a big part of it, isn't it? Whether they take responsibility or not. Anyway, yeah. She's like, I'm sorry, I'm sorry. So an ambulance comes. I refuse to go. I can't afford an ambulance ride.

And God knows what the bill will be once I get to the hospital. Lottery? And I don't think I'm that hurt because I'm in shock. My motorcycle's really fucked up. The handlebars are bent. The forks are bent. But I also can't pay for a tow truck. Oh, no.

So I ride this fucked up, broken motorcycle that barely goes in a straight line back to my apartment like eight blocks. I park it. I got no money. I'm'm fucked this is my only form of transportation i go upstairs i get in the shower and as the warm water is coming over me i hate this i go oh my god i'm in a lot of pain and i'm noticing that skin is just completely gone off the shin and finally i can see i'm gonna have to go to the hospital so i I call my mom. I'm like, can I go to the hospital? I love calling mom is a great approach, by the way. It was in Michigan. Yeah.

Mom. I've been in a accident. It's okay. I go into how great I am. Couldn't be better. But I do think I need to go to the hospital. She's like, oh, my God. Use my credit card.

Go to the hospital. Go there. Broken arms and broken ribs. They bandaged me all up. Blah, blah, blah. So now I don't have a motorcycle. I get this hospital bill. And then I call her insurance company.

And they're immediately like, tough bananas. Call your insurance company. And I've got like whatever the minimum whatever is. And then my neighbor in my apartment building knows a lawyer. And he said, you should sue and get this paid for. You should call Seoul. OK, so currently I'm on moral high ground. And that faded quickly.

Okay, so currently I'm on moral high ground, and that faded quickly. Because what happens is when I go to the attorney in a very shabby office in Santa Monica, he quickly explains to me, step number one, I need you to go see this doctor. And not this doctor, Monica. Not that doctor. That doctor, yes. He's a chiropractor, ding, ding, ding. And I start going, and I tell the attorney attorney i cannot afford to go see a doctor he's like you're in bad shape yeah you're missing skin you're missing skin

you probably need for some reason some chiropractic work with broken bones i'm also 20 i want to add i don't know what the fuck's going on so i'm now going to these weekly appointments and i'm just going along with the program and he's's like, you get these treatments, don't worry. It's all going to be pro bono. When we win the case, that guy will get paid. The attorney will get 30% or a third. The doctor's going to get a third, which I found weird. He didn't get an accident. And then I'm going to get a third. So, you know, I'm starting thinking like, oh God, I hope we get like, you know, hope my share of it's a few grand so I can buy any motorcycle, blah, blah, blah. This all goes goes on this this racket with me going to this doctor some months i get a call i settled

they gave it to us what three thousand bucks oh thanks so i got a thousand dollars i hate this i would try to imagine what that attorney's day was like he would have had to have 40 50 of us going to that doctor to make a living at this. Yeah. And who recommended it? Someone in your apartment. Now there's unsavory character who knew the ins and outs of personal injury.

It was like wonder driving around, seeing all the billboards on bus shelters and like in the desert. And it's just like, who are these people? And which ones can you trust? Yes. And I bet you'll get into the whole system that's built around it.

So it's like, if the insurance company would just have been fucking cool, none of this would have happened. I wouldn't have had to pursue this route. So that sucks. It sucks that you're forced to do what I had to do. So the second thing is, I've been on TV for 36 seconds. People are taking meetings with me.

My friend Al Sheeran and I come up with this idea for a movie. And then in the interim, I'm talking to my first and best friend in LA. I'm not going to say his name. He's passed and I loved him. This is just very unfortunate. He said, oh, why don't you meet with me and the producer? He works for, for breakfast. And you can tell us the idea. Maybe we'll want it. So I do that. I meet him in the morning and the producer. And then that same day I go to Fox Searchlight and Al and i sell this thing in the room at fox searchlight great great congratulations i'm happy i talked to my friend he's like oh you

know what days and i go oh my god you know we sold it at fox like i told you i had a a pitch later that day they've had one breakfast with me and he's like what fox searchlight makes an announcement they've just bought this pitch. It's in the trades. How exciting. Yeah. I get a call from my lovely attorney, James Feldman, Jamie Feldman. He goes, I got good news and bad news. And I said, what?

And he said, you've officially arrived in show business because you're getting sued. I was like, who's suing me? He goes, do you know a blank? And he names the name. And I'm like, yeah, that's one of my best friends. Oh, this is awful. What I think I figured out after the fact was that I think he had told his boss that he had been developing this idea and was bringing it to him. I think he was painted into a corner of a lie. And I think that producer was like, you better sue him if he sold your idea.

Whatever. He heard the fucking idea at this breakfast so now here's what i'll tell you the machinery of it all yeah so i say to my attorney that's fucking horse shit he heard about it an hour before i sold it like what are you talking about well he says he developed the idea with you it's his idea as well he goes look at searchlight will just give him a couple grand make him go away and i go no no no no no no no no he's not getting any money for this not up to that no so what he says is it will cost tens of thousands to defend yourself against this case yeah he has an attorney even if you're on the right the attorney's gonna try to bring this case to trial and the studio would way rather just make them go away for a few grand. It'll be less legal costs.

There'll be less in the press about it. Like I'm getting all the reasons that I would be an idiot to not say, okay. And I said, let me think about it. I called back probably because I was young and, you know, fucking vitriolic about everything. I called back and i said fuck that let's go to court i am so on a principle no i'm not settling this thing and then when he called back the attorney and said okay we're going to court they dropped it yeah obviously because they had nothing to say up to that point all the mechanisms all the machinery

are telling you do this this is a cheaper option it's it's easier it's quicker it doesn't taint your project so many incentives to just give these fucking well some people yeah a lot of money away money yeah completely and i think that may be why i had such a angry view towards suing well yeah because you had a bad experience no that's a super bad experience yes then that guy died because of it oh no he died because of addiction sadly how did that friendship i imagine it was really bad for him i was like god he just ruined like we had a great friendship i imagine he lied his way into this situation what a drag over a movie that never got made you guys didn't talk.

Oh, no. Wow. You were done. Well, I was told specifically by my, like, do not talk to him. This is resolved. I guess if you're being sued, you shouldn't start having casual tics. Yeah, yeah, yeah. You don't give them any, any, anything.

Any ammo. So, year goes by, two years. And I was in the back of my mind, like, oh, what am I going to do if I see this guy? And then, like, the macho part of me was like you know i think you should punch him out that was like my gut reaction like you came at me and you fucked me over and you put me in this bad position and anyways i had that thought i saw him across the room at this big event this gm event some weird car event i saw him i saw his goofy hair and i remembered how much i like him i I like him so much. Oh, man. You couldn't punch him.

And he looked at me, and we locked eyes. And I can only imagine what he thought he was going to do when he saw me. And I just smiled at him really big. And he smiled back. And then we never talked. And then years later, a mutual friend of ours called and said, did you hear he died last night? And I was like, what a drag of a fucking

ending to the whole thing i like the smiling though i like that your last meeting wasn't you punching him out me too and it was like a smile like that's kind of nice in a way weird way to resolve things but kind of great stay tuned for more flightless bird we'll be right back after a word from our sponsors flightless bird is supported by aura frames you know what dad doesn't want for father's day another piece of gear or a device that feels like work with an aura digital frame dad gets a gift that's as thoughtful as it is effortless to set up and use yeah and dads are notoriously extremely hard to buy for that's the worst so you to get in there with something thoughtful, but also easy. A digital frame is perfect. And Aura Frames is named the number one digital frame by Wirecutter.

It's guaranteed to make him happy. I'm actually sending one to my dad in New Zealand. I'm going to load it up with pictures of me so he can remember his son. All he has to do is download the app and plug it into the frame to instantly start adding photos and videos. You can even preload memories that will display as soon as he connects the frame and invite loved ones to share from anywhere in the world. I really like it because there's free unlimited storage and it's super easy and the photos look like real print. It doesn't look stupid. It's not some horrible digital thing. I think the only time you can really tell it's digital is when you see a transition.

And then that's kind of cool. Exactly. It's really high resolution, which we love. So from now until Father's Day, you can save on the perfect gift and visit AuraFrames.com. That's A-U-R-A-Frames.com. Listeners and viewers can use code BIRD and get up to $20 off while supplies last. Last year, Aura completely sold out for Father's Day. So don't wait.

Terms and conditions apply. Flightless Bird is supported by The Lost Debate. Do you feel like you're living in a media bubble? Like it's harder than ever to find views that challenge your own? That's where The Lost Debate steps in. It's a podcast and YouTube show for political eclectics who crave exposure to a diversity of beliefs and perspectives. We love this because this is what we do. We try to bring different perspectives and it's the only way to grow as a community. And these guys are really smart. It's hosted by Ravi Gupta, a former staffer for Obama and school principal who fought Republicans at the ballot box, then fought alongside them for charter schools. Carrie Bradford's on there, a progressive political organizer turned TikTok star who used to host a Fox News radio show, and Ricky Schlott, a Gen Z New York Post columnist and libertarian fighting to protect free speech. I like this because they

basically bridge the political aisle, which is what we are hoping for more of. So join the conversation. Check out The Lost Debate today. New episodes drop Tuesdays and Thursdays. Find The Lost Debate on Apple Podcasts, Spotify, or wherever you get your shows. I went out and talked to a few people just to see if I was the only one that was terrified of being sued. This is what people told me. There's this like big culture of suing people here that we just don't have in New Zealand. Do you have any opinion on that side to America? Yes, they sue too much.

They do. There's too many lawsuits. What can I say? There's like 40 million lawsuits a year, I think. I don't know about the number, but it exists because we can. And people take advantage of that and it's too much. Oh, I mean, I've been sued a few times, so... Oh, no. What for? Oh, I mean, I've been sued a few times, so... Oh, no, what for? Oh, you know, a bad business deal gone bad. Sometimes school is just a way for some people

to get a come-up, to hurt somebody, to take basically what somebody's worked hard for, to be an advantage for them, but it's a disadvantage for the other person. They see themselves at the bottom, like she said, and they want to make it to the top, and it's a quick way to get there I mean it it seems like a scary thing

There is a sense of like walking on eggshells because you might do the wrong thing And someone could come after you easily Do you think it's like a good way to solve problems or do you think it's kind of a bit ridiculous a bit ridiculous? I absolutely think so. Yeah. Yes people do do a lot of suing here. And I think a lot of it is frivolous, but sometimes for principle, it seems necessary. Have you ever sued or been sued yourself? I have. I have sued. How did it go?

It went in my favor. She was very happy about that. It was a very complicated story that I can't tell. When you heard that story, were you like, yeah, that was worth pursuing? Yeah, it was. What you said before, it's like a sense of justice. And when it is a tool you can use when something is unjust, that you can hopefully get one up on somebody,

potentially a corporation or someone much bigger than yourself as well, right? Yeah. I just want to point out that at 40 million lawsuits a year that would be the equivalent of one in eight americans suing someone each year that's crazy that's crazy i mean it's just a tool it's just this commonplace thing that you jump to and it's so broad and so blunt and so misused and one person can file like multiple lawsuits against the same person. There's abuse like that as well. Yeah. Is it state by state potentially? Like here in LA, it does seem like

they are dime a dozen. Lawsuits are everywhere. Like your agent said, you made it to Hollywood. Congratulations. You've been sued. Like I grew up and maybe this is just because my parents are afraid of everything. Suing is like something I should have added into my nightly prayer, like no earthquakes, no natural disasters, no lawsuits. But here, I guess, yeah, people are doing it all the time. Do people lose all their money? Some people do. That's one of the many crazy things about suing is you'll read about these enormous judgments, but it's like the person's got $5. It doesn't really matter.

When I was broke, I loved it. People would say they'd sue me all the time. I'm like, go wild. I don't know what you think you're going to get. And no one will sue anyone without money. There's got to be an insurer involved. There's got to be someone with money involved. No one's trying to bleed a stone.

Every attorney's too smart to do that. Suing is an act of justice. Unless the person has no money to get, then you let it go. But for corporations and stuff that are doing bad shit, they should be held accountable. The stat that I read was in 2020, U.S. companies spent a total of $22 billion on litigation. So commercial law is like this whole other situation. $22 billion. It's a lot of money.

But look, I couldn't make sense of any of this. So I went and just talked to a lawyer. And this is what I learned. One thing that's becoming pretty clear to me is that I'm not alone in my concerns in this land of litigation. You know, it's funny. I actually have that fear as well. I completely understand how you feel. There's just litigation

everywhere over everything. I'm talking to Cameron Strzoka, a lawyer. He works in media law and is also a published author and law professor. He's a lithe and tense looking man with a bald head. He's also incredibly self-aware, which is what I really like about him. I think Americans love to hate lawyers in general. Think about all the lawyer jokes, right? Like, what do you call a million lawyers at the bottom of the ocean? What? A good start. I guess right now I should explain that my fear of being sued is a bit more logical than my fear of flooding the house with a forgotten tap, because I've been sued here in

America already, twice, by a man with a lot more money than me. As in, I don't have millions of dollars, and he did have millions of dollars. It happened back in 2016. I'd made a documentary called Tickles about David D'Amato, a New York man with a tickle fetish who was harassing young men online. No. It was like a bomb went off. Your phone number and your personal information are entirely known and subject to publication on the internet. All hell broke loose. For me, all hell did break loose. Because when I visited America six years ago to show my film,

the subject of the documentary wasn't very happy, and so he sued me. A few times. My lawyer in that chaos six years ago was Cameron, so this conversation was a reunion of sorts. He'd saved my bacon back then. Full disclosure, yeah, we have worked together, and just quickly, I mean, how unique was looking at Tickles and dealing with that? Or was that like a very bog standard job for you? Well, it was sort of standard in the sense that you did a film, you were threatened with a libel lawsuit, then you actually did get sued in two different courts. In terms of my practice, that's pretty common.

I mean, unfortunately or fortunately, depending on your perspective, my clients get sued for libel or privacy violations and I defend the cases. Your documentary was different because it was so crazy and the facts were just really weird. And the deeper I got into it, you know, I kind of became maybe a little bit like you. I went down the wormhole and that's definitely an experience that I've not had before. I still get the creeps when I think about that time. It was incredibly scary for one thing, reading the cease and desist letters and eventually the court papers that had been filed. I was stressed and worried all the time, but I did have some things in my favor. For one thing, I was telling the truth, a good thing when it comes to defending defamation allegations. On top of this, the man suing me was just clearly lying.

What happened in that case was something that's never really happened to me before and hasn't really happened to me since, which is that I sat down with his lawyers and convinced them that the facts were such that they should not bring this lawsuit. And that never happens. I mean, lawyers think to themselves, I'm going to show the other side that we really got them and they can't litigate this case. But cases always go on because lawyers always think they can win. In this case, I remember very clearly meeting his lawyers and showing them the documents that you had and seeing the expressions on their faces gradually change as they realize that, wow, David D'Amato maybe wasn't

who they thought he was. It was an extraordinary moment. To cut a long story short, I won the case. I mean, I sort of did. I guess I don't know what would have happened because David D'Amato had a heart attack and died. Therefore, I was no longer being sued. But I learned two things through all that. For one thing, rich people can be incredibly scary. Secondly, even if someone sues you and you're innocent, you still have to pay to defend yourself. And to me, that shows a very big flaw in the justice system here. I mean, that's the obvious thing, isn't it?

That the problem we have here is that it certainly gives an advantage to the wealthy and the privileged who, if they have money, can literally shut down a media organization or an individual. What chance do you have in America as someone that doesn't have money, that finds themselves involved in the system? Is there any sense of fairness or is it a money game? Yeah, I think it's not fair for the most part. There do exist mechanisms to try to balance the scales.

I mean, for example, in the media context, we have something called the anti-SLAPP laws, which a lot of states have passed. Basically, those are laws which reverse the presumption of proof in a libel lawsuit and also provide for attorney's fees, which we don't usually have in the United States if a media organization is successful. So if a media organization gets sued in a state like California where there's an anti-SLAPP statute, the media organization can file an anti-SLAPP motion. The anti-SLAPP motion requires the plaintiff to come forward to establish the merits of his claim at a very early stage, which usually is not what happens. And then if the plaintiff can't come forward to establish the merits of his claim and the defendant wins, the plaintiff has to pay the legal fees of the defendant. SLAP stands for Strategic Lawsuits Against Public Participation. In other words, SLAP lawsuits are lawsuits often used to shut things down like free speech. So anti-SLAP laws

are there to prevent people using the courts to intimidate people who are exercising their First Amendment rights, rights like free speech. But of course, that only works for well-organized, sophisticated media companies in states that have an anti-SLAPP law. It doesn't work if you're Joe Schmo and you've got a grocery store and you're suddenly sued by Walmart. You don't have those same protections. So yeah, it is, I think, a sad fact of the American legal system that having money, having access to lawyers and courts gives you a tremendous advantage. I keep thinking about what options Joe Bloggs has when some powerful entity is suing them. I mean, when you're a kid, you just run away from your problems,

like you can just physically run away from a bully. But at some point, as we transition from teenagers into adulthood, running away becomes less of an option. Or does it? If someone's trying to serve me with some kind of legal document or something, can I just sort of run away? Is that a good thing to do? Well, I'm not ever advising you to run away, but you can, to a large extent, for a certain period of time, run away. Absolutely. I mean, it's funny because we have this kind of old fashioned notion that you can't be served with a lawsuit until you're actually touched

with the lawsuit, right? A process server has to kind of put it in your hands and say, sir, you are served. And if you see the process server coming and you run off before they get to you, then yeah, you can avoid it. I did have a client who she was in a car and they put the papers through the window and she shoved them out of the window. That doesn't count. You can't do that. Eventually, someone can go to court and get a court order and they can say, I've tried to serve Mr. Farrier a half dozen times and this is what I did. And once I showed up and I saw him driving off in his car and another time I saw him sprinting down the street, I'd like you to authorize service by publication, which means they can put a notice in a local newspaper saving,

you know, David Farrier, you are served. You are now a defendant in this lawsuit. And then you got to keep an eye out for that publication because then you've been served without even knowing really that you've been served. You can run for a while, but not forever. Stay tuned for more Flightless Bird. We'll be right back after a word from our sponsors. Flightless Bird is supported by Policy Genius. New homebuyers. If you're buying a home, you've got a heck of a lot of stuff to juggle.

Tell me about it. Policy Genius makes it easy to compare insurance quotes from top companies so you can find your lowest price and fast. Customers have saved an average of $350 per year on home insurance. If you're not sure what coverage you need or how to find a low price, you need PolicyGenius. Look, they act like you're born knowing all of this stuff and you're not. You know none of it. None of it.

So it's really, really, really helpful to have this one-stop shop to find and buy the insurance you need. Head to policygenius.com to get started. Policy Genius will show you price estimates for policies that fit your search. If you like what they find, they'll get you switched over for free. Customers who bundle their home and auto policies with Policy Genius saved an average of $1,250 per year over what they were paying. That's a lot of money. That's a lot. The team at Policy Genius are on hand at every step to help you make decisions with confidence. The Policy Genius team works for you, not the insurance companies. Head to policygenius.com to get your free home and auto insurance quotes and see how much you could save. For some, process serving is a great job.

Reasonably stable because for the American justice system to work, papers need to be served. I look at the website for the National Association of Professional Process Servers, NAPS, which comes with a list of pros and cons of the job. Pros. It's flexible. It's unique. You get to travel.

Job security as people will always need to be served. The cons. Well, there's one main big one. Being served can cause negative emotional outbursts. Still, looking on YouTube, it seems to be a popular pursuit. Many process servers offering up tips and tricks. From what I can tell, the main flaw of the job is that it involves a lot of sitting around, waiting.

Hey folks, I've been serving legal papers since 2001. The majority of my time I spend in the car, and you can see here I'm at the park in the shade making this video, getting ready to go serve some more legal papers. Do you think it is a particularly litigious country? I think it's a country that relies on law and litigation to a greater degree than any Western country that I know of. If you look on the front page of the New York Times any day, three or four stories on average are going to be about some legal proceeding. Congress is suing the president or some former advisor is suing Congress or a state is suing the Environmental Protection Agency or the Environmental Protection Agency is suing a polluter. We work out our government or our governing through the legal system to a much larger extent than most other countries. The courts are seen as one third of

the bedrock of American government. We've got the executive, we've got the legislature, and we've got the courts. And that's one third of the way we govern in this country. It's baked into our constitution. Do you think it's a system that fundamentally works? Do you think it's for the greater good? I'm so torn by it because there are times where I'm so frustrated, both as a lawyer and as a citizen by it. But I'll tell you something, in the wake of the whole Trump insurrection

and all the challenges to the voting process, and what was really reassuring to see was that American democracy in the end worked. All of these challenges were brought to all of these courts, all these different states. Republicans challenged the results and the courts sided almost uniformly with the results. In that respect, I think it really worked. Breaking news right now out of the U.S. Supreme Court. The Supreme Court has rejected the Texas-led effort to toss out election results in four key states that Joe Biden won. Again, that is a rejection. The thing that I find fascinating is how complex the system is here. I mean, I jumped on that wonderful, slightly dodgy source

of Wikipedia before I talked to you. And honestly, it's the most confusing thing. In New Zealand, we've got a district court which takes criminal stuff and civil claims up to $350,000. Then we've got a high court for bigger stuff and more serious crimes. Then there's a court of appeal and a Supreme Court. It's all kind of based on the British system. Your system, I don't even know where to begin. From state to state, everything differs. It's like 50 countries in one.

Right. That's the really confusing thing about the American legal system is that we are a country of dual sovereigns, right? We have the states and the federal government. So there's a whole federal judicial system. And that's at its basic level is pretty straightforward. You've got the district courts and the Court of Appeals and then the U.S. Supreme Court. However, even within the federal system, you've got the court of claims, you've got the patent courts, you've got the bankruptcy courts, you've got the D.C. Circuit, and then the state system. I mean, the state system is just a mess. Every state has

got its own courts. Sometimes you've got lower, intermediate, and highest, but not always. In New York, we've got the Supreme Court, which is actually the lower level trial court. It's a very misleading name. Yes. Then we have the appellate division, and there are different departments of the appellate division depending on where you are in New York State. And then our highest court is called the Court of Appeals, which seems like it should be the middle court, but it's not. We've got municipalities, they've got county courts, there's a city court, there's traffic. This list Cam is reeling off sums America up for me. It's like when you go to the movies here

and go to fill up your drink, there are about 20 types of Coke you can get. It's too many. So yes, it can be a mess. We do have one crazy state, Louisiana, where it's the only state in the U.S., I believe, that's not based on English common law, but is based on French civil law. And so there's a whole bunch of weird procedures and things are called really strange names.

I had a case there. We made a motion to dismiss, and it's not called a motion to dismiss. It's called an exception of improper, you know, whatever the argument was. And, you know, the lawyer said, we're going to go in and argue the exceptions this morning. I was like, what's the exceptions? No idea what that is. And that's a remnant from when the French owned Louisiana. no idea what that is. And that's a remnant from when the French owned Louisiana.

One thing that seems appealing about the system here is that I, as an individual, potentially have the power to take on a giant corporation or a company, whether it's Walmart, whether it's, I don't know, probably not Facebook. They're too big. But that does seem like there is a certain thing that gives the individual power. I can take on the big boys. Yeah, that's right. I have a friend who practices personal injury law and they take a percentage of any recovery. So if you're injured in some horrible accident and you may not have the resources to sue a hospital or the trucking company that hit you or whatever. But if you find a lawyer like my friend who's willing to take on your case on a contingency, you can be

represented for free. And unless you win, you don't have to pay anything. And if you win, you've got to pay my friend a third or sometimes 40% of your recovery. But you're right, that does allow, at least in some cases, lawyers an incentive to represent them and bring cases on their behalf. So you're right, that's a pretty unique element of the US legal system. One of the first things I noticed when I got to America were all the ads for personal injury lawyers. Men in cheap suits, hair slicked back, stared at me from LA bus stops. On a drive across California, rows and rows of billboards buzzed by. Under arrest? Get the best. Client today, friend tomorrow. 1-800 this, 1-800 that. Whenever I see these signs, it all seems so familiar.

You are under arrest. I'd better call Saul. Hi, I'm saul goodman did you know that you have rights the constitution says you do and so do i i believe that the quality level of these lawyers is there a level of like people that are actually great and just people that you're just going to get completely screwed because those signs are comedic i mean there's a reason better call saul was like originally a comedic character. It's ridiculous. Absolutely. And unfortunately, like a lot of stuff, it's not as if the people who really need assistance are the ones who are really getting assistance, right? It's often the people who just happen to have been hit by the right trucking company, right? My friend always used to joke that like his perfect case

was a doctor on his way to work who got hit by a Microsoft delivery van. So, you know, he's got a doctor who's got lost income and he's got a huge defendant, namely Microsoft. So he knows he's going to get a fortune. But if you're not a doctor and you're some low wage earner and you don't get hit by a Microsoft van, instead you get hit by somebody who doesn't have insurance. It's going to be really hard to find a lawyer to take your case. And the kind of lawyer who might take your case are maybe one of those lawyers you see on those billboards. You're always reading about it in headlines about frivolous lawsuits,

America being this country of frivolous lawsuits. That woman who spills a hot McDonald's coffee on her lap got reported everywhere. I'm curious if that's actually a thing or if that's just been blown out of proportion by the reporting and maybe it's not as frivolous as we think it is here. I personally don't think it is as frivolous. And I do think that those cases have been hyped by business interests that have a incentive to make it seem like there are frivolous lawsuits. The McDonald's hot coffee case is a perfect example because what nobody knows about that case is actually this was a woman who suffered terrible burns on her

body. She had offered to settle with McDonald's for her medical fees. They had refused. There was evidence that McDonald's superheated their coffee to 180 degrees so that they could reuse coffee because it saved them money. Rather than putting new fresh coffee in, they used superheated water so that they could reheat the grinds. They were warned that the coffee was dangerous. They ignored the warning. And then this woman went ahead and accidentally spilled this super hot coffee on herself. So there's an apocryphal story that's kind of been circulated by people who would have you believe that we're out of control and the system is just not working.

And McDonald's, your turn is 99. You know, the majority of dollars and time and money spent in the legal system is spent by big business suing other big businesses. It's not the little guy suing over the spilled coffee. The judges and the courtroom time and all of this stuff, that's all being paid for by taxpayer money. You're paying for the judge, you're paying for the courtroom and everybody who's employed in that courtroom, and they may be taking years of judicial resources. It's all paid for with taxpayer money, and I don't think that ever

really gets attention. It's weird to think that businesses money, and I don't think that ever really gets attention. It's weird to think that businesses use the legal system here just as an extension of their business wargames. To them, litigation is a business strategy. Someone wants to take over your company, you organize and file a shareholder lawsuit against that company. I guess all this just bleeds into people's distaste for lawyers. And believe me, Cam knows this really well. Next to journalists, lawyers may be one of the most despised professions in the United States. Yeah, I think the two of us are like the most hated. Yeah, I think it's a close race for the bottom there between lawyers and journalists.

As a lawyer, you're defending some people that are objectively not so great and some people that are great. Do you have any clients that speak to those two ends of the spectrum? Oh my God. I defended the National Enquirer during the entire Michael Cohen Trump fiasco. This morning, the publisher of the National Enquirer is hitting back against former Playboy model Karen McDougal, asking a California court to dismiss her lawsuit against American Media Inc. over a deal to sell the rights to her story about her alleged affair with Trump. You just have to Google me to see some of the vitriol that I received, even though, as I said to my daughter, who is critical of me, just because you're

defending someone accused of murder doesn't mean that you're in favor of murderers. You're defending the system. You're defending the principle. I'm certainly not a fan of the Inquirer's journalism or the Inquirer's politics, and I wasn't then, but I did believe in the First Amendment and the rights that the Inquirer has, and I felt strongly about it, but I got a lot of crap for it. On the other hand, I'm very proud of the work I did with you. I represented the producers of Leia Remini, taking on the Scientologists and Scientology. I was involved with a show that got the rapper Meek Mill released from prison and had the charges against him dropped. I'm very proud of that.

So it's very rewarding to do that kind of work. But, you know, you can't always do it. And sometimes you have to remember the principles that you're defending rather than the clients you're defending. I mean, not to equate the two, but there were lawyers representing the Nazis at Nuremberg, right? I mean, that was part of what the Americans who essentially created the Nuremberg trials and based it on the American legal system, they overcame objections that the Nazis should not have representation. They insisted part of serving justice was that justice was served fairly, which meant that the people accused were entitled as good a defense as the people who were prosecuting. And that's also a very American notion, this idea that two evenly matched sides

will fight it out in the field of the trial and ultimately the truth will triumph. And we know that's not always true, but it's certainly a noble sentiment, one I think worth striving for. He was a famous trumpet man from all Chicago way. He had a boogie style that no one else could play. He was the top man at his craft. striving for. Yeah, I mean, I came away from that kind of being a bit more pro the legal system here. I don't know. What did you, I mean, I'm curious what you made of that as both being

much more American than myself. myself gosh it gets tricky when you hear national inquirer and stuff like that oh it's wild that he defended yeah yes i really like cam and then when he said that i was like oh man that's right you have to do some of these jobs this is such a weird thing we have like a knee-jerk reaction to hearing that like bad guys versus good guys but ultimately i am really happy that we do live in America where everyone does have the right to be represented, whether they're good or bad. Yeah, I do like that. Because we only think of the ones we know were bad, but we don't think that all of the people that weren't bad were also vindicated. So it's like the system has to operate to find out who's bad,

right? Yeah. And good and bad can get very murky. It's easy to take these certain cases and think, oh, it's so obvious there, but in others, it's not. And all the documentaries we watch are mostly about people who were sent to prison incorrectly. Makes you think, oh God, this system's terrible. I just want to talk about that hot coffee scenario he gave because there's an incredible documentary called hot coffee i hope people watch it's really changed my mind on the whole thing so that woman was quite elderly the burns on her inner thighs were humongous and required skin grafts it was bad like red skin her fucking skin melted off and she had to have full skin grafts and she went to court to get them to

pay for the skin grafts because she couldn't pay for it it was like eighteen thousand dollars or something yeah not cheap to get some new skin the jury said once they learned mcdonald's already had and don't quote me i'm just is from memory like over 580 or something complaints of the same thing that they knew it was an issue. They were just ignoring it. They knew their coffee was a bit hot. Yes. And they were ignoring it and they were kind of, I think, going like, well, you know, they're all trying to ride this line.

Auto manufacturers do this. Should we recall the car? That'll cost X amount. How much will the lawsuits for the deaths cost? That'll cost X amount. Just maths. And then it's in numbers. Just a spreadsheet.

Right. And that was the case at that time with McDonald's and their coffee. They had been warned so many times. This woman clearly needed skin grafts. Just a spreadsheet. Right. And that was the case at that time with McDonald's and their coffee. They had been warned so many times. This woman clearly needed skin grafts. And the jury said, we need to send a fucking message to McDonald's because they're not listening to the people that are complaining. The two million wasn't abstract. They said, what does McDonald's make a day on coffee in America? And the number was two point something million.

A day? A day. So it cost them a day. A day of coffee. Yeah. So there's something very poetic and interesting and very just about what the jury did. But that case, you just read the headline. I know when I was a kid, everyone was like, you could fucking spill hot coffee on my dick and balls or my face for $2 million.

We had that in New Zealand. Our whole idea spread. And then you look at like the Aaron Brockovich's of the world that like single-handedly save a water supply. Because as to your point, the little guy has an equally loud voice as the trillion dollar company in the courtroom. And that's got to be protected. And it sucks that there's so much bullshit. I like the slap. So much bullshit.

Yeah. I also, while this was happening, I'm so sorry, guys. I've been in a fourth lawsuit. Oh, my gosh. I can't believe i remember this kristen and i sued recently a fucking terrible piece of shit publication in the uk right who printed photos of our children right and it's illegal in england to do that now they'll it. Just assuming they'll sell enough magazines and make their money and it'll balance out. And we sued and we won and they had to pay our, we didn't make $1, but you just ended up getting your legal fees paid, which we did. But if we don't do that, they're going to keep printing pictures of our children,

which is against the law in the UK. Yeah. How am I going to take on that trashy fucking magazine or newspaper, whatever you want to call it. If you don't have the resources. But that's the thing. You should be able to have the tools to go up to a publication like that. Yeah, I don't know what else to do. That should be available to everyone. If it comes this weird socioeconomic battle, I think there's definitely a large portion of my life where I would have been like, yeah, like sue those guys. Get the man. Like,

they have gajillions of dollars. Who cares? Which, I mean, yeah, putting that in context, $2 million one day in coffee sales only. In the 80s. For McDonald's. I mean. Like 12 million a day. It barely touches them. Oh, I love McDonald's. I just want to say. Yeah, we do. We all love it. Extra sauce, extra cheese, big Mac.

I love a cheeseburger. We know. It's your favorite. It's David's favorite. It is. Yeah, we do. We all love it. Extra sauce, extra cheese, big man. I love a cheeseburger. We know it's your favorite. It's David's favorite. It is. It is my favorite. Anyway, now we work for a big corporation and I feel like don't sue them. Like they're nice and they pay us money. Yeah, it's so tied up in your own personal experience, I think, of what you think of

the legal system, whether you've had a good experience or a terrible one. And it makes you feel like for me, I'm like, why should they be punished? Just because they did a good job making a company. It becomes this very bizarre thing in your head where you're like, yeah, get those rich assholes. And then once you start knowing some of those people and companies and stuff, it's like, oh, wait, no, they just did a really good job making a big company. And now maybe it's not fair that everyone wants to take them down that's the thing yeah and once you get big that's when people do start wanting to take you down because you've got money to give 5 000 lawsuits a year towards

walmart you gotta wonder what they're paying in legal fees i know i mean they must have that's a wild 300 staff lawyers what are they like slip and falls i'm sure that's the thing is like part of it if you grew up where i grew up people talked all the time like oh yeah mike's uncle he sued the hardware store it was exciting it was like winning the lottery and then there's a cottage industry of like staging slip and falls you know there's just a lot of shitheads they're fucking with the system to try to get a couple extra bucks yeah there is a fun activity you can do where you Google and you go to the news tab and just type in suing America. And you get like just whatever wacky story is currently going on. I did that this morning.

And the story that came up, a federal judge on Thursday rejected Girl Scouts' claims that the Boy Scouts created marketplace confusion and damaged their recruitment effort by using words like scouts and scouting and recruitment drives. recruitment effort by using words like scouts and scouting and recruitment drives the judge ruled that the boy scouts of america can describe their activities as scouting without referring to gender because the boy scouts is basically now taking i think in female members or the other way around and so there's this big fight between the girl scouts and the boy scouts on what language they could use to recruit people in so i just like that there's a court battle between the girl scouts and the boy scouts that's so my money's on the girl scouts i don't want to with that troop of little girls this case boils down to a single question must the boy scouts continue to use the word boy in its name now that it's become a co-ed institution the judge said in his decision he ruled that the term was generic enough that both groups could use

scouting without referring to gender. Wow. You just reminded me of probably the most popular joke from Without a Paddle that I had. It was in the trailer. Asked me if I was a Boy Scout. Were you a Boy Scout? No, but I ate a brownie once. Oh, my God.

That's – 2004. That's – wow. 2004. You could say that in 2004. Well, also, it's like not when she was a brownie perhaps like you're brownie yeah it was in the trailer brownies are real young what if i just met people of color i mean there was a racist movie right that you were did an indian accent i don't know the whole

movie was racist but definitely that moment was was ill-advised you did an indian accent and you talked about indian people's brownies. Well, no, I think it was a reference. Things change. Oh man, they change really quickly in comedy. Yeah. I'm gonna sue without a paddle. Fuck yeah, you should. Get all of Jax's money. Yeah, you should. I was told to say that.

I didn't read this script, but I did do the accent and I thought I did a good job and it's embarrassing. And then you probably redid it at parties. I might have. I might have. If they asked, just like I'll do Frito on demand. I'm a little job and it's embarrassing. And then you probably redid it at parties. I might have. I might have. If they asked, just like I'll do Frito on demand. I'm a little monkey who performs if you ask. How do we think it first started to get big?

Because of the birth of big business here? Like why? That was one thing I wanted to push back on your, what was your lawyer's name? Cam. I wanted to offer a slightly alternative view of what Cam said, which is, yes, we have three branches of the government, legislative, executive, and judicial. But the judicial branch had no relevance forever. The Supreme Court was in the basement when they built the White House in the legislature. Right, it was just a little thing. It was a backwater nothing. The judges had to travel from different areas to make court. It was only

once a week. There's a great podcast, More Perfect, which is by Radiolab. It takes you through the history of how the court actually evolved into a huge instrument in our governing. It does not resemble today. Today, it makes laws in essence, and it never had that role. So it's expanded dramatically over our history. Yeah, right. That's the Supreme Court. But I guess I mean, like, this influx in lawsuits in general, like what sparked that? Yeah, the 40 million. There must be some correlation to something else in America. It's got to at least parallel beautifully on a chart, people's moving from small rural communities into cities, because as you left

your rural community life gets more and more anonymous yes everyone's a stranger store owner in the town yeah everyone in town you're at church yeah fucking mike sue and bob like you would have been confronted you would have been shamed yeah new york city you're lucky to ever see the same person twice yes the anonymous nature of it has boosted everything up. But it didn't stop your friend from suing you. No, we were close as you could be. If there was a nail in your pizza, would you sue? No, see, I wouldn't because the New Zealand way is to avoid conflict at all possible costs.

Right. So you would just accept it and I'd be deeply embarrassed. I wouldn't even bring it up. Whereas I think the default here is like that's an opportunity to get rich. I had a friend that got a bit of glass through their foot in the bathroom of a restaurant and they sued. And it's just been this slow, slow process. And they're going to make some money out of it. But also it's not always crazy money.

It's not always this giant payday. Is it worth it? Exactly. Depends how broke you are. And it's just always crazy money it's not always this giant payday is it worth it exactly depends how broke you are and it's just so much admin i would never sue over like a personal injury well you did no no where i'll be more specific i do have an expectation that if i'm driving next to a car at 40 they won't slam on the brakes make a right turn into a parking spot and break five laws and i'm not saying you did anything wrong no no i'm just saying okay that's not my expectation but my expectation at a grocery store is that shit falls off shelves and you gotta watch where you're walking i can't watch where i'm

driving in that nature i do believe in some personal culpability like people who are on their fucking phones and then they trip on the sidewalk and they sue the city it's like yeah personally my own ethics would prevent me from like at a restaurant there was trip on the sidewalk and they sue the city. It's like, no. Yeah. Personally, my own ethics would prevent me from like, at a restaurant there was glass on the ground. Like, yeah, it's a restaurant. Now, am I the 80th person to step on glass at that place and they're just not dealing with it? Okay, maybe that's something.

That's why it gets tricky. Yeah, if there's a reason for it. How many people do you think there are around that do fake injuries? You know, it's always in American comedies as people like slip over and then go and sue is that happening at all yeah absolutely well you see it on dashboard cameras and stuff all the time like people will like they jump in front of people's cars and get hit on purpose there's a whole thing where a car gets in front of you and then erratically locks up the brakes so that the person behind you oh no way yeah right yeah there's like three

there's a bunch of very common scams that are operating all the time yeah right you should probably drive like a cheap car because if you're in a hot rod they're coming they know they know yeah it is it is my greatest fear here is accidentally like messing with the wrong person or like scratching the wrong car or something and then it's just all over i do also think people hate lawyers people also hate insurance we all hate that we have to have insurance so i do think often people when they have the opportunity they're like yeah fuck this i've been paying for my insurance for oh yeah 25 years i'm gonna fucking make that you know like i do think there's a sense of, like, insurance companies getting their comeuppance. Yeah, like, if you.

Yeah. Yeah. Oh, God, it's confusing. It's funny because I almost envy your point of view. This is the only system we've ever known. I can't imagine a world where people don't sue each other. It's so abstract to me. It's just not the default.

You will just sort things out in person. Over hot coffee? Over hot coffee. Yeah, over a hot McDonald's coffee. What happens in in person. Over hot coffee? Over hot coffee. Over hot McDonald's coffee. What happens in New Zealand with the hot coffee? The hot coffee, it would be paid out under ACC, which is accident compensation. Our taxes go into it. So if an accident happens to you, if I spill coffee on myself, that will just be sorted out by the government.

You can just report it and they'll pay you. Yeah. And then maybe if the government has paid out like 600 claims for McDonald's, they would call McDonald's and go like, look, guys, this is the government essentially. You can just like report it and they'll pay you. Yeah. And then maybe if the government has paid out like 600 claims for McDonald's, they would call McDonald's and go like, look guys, this is the government. You got to turn the coffee down. Absolutely. Yeah. It's a slightly separate thing, but if there's a company consistently doing terrible things,

then you could take that company to court. It's just not done very often. It's not a common thing. In America, it's the default to do that. In New Zealand, it's the last resort. I wish we had some kind of cross-country data on, are our companies at large more... Ethical?

No, less. Oh. Why doesn't that have to happen all the time everywhere else? Why don't the Kiwis have to constantly sue companies to keep them from putting asbestos in the soft drink? You know? Well,icans cut corners i think that's our main takeaway from this episode americans cut corners i think i would

more think of it the way my dad always used to say to me which was terrible is he would say there's a right way a wrong way in the shepherd way and likewise maybe america's like there's the right way the wrong way in the american well there is there is a like gangster mentality here of do what you gotta do so there is that sense of like oh if i have to cut this corner there's so many layers to it being an individual as opposed to a community member that's part of it companies largely being run by shareholders at this point. A family-owned company has some obligation probably and some sense that I've provided a service or a product to people.

I'm appreciative of those people for building this company. But once it's turned over to a board of directors and shareholders, there's just another layer of like... Not caring. Separation. Yeah. Yeah, not caring. I think anonymity is a little bit at the core of some of this. Yeah. Yeah, and not caring. I think anonymity is a little bit at the core of some of this.

Yeah. I just watched the NXIVM documentary about that cult. I didn't realize how much that cult sued members when they left to silence them. And the great thing about that was some of the members that were being sued by this huge organization won because they had truth on their side. And that is the one good thing. If you have truth on your side, eventually you should be able to win a case. Yeah.

You might just be completely bankrupted by the whole thing. It's not always true also. Cause a lot of it's money. How good of lawyers do you have? Do you have 28 lawyers working on it? Exactly. Do you have the dream team? Yeah. Yeah.

Am I more American? Do you think? You're definitely more American because you've been sued. I've been sued twice. I am more American. You're more American than Monica. Yeah. Shit.

I gotta get, no, I'm not even gonna. I've rocketed up to like 50% American. As we've learned more and more about you through this wonderful show, there's another reason that I think it appeals to you. You felt a little isolated from the main group growing up and you identify with the little person going against the big group. Yeah, big time. Yeah.

Yeah, there's something like very magnetic about that idea. Yeah. Thanks, you guys. Love you, David. Love you, David. It's so fun. You're teaching us about being American. Let's all try and not get sued or do any suing this year.

That can be a goal. I'd love for that chapter of my life to be over. I don't need any more stories. I'm just starting.