Randi McGinn, an Albuquerque, New Mexico, based attorney, has spent her career fighting for workers and ordinary people harmed by corporate greed or abuses of government power, winning major victories for her clients and for the public. McGinn and her all-women team of attorneys have taken on AIG, the Albuquerque Police Department, national hospital chains, product manufacturers and many other giants – and won.
“Contrary to popular belief, when the worst thing in someone’s life has happened and they walk into my office, they want to discover the truth and then fix the problem so no one else has to suffer the horror they are going through.”
Known for her creativity in the courtroom, she once cross-examined a lying government informant until he threw up. She recreated an unjustified shooting inside the courtroom, sang part of one closing argument and rolled around on the floor in front of the jury rail to demonstrate the agony of a client who was having a heart attack.
In her new book, Changing Laws, Saving Lives: How to Take on Corporate Giants and Win (Trial Guides; November 2014), McGinn recounts her battle with insurance giant AIG over a settlement for a young single mother of three who was working the night shift, alone, with no security whatsoever in a convenience store in a rural area near Hobbs, New Mexico. She explains her innovative approach to taking on corporations as well as the Albuquerque Police Department. She also poses five questions for the grand jury members in Missouri who failed to indict Darren Wilson in the Michael Brown killing.
Peter Handel: You practice “transformational law.” Could you explain what that means?
Randi McGinn: Early in my law practice I learned that, when someone is catastrophically injured or his or her loved one, particularly a child, is killed, the case is never just about the money. Contrary to popular belief, when the worst thing in someone’s life has happened and they walk into my office, they want to discover the truth and then fix the problem so no one else has to suffer the horror they are going through.
After repeatedly witnessing our clients’ extraordinarily unselfish responses to personal tragedy, we decided to give them what they really wanted and changed our settlement demands. Instead of just asking for money, we began asking for the business to change its unsafe practices or fix its dangerous product.
“It is always an advantage to be a woman in a high-stakes case, particularly when you get to the courtroom.”
To encourage change, the settlement offer would work this way: “We will start settlement negotiations at $5 million if you make no changes. If you make the following five changes, we will start settlement negotiations at $2 million.”
Over the years, we have had about 40 percent of the companies fix the problem and start settlement negotiations at the lower amount. This has resulted in changes in safety policies, warnings on unsafe products, seminars to retrain health-care workers and other remarkable changes.
As for the other 60 percent of the corporations that turn down the chance to make a safety change? The most common response from those companies is this: “If we make the changes, it will cost us money, but if you win a verdict, our insurance company will have to pay. So, we’re not making any changes and you can start at the higher settlement number.”
That’s the kind of corporation you have no qualms going after tooth and nail and, hopefully, holding them fully accountable at trial.
You have a reputation of being fearless in the courtroom and taking on corporate giants who have disproportionate resources. You became an attorney over 30 years ago when few women were in the field. What are some of the obstacles and advantages of being a woman lawyer, especially in high-profile, high-stakes cases?
It is always an advantage to be a woman in a high-stakes case, particularly when you get to the courtroom. When big firm lawyers underestimate you or act in a condescending manner, don’t worry – the courtroom is the great equalizer where the jury will recognize that behavior and punish the other side.
Once, when a particularly obnoxious opposing counsel kept objecting and objecting to interrupt an effective direct examination, one of the male jurors leapt to his feet in the jury box and, wagging his finger at opposing counsel, said, “Now, you just leave her alone.” During closing argument in another case, an elderly woman juror in the front row, who in her day probably never had the chance to go to law school, leaned over and patted my arm. The best was when one jury went out and bought me a present during trial. Luckily, they didn’t give it to me until the case was over.
You have litigated against several massive corporations in your career, including AIG, Circle K, major hospital chains and product manufacturers. Many lawyers would probably say that the corporations are so rich and that money is no object and taking them on in court is doomed to failure. Why have you been so willing to try cases where you are representing David (or his wife) against the Goliaths of this world?
You have to be a honey badger for the truth.
It is a lawyer’s job to follow the money, publicly reveal what is going on and then, help the jury send a message that this dangerous behavior is unacceptable. The bigger they are, the harder they try to hide the evidence, the more lawyers they pile up on the other side of the courtroom, the harder you have to dig. That’s the only way to make the world safer. If you probe deep enough to get beyond the public relations spin, you discover that hospital corporations, product manufacturers and other businesses often choose to put the community at risk to add money to their bottom line.
In Changing Laws, Saving Lives you offer some unforgettable examples of “expert witnesses” you’ve cross-examined over the years. Can you tell us about one and how you undermined his testimony?
Anyone can create a website and set up shop as an expert witness. Some are real; some are industry-created and some are just bullshitters who will say anything they are hired to testify about. The key to refuting the co-opted or “bought” expert is deep research into their background and past testimony in other cases.
This kind of background investigation in one of our cases revealed that a polygraph expert called by the defense had been conducting research to prove his unusual theory that plants and single-celled organisms were sentient beings. He did this through experiments in his lab late at night, by hooking up to his polygraph machine yogurt cultures, chicken eggs, houseplants and his own sperm cells. The defense had never heard about any of this before he was cross-examined about this at trial, destroying his credibility.
You challenge the popular notion that the public is eager to milk corporations for huge settlements, even when the harm done to them is minimal. The most widely used example of this kind of “frivolous lawsuit” is the so-called “hot coffee” case against McDonald’s. How did that idea gain such traction in our society and how does it compare to reality?
The thing corporate America fears the most is the American jury – the only incorruptible American institution that can hold it accountable.
For that reason, corporations have spent a fortune denigrating and trying to destroy our faith in the ability of our neighbors (and ourselves) to sit in judgment on corporate misconduct.
“McDonald’s had turned up the temperature of its coffee because, despite having caused over 700 customers to be seriously burned, it sold over $2.2 million worth of coffee a day at the increased temperature.”
Corporate America had a field day with the shorthand facts of the McDonald’s case (which was decided in my home state of New Mexico) – $2.86 million verdict for spilled coffee. Frivolous sounding on the surface, what was lost in the media blitz was the fact that McDonald’s had turned up the temperature of its coffee because, despite having caused over 700 customers to be seriously burned, it sold over $2.2 million worth of coffee a day at the increased temperature.
The thoughtful jury awarded one day of coffee sales as punitive damages, plus additional compensatory damages for the serious, third degree burns suffered by Stella Leibeck, who spent eight days in the hospital undergoing skin grafting. Because of the public outcry, the cowardly judge reduced this verdict to $640,000. For the rest of the story, see the excellent documentary by Susan Saladoff called Hot Coffee.
The truth is that jurors can be trusted to distinguish necessary lawsuits from the few frivolous lawsuits. Twelve citizens bring collective common sense to the courtroom and find their highest and best calling when they stand up for the little guy or gal against the powerful, better-financed corporate wrongdoers. When there is a big verdict against a corporation, look far beyond what you may hear on Fox News. Trust that the jury, made up of people like yourself, had a good reason to award an amount designed to speak to the corporation in the only language many of them understand – money.
You practice in New Mexico and sued the Albuquerque Police Department, which has a national reputation for brutality. Can you tell us about your case against them and how this is an example of transformational law?
One of my first cases against the Albuquerque Police Department (APD) involved a young man named Larry Harper, who on a cold October evening, walked up into the mountains to commit suicide alone. When he called his family to say goodbye, they called the police for help.
Although there was no imminent threat to any other people, APD sent out the camouflage-clad SWAT team, which charged up into the darkness with their night-vision goggles and semi-automatic rifles.
When they located Larry several hours later, he was walking down the middle of the road, having apparently decided not to kill himself. Silently, they surrounded him and suddenly “lit him up” while pointing their weapons and shouting for him to throw down the pistol in his belt. After he ran off into the darkness, they chased him for 45 minutes before the designated sniper shot him to death.
For the heartbroken Harper family, who were kept at the bottom of the hill, waiting for Larry to be brought down safely, the most important thing was to prevent this from happening again. After APD agreed to make 10 changes to its policies, including starting a crisis intervention training program for its officers, they reduced the settlement amount they would accept.
The grand jury investigating the Michael Brown shooting in Ferguson failed to issue an indictment for Officer Wilson. Their decision not to indict has drawn widespread criticism. What questions should we be asking of the grand jury?
Why didn’t the prosecutors present the whole case through a public preliminary hearing rather than a secret grand jury?
What kinds of retention devices did the Ferguson Police Department require Officer Darren Wilson to have on his gun so he didn’t have to fear that someone would take it away from him? These include thumb break straps across the top of the gun, tension holsters and trigger lock guards.
“If physical evidence doesn’t lie, then why are there no fingerprints of Michael Brown on the gun that Officer Wilson claimed he grabbed?”
If physical evidence doesn’t lie, then why are there no fingerprints of Michael Brown on the gun that Officer Wilson claimed he grabbed?
Was Mr. Brown’s DNA that was found on the pistol transfer evidence that could have come from Officer Wilson touching Mr. Brown, then taking out his weapon or from sweat or other fluids flung during their first physical encounter?
Since the Ferguson PD did not require officers to carry the best evidence – an audio or videotape – would Officer Wilson be willing to a polygraph on his version of events or would the chief of police order him to take one?
After deciding he was outmatched (“a 5-year-old being flung by Hulk Hogan”), that Mr. Brown was “demonic” and firing twice, why did Officer Wilson pursue Mr. Brown rather than wait for back up?
If you could change only one thing about America’s court system what would it be?
I would shorten the time it takes for justice. From the time you file a lawsuit until you reach the courtroom takes an average of three years – or more. After you obtain a verdict, the corporation appeals through the State Court of Appeals and then to the Supreme Court, which adds another four to five years to the process. While the case drags on, the children who lost their father or mother grow up in poverty and no changes are made to make things safer for the rest of us. Justice delayed is justice denied for too long.