...And Out Goes Y-O-Your Suit Against Southwest

Grace Fuller and her sister, Louise Sawyer, wanted money. Southwest Airlines had money. A nursery rhyme was going to be their ticket.

Now they've lost with a judge, a jury, and an appeals court -- and Southwest gets to keep its money, at least, whatever it hasn't paid to lawyers defending the airline from lawsuit lotto. Knowledgeable attorneys estimate Southwest's defense costs in the six figures.

As the sisters were indigent (what are they doing flying then?), their attorney, Scott A. Wissel, was appointed by the court. This means he was compensated at least partly by public funds (we're told that many lawyers work for below their normal scale on indigents' cases, in effect contributing that excess value of their time).

We can understand how an airline winds up in court after a crash, but how does a nursery rhyme on an otherwise routine flight trigger a lawsuit? The facts of the case were not in major dispute. Fuller and Sawyer were among the scrum of people boarding the plane.

Flight Attendant Jennifer Cundiff picked up the microphone to urge people to get moving, and she did it, she thought, with zany good humor: "Eenie, meenie, minie, moe," she said. "Pick a seat, we gotta go!"

If you haven't flown Southwest, it doesn't assign seats. Passengers select their own. And the Southwest flight crews, both cockpit and cabin, are noted for their high-spirited hijinks -- enough so that other airlines have begun imitating classic Southwest shticks like, "thank you for flying with us and remember that no one loves you, or your money, like Southwest Airlines."

But the plaintiffs alleged that the rhyme in question was a racist insult aimed at them personally. (There was, apparently, once a version of this rhyme that contained an offensive reference to blacks). Grace Fuller claimed that hearing the rhyme was such an insult to her that she had an immediate epileptic seizure on the plane, and another one after arriving at her destination, that left her bedridden for a week.

Despite these claims of mental-stress-induced health problems, either Fuller nor Sawyer sought psychological treatment or counseling, the appeals court noted.

Back in 2004, the trial judge weeded out some of the farther-out claims of "emotional distress" under state law, and sent the rest of the case, claims of violation of civil rights, to jury trial. During the trial, it emerged that Cundiff and other SWA FAs had long used the nursery rhyme, and she had no idea (nor did this writer until covering this
story) that it can be offensive to blacks, because of the existence of a version that contains a hateful and demeaning epithet.

In January, 2004, a jury in the Federal District Court in Kansas City, Kansas, ruled that Fuller and Sawyer's civil rights were not violated, exonerating Southwest Airlines and Cundiff, and leaving the sisters with nothing to show for their efforts.

After the trial court smackdown, attorney Wissel opted out of the case. Sawyer and Fuller proceeded to appeal on their own (calling to mind an ancient lawyers' aphorism about the man who represents himself having a fool for a lawyer). Among other things in their appeal, they demanded a new lawyer at public expense.

A three judge panel of the US Court of Appeals for the 10th Circuit rejected that claim, and everything else in the appeal, unanimously and resoundingly. 

The appeal advanced some novel, and other long-since-discredited, theories. The sisters believed that the court should pay the expenses of their chosen expert witness; that they didn't get a fair trial because no blacks were on the jury; that the judge showed prejudice by calling "eenie meenie" a "nursery rhyme" (which is the same thing they called it). Most amazing of all, they wanted the trial overturned because their lawyer was formerly a clerk for the judge (wouldn't most litigants want a lawyer who knew the judge well?) and they now wished they had challenged some of the jurors that they didn't challenge on the first go-round.

A legal appeal is not a do-over retrial of the underlying case ("de novo" as attorneys call it), and appeals courts in the American system have limited powers. In most cases, appeals chambers defer to the facts found in the trial court, and unless the appellant can show that the trial court was wrong on matters of law, or the fact-finders stepped outside their legal role, the life of an appeal is hard and short. That was the case here.

The sisters can still petition for the entire court to hear their case, but given its rocky reception in the courts so far -- and their lack of success in getting a contingency-fee attorney on board -- it would be unlikely to profit them much.

It's a good deal for the law firm handling Southwest's defense, though. Litigation defense attorneys don't work on contingency: they take cash, cash equivalents, and first born children (OK, we made up the bit about children).

And it's a safe bet that Jennifer Cundiff won't be cheering passengers with happy rhymes in quite the carefree manner that she did before being smeared as a racist. But somehow "Sit down, strap in, shut up," doesn't convey the image that Southwest's marketing is reaching for.

(Note: Aero-News acknowledges the tireless efforts of Walter Olson and Ted Frank of www.overlawyered.com, whose original reporting brought this wacky case to our attention).

FMI: www.overlawyered.com, www.southwest.com