Firestorm on Trial, Part 5

Finally we come to the actual trial, in Fury of Firestorm #48.  I’m afraid it’s a bit of an anti-climax, but it’s written in a television courtroom-drama kind of way.  Given that the writer (Gerry Conway) went on to write and produce for several police procedurals, that’s not too surprising, but it’s interesting to compare Conway’s courtroom writing style to, say, Mark Waid’s in Daredevil.  Once we get to Smoak’s lawyer’s speech I think you’ll see what I mean.

I. The Setup and the Speech

Just before the trial we learn that Smoak apparently didn’t remember being knocked out by Ronald before he transformed into Firestorm.  We also learn that Firestorm will be representing himself.  The plaintiff’s attorney makes the first opening statement, which is the usual order.  His theory of the case is very emotionally charged, which makes the parties’ joint decision to waive their right to a jury trial a little weird to me.  Anyway, here’s his speech:

Your Honor, we live in a complex world.  Every day the average citizen encounters danger from a hundred, a thousand different directions. Poisoned cheese…faulty breaks in a new car…industrial pollution…medical incompetence…bankrupt financial institutions…The threats to our well-being are manifold, and common to all of these threats is a contemptuous disregard for the safety of the American citizen.

Where can the citizen turn for protection against those who would harm by their negligent disregard for his basic human right to life, liberty, and the pursuit of happiness? Only here, your Honor, to the courts.

Here, the defenseless citizen is given armor against those who would crush him without a thought.  Here, redress is made, however inadequate, for the injuries caused by uncaring, incompetent, cynical betrayers of society’s trust.

Your Honor, the concept of professional malpractice is well established in law and legal tradition.  The doctor, lawyer, or other professional whose negligence or incompetence brings injury to a client can be sued for damages.  Malpractice is usually associated with the exchange of a fee for services … and there are those who might argue that the defendant, a self-styled “super-hero,” performs his services gratis, without recompense.  But how do we define recompense for a so-called “heroic act”?  What “payment” does the “super-hero” receive for his deed

The answer, I submit, is obvious.  For his services, the “super-hero” receives a princely fee…public adulation.  The “super-hero” is indeed well paid in a coin most of us never see.  The public is the “super-hero’s” clientele; the fee simply is fame.

What ego!  What arrogance!  Self-anointed “heroes” endangering the lives of innocent citizens, destroying property without qualm or consideration, unlicensed and uncontrolled grandstanding for the reward of a two-minute feature on the evening news!

And who pays for the damage these “super-heroes” cause then their deeds go awry? We do, your Honor!  The citizens of the Republic.  We pay, every man, woman, and child in the country.  I say, enough!

Let those who cause the damage pay for their contemptuous incompetence!  Let us judge them by the same standards we use to judge ourselves!  This man, your Honor, the defendant known only by the alias Firestorm, destroyed my client’s established business by a reckless misuse of power.  He must pay, your Honor, in our common coin.  We ask one million dollars in damages and punitive payment.  And he will pay, if there is any justice left in this sorry world.  Thank you.

See what I mean?  A speech like that could have been delivered by Jack McCoy or (more appropriately, since this is a civil case) Alan Shore.  It’s a great example of a Hollywood opening statement and a terrible example of a real-world one.

In the real world, opening statements have a lot of statements like “we will show that the defendant knew that magnetism could affect computers” or “you’ll see that the defendant could have easily and safely subdued the criminals without endangering the plaintiff’s property” or “you’re going to hear from Ms. Smoak, who ran a successful computer software business that would still be operating today if it were not for Firestorm’s negligence.”

But we can look past the style.  What about the substance of the arguments?  And did you notice that somehow Smoak’s damages claim went from $8 million from the freight train incident alone to just $1 million in compensatory and punitive damages?

II. The Plaintiff’s Argument

Smoak’s lawyer’s theory of the case is sort of all over the map.  He’s sticking with malpractice, but his malpractice theory is a novel one to be sure.  He’s apparently assuming that superheroes are potential professionals and jumping straight to the question of whether they are paid.  As we discussed a few posts back, payment isn’t really the issue.  And even if it were, it would be a big leap from public adulation to a professional-client relationship with a particular rescuee.

The plaintiff’s attorney also freely mixes malpractice, negligence, and recklessness, all of which are different standards of liability.  It’s possible that he’s advancing all three theories, which is likely what would happen in a real case, but it comes across as confused.

The opening statement does touch on an interesting public policy argument, which is that, one way or another, superheroes need to be held liable for the collateral damage caused by their powers.  Since insurance apparently rarely covers such damage, there’s definitely an argument to be made about shifting those costs onto the superheroes themselves in order to encourage more responsible use of their powers.

III. The Outcome

Alas, we don’t get much more of the trial than this.  Firestorm makes a little speech of his own, basically conceding most of the plaintiff’s argument, but saying that he doesn’t help people for the attention or glory but rather because he has the power to do so and it’s the right thing to do.  In the end, Smoak voluntarily dismisses the lawsuit (which evidently was not a class action after all), and that’s pretty much the end of that.

IV. Conclusion

Overall, the trial of Firestorm raises some interesting questions about superhero liability and who should bear the cost of their mistakes, but it doesn’t give very satisfying answers.  The legal parts of the story could have been a little more accurate, but they were okay, especially allowing for some dramatic license.  All in all, about on par with an average episode of Law & Order, actually.

5 Responses to Firestorm on Trial, Part 5

  1. Christopher L. Bennett

    It seems to me like it might be a good idea if Wayne Enterprises, Queen Industries, Kord Enterprises, and the like pooled their resources to establish a legal-aid fund for the superhero community, administered by the Justice League. There might be some sensitive questions about money trails and secret identities and such, but maybe they could pass it off as an act of charity. Grant Morrison did have Bruce Wayne go public about funding Batman Incorporated.

    • Would they really want to risk their funds on the entire pool of ‘super heroes’? Considering how reckless, brutal and outright illegal some of them seem to be it would seem far safer to restrict the number covered to a very small group. The problem of the attention given to a company openly associating with heroes appears to be set aside since (as you mention) Wayne has already started some project openly. However what about the shareholders? What if they don’t want a large sum from the company going to support a specific hero or heroes in general? Legal costs can get rather high, especially in America and especially in high profile cases involving human nature, national sovereignty, citizenship etc. Considering the costs already incurred by secretly building places like the Justice League Watchtower can Wayne justify this kind of expense?

  2. Firestorm may have been let off the hook for the property damage he caused, but shouldn’t he feel at least a little guilty? If he is ‘just trying to help people’ why not make some gold for Smoak? That seems like how a teenager would try to ‘fix’ the problem.

    He could have her sign a non-disclosure agreement so he doesn’t start a panic in the financial markets or get sued by everyone else he come into contact with.

    • “That seems like how a teenager would try to ‘fix’ the problem.”

      Actually, that seems like a perfect fix. Money damages are exactly what she is asking for, and since her complaint is about damage to her business, money would give her the capital to repair or rebuild. Of course, if he tried to do this too often it could move the market for gold which could have all kinds of reprecussions, but making $1 Million worth of gold would hardly be noticed by the world market and would solve this problem readily.

  3. Terry Washington

    By a curious coincidence, I am currently writing a book featuring Captain America and other Marvel characters which addresses( albeit in the pre-Civil War story arc) the whole matter of superhero liability( and more to the point whether FOREIGN superheroes can be held legally responsibility whilst on American soil for injured caused- albeit inadvertently- to US citizens). Talk about a small world!

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