Friday Links – Halloween Edition

IMG_5457

Happy Halloween from the Abnormal Use law blog and Gallivan, White, & Boyd, P.A.! We hope that our lawyers readers will pause today from their depositions and drafting to celebrate the day, eat some candy, and seek out non-case related scary things. While we usually post legal tidbits at the end of each week, today is no ordinary edition of Friday Links. Today, as we have done in the past, we showcase the home of one of our law firm’s partners and the festive decorations he has prepared for the occasion. Take a look!

IMG_5458

You may remember that last year for Halloween we shared a similar round of photographs from this very same home. Compare and contrast them, if you wish!

IMG_5459

Please, everyone, be festive, and most importantly, be safe on this fateful Halloween night. We’d love to hear your Halloween stories, as well, so comment below, if you like.

IMG_5456

TV Review: USA’s “Benched,” Starring Eliza Coupe

image

This past Tuesday night, the USA network aired the premiere episode of “Benched,” a new legally themed sitcom starring Eliza Coupe (“Happy Endings,” “Scrubs”) as an ex-corporate lawyer experiencing the trials and tribulations of life as a public defender. Created by Michaela Watkins and Damon Jones, “Benched” brings the fun back to the legal sitcom in ways many of its recent predecessors have failed.  While “Benched” is not a perfect depiction of the legal profession, lawyers, particularly those engaged in a criminal practice, will relate to the challenges faced by its PD protagonist.

Coupe plays Nina Whitley whose life as a prominent corporate attorney is derailed by a comedic in-office blow-up following her discovery that she failed to make partner.  Now plagued by the gossip surrounding her breakdown, Whitley finds herself with few employment options despite her impressive pedigree.  Reluctantly, she takes a job with the public defender’s office in an attempt to revamp her career, but in the process, rediscovers herself.

At least in the pilot, the focus is exclusively on Whitley and set primarily within the confines of the courtroom and the public defender’s office.  We assume, however, that the show may dive deeper into Whitley’s personal life in future episodes based on the groundwork set forth in the pilot.  Rounding out the cast are Jay Harrington as fellow public defender Phil Quinlan, Fred Melamed as Judge Don Nelson, Jolene Purdy as legal intern Micah, and Carter MacIntyre as Whitley’s ex-fiancé turned prosecutor Trent Barber.

The pilot sets the stage for Whitley’s career path.  Waiting to become the next partner at her law firm, Whitley discovers that the position has been given to her attractive yet less legally-qualified colleague.  Enraged by the news, Whitley unleashes an epic rant on her firm and co-workers which ends with her smashing a vase given to the firm by Sir Elton John himself.  Preceded by exaggerated rumors of her blow-up, Whitley emerges in the public defender’s office and immediately learns she is scheduled to be in court for numerous arraignment hearings five minutes later.  As if walking into court completely unprepared wasn’t bad enough, Whitley discovers that the prosecutor is none other than her ex-fiancé, now legal nemesis.  Frustrated after “losing” multiple requests for bail, Whitley finally uses her legal moxie to achieve having bail set at $1 for an alleged diaper thief, much to the chagrin of her nemesis.

We here at Abnormal Use are not criminal lawyers, and we certainly do not pretend to know the internal machinations of a public defender’s office.  ”Benched” goes out of its way to create a stark contrast between the work environment of those in the public sector from the cozy confines of a big law firm.  Just as many shows exaggerate the perceived “luxuries” of the firm life, we assume “Benched” took similar liberties with the PD’s office.  We seriously doubt the typical PD’s office mirrors the chaotic confines of a debt collection call center.  Nonetheless, many of the portrayals of the difficulties faced by lawyers in the public sector are well-founded.  Too many files without the time or opportunity to work them up as much as the lawyer would prefer is not just a story made for Hollywood.  Yet, like Whitley, lawyers make it work.

At its roots, “Benched” is a comedy and Coupe will certainly make you laugh.  For lawyers, the show is more than just a half hour of comedic relief.  Whether or not the message was intended, “Benched” serves as an excellent reminder of what makes this profession so great. Regardless of a lawyer’s practice area, there will always be more work that can conceivably be addressed.  Yet, when the lights come on in the courtroom, the skills take over and lawyers find a way to make each case look like it is the only one on his or her radar.  Like any great lawyer, Whitley finds a way to thrive in the face of insurmountable odds.  While the general public will love Coupe as an actor, lawyers will love Whitley as an attorney.  Sure, “Benched” takes some artistic liberties with the legal profession, but lawyers will certainly be able to relate to its shenanigans.

“Benched” airs on USA Tuesday nights at 10:30 pm EST.

Denny’s Settles Hot Coffee Case Following Child’s Injury

According to a report from The Buffalo News, G.B. Restaurants, the parent company of Denny’s, recently paid $500,000 to settle yet another hot coffee-related lawsuit.  While this settlement is not so far removed from the 20th anniversary of the infamous Stella Liebeck-McDonald’s hot coffee case, the underlying theory of liability couldn’t be more different.  In this case, Jose Adams and Sally Irizarry of Puerto Rico sued the restaurant chain after their 14-month old daughter was burned by hot coffee in a Buffalo, New York Denny’s.  The daughter sustained those burns after she grabbed a cup of coffee off of the table and spilled it on herself.  The crux of the lawsuit is whether the waitress was negligent in placing the coffee within arm’s reach of the child – not that the coffee was unreasonably dangerous as alleged in the Liebeck suit.

With every new hot coffee case that hits the news, the media can’t help itself but to make comparisons to the now 20-year old Liebeck case. (We tend to do a bit of the same ourselves, but that’s why you love this blog, right?) In fact, The Buffalo News began and ended its report with references to the Liebeck case even though the only link those cases share is the presence of hot coffee.  Without the Liebeck case coming before it, we doubt this case would have garnered its own headline (or be the source of blog fodder).

Liebeck comparisons aside, this case has its own liability issues.  We do not know much about the facts of the case, but we have to wonder how long the cup sat on the table prior to the child pulling it off.  As former patrons of Denny’s, we know that table space can be limited depending on the size of the food orders.  Also, as parents, we certainly can empathize with the perils of having young children in restaurants.  However, we are also cognizant of a child’s reaching hands and plan accordingly.  Should a waitress be responsible for placing the coffee too near the child?  Maybe, but these other factors should also be considered when analyzing how the coffee got onto the child in the first place. We’ll keep you posted on this case if circumstances warrant.

Abnormal Use Authors To Speak At McDonald’s Hot Coffee CLE in Charlotte on November 19

As you know, we here at Abnormal Use have written a good bit about the infamous Stella Liebeck McDonald’s hot coffee case. Well, if you’re in Charlotte, North Carolina in November, you can see Abnormal Use writers Jim Dedman and Nick Farr speak in person about the case at an upcoming CLE sponsored by the Mecklenburg County Bar Association.

Come join us if you’re nearby! Here’s the info (straight from the MCBA website):

20 Years Later: The Truth Behind the McDonald”s Hot Coffee Trial

Wed., Nov. 19, from 3:30 p.m. – 5 p.m.

Olde Mecklenburg Brewery

CLE Credit:
1.5 General Hours

Fees:
$110 Attorney CLE/Reception Rate
$55 Paralegal Rate/Reception

Location:
Olde Mecklenburg Brewery
4150 Yancey Rd.
Charlotte, NC 28217

Special Info:
3 p.m. – 3:30 p.m. Registration
3:30 p.m. – 5 p.m. CLE Training
Networking Reception to Follow CLE

Program Planners:
James M. Dedman, IV, Partner, Gallivan, White & Boyd, P.A.

Program & Speakers:
3:30 p.m. – 4 p.m.
James M. Dedman, IV, Partner, Gallivan, White & Boyd, P.A.
Recap of the basic facts of the case and the effort to dispel some of the broader myths that have arisen over the years regarding the “hot coffee” litigation.

4 p.m. – 4:30 p.m.
Nicholas A. Farr, Gallivan, White & Boyd, P.A.
Liability and Damage Issues – Defense Lawyer’s Perspective

4:30 p.m. – 5 p.m.
Andrew Fitzgerald, Wall Esleeck Babcock LLP
Liability and Damage Issues – Plaintiff Lawyer’s Perspective

To register, and earn CLE credit, click here.

South Carolina Lawyers: Update Your Information on AIS

South Carolina lawyers will recall that last year the South Carolina Supreme Court ordered them to update and verify contact information in the Attorney Information System (“AIS”). In fact, we here at Abnormal Use blogged about that very issue back in November of 2013. Well, South Carolina attorneys are now being required to verify and update their information again in the AIS system before January 1, 2015. According to an email sent this week:

Under Rule 410(g) and (l)(1) of the South Carolina Appellate Court Rules (available at www.sccourts.org/courtreg ), members of the South Carolina Bar and Foreign Legal Consultants must verify and update all of their information in the Attorney Information System (AIS) prior to paying their license fees. For the license fees that are due January 1, 2015, this update and verification must occur between October 20, 2014, and January 1, 2015.

The AIS may be accessed at www.sccourts.org/ais. Your user name is your bar number (minus any leading zeros) and the password is the password that you selected earlier. Once logged on to AIS, if your password is expired, you will immediately be prompted to update your password and security questions. You will be provided with detailed information on the complexity required for the password.

Please remember to review and update your contact and other information in AIS. You are reminded that the contact information in AIS, including the required e-mail address, is your official contact information. Rule 410(e), SCACR (“The mailing and e-mail address shown in the AIS shall be used for the purpose of notifying and serving the member.”).

To complete the verification process, please return to the “Attorney Contact Tab” and click the “Save and Verify” button at the bottom of the page. This completes the verification process.

Our advice: Hurry up and complete this task before the holidays arrive, lest it get lost in the shuffle.

Friday Links

impulse

Above, you’ll find the cover of Impulse #36, published not so long ago in 1998. The bailiff is apparently administering the oath to the witness, who replies “Uh, yeah, sure, whatever,” which no doubt prompts the ire of the judge. The witness is apparently Bart Allen, also known as Impulse and also known as Kid Flash. Here’s the somewhat confusing summary of the issue from Comicvine: “Impulse shaves all his hair off and uses a wig to put on while he’s Bart. Bart is part of the court session case of the toxic waste dumpers. Impulse meets the Song of Justice.” Whatever the case, we doubt the judge will put up with these antics for long.

As you may recall, the Marvel comic book superhero She-Hulk is a practicing attorney. So, we were saddened to learn that the She-Hulk comic book series has been canceled. You may recall that we interviewed Charles Soule, the lawyer and comic book author who wrote that series. You can access that interview here.

Whoa! Did you see the new trailer for Avengers 2? If not, click here immediately.

Don’t forget! You can follow Abnormal Use on Twitter here and on Facebook here! Drop us a line!

A Post-Riley Analysis: Smartphone and Social Media Discovery

As you know, we here at Abnormal Use love writing and blogging, so much so that our editor Jim Dedman is now contributing posts to other venues.  Recently, his piece, “A Post-Riley Analysis: Smartphone and Social Media Discovery,” was published in the October 2014 issue of the Defense Research Institute’s For The Defense magazine. In the piece, he explores the potential civil implications of the U.S. Supreme Court’s recent opinion in Riley v. California, 573 U.S. ___ (2014),  in which the Chief Justice Roberts noted the extent to which we now utilize our smartphones and the privacy interests at stake in any search of such devices. The article recognizes that those very privacy interests may alter the way in which courts analyze social media and smartphone discovery.

Here’s the first bit of the article:

Litigants now live much of their lives online or through the prism of their smartphones. Knowing this, defense lawyers often attempt to obtain as much digital discovery as possible in an effort to impeach the claims of a plaintiff, whether it is in the form of social media discovery or information extracted from a smartphone. Despite the fact that plaintiffs’ lawyers now warn their clients of such efforts, plaintiffs still live their lives online at the risk of their recovery in their lawsuits.

With state and federal courts now routinely ruling upon the permissible scope of such discovery requests, defense counsel must be aware of the potential backlash against these efforts in light of increasing concerns about the private nature of such information, and especially those recently expressed by the U.S. Supreme Court.

For the rest of the article, you’ll need to find a copy of this month’s issue of DRI’s For The Defense. For some of you, this issue is waiting in your inbox right now. Check out page 60.

Tech Companies To Litigate Unpaid Royalties

Two kings of the tech world will reportedly duke it out over allegedly unpaid royalties.  In the suit, filed in federal court in New York, Microsoft alleges that it entered into a patent-sharing agreement in 2011 by which Samsung was to pay Microsoft a royalty for every Android phone it sells.  This was purportedly part of an effort to “work together to develop and market Windows Phone, Microsoft’s mobile software.” Microsoft alleges that Samsung failed to make a royalty payment on time and refused to pay interest on the late payment.  The original “heavily redacted complaint” alleges that Samsung has attempted to use Microsoft’s acquisition of Nokia’s phone business as an excuse for not complying with the patent-sharing agreement. Microsoft has since filed an amended complaint, and Samsung has responded with a motion to compel arbitration. The case is Microsoft Corp. v. Samsung Electronics Co., 14-cv-06039, (D.N.Y. 2014).

Pink Panties v. Colonoscopy: Office Prank Gone Awry

According to a report from The Huffington Post, a Delaware man has filed suit after waking up from a medical procedure wearing women’s underwear.  The plaintiff, Andrew Walls, claims that surgeons from the Delaware Surgery Center dressed him in pink panties while he was under anesthesia to have a colonoscopy.  According to the complaint filed the the New Hanover (DE) Superior Court:

When the plaintiff recovered from the effects of the anesthesia administered by defendants, he awoke to realize that while he was unconscious pink women’s underwear had been placed on his body.  . . . When the plaintiff initially presented for his colonoscopy he had not been wearing pink women’s underwear and at no time did the plaintiff voluntarily, knowingly or intentionally place the pink women’s underwear upon himself.

Walls was apparently an employee of the medical facility and the underwear switch was a part of an office prank.  Nonetheless, Walls claims that he suffered from severe emotional distress as a result of the 2012 incident which ultimately cost him his job.

We here at Abnormal Use understand how Walls might be angry by the office prank gone wrong.  Even good natured fun can cross the line at times.  However, is waking up in pink panties really lawsuit worthy and, if so, what are his damages?  It would certainly be unnerving to undergo surgery and wake up wearing someone else’s underwear, men’s or women’s.  But, in the context of an office prank, it loses some of its bite. In this case, Wall already subjected himself to having his co-workers conduct the colonoscopy – probably the most humiliating procedure in the book.  How emotionally traumatized can one be over some lacy underwear after that?  We can appreciate the anger, but mental anguish to the point he can’t function on the job is going to be difficult to prove.

With that said, we appreciate the fact that no one wants to be on the wrong end of a prank – particularly during a medical procedure.  Walls has every right to be miffed.  Somewhere in the Hippocratic Oath it states that, co-workers or not, people should trust a medical staff not to dress them up in pink panties during a medical procedure.  However, the legal standard states that it is hard to recover with no damages.

Judgment for Litigation Funding Firm Defrauded by Texas Lawyer

A New Jersey litigation funding firm, American Asset Finance LLC, has reportedly been awarded a $960,000 judgment against a Texas lawyer who fraudulently borrowed $400,000 for fake law suits.  The owner of American Asset Finance, Tim Foley, is pleased that justice has been done, but is concerned that the defendant, Texas lawyer Gwendolyn Climmons-Johnson, who has been licensed to practice law in Texas for 25 years, is judgment proof.  This is because Climmons-Johnson was convicted in June of this year of using the EMS company that she owned to defraud Medicare in the amount of $2.4 million/

According to an FBI press release:

Gwendolyn Climmons-Johnson, 54, was convicted by a federal jury in Houston, Texas, on October 30, 2013, of one count of conspiracy to commit health care fraud and four counts of health care fraud. In addition to the prison sentence, Climmons-Johnson was also sentenced to serve three years of supervised release and ordered to pay $972,132 in restitution.

According to evidence presented at trial, Climmons-Johnson was the owner and operator of Urgent Response EMS, a Texas-based entity that purportedly provided non-emergency ambulance services to Medicare beneficiaries in the Houston area. The evidence showed that from January 2010 through December 2011, Climmons-Johnson and others conspired to enrich themselves by submitting false and fraudulent claims to Medicare for ambulance services that were medically unnecessary and/or not provided. Climmons-Johnson, who controlled the day-to-day operations of Urgent Response, submitted, and caused to be submitted, approximately $2.4 million in fraudulent ambulance service claims to Medicare.

At trial, the evidence showed that patient records had been falsified and the Medicare beneficiaries for whom Climmons-Johnson had billed ambulance services did not need ambulance services and were not in the condition stated in the records.

This is just another example of why crime never pays.  We are always amazed to see lawyers who think they can get away with fraud and other forms of financial dishonesty.  No matter how difficult it is to work hard for a living, the office is better than a federal prison cell any day of the week!

(Hat Tip: ABA Journal).