Wow, it’s already May.  We’re still writing 2012 on our checks. Well, actually, sometimes, we still write 1997 on our checks.  But that’s another story.

Whatever the case, let us pause briefly to reflect upon the arrival of the “new” year, because, as you know, we’ve all written 2012 on some of our documents so far, even in May.  Accordingly, we need to be aware not just of the “new” year but also its potential effect on our brains and those of our clients.

Now matter the time of year, a good rule is: Be certain to double and triple check your documents to ensure they are dated properly.

Now, what do you do when you locate a document from the past wherein someone has made this type of dating error?

First, you say, “Yikes.” Then you proceed into analytical mode.

Perusing the document at issue, it may be apparent from the body of the document that the date is incorrect.  If it is a letter, then the context clues and subject matter may refer to issues or occurrences which indisputably occurred in the prior year, thus making the error in the correspondence apparent.  It may also be that there is no reason for the other party to dispute the incorrect date, and thus, the issue would be moot. However, if some confusion prompted by the error in date, you may wish to inquire whether the other party is to make an issue of it.  If so, perhaps the error can be accomplished by way of an affidavit, a verified discovery response, or, if necessary, part of an otherwise necessary deposition. However, the best advice may be simply to be more careful in executing such documents.

Straight from the Hoosier State is a lawsuit that invokes memories of Jackie Chiles.  According to Business Week and the Associate Press, an Indiana trade group filed a lawsuit seeking to overturn certain restrictions on the sale of chilled beer.  Can’t you picture Kramer walking into Jackie’s office complaining about the lack of cold beer at the local convenience store? As Jackie once said, “Yeah that’s going to be a problem. It’s gonna be a problem for them. This a clear violation of your rights as a consumer. It’s an infringement on your constitutional rights. It’s outrageous, egregious, preposterous!” Under a 1963 state law, chilled beer cannot be legally sold in Indiana unless it is sold in a liquor store.  Now, the Indiana Petroleum Marketers and Convenience Store Association has challenged the ban in federal court.  The lawsuit claims that the law is arbitrary and discriminates against grocery and convenience stores.

According to a representative of the group:

“In reviewing the history, it became more and more clear to us there really was not a rational basis for the current law. The fact the law says pharmacies, convenience stores and grocery stores are capable enough to sell the product warm, then it gets rather arbitrary about what temperature it can be sold at. When you change the temperature, it doesn’t change the alcohol content.”

Ironically, the grocery stores and convenience stores can already sell chilled wine.  I’d say the probably have a decent case that the law is indeed arbitrary.  Nevertheless, it’s probably still a long shot that they win the lawsuit, but here’s to hoping the good guys win this one.

Back in 2011, Toys ‘R’ Us was hit with a $20.6 million verdict by a Massachusetts jury in a products liability case arising out of the death of 29-year old Robin Aleo.  The woman was killed while sliding down a 6-foot inflatable pool slide manufactured in China by Manly Toys and sold in the U.S. by Toys ‘R’ Us.  As the woman neared the bottom of the slide, it partially collapsed, causing her to strike her head on a concrete pool deck.  After a nearly two week trial, the jury awarded Aleo’s estate $2.6 million in compensatory damages and $18 million in punitive damages.  Toys ‘R’ Us appealed the jury award, and the Massachusetts Appeals Court heard oral arguments in the case last week.

Aside from the amount of the jury’s award, the more intriguing issue in this case is the role of the Consumer Product Safety Commission.  At trial, the estate argued that the slide did not comply with federal safety standards for swimming pool slides, citing to standards set forth by the CPSC in 1976.  Toys ‘R’ Us contends that the 1976 regulations do not apply to inflatable slides, but only to rigid pool slides.  According to the toy retail chain, inflatable slides were not around in 1976 and, thus, were not contemplated by the standards.

Nonetheless, the slides apparently were imported and never certified that they met any standards.  Regardless of whether Toys ‘R’ Us should be held responsible for this regulation snafu, it’s the CPSC’s response that draws our ire.  The CPSC did not recall the slide until May 2012 – months after the verdict and years after the 2006 incident.  The CPSC was also aware of at least two other cases of serious injury arising out of use of the slide.  If the slide really is afoul of CPSC regulations and has allegedly caused several cases of serious injury and/or death, then why wait until a jury verdict to issue a recall?  It is not like the CPSC has a firm rule to exercise due diligence in these things.  Remember Bucky Balls?

We have been critical of the CPSC in the past over its draconian measures.  Regardless, if the CPSC knows it is going to issue a recall, it might as well go ahead and do it – especially if the only fact that changed between the 2006 accident and the 2012 recall is a Massachusetts jury deciding the issue is worth $20 million.

Above, you’ll find the cover of the recent book, The Law of Superheroes, by friends of the blog James Daily and Ryan Davidson.  As you might recall, those two run The Law and The Multiverse blog, a site dedicated to”superheroes, supervillains, and the law” and the exploration of legal issues through comic books.  While we here at Abnormal Use typically feature a legal themed comic book cover each week, James and Ryan analyze in detail how particular statutes and common law rules might apply in a given comic book universe.  We’ve loved their site from the beginning, and we’re pleased that they’ve published some of their material in book form. (For more on this book, please see here.).

You may or may not watch TV’s “Survivor,” but we’re amused to note that this season’s winner – named this past Sunday – is a Harvard law student by the name of John Cochran.  Our favorite part of the season finale: Cochran, who has made it to the final three, is planning the opening statement that he will deliver to the jury, composed of former competitors who were “voted off the island.”  Cochran remarks to an interviewer that addressing a jury is something that Harvard Law school did not prepare him to do. Ouch.

We really shouldn’t be working today. We would much rather be seeing Star Trek Into Darkness.

Here’s another century old comp claim from @TweetsOfOld.

We’ve talked before about the depictions of lawyers on television and our relative disappointment with the portrayals thereof.  The other day, one question occurred to us:  Why is discovery rarely, if ever, depicted on lawyer television shows?

When is the last time you saw a witness being deposed on a lawyer television show? When is the last time you saw a young associate in a frightful warehouse in the middle of nowhere performing document review? When is the last time you saw a lawyer responding to discovery requests or lodging objections to same? Is it that such tasks are not cinematic in nature?  Surely, that’s not it.

We can certainly imagine an interesting episode of a television show regarding an associate’s trek to an industry site to review documents.  Further, we can also imagine the novelty of a large scale toxic tort plaintiff’s deposition with 20 defense lawyers in the room.

So why is it that we never see such things on television?

Is it that the writers of legal television shows themselves only know of our industry from other bad legal television shows?  Is it that the a program’s advisers do not have the breadth of legal experience to provide such anecdotes to the production?  Or is it that the traditional formula of a legal TV show is so well established and ossified that any deviation therefrom would simply require extra effort?

Perhaps we will never know the answer to these questions.  But we’d watch a show featuring such things.

Every so often, the blog gods shine down upon their minions and grant them a post that, almost literally, writes itself.  This is one of those posts.  While perusing Yahoo! News the other day, I ran across this story.  Go ahead.  Click on the link.  You’ll be glad you did.

Was I right?  A copy of the full opinion can be found here [PDF].  It’s well worth a full reading.

I’ve often thought that being a judge might sometimes get a little dry, and that writing legal opinions (or, rather, reviewing the opinions that my clerk wrote) might become mundane.  But every once in a while, a case lends itself to a bit of creative writing.

This ruling is simply hilarious.

I was also a bit curious about its author, U.S. District Judge Fred Biery, so I looked him up.  According to his official bio on the U.S. District Court for the Western District of Texas website, Judge Biery was appointed by President Clinton [withhold additional commentary here] and he enjoys basketball and gardening.  His Wikipedia page already has a citation to this fun ruling.

Law is serious business.  No one denies that.  Further, it is possible that the town of San Antonio and the strip club at issue do not find the judge’s lighthearted opinion at all amusing.  Perhaps they feel that their litigation is not being taken as seriously as they believe it should.  But for the rest of us, this opinion proves that lawyers–and judges–are not sticks-in-the-mud all the time.  And that’s a good thing!

They say that golf is the ultimate sport of honor.  That may still be true on the course, but as we have seen over the past few years, it doesn’t hold up with golfers off the course (see, e.g., Tiger Woods).  This time, according to Golf Magazine, Vijahy Sing is getting into the mix by taking questionable performance enhancing substances and bringing a frivolous intentional infliction of emotional distress claim against the PGA tour.

Vijahy was privately suspended by the PGA a few months back after he admitted using a performance enhancing drug known as “deer antler spray.”  Deer antler spray allegedly contains substances banned by the PGA tour.  However, after some legal maneuvering, Vijahy was able to avoid serving any suspension. Now Vijahy claims that there never was any reason to suspend him in the first place. So, naturally, he has filed a lawsuit  alleging that the PGA tour negligently and intentional inflicted emotional distress upon him.

Emotional distress claims are notoriously difficult to prove.  Negligent infliction of emotional distress requires, at minimum, that a Plaintiff prove that he was in a zone of impact and suffered physical manifestation.  Intentional infliction of emotional distress claims require proving that the defendant intentional or reckless acted in a manner so heinous and beyond the standards of civilized decency or utterly intolerable in a civilized society.  Very very doubtful that Vijahy can prove either.

When you are pro golf and you admit to using suspect performance enhancing drugs, you run the risk of ticking off your employer and getting suspended.   Unless Vijahy’s got some really good hidden evidence in his golf bag, it is unlikely that this case is going anywhere.

According to a report from Law360, Apple was sued Friday in a California federal court over an issue involving the iPhone 4′s power button. As you may know, there has been a great deal of Internet buzz among iPhone 4 users complaining that the power button becomes stuck or non-responsive after 1-year of usage. Because the button problems arose beyond the 1-year factory warranty, users were left without a remedy. Now, users are responding with a putative class action against the computer giant.

It is one thing to allege that a product is defective. It is quite another to allege that the product is rigged to fail just after the expiration of the warranty. Apparently, this is exactly what the class has done. It appears that the suit alleges that Apple not only knew and failed disclose the defective button, but also that it designed the button to fail as to render the phone unusable. That’s harsh.

We here at Abnormal Use do not have enough information to comment on the validity of the defect allegations. However, even if defective, we doubt Apple “rigged” the button to fail. What would Apple’s motivation be to do so?

We appreciate the rationale of a profit-motive argument, but it lacks an understanding of Apple buyers. iPhone users constantly upgrade their devices – broken power button or not. Apple releases new iPhone models every 6 months, making you feel that your barely used phone is outdated. Apple doesn’t need to tamper with your phone to get you to buy a new one. They already use enough trickery in the marketplace. Plus, we hope Apple users would be smart enough to move onto a new product line if the one you are using is defective.

It will be interesting to see how this suit plays out. Of course, Apple probably has the case rigged, right?

Above, you will find the cover of Superman #41 published way, way back in 1946.  As you can see, Superman seems to be frustrated with a case of writer’s block.  We definitely empathize with his dilemma – especially when due dates are upon us.  But, we must wonder why Superman is writing his own comic in the first place.  Talk about the opportunity to flatter one’s self.  Faster than a speeding bullet?  More powerful than a locomotive?  Able to leap tall buildings in a single bound?  Whatever you say, Superman.  It’s amazing he ever revealed the whole green Kryptonite vulnerability thing.  Alas.

Here is an interesting article from The New Yorker discussing the drawbacks of Entropica, the latest artificial intelligence system garnering tons of internet buzz.  We think the authors could have saved a lot of time and Internet space by simply reminding us of The Matrix.

According to a Gawker report, a supermarket chain in the United Kingdom has been ordered to recall bags of nuts for failing to disclose that they contain nuts.  You might recall our own Stuart Mauney discussing a similar issue some time ago.  (Hat tip:  Overlawyered).

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Here’s a tip:  When deposing a doctor, or any other witness, Google their name and see if he or she maintains an official website.  These days, almost anyone in business maintains a website.  Doctors, retained testifying experts, contractors, fact witnesses, essentially anyone you might depose, likely has one.  Accordingly, such sites can be mined for information prior to their depositions.

You’d be surprised at how much information doctors place online about themselves.  This is not the type of personal information that one might find on a social media profile like Facebook.  This is the public presentation of that person’s business identity.  Accordingly, you might find biographical information, representations of their skill sets, or information about how often they do the type of work at issue in your case. You may be learn that the doctor actively solicits patients from lawyers or hawks his services as one who treats accident victims.  If the doctor does that, such representations can be explored at the doctor’s deposition.  Further, it is unlikely that the doctor may recall the precise wording of the representations on the website and will be unprepared to answer questions about them.

Other information may also be obtained.  For example, you may learn the names of all of the staff members of a doctor’s practice, and thus be able to identify other potential witnesses.

So, for good measure, seek out the official website before your deposition. It might be worth it.