Friday Links

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Only one more week until Captain America: Civil War is released in theatres. We’re excited, as we are sure you are, as well. In fact, we are still recovering from the depressing onslaught of Batman v Superman: Dawn of Justice, so a new Cap film will be a nice change of pace. Perhaps we’ll provide a report of our thoughts on the film next week. In the meantime, above, you’ll find the cover of Civil War #2, published not so long ago in 2006 (which, although a decade ago, was a time a good Cap movie was still unthinkable).

Did you go back and listen to Purple Rain this week? If not, please do so. Of course, Prince didn’t make it very easy to find his songs online, did he? Nothing on Spotify, really. Alas.

Our favorite tweet of the week comes from our own Stuart Mauney (and you can see why we here at Abnormal Use dug it).

Abnormal Use At The South Carolina Bar Employment & Labor Law Midyear Meeting

If you’re in Columbia, South Carolina on May 13, 2016, you can see our editor, Jim Dedman, present to the South Carolina Bar Employment & Labor Law Midyear Meeting. He will be speaking on “Blogging for Lawyers and Related Ethical Issues” (a presentation he has updated to include a number of cases that have arisen in 2016. He will be the final speaker of the day at 3:45 p.m.

The only worry: The seminar takes place on Friday the 13th.

For more information on the seminar (or to register), please click here.

Snapchat Sued Over Distracted Driving Accident

According to a report from GeekWire, social media giant Snapchat has been sued in Georgia for allegedly causing a motor vehicle accident in which the at-fault motorist was distracted while using the application. Before we dive into the meat of it, we must disclose that our initial reaction to hearing of the suit was to cry foul and lament the future slippery slope of holding manufacturers liable for the poor decisions of users while operating a motor vehicle. After all, if Snapchat can be liable for allegedly distracting a driver who uses the app while driving, can cell phone manufacturers or service providers be sued for a driver’s decision to text and drive? What a perilous world we would live in right? Much to our chagrin, however, this suit is not what it may first appear.

Snapchat is primarily used for creating multimedia messages referred to as “snaps.” A snap consists of a photo or short video which can be edited to include filters and effects, text captions, and drawings. One of those effects is a filter which tracks the speed of users, including while the users are driving. Now, it doesn’t take a rocket scientist to see where this is going.

According to the complaint filed against Snapchat and Christal McGee by Wentworth and Karen Maynard, at approximately 11:15 p.m. on September 10, 2015, McGee was using the Snapchat while operating her Mercedes C230. Because she was allegedly motivated to drive fast due to the Snapchat speed filter, she accelerated her vehicle to speeds in excess of 100 mph. Unfortunately, because McGee was allegedly distracted by the app, she did not notice that a vehicle driver by Wentworth Maynard had pulled out into the road. McGee allegedly struck Maynard’s vehicle while traveling 107 mph. As a result of the accident, Maynard allegedly suffered permanent brain damage. McGee posted a snap of herself lying on a stretcher with the caption, “Lucky to be alive.”

While not specifically alleged in the complaint, the plaintiffs’ lawyer released a statement which exposes a number of other details about the moments leading up to the accident. Allegedly, McGee has three passengers in her vehicle, one of whom was pregnant. The pregnant passenger allegedly asked McGee to slow down, but McGee refused, arguing that she was “just trying to get the car to 100 miles per hour to post it on Snapchat.” The passenger allegedly saw the speed on the filter tap out at 113 mph when McGee said, “I’m about to post it.” At that moment, the impact allegedly occurred.

As an initial matter, we must caution that we do not know the merits of any of these allegations. While it is plausible that McGee was traveling in excess of 100 mph, we don’t know if the alleged Snapchat usage, if any, was to blame. Apparently, the accident occurred just before McGee could post the alleged snap, so proving as much will likely have to come from the passenger witnesses.

With that said, if the allegations are true, this is certainly a case distinguishable from our initially feared slippery slope hypotheticals. While a speed filter may be an interesting piece of technology, we assume in order for it to be useful there would need to be “speed” involved. The filter probably lacks the appeal of users taking a leisurely stroll through Central Park. We can appreciate the plaintiffs’ argument that the filter incentivizes users to go fast and, unfortunately, the most available means of doing so is by car.

Nonetheless, we still question whether Snapchat can be held liable for such an accident. Even if the accident is foreseeable, isn’t a lawsuit such as this one akin to the much ballyhooed suits against gun manufacturers? The app and filter are legal and non-defective. We are not aware of any evidence that it is marketed as a “break the speed limit” filter. The choice to travel in excess of 100 mph ultimately falls on McGee, an able-bodied adult who knew or should have known of the dangers.

We can certainly understand both sides of the argument. This will be one that we will following closely.

The Good Lawyer

I have often heard clients say “We do not hire law firms; we hire lawyers!”  So, who do they hire?  They tend to hire someone they like and trust, and who knows their business like the back of their hand.  But beyond that, what makes a “good lawyer?”

I recently attended a meeting with an insurer with whom our firm has a relationship.   A number of areas were covered, including the relationship between the insurer, outside counsel and insureds; the importance of compliance with litigation guidelines; the company’s claims handling philosophy; and the importance of timely communication with both the insurer and insured. Then, we heard from a claims officer who had recently read some wisdom on what makes a “good lawyer.”  She shared the article with us; it provided some useful reminders (although the original author and publication are unknown). If you know who first penned these words, let us know!

The Good Lawyer

  1. Is always honest and truthful.
  2. Listens to the client.
  3. Knows who the client is, remembers who the client is, only represents the client, and does not surprise the client.
  4. Communicates with the client.
  5. Is the messenger, not the message.
  6. Is willing to tell the client or prospective client that the law sometimes does not offer a remedy to every particular problem.
  7. Explains everything to the client in terms that the client can understand.
  8. Has a positive attitude, but does not promise success.
  9. Always honors the attorney-client privilege.
  10. Is always alert for potential conflicts of interest and investigates and resolves all potential conflicts before undertaking any representation.
  11. Becomes knowledgeable about the applicable law and facts with regard to the client’s case.
  12. Maintains their objectivity about their client’s case.
  13. Never underestimates an opponent and never embarrasses anyone.
  14. Treats everyone with the respect and dignity that the lawyer expects to be treated.
  15. Strives for excellence. Excellence with humility in the representation of the client.
  16. Is diligent, persistent and relentless in the pursuit of representing their client.
  17. Adheres to the highest professional and ethical standards.
  18. Is proud of being a good lawyer and how they serve each of their clients.

In response, please share your own thoughts on what makes a good lawyer.

 

Friday Links

prince

Rest in Peace, Prince. What a sad time, and what a terrible year it has been for the world of music with the loss of Bowie and Prince. We don’t know what to say. So, this weekend, find a moment during which you can pause, reflect, and listen to Purple Rain, Sign O’ The Times, Diamonds and Pearls. or the Prince logo.svg album.

That’s certainly what we here at Abnormal Use are going to do.

Above, you’ll find the cover of Rock N Roll Comics #21, published way, way back in 1991. We knew there had to be a comic book cover honoring Prince.

Oh, and our tweet of the week must address this same sorrowful topic.

Pro Golfer Jordan Spieth – Grace And Dignity In Defeat

I have been following The Masters since I was a kid. The first time I attended in person was in 1973 when Georgia native Tommy Aaron won. Over the years since then, there have been many Sunday back nine collapses. This year, Jordan Spieth hit two balls in the water on #12, ending with a quadruple bogey. While he made a rally with two birdies, he ended up losing to Danny Willett. The difference between Spieth’s defeat and the other recent collapses is that Spieth already owns the Green Jacket that goes to the winner.

In 1979, journeyman pro, Ed Sneed, had a 5-shot lead to start the day and a three-stroke lead with three holes to play. He bogied all three, landing in a playoff with Tom Watson and Fuzzy Zoeller, who ended up winning. In 1985, Curtis Strange had a three-shot lead when he came to the 13th hole. His aggressive approach ended up in Rae’s Creek.  He then dumped his approach into the water on #15 and lost by two strokes to Bernard Langer.

Then you have Greg Norman. In 1986, Norman came to the last hole needing only a par to tie Jack Nicklaus. He flared his approach shot wide right, bogeying the hole and losing by one. The very next year, he was in a sudden death payoff with Augusta native Larry Mize, safely on the 11th green with his second shot. Mize hit his approach shot wide right, missing the green, and leaving a treacherous downhill 140 foot chip.  You know the rest of the story; he holed the impossible shot and broke Norman’s heart.  Fast forward to 1996. Norman held a commanding 6-shot lead going into the final round, only to shoot 78 and lose to Nick Faldo, who shot a closing 67. Then in 2011, Rory McIlroy had a 4-shot lead entering the final round before a triple bogey on #10. He then four-putted #12, shooting a final round 80 to lose to Charl Schwartzel, who birdied four straight holes to win.

All of these gentlemen showed grace and dignity in losing what many golfers consider the Holy Grail. This year, as the defending champion, Spieth had the duty of placing the Green Jacket on the winner – twice. They did it once in Butler Cabin for the TV audience, and then again in an outdoor ceremony. Spieth was bitterly disappointed, obviously hurting, but he showed uncommon maturity in both instances and especially in answering every last question from the reporters after his round. He was both honest and forthcoming in his answers. He should be remembered for the way he handled defeat – with grace and dignity.

Greenville, South Carolina Hosts Southeastern Symposium On Mental Health

The Southeastern Symposium on Mental Health will be held in Greenville, South Carolina on May 5-7, 2016. GWB shareholder Stuart Mauney will be presenting at the Symposium on “Occupational Hazard:  When Doctors or Lawyers Get Depressed.” Stuart is a long time mental health advocate and frequent speaker on mental health issues in the legal profession. He presented at the Mid-Year Meeting of the International Association of Defense Counsel (IADC) in Pebble Beach, California, on February 22, 2016. He was also featured on a panel for a nationwide ABA suicide prevention webinar on March 21, 2016.

The goal of the Symposium is to promote awareness about mental health issues, reduce stigma and discrimination, and inform public policy. Keynote speakers include actress and mental health advocate Mariel Hemingway at a dinner on May 6, and former Congressman Patrick Kennedy at a luncheon on May 7.  Kennedy is the author of a recent book, A Common Struggle: A Personal Journey Through the Past and Future of Mental Illness and Addiction.

You can find out more information about the Symposium, and for registration at www.sesmh.org

Judge Denies Gun Manufacturer’s Motion To Dismiss Sandy Hook Suit, Ultimate Issue Still Remains

Given the attention it has been getting on the presidential campaign trail, we here at Abnormal Use recently discussed the Protection of Lawful Commerce in Arms Act (“PLCAA”) and the issue of gun manufacturer liability. The PLCAA, signed into law back in 2005, affords gun manufacturers and sellers immunity in state and federal lawsuits except in situations where the seller knew the gun would be used in a crime, the gun buyer was obviously unfit to own a gun, the sale violated the law or the injury resulted from a manufacturing defect. The law has found itself in the crosshairs of certain presidential candidates in recent weeks on account of the press coverage surrounding a lawsuit filed against Remington by the families of Sandy Hook victims in which the plaintiffs seek to hold Remington liable for manufacturing and marketing the AR-15 semi-automatic rifle used by the shooter. The now politicized debate centers on the legitimacy of the PLCAA and whether a gun manufacturer should be held accountable to the families of the Sandy Hook victims.

Remiss in the political arena is the actual happenings in the Remington litigation. Back in December, the Remington defendants moved to dismiss the plaintiffs’ complaint for lack of subject matter jurisdiction on the grounds that they are immune from suit by virtue of the protections afforded by the PLCAA. Last week, Judge Barbara Bellis issued an order denying the motion to dismiss. Before opponents of the PLCAA champion the order as a great victory or proponents chastise Judge Bellis for ignoring the law, a closer examination needs to be made into the basis of the decision.

Under Connecticut law, a motion to dismiss is an attack on the court’s jurisdiction. A motion to strike challenges the legal sufficiency of the complaint. The grounds for the defendants’ motion to dismiss focused solely on the argument that the PLCAA deprives the court of subject matter jurisdiction. When asked by Judge Bellis whether the motion should be treated as a motion to strike, the defendants reaffirmed their motion and stated that they were not challenging the legal sufficiency of the complaint. As such, the motion was treated as a motion to dismiss and the decision confined to whether the court had subject matter jurisdiction over the matter. The decision does not touch on the legal sufficiency of the plaintiffs’ claims.

Framing the issue in this manner, Judge Bellis found that the court has subject matter jurisdiction over the plaintiffs’ claims. In reaching her decision, Judge Bellis relied on a decision from the Second Circuit in New York v. Mickalis Pawn Shop, 645 F.3d 114 (2d Cir. 2011) which previously held that the “PLCAA’s bar on ‘qualified liability action[s]’ . . . does not deprive the court of subject-matter jurisdiction.” Moreover, Judge Bellis found it significant that other courts that have considered the PLCAA as a defense have done so in the context of a motion to dismiss under Rule 12(b)(6), which is the equivalent of a motion to strike under the laws of Connecticut rather than a motion to dismiss.  As such, Judge Bellis concluded that “any immunity that PLCAA may provide does not implicate the court’s subject matter jurisdiction,” and, thus, the motion to dismiss was denied.

We here at Abnormal Use won’t speculate as to whether the political debate over the PLCAA had any bearing on Judge Bellis’ decision. Right or wrong, the penultimate issue – whether Remington is afforded liability under the PLCAA – remains on the table. We assume that Remington is busy drafting that motion to strike as we speak.

Road Rage And Conflict Resolution

When was the last time someone cut you off with a quick lane change on the Interstate? Did you curse them or give them the “finger”? Maybe someone dashed into that prime parking spot just ahead of you. Or, that sports car was tailing you just a little too closely, so you tap on your brakes? Chances are none of these incidents resulted in death or even physical violence. However, recent events remind us that road rage remains a serious problem on our highways.

Former NFL Football player, Will Smith, who won a Super Bowl with the New Orleans Saints, was recently shot and killed in an apparent road rage incident in New Orleans. In its article on Smith, USA Today reported that this was our country’s third high profile road rage incident in less than a week. National Highway Traffic Safety Administration data tells us that road rage or aggressive driving were reported as a factor in 375 fatal crashes that resulted in 418 deaths in 2014.  A recent survey by the AAA “found 87% of respondents said they believed aggressive drivers were a ‘somewhat’ or ‘very serious’ threat to their personal safety.”

It sounds like we all need to refer back to our basic driver training courses. However, some have suggested that solving the road rage problem has more to do with psychology than driving skills. Jeff Asher, a crime data consultant, was quoted in the USA Today article as saying, “It’s about conflict resolution. It starts in childhood, with education. Teaching people to resolve their conflicts peacefully.”

Asher makes a good point. Perhaps our schools could do a better job of educating our kids about conflict resolution. Perhaps our churches could do a better job of reminding us that “blessed are the peacemakers.” Perhaps each of us could individually do a better job of keeping the peace, both in our personal lives and while driving on our highways. The next time you get cut off in traffic, perhaps the best advice is to count to ten and move along.

Friday Links

Friend of the blog Ryan Steans celebrated his birthday this week. In light of that, we thought we would direct your attention to our 2013 post in which we congratulated Ryan on a decade of blogging. That’s no small feat! He’s run a few blogs over the years, and all of them are quite good. To read our congratulatory post, please click here.

Many thanks to Aaron S. Kirschenfeld of the UNC Law Library blog for his kind words about Abnormal Use. You can read them here.

Our tweet of the week comes from our editor, Jim Dedman, who had an eventful week on social media.