Happy Halloween from Abnormal Use!

We here at Abnormal Use wish you a safe and eventful Halloween. As lawyers, we are many years from the halcyon days of our youth, but we fondly remember Halloween. It’s unfortunate that Halloween falls on a Monday this year, and we suspect some of you may have already celebrated this holiday of holidays this past weekend. But, we hope you saved some candy and scary stories (and perhaps even a pumpkin beer or two) for today. If not, we hope you at least have plans to do something fright inducing to celebrate the day – like answering written discovery. Last year, to celebrate the occasion, we shared with you our favorite scary movies. This year, we are a bit more low key. But yes, that that’s the cover of Bugs Bunny’s Trick ‘N’ Treat Halloween Fun #4, published by the Dell Giant Comics Series way, way back in the mid-1950s.

Happy Halloween!

Friday Links

“Robin and Batgirl, I pronounce you man and wife — til death do you part!,” exclaims a thug on the cover of Batman Family #11, published way back in 1977. Note that multiple armed villains are coercing the two heroes into this wedding (although they didn’t bother to remove the heroes’ masks). This is not a family law blog, but we do seem to remember something from bar review about weddings and duress.  We’re thinking that Batgirl and Robin – in his bizarre tuxedo get-up – will be able to dissolve this marriage on those grounds. (We note that technically, though, this is not a shotgun wedding, since the assailants are all armed with pistols, although we doubt that affects the legal analysis of the duress issue).

Our own writer Frances Zacher got a shout out this week from Brian Comer at the South Carolina Products Liability Law Blog. See here.

Here’s a civil procedure exam question for you: can whales be Plaintiffs?

Congratulations to Brad Gower and Rocky Rogers, our two GWB associates who passed the bar examination last week. It’s been a while since we here at Abnormal Use endured the slings and arrows of the bar examination, but we sure do remember that immense sense of relief that accompanies notice of passage.  Ah, the good old days.

Oh, no, he didn’t! Colin Miller of the EvidenceProf Blog went there.  Yes, he made a Jerry Maguire reference in the headline to his recent post about a new Hawaii Court of Appeals case on the rule of completeness. See here.

Believe it or not, this edition of Friday Links is actually our third post today.  Earlier this morning, we ran a post wishing the bloggers at the Drug and Device Law blog a happy fifth birthday.  (Although they recognize their birthday as October 30, their first post actually went live five years ago today).  Also, we published an entry this morning directing your attention to our editor Jim Dedman’s first contribution to the North Carolina Law Blog, a group blog sponsored by the North Carolina Bar Association. From now on, he’ll be submitting one post per month to that site.

Abnormal Use and the North Carolina Law Blog

As you know, we here at Abnormal Use love blogging, so much so that our editor Jim Dedman is now contributing one monthly post to the North Carolina Law Blog.  Earlier today, his first submission was published at that site.  The topic: To Text, Or Not To Text – The Lawyers Dilemma. Jim’s post is a response to an earlier blog entry by Carolyn Elefant at the Small Firm Innovation blog.

With so many people texting one another, lawyers should pause to reflect upon whether it is an appropriate manner to communicate with clients. To whet your appetite, here’s an excerpt of Jim’s post:

[T]he medium of texting – its immediacy, its brevity, and its simplicity – suggests that it may be an inappropriate medium for any communication that is remotely substantive.  Texts, by their nature, are ephemeral.  They are not filed, they are not saved, they are generally not kept in any meaningful fashion.  However, communications with one’s clients – particularly communications which offer or purport to offer any type of legal advice – should probably be kept in one’s file.  Thus, lawyers who text may face the hassle of having to download, maintain, or otherwise track their texts and preserve them for their files.  This seems like an unnecessary task, particularly when users of smart phones can simply use an email rather than a text from the same device and avoid any issues on that front.

The North Carolina Law Blog is sponsored by the North Carolina Bar Association Center for Practice Management.  A relatively new member of the legal blogosphere, it officially began in May of this year.  A group blog, it currently has 13 writers.  Jim plans to submit one post per month to the North Carolina Law Blog, and we’ll certainly direct you to any content of his at that site upon its publication.

Happy Birthday, Drug and Device Law Blog!

Last year, on October 28, 2010, we wished our friends at the Drug and Device Law blog a happy fourth birthday. Since they are some of the writers that inspired us to begin blogging, we do so again today and wish them a happy fifth birthday today.

We anticipate our friends at Drug and Device Law will engage in some introspective blogging today, just as they have done in years past on this special occasion.  After all, the anniversary of a blog’s birth is a significant opportunity to reflect upon the advantages and disadvantages of the blogging enterprise.  It provides the blogger a day to reminisce upon his or her favorite posts of the past year.  In the end, it is a great chance to analyze whether the blog itself has been successful in promoting one’s firm and business. It seems to have been for those guys.

We ourselves are certainly not immune to this sort of blogging, as we did so on our first birthday in January of 2011.  Indeed, we here at Abnormal Use have been known to go so far as to blog about the merits of legal blogging.  You can expect some more of that as we approach our second birthday – which occurs the first week of January.  (Get us a present!) At the end of the day, most bloggers write because they enjoy doing so, and it is very apparent that the guys at the Drug and Device Law blog have a good time offering their commentary to the world.  (Who else would turn a post about a recent pain pump case into a treatise on George Harrison?)

So, today, we wish them a happy fifth birthday and look forward to many more years of output from them.

“Objection, Form” v. “Object to the Form”

As lawyers, and more importantly, as bloggers, we here at Abnormal Use are huge nerds.  Accordingly, we sometimes lose sight of the forest for the trees and develop silly idiosyncrasies based on our interpretation of legal minutiae.  Today, we write of one such quirk: objections to the form of questions at depositions.

This writer attended Baylor Law School, an institution which focuses on practical education and teaches discovery and deposition techniques in a mandatory third year series of courses.  It was then that this writer learned of Texas Rule of Civil Procedure 199.5(e), which provides that objections to the form of a question must be made at depositions. All other objections are reserved. Form objections shall be made using the following statements:  ”Objection, leading” and “Objection, form.”  Note that the terms contemplated by the rules are in quotation marks.  In its own words, the rule itself provides:

Objections to questions during the oral deposition are limited to “Objection,leading” and “Objection, form.” Objections to testimony during the oral deposition are limited to “Objection, non-responsive.” These objections are waived if not stated as phrased during the oral deposition. All other objections need not be made or recorded during the oral deposition to be later raised with the court.

Practicing several years in Texas, this writer always made the objections as stated in the rule.  It would have been splendidly nerdy to argue to a trial court that an opposing party had waived an objection by not stating it as it was quoted directly in the rule (which the rule itself states expressly).  What hypertechnical procedural fun that would have produced! After all, the use of quotation marks suggests that the objection itself must be verbatim and not a paraphrase, and the rule provides that “objections are waived if not stated as phrased.”  However, the judicial scorn likely to be prompted by that argument always deterred this writer.

But here is the aforementioned  nerdy pet peeve.  Throughout our career, in whatever state, and in whatever jurisdiction, this writer has always said “Objection, form.”  Call it habit, call it nostalgia, call it blind adherence to an old rule, call it what you will.  Inevitably, though, when the transcript arrives back from the court reporting service, our objection is almost always transcribed as “Object to the form” which, of course, would have been (presumably) waived under the Texas rule.  Perhaps the court reporters simply have some type of button or macro on their systems which inserts a form objection on to the record irrespective of the precise manner in which the attorney articulated it.  That obviously would not work for longer detailed objections, but for basic form objections, maybe that is the reason.  However, we have always wondered why it is that our “Objection, form” never seems to survive the day of the deposition.

Hey, we told you it was a nerdy pet peeve.  You were warned.

Thoughts on “Hot Coffee” Director Susan Saladoff’s Appearance on “The Colbert Report”

Last night, plaintiff’s attorney and “Hot Coffee” documentary filmmaker Susan Saladoff appeared as the guest on “The Colbert Report” on Comedy Central.  You might recall that Saladoff’s Hot Coffee documentary debuted at the Sundance Film Festival back in January.  Thereafter, it premiered on HBO in June.  Why the media blitz in late October? Well, Saladoff is now promoting the November 1 DVD release of her documentary.  This is big news.  For just $29.95, you can own a copy of the film complete with extra footage. Just in time for the holidays!

You can find the clip of her appearance on the Colbert Nation website here.

The majority of the interview was a simple rehashing of Saladoff’s standard mantra – tort reform is bad, frivolous lawsuits are uncommon, and corporations are brainwashing us to think otherwise. Obviously, we don’t share Saladoff’s point of view, but her message is one she is free to make. She certainly didn’t dedicate much time to discussing the Liebeck case itself – the litigation from which her film takes its name.  When asked by host Stephen Colbert about the frivolous nature of Liebeck’s lawsuit, Saladoff responded with her all too familiar talking points:  1)  Liebeck’s injuries were real; 2) McDonald’s only offered $800 to settle the case; and 3) McDonald’s knew its coffee was capable of causing burns and continued to serve it nonetheless.  That’s all true, of course.  Liebeck did sustain third-degree burns.  McDonald’s did initially offer $800 to settle the case, presumably believing it could not be held liable for damages caused by an individual drinking a hot beverage.  The testimony in the case indicates that McDonald’s did know that hot coffee could cause burns. But even if we take those three points as a given, so what?

As we’ve often asked on this site, why should McDonald’s be held liable for damages caused by a beverage which by its nature is meant to be served hot?  When presented with that question, Saladoff claimed that McDonald’s knew its coffee could not be consumed at the temperature at which it was served.  Seriously?  It seems absurd to think that a business would serve a product it knew no one could consume.  We suppose someone forgot to tell the billion customers who purchased – and presumably drank – McDonald’s coffee in the decade prior to Liebeck’s accident.  Further, Saladoff alleged that McDonald’s coffee was capable of causing third-degree burns in as little as three seconds.  Three seconds?  Really?  If true, one would expect far more burn complaints considering the billions of cups of coffee sold.  Why not mention the fact that Liebeck sat in the coffee for 90 seconds?  Why not mention that Liebeck’s clothing actually held the coffee closer to her skin?  Why not mention that Liebeck could have suffered the same extent of burns had the coffee been served at a temperature as low as 130 degrees?  Apparently, these facts aren’t necessary components of the “real story.”

Saladoff also mentioned that Liebeck’s settlement agreement with McDonald’s included a gag order.  As we’ve noted before, Saladoff was a plaintiff’s personal injury attorney for 20 years prior to her turn as a filmmaker.  We suspect she’s previously encountered confidentiality provisions in settlement agreements, which are included for all sorts of legitimate reasons.

We here at Abnormal Use continue to question Saladoff’s inclusion of the Liebeck case in her anti-tort reform documentary.  We also wonder if the DVD “extras” she mentioned actually contain new information about the Liebeck case or if they are comprised of more out of context anti-tort reform talking points. If you pick up a copy on November 1, be certain to let us know.

Susan Saladoff, “Hot Coffee” Director, on “The Colbert Report” Tonight

Tonight, plaintiff’s attorney and documentary filmmaker Susan Saladoff will appear on “The Colbert Report” on Comedy Central, which airs at 11:30 p.m. Eastern and 10:30 p.m. Central. Presumably, she’ll be promoting the imminent DVD release of her “Hot Coffee” documentary and sharing her objections to tort reform. You might recall – because we mention it quite frequently – that we have more than a passing interest in the Stella Liebeck McDonald’s Hot Coffee Case and Ms. Saladoff’s documentary on same.  Not only did we review Saladoff’s “Hot Coffee” documentary when it aired on HBO this past summer, we also chronicled Ms. Saladoff’s background as a prominent plaintiff’s attorney back in January when the documentary premiered at the Sundance Film Festival.  We look forward to seeing her on “The Colbert Report” tonight and seeing what she has to say about tort reform generally and the Liebeck case specifically.  We are particularly interested to see how the character Stephen Colbert plays on his show will grill Ms. Saladoff on her opinions and litigious background.  Rest assured that our writer Nick Farr is on the case and will be burning the midnight oil tonight to offer his commentary to you first thing tomorrow.  Because Comedy Central typically posts these interviews online shortly after their original air date, we will also try to embed or otherwise link the video so you can watch it yourself. We are looking forward to it and will keep you posted. (Hat Tip: Albuquerque Journal).

Abnormal Use at the 2011 DRI Annual Meeting in DC

We here at Abnormal Use will be well represented this year at the 2011 DRI Annual Meeting, held this week,  October 26th-30th at the Marriott Wardman Park Hotel in Washington, D.C.  Not only does our own Stephanie Flynn plan to be in attendance, but multiple other members of our firm will attend as well.  This is not surprising given the broad appeal of the DRI Annual Meeting, which will include discussions on substantive practice areas including, of course, products liability.  Not only will there be some high profile speakers on the agenda, but as always, the event is a good place to learn the tricks of the trade and meet the movers and shakers within the DRI organization.

The DRI’s Products Liability Committee will host a business meeting and substantive CLE program, which is scheduled for Friday, October 28th, from 8:30 a.m. – 10:30 a.m.  The CLE will address strategies for handling the defense of aggregate consumer fraud claims, particularly the requirement that each plaintiff establish individual causation, a traditional rule that some courts have not applied in such suits.  Our own Stephanie Flynn, as the Annual Meeting Liason for the Toxic Torts & Environmental Law Committee (TTEL) will cover the business meeting and introduce the CLE presentations given by the TTEL.  Alas, the TTEL is scheduled at the very same time as the Products Liability Committee’s presentations, so Stephanie won’t be able to make it to both.  Other blockbuster presentations include such topics as the over-criminalization of business conduct by the government (something felt broadly across the business spectrum and in a wide array of industries), technological changes in jury trials in the 21st century; and, most intriguing, the implications of genetic mapping to determine individual susceptibilities of exposure to products or toxic substances.  These events will be followed by multiple networking opportunities, including a networking reception at the Newseum, the world’s most interactive museum!

If any of you, our dear readers, are also attending, please say hello! We would love the opportunity to get to know you. For those of you who can’t join us this year, keep an eye out for updates from us on the exciting presentations and developments coming out of the Annual Meeting.  With the caliber of speakers on hand, we are sure not to be disappointed!  Hope to see some of you there!

Friday Links

Just in time for Halloween, we bring you the cover of The Witching Hour #51, published way, way back in 1975.  ”Bring in the prisoner to face his judge and jury!” exclaims the skeletal judicial figure, while a menacing skeleton jury awaits.  We think this poor criminal defendant may have some constitutional arguments here (although we have our doubts as to whether this trial judge will sustain any such objections). And if this is the trial court judge, we’d hate to see the appellate panel!  Don’t forget, we’ve featured some other tough comic book cover juries here, here, and here.

Begins this recent piece in the Salem Eagle Tribune: “A Salem Superior Court jury has ordered Toys ‘R’ Us to pay more than $20 million to the family of a young mother who died five years ago after an inflatable pool slide sold by the national chain partially collapsed while she was using it during a pool party in Andover.” (Hat tip: Eric Nordstrom).

J. Benjamin Stevens, a/k/a The Mac Lawyer (who practices just down the road in Spartanburg, SC), appeared on the Lawyer2Lawyer podcast to discuss the impact of Steve Jobs on the legal profession.  To hear the podcast, click here.

Our own Stuart Mauney directs us to this piece in the Wall Street Journal Law Blog regarding alligators and the doctrine of “animals ferae naturae.” It’s probably been a while since you’ve referenced that legal doctrine in a brief, right? Yikes.

Our friends at The Law and The Multiverse are considering starting a second blog to discuss the application of law and legal principles in non-comic book fiction.  For more information, see this post (which includes a reader poll).

Don’t forget; you can become a fan of Abnormal Use on Facebook by clicking here! And we’re on Twitter here!

South Carolina Supreme Court Creates Attorney Information System; All Attorneys and Foreign Legal Consultants Must Register

The South Carolina Supreme Court has implemented a new electronic attorney registration program, called the Attorney Information System (AIS).  Starting this week, each licensed  South Carolina attorney and foreign legal consultant will receive materials from the Chief Justice containing information on this new endeavor. It is expressly designed to pave the way for electronic filing in the state court system in the future. For now, the Court is requiring all South Carolina attorneys and foreign legal consultants to register over a secure web portal and provide updated contact information to the Court going forward. Upon receipt of the aforementioned correspondence (which includes an initial user name and password), attorneys should follow the instructions, use the login information contained in the letter to log into the system, check one’s  personal information, and note any changes to be made. These steps must be taken by November 18, 2011 as per the terms of the Supreme Court’s order on this matter. Caveat: any attorney who fails to  log in before license renewal will not be permitted to renew. To see the court’s order and news release, click here.