Lawsuit of the Day: Grandma’s Estate v. Santa and His Reindeer

[Editor’s Note: Recently, the Consumer Products Safety Commission warned that holiday injuries are on the rise – from falls from ladders while stringing lights and cuts from broken glass Christmas ornaments.  Given the potential for litigation arising from such holiday mishaps, our own Stuart Mauney, acting as a special correspondent to Abnormal Use, reports on a lawsuit recently filed by the Estate of Grandma against Santa Claus for grievous injuries suffered when she was allegedly run over by a reindeer.  If it isn’t fully true, it certainly ought to be, right?]

Grandma got run over by a reindeer.Walkin’ home from our house Christmas Eve.You can say there’s no such thing as Santa, but as for me and Grandpa, we believe.

In the complaint (which was of course filed in state court), the personal representative of the estate alleges that Grandma “had hoof prints on her forehead, and incriminatin’ Claus marks on her back.”  Word around the campfire is that the estate is also considering a negligence claim against the North Pole DMV, arguing “it never should issue a license to a man who drives a sleigh and plays with elves.”

Santa Claus filed an answer to the complaint, asserting the affirmative defense of contributory negligence and noting that Grandma was, for lack of a better phrase, walking under the influence (“WUI”).  In the pleading, Claus claimed “she’d been drinking too much eggnog and we’d begged her not to go.”  Claus further alleges “she’d forgot her medication, and she staggered out the door into the snow.”  Claus is also expected to argue that Grandma failed to keep a proper lookout and was properly warned by Rudolph’s “very shiny nose.”

The Estate has made a claim for Grandma’s conscious pain and suffering, presumably for her slow and painful death before they “found her Christmas mornin’, at the scene of the attack.”  The Estate also has made a claim on behalf of Grandpa and various beneficiaries for wrongful death, alleging mental shock and suffering, wounded feelings, grief and sorrow, and loss of companionship.  Claus is expected to question the credibility of these claims during the discovery process, though in his answer, he offered only a general denial.

Despite our attempts at objective reporting of this legal news, we must confess that we’re also proud of Grandpa:

Now we’re also proud of Grandpa. He’s been takin’ this so well. See him in there watchin’ football. Drinkin’ beer and playing cards with Cousin Belle.

Further, Grandpa and the rest of the family do not appear to be suffering from “wounded feelings,” to the extent they debated “should we open up her gifts or send them back?”

We will keep you advised of any further developments in this case.  In the meantime, be careful out there!

[Editor’s Note: “Grandma Got Run Over By a Reindeer” was written by Randy Brooks and originally performed by the husband and wife team of Elmo Shropshire and Patsy Trigg way back in the halcyon days of 1979.]

Stuart Mauney can be followed on Twitter at @stuartmauney.

Friday Links

For the second week in a row, we feature the cover of She-Hulk, this time issue #19, published not too long ago in 2007.  On the cover, we see the supervillain known as The Leader, clad in a business suit and lodging an objection, properly no less! Behind him, we see two others, presumably lawyers, and we think the one on the right may be Jennifer Walters, the alter ego of She-Hulk. The Leader seems to be taking his objection very seriously.  We would probably sustain it!

Big news this week at Gallivan, White, & Boyd, P.A.!  Congratulations go to Cory Ezzell, who was elected partner of the firm last week.  Also, partner and Abnormal Use editor Jim Dedman will be moving to GWB’s Charlotte, North Carolina office, which opened earlier this year. (Don’t worry; he’ll still be blogging).

Josh Camson at Lawyerist offers this post entitled “Three Lessons Lawyers Can Learn from The Muppets.” But what can Muppets learn from lawyers?

The South Carolina Supreme Court has ended associate membership in the South Carolina Bar.

Don’t forget! You can still vote for Abnormal Use in the ABA Journal Blawg 100!  If you like what we do, please consider voting for us. You can do so here. Voting ends on December 30, so we encourage you to cast your vote before you leave for the holidays!

The Three Types of Practicing Lawyer Blogs – A Response

Kudos to Maxwell Kennerly of the Litigation and Trial blog for his recent post entitled “The Three Types of Practicing Lawyer Blogs,” which we mentioned previously here.  We’ve been meaning to respond to it in detail for some time. Kennerly accurately characterizes the different types of practicing lawyer blogs, which he divides into three main types:  the mainstream, the personalities, and the marketers.  (He was kind enough to place us into the second category).  Here at Abnormal Use, we enjoy blogging about legal blogging, and Kennerly’s post got us thinking about these different types of blogs and how practicing attorneys find the time to engage in blogging to various degrees.

We continue to marvel at those bloggers that Kennerly places into “the mainstream,” which he describes as a group of blogs engaging in news gathering, objective reporting, and the collection of legal links and analysis.  These are blogs like SCOTUSblog (whose recent acquisition by Bloomberg prompted Kennerly’s post in the first place) and even Howard Bashman’s How Appealing, the grandfather of mainstream legal blogs.  How practicing lawyers can assemble the material for these mainstream blogs is quite a feat:  they cannot miss a beat or news development occurring in the subject matter they cover.  If they do so, their credibility is threatened and so, they must constantly dedicate resources to the blogs to provide the latest news on their chosen subject matter.

That’s a Herculean task when one is trying to simultaneously run a law practice.  We suspect there are a host of lawyer writers out there who once intended to engage in legal mainstream blogging but burnt out quickly due to the high demands of the enterprise.  We offer our most sincere kudos to those who are able to maintain such blogs.

It’s a bit easier to run a “personality” blog, as contributors to such enterprises can pick and chose their topics as they please.  They need not fret about objectivity.  They can inject a bit of editorial style – even sarcasm sometimes – into their posts. However, personality blogs still face the difficult challenge of providing timely, interesting, and engaging commentary on the area of law they have chosen to discuss.  Here at Abnormal Use, we have posted every business day since January of 2010.  That’s no small feat, even if we do say so ourselves.  We have a dedicated staff of thoughtful writers here without whom this enterprise would be impossible.  We are not sure that we could engage in the type of personality blogging we do if there were fewer contributors, or if there were but one contributor.  In sum, there is strength in numbers.

Finally, the marketing blogs that Kennerly discusses are, as he suggests, sometimes irksome.  Somewhat spam like, they clutter the blawgosphere with a curious melange of general related news and lawyer advertising.  We don’t have much to say on those types sites or whether they are written by lawyers or marketing professionals.

The thing that interested us most about Kennerly’s post was his suggestion that personality blogs tend to engage each other more frequently than any other type of blogs.  To us, that’s part of the point of the blawgosphere. We enjoy engaging in discussion with other lawyers and law blogs.  As we previously noted, this enterprise has allowed us to meet other lawyers across the country and discuss not just blogging itself but also substantive legal issues.  We are always looking for more law blogs to read or bloggers with whom we can discuss products, or even general legal issues.

That, we think, is the chief advantage of blogging as marketing. Bloggers find themselves in discussions, friendly debates, and conversations with other lawyers across the nation they never would have met otherwise. Those conversations lead to meetings in person at conferences and the like, and often, transform into actual friendship.  That’s not such a bad thing.

The Ultimate Malpractice: “Miracle on 34th Street”

We here at Abnormal Use are in the Christmas spirit, which gives us the urge to post about Christmas movies acting under the color of law.  Last week, I settled in with my long-suffering significant other to watch Miracle on 34th Street. Written and directed by George Seaton, and starring Maureen O’Hara, John Payne, Edmund Gwenn and a young Natalie Wood, the 1947 film is ostensibly a Christmas classic, but really, it’s a cinematic exploration of some of the worst legal malpractice I’ve ever seen.

For those of you who have never seen it or just don’t remember the plot, let me break it down for you. The movie begins on Thanksgiving Day in New York City. The Macy’s parade is starting. Except the Macy’s Santa Claus is drunk. Why? As if this question needed an answer, it’s because New York is cold and Santa must stay warm! This is the most reasonable part of the movie.

That’s when “real” Santa (a/k/a Kris Kringle, played by Edmund Gwenn) elbows his way through the crowd, taking command of the Macy’s sleigh from Drunk Santa. Kringle is so adept at cracking his whip, looking jolly, and waiving like Queen Elizabeth that he parlays the gig into a full-time job at Macy’s, where he is immensely popular with parents and children alike. So far, so good. Except that Kringle insists that he is, in fact, Santa Claus.

He is not. Let me be clear about this. Miracle on 34th Street is not about some Christmas magic where Santa Claus comes to New York, spreads good cheer, and gets confused for having dementia. It’s about a good-natured elderly man with a love of Christmas who is correctly identified as having dementia. Think I’m kidding? Think again.

Fact No. 1: When Kringle goes to work at Macy’s, he’s asked to produce his employment card. His home is identified as “Brooks’ Memorial Home for the Aged,” in Long Island. Not exactly the winter wonderland of the Arctic Circle.

Fact No. 2: Kringle learns that he’s going to be subjected to a psychological evaluation by Macy’s in-house psychiatrist (played by Porter Hall). (Sidebar: Does your employer have a good benefits plan if they provide you with on-site psychiatrists, or does that mean you’ve picked the wrong place to work? Discuss among yourselves.) Kringle is not concerned. He knows that he can pass any psychological exam, because in his words, he’s taken dozens of them.

Fact No. 3: This is a subtle one. One of Kringle’s treating physicians from the Memorial Home shows up at Macy’s looking for the Claus. He is asked directly whether Kringle poses a threat to anyone. He responds that Kringle is not a threat, “just like the guy in Hollywood who owns a restaurant and pretends he’s a Russian prince.” I had no idea what this line meant. So I Googled it. Turns out that during the 1940s and 1950s, there was a restauranteur in Hollywood who insisted that he was the nephew of Tsar Nicholas II. This was false and everyone knew it. But the lie wasn’t causing anyone any harm, so it was all in good fun. Just like Kringle. So what if he thinks he’s Santa? It’s not hurting anyone.

Eventually Kringle and the Macy’s psychiatrist get into an argument, which results in Kringle taking his cane up-side the shrink’s head. The shrink gets mad, presumably because he just got beaten up by an old man, and decides to have Kringle committed. Which leads us to the commitment hearing, also known as the climax of the movie, taking place on Christmas Eve. In the Santa Claus industry, this is known as “BusinessTime.”

At this point, it is critical that we define the issue presented to the court. The issue is whether Kringle should be subject to involuntary psychiatric commitment due to the fact that he suffers from diminished competence, which presents a significant risk of physical harm either to himself or to others. It is also critical that we keep in mind the material facts which would be offered in support of the petition. First, the commitment proceedings were commenced by a psychiatrist who we can presume is licensed by the State of New York. Second, the psychiatrist was, in fact, assaulted by Kringle. This seems like it would be an open-and-shut case for the state.

Except that both attorneys are trying their best, it seems, to be as incompetent as possible. In fairness, the state’s attorney (played by Jerome Cowan) is deliberately trying to lose his case. For obvious reasons, he doesn’t want to be the guy responsible for locking Santa Claus up on Christmas Eve. So he does what every decent lawyer would try to do in the same situation: just enough to not get sanctioned, or lose his license or his job. In retrospect, he should’ve tried a little harder.

Bear in mind that for involuntary commitment, the state bears the burden of proof. And that the psychiatrist who started the commitment procedure is sitting at counsel table. This makes it all the more perplexing that the state’s only witness would be Kringle. Kringle, the defendant. Kringle, whose mental competency is at issue. Kris [expletive] Kringle. The state’s examination is equally perplexing. It consists of two questions. First, where do you live? The North Pole. Second, do you believe that you’re Santa Claus? Of course. And that’s it. No further questions.

This turns out to be the only evidence that the state offers in furtherance of the petition for commitment. The court received no testimony whatsoever from the very psychiatrist who swore out the need for commitment, even though he’s sitting in the courtroom. I’ll circle back up to this in a minute.

Let’s turn our focus back over to Kringle’s lawyer (played by John Payne). This guy kind of annoys me. At several points he refers to himself as the world’s greatest lawyer, and not in the charming, sarcastic, self-deprecating kind of way. He really means it. That Christmas, Santa should’ve asked for a better lawyer.

Let’s start out with the most glaring mistake / “legal strategy”: The state calls Santa to the stand. Kringle’s lawyer does not invoke the privilege against self-incriminating testimony. In fact, he waives it while boldly proclaiming, “We have nothing to hide!” Trust me, guy, you’ve always got something to hide. In your case, it’s the fact that your client assaulted the shrink. You might want to sweep that under the rug. Luckily, because the state phoned its performance in, Santa gets away unscathed.

But what if Kringle’s lawyer had asserted the Fifth Amendment? Santa doesn’t take the stand, which puts the state in the box of either calling no witnesses or calling the psychiatrist. If the state calls no witnesses, then Kringle can move for immediate dismissal. If the state calls the shrink, then Kringle can rebut him with Kringle’s own treating physician from the Memorial Home (who, as you recall, is in town). It becomes a battle of the experts, which gives the judge an avenue to do what he wants to do, which is deny the petition for commitment on the merits and move on with his holiday.

Ultimately, it doesn’t matter. Once the state inexplicably rested its case after rigorously cross-examining Santa Claus, Kringle’s lawyer makes the opposite of a good decision: he chooses to not move for dismissal as a matter of law for the state’s failure to present evidence in support of its case. Why? Because Kringle’s lawyer has decided that he wants to keep trying the case until he’s ready to win. This is a tremendous tactical snafu, again, since the judge is begging for a quick way out of this case forever.

Kringle’s lawyer begins his case-in-chief. The first witness is none other than R.H. Macy himself (played by Harry Antrim). Macy testifies that he believes in Santa Claus. This prompts the state to pop out of his chair and object on the bases that the question is “Ridiculous, Irrelevant, and Immaterial.” This is  followed soon afterby the state’s ridiculous, irrelevant, and immaterial demand to the court to issue a legal ruling as to whether Santa Claus exists.

Kringle’s lawyer sees the state’s crazy and goes all in by calling his opponent’s five year old son. Without objection, the state’s lawyer allows his son to be cross-examined by “the world’s greatest lawyer” on whether he believes Santa exists. This results in the state conceding the existence of Santa Claus.

This doesn’t resolve the issue of whether Kringle is crazy, though. After all, the defense of the entire case has been that Kringle can’t be crazy if he is, in fact, Santa Claus. To prove this last element of his case, Kringle’s lawyer resorts to the Supremacy Clause of the United States Constitution and the doctrine of preclusion. Remember, this is the same guy who did not want to use the Constitution to keep his client from testifying. He’s now using the Constitution to make a very sophisticated argument that because the Postal Service will deliver Santa Claus’s mail to Kringle, the federal government believes that Kringle is Santa Claus, and therefore, that the State of New York must believe it, too.

And it works. Case dismissed. Kringle’s lawyer finally finds a way to give the judge a way to not commit Santa Claus to an institution, even if he picks the most complicated way to do it, and even if it required him to skip over easier procedural avenues. He still got a good outcome for his client. That is truly the Christmas miracle on 34th Street.

But now there’s a problem. Earlier I mentioned that the state’s lawyer was trying to do just enough to not get sanctioned or lose his license or his job. Now that the hearing’s over, Santa Claus can make life very tough for the state’s lawyer and Macy’s. After all, the state brought a commitment proceeding against Kringle, then offered almost no evidence in support of the petition. Furthermore, the state’s case was built upon the professional opinions of Macy’s psychiatrist, who lied about Santa’s mental evaluation just to have him committed. Santa may be full of goodwill and cheer, but come December 26, it would not be unreasonable for the Claus to file an action for abuse of process and malicious prosecution against his former employer and the State of New York.

Originally, I set out to detail why Santa should have lost his trial. Ultimately, I have concluded that the only folks who lost that trial were the fictional taxpayers, who funded the lawyering debacle, and myself.

30th Anniversary: “Absence of Malice”

[Editor’s Note: Thirty years ago this week, on December 18, 1981, the film Absence of Malice was released to theatres.  If you’ve not seen it, go rent it immediately. Written by Kurt Luedtke and David Rayfiel, and directed by Sydney Pollack, the film starred Paul Newman and Sally Field.  But it was the cameo of Wilford Brimley in the film’s final scenes that really resonates with us all these years later.  So, we asked our fearless leader, Mills Gallivan, to share his thoughts on the film’s thirtieth anniversary, and he has done so in the piece below he calls “Abnormal Malice.”]

Even though Wilford Brimley’s portrayal of James J.Wells, U.S. Assistant Attorney General, in Absence of Malice is not a courtroom scene, it remains one of the truly great legal scenes in movie history. Brimley’s character appears late in the movie and steals the show from superstars Paul Newman and Sally Field. This Sunday marks the thirtieth anniversary of the film’s release and prompts reflection on the ongoing morality play occurring within the story

Anyone who has seen Absence of Malice could not forget Wells’ gravely southern drawl and down home demeanor when he says:

“Tell you what we’re gonna do. We’re gonna sit right here and talk about it. Now if you get tired of talking here, Mr. Marshal Elving Patrick there will hand you one of them subpoenas he’s got stuck down in his pocket and we’ll go downstairs and talk in front of the grand jury. Elliot? Jim? Fine. All right, Elving, hand whichever one of these fellas you like a subpoena and we’ll go on downstairs and talk in front of the grand jury.”

It is not just his suspenders that give Wells instant credibility, it is also his laser like focus and targeted approach to get to the bottom of a botched government investigation that has been compounded by press leaks. We are immediately drawn to Wells’ dedication to the truth; his character appeals to our natural morality and sense of fair play. This scene comes at the end of a twisting plot that takes protagonist, Michael Gallagher, played by Paul Newman, on a journey of manipulation by third parties who have destroyed his life.

Gallagher’s odyssey begins when over-zealous federal prosecutor Elliot Rosen leaks false information about Gallagher to Megan Carter, a young, naive and impetuous reporter played by Sally Field. Rosen hopes that the news story, albeit false, alleging that Gallagher is the target of an investigation into the murder of a local union official will lead him to a real suspect.  Megan seems to have no compunction about printing a story that has not been verified. Megan, like many people, does not learn from her mistakes. She continues putting out unverified stories and heaping more and more misery upon Gallagher, who quickly learns that absent actual malice, there is no legal recourse.

Realizing that he must do something, Gallagher takes Mark Twain’s advice not to start a war with the newspaper, which he knows “buys ink by the barrel.” Instead, he decides to get even; and with his own clever deceptions, orchestrates the events that culminate in the meeting with Assistant Attorney General Wells.

Near the end of the movie, Megan admits that there are no rules to direct when she should or should not print a story. When pressed by Wells to reveal the source for one of her stories she finally defaults to her own sense of right and wrong. Ultimately, she refuses to reveal additional sources in order to avoid further harm coming to others. Conversely, there are a myriad of rules relating to products liability law. We have statutes, case law, rules of civil procedure, local Federal Rules, product safety rules and regulations, and, most importantly for lawyers, the Rules of Professional Conduct.

So what has this to do with products liability and what the heck is Abnormal Malice? The gist of Abnormal Malice was best expressed by Assistant Attorney General Wells when he said to the assembled cast of guilty parties:

“Now we’ll talk all day if you want to. But, come sundown, there’s gonna be two things true that ain’t true now. One is that the United States Department of Justice is goin’ to know what in the good Christ – e’scuse me, Angie – is goin’ on around here. And the other’s I’m gonna have somebody’s ass in muh briefcase.”

This is a seminal moment for any lawyer; it is the instant when you know that you are getting the truth, and when you know “somebody’s ass” is in your briefcase. In today’s litigious society, lawyers often have to guard against abusive tactics aimed at putting our clients in precarious positions for the purpose of leveraging unreasonable settlements. We think of underhanded tactics as Abnormal Malice: attempts to direct the court and fact finders away from the truth through discovery abuses, frivolous motions, sanctions, and biased press coverage.

The current economic and political environments have created a high level of distrust for Corporate America. Americans are very unsettled due to the Great Recession, TARP Bailouts, high unemployment and Congressional gridlock. Occupy Wall Street is just one example of the level of frustration and distrust. Nevertheless, it is incumbent upon us as attorneys to represent our clients to the best of our ability in the relentless pursuit of truth. We do this through zealous but fair advocacy to achieve a just result for our clients. Knowing the rules of the road is essential to the advocate seeking judicial decisions based upon the law and the facts on the record. Most cases do not go to trial, but fair and reasonable settlements are based on a good understanding of where the truth lies and the chips will fall.

Wells sums up the procedural essence of the search for truth: “Wonderful thing, a subpoena.”

In the last 30 years, the information age has all but killed newspapers. Instead, we are deluged 24/7 by information and misinformation. Even beyond the news channels and talk radio, we are just now seeing the potential for adverse impact on juries by social media outlets such as Google, Facebook and Twitter. As lawyers we must be ever vigilant against the omnipresent threat that Abnormal Malice may improperly influence the jury. At the end of the day, our juries are the factor that most distinguishes our civil justice system as the best in the world. In fact, our civil justice system is the best tool we have for seeking the truth, and it is all that protects us from the mayhem of no rule of law.

As lawyers we have a duty to make sure that our system of civil justice is fair and accessible to all. The citizens of our country and our potential jurors must have faith that our system works. They must believe that our courts are level playing fields and that all the players are abiding by the rules and being held accountable for any Abnormal Malice. Our courts must be seen as the place where things are made right in the eyes of the law. Assistant Attorney General Wells clarifies our expectations quite nicely:

“We can’t have people go around leaking stuff for their own reasons. It ain’t legal. And worse than that, by God, it ain’t right.”

South Carolina Supreme Court Finds Man Assumed the Risk of Home Plate Collision

Every spring, our firm scrounges together a group of attorneys and staff members to play in a local Co-Ed Law Softball League.  Despite our stationary profession, some of us have maintained the athletic prowess of our youth and resemble actual softball players.  Others (including me), simply try our best to finish each game without suffering serious injury.  The games are meant to develop camaraderie both within the firm and the local bar.  However, when you bring a group of lawyers together, you should expect a certain level of competitiveness.  Diving catches.  Head-first slides.  Home plate collisions.  Whatever it takes to win.  But what happens when a “winning play” results in injury to your competitor?  With this many lawyers on the field, certainly someone can develop some theory of liability.  But will it be successful in a court of law?  Recently, our very own South Carolina Supreme Court handed us down some guidance on the issue.

In Cole v. Boy Scouts of America, No. 27072 (S.C. Dec. 5, 2011), the Court addressed a challenging recreational softball game.  The plaintiff and his son participated in a pick-up softball game during a Boy Scout camping trip.  Despite the fact that the score was not being kept officially, some of the fathers were playing “aggressively” and hitting the ball with “full swings.” Gasp.  During one such play, the defendant, attempting to score from second base, collided with the plaintiff, who was blocking home plate.  As a result of the collision, the plaintiff suffered a closed head injury and spent two days in the intensive care unit.  Thereafter, the plaintiff and his wife, personally and as guardian ad litem for their son, sued the Boy Scouts of America, the local Pack, and the defendant for personal injury, loss of consortium, and negligent infliction of emotional distress.  The defendant moved for summary judgment on the grounds that he owed no duty to the plaintiff because the plaintiff assumed the risks incident to the sport of softball.  The circuit court agreed, and the Supreme Court affirmed the decision.

On appeal, the plaintiff argued that the defendant’s behavior was inconsistent with the ordinary risks of softball because the game was intended to be noncompetitive.  While we wish the Court would have used the opportunity to discuss the interrelatedness of sport and competitiveness and the horrors of non-score keeping, the Court opted for a more tactful approach.  The Court indicated that a risk inherent in sport can be found at any level of play possibly more so in a non-professional arena where the players are less skilled and athletic.  Whether or not the plaintiff was keeping score, he was still playing softball, which the court deemed a “contact sport.”  Accordingly, by playing softball, the plaintiff assumed the risks inherent to the sport, including home plate collisions.

So what should we take from this opinion?  First, according to our Supreme Court, recreational softball, like professional football, is a contact sport.  Second, keeping a softball game “non-competitive” will not affect the legal analysis.  Third, catchers are open targets, so long as you keep your conduct within the “scope of the game.”

We doubt the average softball player is considering his legal duty as he barrels towards a catcher blocking the plate.  But just in case he was wondering, he can take solace in the fact hat the Court respects the game.  Unlike the NFL, the Court is not going to penalize a player for conduct natural to the game itself.  Even if home plate collisions violated some over-protective rec league softball rule, the Court noted that rule violations themselves are inherent to the sport.

Friday Links

We’ve previously mentioned here and here that the Marvel Comics character She-Hulk is a practicing attorney. We’re not entirely certain what is occurring on the cover of She-Hulk #21, depicted above and published not too long ago in 2007.  It appears, though, that She-Hulk has found herself in an argument with another lawyer in a conference room, perhaps at a mediation, perhaps at a deposition. We wonder if there are any local court rules that deal with confrontations with superheros at such events, though, and whether superheros are permitted to wear their costumes to court functions in lieu of more formal attire.

We here at Abnormal Use dig old pictures of court buildings. You might recall that we once recommended the Shorpy photo blog, which posts hi res photos of scenes past, usually a century old.  This week, that blog posted a photograph of the Pulaski County Courthouse in Little Rock, Arkansas taken in 1905. Check it out here. If you like what you see, you’ll enjoy losing yourself in that site and seeing all the old photograph in its impressive archives.

Don’t forget! You can still vote for Abnormal Use in the ABA Journal Blawg 100!  If you like what we do, please consider voting for us. You can do so here.

Many thanks to Walter Olson, a senior fellow at the Cato Institute and the founder of the Overlawyered blog, for speaking in both Greenville, South Carolina (the location of the Abnormal Use home office) and Charlotte, North Carolina (home of another of our offices) this past week.

Finally, if you’re on Twitter, come say hi to us there! You can chat with us on that site by going here.

Old Navy Wants Share of Spotlight, Creates Its Own Erroneous Collegiate Tee

Last week, we wrote about a mishap with Victoria Secret’s new line of collegiate t-shirts.  Just days later, Old Navy has followed suit with its own defective product.

To the naked eye, these new Old Navy shirts look perfectly normal.  No misspelled words.  No mismatched collegiate logos.  No misplaced slogans.  On closer inspection, you will notice a slight problem – those dates at the bottom were apparently pulled out of a hat.  Those dates are meant to represent the founding year of each university.  The years 1820, 1878, and 1881 were probably fertile years to found universities.  The problem is the Universities of Iowa, Colorado, and Arizona were founded in 1847, 1876, and 1885, respectively.

We understand errors can happen, but this is inexcusable.  Before learning of this defect, like Old Navy, I had no idea when these universities were founded.  A simple Google search took me 1 minute and 43 seconds to verify the founding dates of each school.  With less than two minutes of work, Old Navy could have saved itself from this embarrassment.

This mistake really should not surprise any of us.  After all, Old Navy had to recall thousands of collegiate tees back in August after misspelling “Let’s Go!!”  Proofreading is obviously not a strongsuit.  If Old Navy can mess up such a simple phrase, we shouldn’t expect them to correctly handle “complex” dates and numbers.

To our knowledge, no lawsuits have been filed over these defective products.  Certainly, some University of Iowa fan has been damaged by the discovery that his university is 27 years younger than Old Navy’s proclamation.  Of course, there must be some level of comparative fault for having to learn a piece of your university’s history from a $10 t-shirt.

Can Emoticons Beat the Hearsay Rule?

As we’ve previously mentioned, our editor Jim Dedman is now contributing one monthly post to the North Carolina Law Blog.  This very morning, his third submission was published at that site.  The topic: “Can Emoticons Beat the Hearsay Rule?” Yes, you read that correctly.  He is actually analyzing where those little smiley faces people append to the end of their texts or instant messages might be helpful in a hearsay inquiry. His conclusion: They actually might help (maybe, sometimes). Here’s an excerpt of the new post:

Carole Gailor of Raleigh, North Carolina recently spoke at a North Carolina Bar Association conference on the rules of evidence as applied to electronically generated information. In so doing, she remarked upon the authentication and admissibility hurdles that litigants must confront when attempting to introduce electronic or digital evidence, such as emails, computer generated reports, social media profiles, and other such information. However, she made a stray remark which prompted the law nerd in me to take particular notice. Ms. Gailor noted that an emoticon might, in fact, assist in the analysis of whether a digital piece of evidence is admissible.

As a preliminary matter, we could turn to Wikipedia or Urban Dictionary or the like to find a formal definition of the term “emoticon.” But that’s not really necessary, is it? But everyone knows that they are the little smiley or frowny faces – or sometimes far more complex textual graphics – utilized by writers on the Internet to convey all sorts of present emotions.

But why bother with a lay definition? A number of courts have already tackled the term.

Read the rest of the post here.

 

One Year Ago Today: The Phil Morris/Jackie Chiles Interview

Today is an anniversary of sorts.  One year ago today, on December 6, 2010, we published what was to be a ground breaking, at least for us, interview with the actor who played one of pop culture’s most flamboyant attorneys, Jackie Chiles, the television lawyer from “Seinfeld.”  The character, now infamous, was played by actor Phil Morris.

Last year, he was kind enough to agree to an interview. Needless to say, we were overjoyed.

It took some doing.  We spent six months courting his agents and representatives to arrange the interview.  As fate would have it, Morris was reviving the “Seinfeld” character for a series of Internet videos on Funnyordie.com. Accordingly,  he was looking to promote himself on Internet websites and blogs.  We are sure glad he was. It was a perfect storm.

That success emboldened us a bit, and throughout 2011, we sought out additional interviews with pop culture figures.  In January, we ran an interview with Michael Sardo, the executive producer and creator of the USA television series “Fairly Legal.”  In March, we ran an interview with the writers and creators of the 1991 film Class Action.  We even interviewed Mark-Paul Gosselaar and Breckin Meyer, the two leads from the TNT program “Franklin & Bash,” although for that one, we must confess we were part of a larger press conference call rather than a one-on-one interview.

Spoiler Alert: We have some big things in store for you in 2012.

But it all started with Morris.  We even asked him about one of our favorite topics, the McDonald’s hot coffee case:

AU: What about people filing these lawsuits for burning themselves on hot coffee?

MORRIS: Well, we’re so litigious in this society, too much. It’s way beyond the pale. So that’s where I kinda jump off from Jackie. I certainly wouldn’t put stock in a lot of that stuff. I think, it’s just, we’ve gotten away with way too much here in the United States in terms of the legal ramifications of everything. I think, again like I said, beyond the pale. Jackie is an opportunist. So anything like that is manna for him. But personally, I think we’re really hurting ourselves and shooting ourselves in the foot. Not only are we giving our legal system a bad name, but we’re abusing it! We’re misusing those bits of legal power that we have – we’re fortunate enough to have in this country. It kind of drives me crazy.

So, if you would, take a look back at our fateful interview with Phil Morris from one year ago today.

(And while you’re at it, check out this brand new interview Morris gave to The Onion AV Club just last week!)