The Perils of February 29

Today is February 29, the saddest and loneliest day of  the Gregorian calendar. February 29 lives a solitary life. Sure, this dreadful and curious day tries to make friends. Developing a social life, however, is quite a challenge when one only shows up to the party once every four years. Even though the 29th of this month has 28 comrade days in February, this short month is an oddity in its own right. February itself is simply a weird month. As we here at Abnormal Use can attest from our high school days, it’s difficult to find acceptance among your peers when you only associate with other outcasts. Thus, the 29th lives the hard-knock life, to be certain.

On the bright side, lawyers have bickered over the significance of the date, and there has been a surprising amount of jurisprudence generated over leap day. Defense counsel in criminal and civil cases alike have argued that the extra leap year day is not included within the statute of limitations’ calculation of time. Courts all across the country, including New York, Virginia, and Oregon to name a few, have responded to this argument and included the 29th within the meaning of the term “year.” When all else fails, that misfit of misfits, February 29, should take solace under the protective wings of the judiciary.

If February 29 is good enough for our court system, it should be acceptable to us, too, right? So, today, don’t anger yourself each time you mistakenly write “March 1″ on your letters. (And by, what are you still doing writing letters by hand? It may be February, but it’s February 2012! This isn’t “Downton Abbey”!)   Instead, take a step back and marvel at the synchronization of our calendar with the astronomical year. Who knows? Maybe February 29 will turn out to be a friend after all.

Breaking News: Lawyers are Sleep-Deprived?

We recently came across an article on Yahoo! Finance entitled “America’s 10 Most Sleep-Deprived Professions.”  Intrigued, we thought we would investigate to see if our noble profession made the list.  Sure enough.  Number 2.  The fact that attorneys made the list did not come as a surprise.  The morning crowd at the coffee maker is evidence enough that our profession is immune from blissful slumber.  But what does this study say about our profession?

Let’s take a look:

As you can see, there is not a great deal of variance among the professions on the list.  To say that lawyers are more sleep-deprived than police officers because they find one less minute of sleep seems ridiculous.  These sleep figures are based on the self-reported sleep times of 27,157 adults.  In reality, this study may reveal that we think we have less sleep than others – not that we actually get less sleep.

Now take a look at this:

In comparing the “sleep-deprived” with the “well-rested” occupations, it is difficult to decipher many defining characteristics.  On either side of the spectrum, you will find a dichotomy of professions in terms of compensation, hours of work, education-level, and job location.  Perhaps the sleep differential can be attributed to personality types or other behavioral attributes.  That type of analysis, however, would require an advanced psychological degree and is well beyond our expertise (although we do have a copy of the DSM-IV around here somewhere at Abnormal Use headquarters).

So what does all this mean?  Probably very little.  We doubt the 20-minute sleep differential between lawyers and forest loggers is actually statistically significant.  In any event, this study acts as a stark reminder to us all.  We enter this profession knowing that it requires a lot of hours and hard work to be good at it.  We are willing to do it because we love our jobs and we want to do everything we can to best serve our clients.  (Or, in the very least, we have to pay back all these student loans, right?) At the same time, we also have to balance being the best spouses and parents  we can be along with other outside commitments.  There are only so many hours in a day, and sometimes, sleep is the easiest to cut.

The moral of this story is twofold.  First, continue to work hard.  Not only do our clients expect and deserve it, we owe it to ourselves.  After all, nothing is worth doing unless you go all in.  Second, it is imperative that we find a work/life balance.  Life will be much happier when you can enjoy all aspects of it.  Make time for work.  Make time for family.  Make time for a little sleep. And now, I’m off to take a quick nap.

20 Years Ago Today: Stella Liebeck Spills Her Coffee

“Oh, no!” you exclaim.  “Not another hot coffee post!”

But today is quite an anniversary.  Twenty years ago today, on February  27, 1992, the world’s most famous litigant, 79 year old Stella Lieback, ordered what would become the most famous cup of hot coffee in America.  It was in Albuquerque, New Mexico at a McDonald’s drive-thru located on Gibson Boulevard.  She was inside her grandson’s Ford Probe.  He drove from the drive-thru to a parking spot, where Ms. Liebeck, clad in jogging pants, placed the cup of coffee between her legs and then attempted to pry open the lid.  She somehow lost control and the coffee spilled into her lap.  She was attempting to add sweetener to the coffee.  The rest is history, which we need not repeat here.  However, if you are interested in doing a little historical reading, we recommend you check out our Stella Liebeck McDonald’s Hot Coffee Case FAQ file as well as our history of reporting on other hot coffee cases here.

(Oh, and to our pal Steve McConnell of the Drug and Device Law blog, please note that we made it through the entire post without a “It was twenty years ago today . . . .” Sgt. Pepper’s reference.

Friday Links

If you frequent this site, you know we try to showcase legal themed comic book covers on Fridays. Let us tell you this: that gets more and more challenging each week! So, depicted above is Infamous: Lindsay Lohan #1, published not so long ago in September of 2011 by Bluewater Comics (which often produces quickie celebrity bio titles like these).  On that cover, we see the troubled former starlet taking her mug shot about as seriously as she likely takes everything else in her difficult, difficult life. Whatever the case, we doubt the folks in California would allow a prisoner to be so cavalier during the mug shot process.

As you may recall, in the past, our own Frances Zacher has written a bit about the legal issues involving driverless cars.  In a post called “Autobots – First Casualty,” the author of the Living the Meme blog attempts to pick up where Frances left off and explore the issue in further detail.  Check it out.

Get this!  Accordingly to The Lariat, Baylor Law School – our editor Jim Dedman’s alma mater – recently hosted a “People’s Law School.”  At that event, there was a section dedicated entirely to the McDonald’s hot coffee case! Had we been in Waco that day, we would not have missed it!

Speaking of our editor, last week he was hanging out in Philadelphia on a vacation of sorts and he met and hung out with Max Kennerly, the author of famed Litigation & Trial law blog. It was a great time, we hear.  However, if you had overhead their conversation about blogs, Twitter, and BBSs, you would have thought they were huge nerds.

Oh, and you may remember that we’ve been hinting for a while that we have some big plans in store for you, our dear readers, in 2012.  Today is the last Friday in February.  In just a few weeks, in mid-March, you’ll see our first such  blogging project of note.  Be forewarned: it’s a doozey!

Women and the Law

It was my privilege recently to give an ethics presentation to the Upstate Chapter of the South Carolina Women Lawyers Association.  The mission of SCWLA is “to enhance the status, influence and effectiveness of women lawyers in the State of South Carolina.  SCWLA will, through advocacy, action and association, take positive steps to ensure that women lawyers achieve their fair share of opportunities and benefits available to those in the legal profession.”  The SCWLA has over 700 members and emphasizes the opportunity to meet and help other women by sponsoring CLE seminars, monthly regional lunches, and mentoring programs. It’s a great group.

Later, after making my presentation, I noticed an old book on myshelf, The Official Lawyer’s Handbook, by D. Robert White, Esq., published in 1983 by Wallaby Books.  It was given to me by a friend while I was in law school shortly before I graduated in 1987.  Some of the chapter titles provide a clue to the author’s attitude and approach to the legal profession.  They include “Summer Clerkships: Summer Camp for the Incurably Overachieving,” “Once You’re a Partner: The Crock at the End of the Rainbow,” “Legal Ethics – And Other Great Oxymorons.” One chapter begins with a cartoon in which an older male lawyer shakes hands with a young female lawyer.  The caption: “So you went to law school and now you want to practice law . . . I think that’s cute.”

Um, yikes.

While reviewing the remaining section titles, I noticed that there was a chapter on “Women and The Law (You Don’t Have to Wear Briefs to Write Them).”  Since I had just left a meeting of the SCWLA, I thought it was a good idea to read that chapter.  I suspect that the author’s attitude was considered condescending even then. It is probably best to remember that this book was published in 1983, at a time when women made up only about a third of the total law school population, but that’s no excuse. However, despite his cavalier attitude, the author anticipated that views of women in the profession would change over time.  As he ultimately noted: “When women become rainmakers, their success is assured.  At that point, the only question is whether women will start talking dirty and popping each other with rolled-up towels.”

The chapter concludes with this commentary:

“How is a Woman to Cope?”

In any law firm with partners old enough to have gray hair (or no hair), a woman will encounter “traditional” attitudes.  There are three alternative strategies she can adopt in response.

1. The Crusader.  This bold approach involves pointing out every indiscretion and protesting every inequity, no matter how minor the offense or how senior the offending partner.  “You get out of the elevator first, hair-bag!”  It’s a noble battle, but exhausting and potentially fatal to one’s career.  Make sure you know what you’re getting into.

2. The Mata Hari.  A few women, motivated by contempt or frustration, attempt to exploit those feminine resources that male partners appear most willing to recognize and reward.  You can spot a hard-core Mata Hari by her black mesh stockings with seams.

3. The Survivor.  This pragmatic approach consists of equal parts diplomacy, competence, thick skin, and a strong sense of humor.  “Sure, I’ll get you some coffee, Mr. Turk – if you’ll pick up some pantyhose for me when you go out to lunch.”  It includes traces of Katharine Hepburn-like insouciance and Margaret Mead-like tolerance of Neanderthals.

This approach may involve a few concessions to circumstance.  But these concessions are purely cosmetic.  In legal jargon, they are procedural rather than substantive.  You should not feel your core values threatened in situations that require you to endure a conversation about sports, or to resist running around the room with an air freshener when someone lights up a cigar.

Reading this chapter reminds me that we have come a long way in this area, and many others.

Heart Attack Grill Provides New Meaning to Warning

We here at Abnormal Use love checking out product warning labels. Such labels, while serving a necessary purpose, can sometimes seem like a bit of overkill. Must we really warn that sleeping pills may cause drowsiness? Or, better yet, that a beach ball should not be used as a life saving device? The truth is that companies have a reason for these labels – to protect themselves from potential litigation even from the most over-zealous consumers.

We mention this as way of backdrop for an interesting situation that arose last week at The Heart Attack Grill in Las Vegas. According to Yahoo! News, a man recently suffered a heart attack while eating the Grill’s “triple bypass” burger. Fortunately, the man survived the attack, and by all accounts, should make a full recovery. While there is no indication of any potential lawsuits rising out of these events, we here at Abnormal Use had to question whether there could be.

While restaurants have been sued for causing obesity, we are not aware of any restaurants being sued for causing heart attacks. Obviously, the isolated consumption of a burger is not enough on its own to cause an attack. Eating similar foods, however, over a period of time can reek havoc on one’s arteries. Knowing as much, what should the Heart Attack Grill do to protect itself from future lawsuits?

To the restaurant’s credit, it has taken measures to provide adequate warning. If its name was not enough, a sign on its door warns that its food may be hazardous to your health. The Grill’s servers are known as “nurses” and its owner, “Doctor.” With menu items like the “triple bypass” burger and “flatliner” fries, customers should have fair warning the meal would not win the approval of “The Biggest Loser.”

It should be noted that while the restaurant jokingly warns its consumers, it also entices them with its slogan, “Taste worth dying for.” To make matters worse, anyone over 350 pounds eats at the restaurant for free. Unlike the lure of a forbidden fruit, however, a consumer must assume the risk before partaking in a butterfat milkshake. (Yes, it is on the menu).

While this may seem absurd, don’t be surprised to see a restaurant promoting unhealthy food show up on the litigation radar in the future. Fortunately for the Heart Attack Grill, no one can say they didn’t provide fair warning.

Ouch! Electronic Cigarette Explodes in Man’s Mouth.

Thinking about trying one of those electronic cigarettes to help you quit smoking?  May we suggest going with the nicotine gum instead?  It may taste terrible and be tough to chew, but at least it won’t blow up in your face, as one Florida litigant is now alleging.  His electronic cigarette allegedly blew up in his face, leaving him in a hospital with severe burns, missing his front teeth, and missing a chunk of his tongue.

The man was in his home office when the device allegedly exploded, leaving behind burned carpet, furniture, pictures, and office equipment.  That must have been quite the explosion.   The culprit appears to be a faulty lithium rechargeable battery inside the device.  Investigators do not know the brand of electronic cigarette or type of battery. The fire department chief, Joseph Parker, said that ”the best analogy is like it was trying to hold a bottle rocket in your mouth when it went off.”  Ouch!  With a statement like that, we’d say its a pretty safe bet that Chief Parker will be called as a witness for the plaintiff if a lawsuit is filed when a lawsuit is filed.

We previously reported on some of the issues surrounding electronic cigarettes here and here.  However, we certainly didn’t see this BOMBshell coming.  It should be interesting to see what may have caused this explosion, since there appear to be no other similar incidents involving electronic cigarettes.  Was this guy using the device improperly?  How old was this electronic cigarette? Was the battery put in incorrectly?  Did Al-Qaeda get their hands on it?

Discovery in this case should be interesting.

Chevy Volt Still Under Fire

Remember the old adage, “There’s no such thing as bad publicity?”  You may not want to mention it if you run into a General Motors executive anytime soon.  GM saw its prized Chevy Volt’s January sales plummet over 60 percent due, at least in part, to negative publicity over alleged fire risks.

As we previously posted last November,  the Chevy Volt – GM’s extended electric car – was alleged to be at risk to catch fire due to potential design flaws.   The bad press continued in December in the mainstream media.   The result?   In January of 2012, GM sold a whopping 603 Chevy Volts.  This was down from 1529 units the prior month.  By comparison, Nissan Leaf sales were also down in January, but only from 954 to 676.

So it certainly appears that the alleged fire risk played a large role in the declining sales, even though it may not account for the entire decline.

Both GM and the National Highway Traffic Safety Administration (NHTSA) recently concluded that the alleged fire threat is much ado about nothing.  As we also posted in January, we are pretty confident this investigation was completely on the up and up.  It’s not like the NHTSA and the federal government have a vested interest in GM, right?   As an extra incentive, perhaps the feds should throw in a fire extinguisher along with the $7,500 tax credit that buyers get when they purchase a Volt.  They could certainly afford a few fire extinguishers since it doesn’t look like GM will ever sell all of the 200,000 units for which the feds agreed to provide that tax credit.  But we digress.

All of this just goes to show, even if the lawsuits over a defective product don’t get you, the bad press might.  Then again, we’re pretty sure some sort of class-action lawsuit will follow shortly.  They always do, right? Stay tuned.

Friday Links

Way, way back in the early 1970′s, there was once a television program called “The Young Lawyers,” which starred Lee J. Cobb, Judy Pace, and Zalman King (who passed away earlier this month at age 69). At some point during the show’s run, Dell Comics published the comic book above dedicated to the program. Its tagline for this issue reads: “When a bomber strikes, who is to blame?” We would suggest that the person to blame is likely the bomber. (Maybe they young lawyers never took Crim Law.).

Max Kennerly of the Litigation & Trial law blog offers this great post entitled “The Real Risks of Writing a Legal Blog.”

As you know, we here at Abnormal Use go to great lengths to chronicle the hot coffee litigation.  Some have accused of us of trying to relitigate a long dead issue (or is it beat a dead horse?).  However, it seems these issues may be more relevant than even we realized.  Just last week, at the local Starbucks drive-thru right here in our own Greenville, South Carolina, we overheard:  ”Give me a Venti Americano, two Splendas, and . . . make it extra hot!  I mean, really hot!” Contributory negligence, perhaps? Assumption of risk?  Or something more sinister? Perhaps this zealous customer was seeking a golden payday.  Stay tuned to Abnormal Use to find out.

Here we go again!  According to this report by Jon Campisi at Legal News Line, “[a] Philadelphia woman who claims she became burned by a hot cup of coffee at local Burger King is suing the fast food giant in state court.”  The incident occurred on Valentine’s Day 2010, two  years ago this week, and the Plaintiff alleges that “[t]he lid had not been properly placed on the cup, causing the hot coffee to spill on [the Plaintiff]” when the fast food employee handed it to her at the drive thru.  We’ll be following this one.

Hey, deponents, don’t call your 88 year old grandmother “The Creeper” at your deposition.  Okay? Thanks.

Elder Scrolls IV: Oblivion Video Game “Abomb” Becomes Federal Lawsuit

Recently, we learned of a proposed class action filed in the Middle District of Florida against video game maker, Bethesda Softworks, LLC. In the lawsuit, captioned Walewski v. ZeniMax Media, Inc., No. 11CV01178, 2011 WL 2790627 (M.D. Fla. July 18, 2011), Bethesda and its parent corporation ZeniMax are accused of deceptive conduct in “designing, manufacturing, marketing, distributing and selling a defectively designed video game” to consumers. As video game aficionados, we here at Abnormal Use were intrigued. According to the complaint, Bethesda’s Elder Scrolls IV: Oblivion has an inherent design defect that occurs suddenly and without warning. The animation defect, referred to in the complaint as an “abomb,” causes spell effects, doorways and traps to freeze, thus “crippling” the player’s gameplay. Because the abomb drops in “as little as 200 hours of gameplay,” players must rush to finish the game and cannot enjoy the “enormous world” and “unlimited possibilities” advertised on the game’s packaging.

At first glance, the complaint reads more like an editorial from The Onion mocking gamers than a pleading in federal court. We would hate to be the attorney charged with explaining to a federal judge how the abomb affects spell casting and hinders a gamer’s ability to become a Level 35 dark elf. However, we here at Abnormal Use can sympathize with the plaintiff’s abhorrence of video game freezing.

We can still remember our younger days when video game defects could easily be cured by blowing into the cartridge and banging the Nintendo console a few times. As technology has improved, these old-fashioned remedies are no longer available. But is a federal court the proper venue to redress these problems?

If the basis of these claims were another product, a computer for example, rather than a video game, this lawsuit likely would receive less scrutiny. If our computers froze after 200 hours of use, denying us access to the Internet, we may be more likely to consider the product defective. But a video game? Maybe it’s the stigma talking, but we doubt this one will hold up in a court of law.

This defect allegedly occurs after at least 200 hours of gameplay. In the named plaintiff’s case, the defect arose after 450 hours. What is the shelf life on a video game? The plaintiff may not consider 450 hours ample time to explore Oblivion, but we consider it the equivalent of a pickup truck rolling over 200,000 miles. Four hundred fifty hours is over an hour of gameplay per day for a year. Maybe the abomb is Bethesda’s cue that your social life may be lacking.

According to reports, a Florida magistrate has recently recommended the case be dismissed on jurisdictional grounds. However, it will be interesting to see if this is just the beginning of the video game defect lawsuit. We too have experienced our own fair share of “abombs.” We just choose to if them the old-fashioned way – by turning the game off.

P.S. According to the complaint, every copy of Oblivion is affected with the abomb. We can personally attest that we purchased Oblivion when it was released in 2008 and we still maintain the ability to cast spells and open doors (not that we do this type of thing on a regular basis).