Abnormal Use Takes in Family Circle Cup, Causes Player Losses

Recently, our home state of South Carolina hosted the Family Circle Cup, a WTA tennis tournament.  The Charleston, South Carolina event featured 80 of the top female tennis players in the world competing for the title.  We here at Abnormal Use were on hand to report on the tournament.  You must be thinking what place a torts blog has at a professional tennis tournament.  Admittedly, in the beginning, we were wondering the same thing ourselves.  Shortly into the event, however, we realized the event was full of product liability news – only this time we were the unreasonably dangerous product, metaphorically speaking.

The Cup taught us that we can be unreasonably dangerous.  Our presence at the event was harmful to a number of the world’s top tennis players, and we have the following evidence to prove it:

  • Exhibit 1: Friday morning, we were greeted by (or shared a hotel elevator with) World No. 9 ranked player Vera Zvonerava.  Several hours later she was upset in straight sets, 6-3, 6-3.
  • Exhibit 2: Saturday morning, we had breakfast with (or sat in the same room as) surprise semi-finalist, Polona Hercog.  Later that day, she was double-bageled, 6-0, 6-0.
  • Exhibit 3: Saturday night, we ran into Lucie Safarova in the hotel lobby.  The next day, she was destroyed in the final by Serena Williams, 6-0, 6-1.

We have always believed that we were bad luck charms for our favorite teams.  Our attendance at sporting events always seems to result in losses for whoever we throw our support.  At the Family Circle Cup, we didn’t have a dog in the fight, so we thought all players were safe.  Looking at the evidence, however, can lead to only one reasonable conclusion – our bad luck is far-reaching.

Some may argue that losses are due to our teams’ lack of talent and not the result of our presence.  While that may be the case with the Charlotte Bobcats, how else can we explain the upset loss of a Top-10 player after sharing an elevator with us?  If we aren’t “defective,” why would players who have been playing tremendous tennis get shut out in the rounds that followed our encounters?  Shutouts rarely happen in professional tennis even in some of the largest mismatches.

Under a res ipsa theory, we may be in trouble.  Our unreasonably dangerous presence is the only way to explain these players’ losses.  Combine that with the admissions made in this blog and Zvonerava, Hercog, and Safarova have a good prima facie case against us.  So, do us a favor.  Don’t alert these players to their potential claims.  While you’re at it, you may want to take some steps to keep us away from your favorite players as well.

Friday Links

Okay, you’re not nerdy like us. You don’t know the DC Comics hero Booster Gold.  Well, he’s a super hero.  From the future.  He came back to our time – from the future – and uses all of his advanced technology to help us, the citizens of his past.  Above, you’ll find the cover of Booster Gold #14, published way back in the simple and easy days of 1987. Here’s our question: If, as the cover indicates, Booster Gold is a fugitive, sought by the police, why does the wanted poster say he is wanted for “treason and theft”?  I mean, isn’t it enough to just say he’s wanted for treason?   Do we really need to throw theft in there, too? That’s like saying: “Wanted for Treason and Jaywalking.”  Keep it simple, future police!

Andy Mergendahl at Lawyerist concludes that “Music on Vinyl is Better.”  This is one of the most important issues facing lawyers, actually.  We will not be left out of this debate. We will respond with a far more substantive post sometime in the future, but until then, read Andy’s piece.  We welcome your comments on this issue.

In this interesting post, our friends at The Law and The Multiverse blog answer this question:  ”[W]hat would happen if a superhero was summoned for jury service in his/her secret identity, and the case turned out to be one where the character had been involved as a crimefighter and might even be expected to appear as a witness?”

By the way, since we’re talking about music, friend of the blog Matt Wake had his first piece published in Paste Magazine this week.  The title: “16 Musicians Discuss Their First Concert T-Shirts.”  We here at Abnormal Use would tell you about our first concert t-shirts, but unfortunately, they were all purchased during our embarrassing heavy metal stage.

Lo and behold! David Francis of The Blog respond to our prior post, “Deposing Siri,” in his own post, entitled “Suing Siri: Deceptive Advertising or Frivolous Lawsuit?

iPads at Depositions

As we’ve previously mentioned, our editor Jim Dedman is now contributing one monthly post to the North Carolina Law Blog.  Yesterday, his most recent submission was published at that site.  The topic: “iPads at Depositions.”  In this age of tablets, laptops, and portable communication devices, Jim asks an important question with respect to discovery practice:

[W]hy are we are we continuing to bring [all] these papers with us to depositions?  Well, the custom is, and the rules generally require, that the deposing lawyer provide copies of each exhibit to any lawyer present at the deposition.  We also need for the witness to be able to physically hold a copy of the exhibit, which, of course becomes the property of the court reporter who attaches it to the deposition in question. Lots of paper, that.

There’s a better way.

Indeed, there is.  Jim envisions a world in which trees live, thrive, and survive based without fear that they will become deposition exhibits.

There’s more, so click here to read the rest.

Abnormal Use’s Tips on Facing Frivolous Lawsuits

Recently, MSNBC’s Tucson, Arizona affiliate offered some tips on protecting one’s assets from “crazy lawsuits.”  While the tips are nothing revolutionary, they are helpful.  Obtaining insurance and converting a business into a limited liability company can protect protect personal assets in the event of litigation.  However, there is much more to say on this issue.  Accordingly, we here at Abnormal Use must step in at this point and offer these additional tips to those unfortunate souls facing a “crazy lawsuit.”

First, prepare yourself.  While at first glance you may think a lawsuit is “crazy,” it may have more validity that you realized once you understand the applicable law.  Even those with the best of intentions can find themselves facing a damaging lawsuit.  It’s important to identify the strengths and weaknesses of your case from the outset.  Find a good lawyer and allow him or her to prepare a good defense.

Second, don’t think of the lawsuit as “crazy.”  The lexicon is, after all, everything. Rather, start thinking like a lawyer. It’s not a crazy case, but one in which you have no liability.  Calling the plaintiff’s case “crazy” is no way to get a lawsuit thrown out on summary judgment.  (Would that it were so.). By taking even the most marginal suits seriously, you can concentrate on forming the proper defense and addressing each element of the tort.  Remember, even “crazy lawsuits” are very real in the eyes of the court and must be handled appropriately.

Finally, trust the court system.  Our system is not perfect, but it’s the best thing going.  If a lawsuit is truly “crazy,” have faith that a jury of your peers will see it the same way.  If you and those on your behalf have prepared and handled the case properly, it will be evident at trial.  While a jury is always a wild card, you have to trust them – it’s your only choice.

Thousands of lawsuits flow through our courts every year – some frivolous, some valid.  In this day and age, most lawsuits settle before trial.  But of those that do not, very few make national news due to an outrageous verdict.  If you find yourself facing a potentially “crazy lawsuit,” don’t fret.

After all, only the craziest of the crazy lawsuits become the subject of award-winning HBO documentaries.

Deposition Questions: Plaintiff’s Criminal History

Here’s something particularly irksome: Plaintiff’s lawyers who instruct their clients not to answer deposition questions about criminal history because it is too embarrassing to answer.  As defense lawyers, we all have our personalized deposition outlines, and most of them include questions relating to a plaintiff’s past lawsuits, worker’s compensation claims, disability applications, and of course, prior criminal history (including convictions and arrests).

“Have you ever been arrested?”

“Have you ever been convicted of a crime?”

These are standard questions.  Oftentimes, plaintiffs reply in the negative, and any pre-deposition investigation has already confirmed that answer, and the deposition moves forward.  However, diligent counsel typically already know the answer to this question, having done an investigation into the background of the plaintiff prior to the deposition.  So, when these questions are asked, we know what the answer will be.  Plaintiff’s lawyers may or may not be aware.

But in a number of cases in the past, plaintiff’s lawyers have actually instructed their clients not to answer these questions.

But on what basis?  Sometimes, on the basis of “harassment,” although that’s a tough sell, because the rules of evidence specifically provide that a party can be impeached by a past criminal conviction.  Questions about past convictions can lead to relevant impeachment evidence; and questions about arrests (which themselves may not be admissible) are appropriate in that they could lead to admissible evidence, i.e. subsequent convictions.

Sometimes, though, plaintiff’s lawyers will instruct their clients not to answer on the grounds that the answer itself is not admissible.  What?  How can that be?  Deposition testimony is often not admissible.  In pretrial hearings, we often fight tooth and nail over the admissibility of certain facts elicited in depositions.  Simply because something is discussed at a deposition does not mean that it is later admissible at trial.  We can explore topics at depositions that are technically not admissible at trial because those questions may be calculated to lead to admissible evidence. So, really, this is just another way to state the “it’s way too embarrassing” objection.

Once, at a deposition, I asked a plaintiff if he had ever been convicted of a crime. Of course, I already knew that he had been arrested and later convicted of a number of crimes.  “Not in the last ten years,” he quickly and carefully replied, automatically suggesting that he had had a substantive discussion about the rules of evidence with his attorney about what may or may not be admissible.  I couldn’t help but chuckle.  Clearly, though, the fact that a conviction may be a decade old, and thus stale under the Rules of Evidence, does not prohibit the deposing party from asking about past arrests or convictions.  The rules have exceptions relating to stale convictions, and the court has discretion under the rules to admit into evidence even a stale conviction into evidence.  Thus, questions about past arrests and convictions can lead to the discovery of relevant admissible evidence even if the convictions at issue are decades old.

Further, there are other reasons why such criminal history might be admissible other than for impeachment.  When a plaintiff claims that a particular injury or issue affects future employment opportunities, or when a plaintiff’s expert opines about the type of work that a plaintiff might not be able to do, former criminal convictions and arrests are important evidence factoring in to the Plaintiff’s future employment opportunities.

So, let’s stop with the instructions not to answer on criminal history.  These questions are not abusive, they are not harassing, and they certainly may lead to relevant admissible evidence, impeachment or otherwise.

The New Ultrahazardous Activity: Firing a Bottle Rocket from Your @#%

This case gives a whole new meaning to the phrase “blow it out your rear.”  As we all learned in law school, there’s strict liability when a person or entity chooses to engage in ultrahazardous activities.  Classic examples of ultrahazardous activities include really dangerous things like imploding a building or transporting hazardous waste.  Well now, according to a lawsuit out of West Virginia, ultrahazardous activities should include firing bottle rockets out of your anus.

Yes, you read that correctly.  A West Virginia student allegedly fell off the deck at his fraternity house when his fraternity brother fired a bottle rocket out of his own anus.  The student alleges the firing of the bottle rocket startled him so much that he jumped back and fell off of the deck.  The lawsuit claims that “firing bottle rockets out of one’s anus, constitutes an ‘ultrahazardous’ activity.”

We don’t think there’s any dispute that this alleged activity is certainly dangerous for the party attempting the stunt.  In fact, the bottle rocket reportedly failed to launch and blew up in the defendant’s rectum.  But is this the kind of ultrahazardous activity envisioned by the law, such that a defendant is subject to strict liability?

According to the Restatement (2d) of Torts, section 520, in determining whether an activity is ultrahazardous, courts should consider: 1) high risk of harm; 2) inability to eliminate risk; 3) extent to which the activity is not common; 4) appropriateness of the place where the activity is conducted; and 5) balance of community value of the activity versus the dangerous attributes.  There are some interesting and funny arguments to be made for both sides. For instance, we envision an argument from the defendant claiming that if a frat house is not the appropriate place for this kind of shenanigans, what location might be?

This case is still in its early stages, but we are certainly hoping it makes it to trial.  It should be interesting.

Friday Links

If you only read Abnormal Use on weekdays, you may have missed our Sunday, April 1 post, entitled “American Bar Association Denies Provisional Accreditation To Miskatonic University School of Law.”  Yes, of course, it was an April Fool’s Day joke. We figured since our traffic is generally low on the weekends, we could reference something far, far more obscure than usual, in this case the mythos and milieu of horror writer H.P. Lovecraft.  The mythic Miskatonic University – which even has its own Wikipedia entry! – is a fictional institution created by Lovecraft and referenced by other writers who have followed in Lovecraft’s footsteps.  It’s an eerie place dedicated to the study of the ancient and occult. There are even books solely dedicated the fictive school. The existence of Miskatonic University: A Sourcebook, a role playing game guidebook, should tell you something about how Lovecraft’s creations have been honored over the  years.  (And that’s not the only book dedicated to the faux institution.). We thought it would be as good fake university as any upon which to base a parody piece on the ABA accreditation process, but in the end, the reference may have simply proven that we are far, far nerdier than you ever thought we were. (We know at least one of you caught the reference!) By the way, the image above is the cover art for the aforementioned Miskatonic University: A Sourcebook, which pretty much captures the spirit of the school, we think.

By the way, in the interests of completism, we present these links to our two past April Fool’s Day Posts:

Star Wars Prequels Unreasonably Dangerous and Defective, South Carolina Federal Court Finds” (April 1, 2011)

Unsatisfying Snickers Bar Unreasonably Dangerous and Defective, Texas Court Holds” (April 1, 2010)

So, five days after this year’s April Fool’s Day, you can now go back and revisit our posts from April Fool’s Days past.  Better late than never, eh? Enjoy.

New York Judge to Prospective Law Students: Caveat Emptor

Recently, a New York judge threw out a lawsuit by nine former students of New York Law School (NYLS) who accused the school of engaging in deceptive practices by inflating employment statistics to attract prospective students.  Even though NYLS won the battle, neither the school, the students, nor the legal profession in general came out looking too good.   The judge basically said that the school may be “lackluster” and the employment statistics may have been misleading (although not materially) but the students should have done their homework before plunking down over $100k on tuition.

Just by way of background, NYLS ranked #135 in the latest U.S. News & World Report law school rankings, which is only a few spots ahead of where the magazine stops assigning schools a number.  NYLS charges its students $47,800 per year in tuition and fees alone.  At least they seem to spell that one out in black and white on their website.

The crux of the disgruntled students’ lawsuit was that the school’s website and marketing materials would have led a reasonable consumer to believe that between 90 to 92 percent of the school’s graduates secured full-time jobs as lawyers within nine months of graduation.  However, in reality that percentage included students who only secured part-time legal jobs, as well as students who secured non-legal employment.  According to the complaint, only 40 percent of the school’s graduates had full-time jobs that required a law degree.  Ninety-two  vs 40 percent – minor details right?

Even if that detail was buried somewhere deep within the pretty NYLS brochures, the judge believed it was the students’ duty to dig deeper and find the hidden truth.   He held that “by anyone’s definition, reasonable consumers – college graduates – seriously considering law schools are a sophisticated subset of education consumers, capable of sifting through data and weighing alternatives.”

We particularly liked this tidbit from the judge: “It is difficult for the court to conceive that somehow lost on these plaintiffs is the fact that a godly number of law school graduates toil in the drudgery or have less than hugely successful legal careers.  NYLS applicants, as a reasonable consumer of a legal education, would have to be wearing blinders to not be aware of these well-established facts of life in the world of legal employment.”

Even after all this bad press, NYLS still publishes employment data that appears to be vague at the very least.  If you look at their current numbers, it is unclear how they define whether someone has a legal job.  They claim a job is a “legal position” if a JD is “required or preferred.”  What exactly is “preferred”? More importantly, there’s a number that is glaringly missing from all those stats: only 65 percent of 2010 NYLS graduates were employed as lawyers at the time the data was gathered.  After you remove the 5.7 percent of graduates “employed” as fellows, only 310 out of the 481 NYLS graduates are working in “legal positions” under the curious “JD required or preferred” standard.  Moreover, they don’t disclose how many of those 310 had full-time legal jobs.

We here at Abnormal Use tend to agree that prospective law school students should be smart enough to do some independent investigating and figure out whether a law school is truly a good investment for them.  It really only takes a few minutes of Google searching to reveal that most law school employment data is a somewhat of a sham.  However, we can’t help but wonder whether law students should be expected to dig deeper.  In this noble profession of law, shouldn’t a prospective student expect to be given honest, open, and candid information from the institutions charged with molding young lawyers?

Abnormal Interviews: Rodney Smolla, Lawyer and President of Furman University [Part 2 of 2]

Last week, in a series of posts, we analyzed the law school paradigm through a product liability lens.  Accordingly, we posed some questions to someone who has unique perspective on such issues.To that end, today, we continue our series, “Abnormal Interviews,” in which we conduct brief interviews with law professors, practitioners and other commentators in the field.  For this installment, we turn once again to Rodney Smolla, President of Furman University right here in Greenville, South Carolina.  As we noted in the first part of our interview with him yesterday, President Smolla is a former practicing attorney and former Dean of Washington and Lee University School of Law, where he worked to overhaul the school’s third year curriculum.  Yesterday’s interview focused on ethics and general practice issues, while today, we focus directly on legal education.

ABNORMAL USE: What is the goal of a legal education in your opinion?  Is it “to think like a lawyer?” Or is it to be prepared from a practical standpoint to actually practice law in the real world?

RS: . . . [I]t is not either of those two things because the practice of law is not either of those two things primarily.  The practice of law is not the manipulation of legal doctrine and legal theory and thinking like a lawyer very much because we all do that and we all do that equally well.  We all largely master that after the first year of law school; so the basic tools of thinking like a lawyer, which is the famous mantra that is listed forever and is enormously important, but 90 percent of that work is accomplished in the first year of law school.  The mechanics of law practice are important but easily learned in practice and to some degree usually learned even within law school.  But most lawyers are not paid because they are good mechanics.  Eighty percent of law practice, I’d argue, and the thing that you get really paid to do, and the thing that distinguishes the best from the average lawyers, from the substandard lawyers, is judgment.  Judgment, problem solving, advising clients, counseling clients, advocating for clients is almost entirely judgment.  What law schools largely ignored was that middle band of practicing law, which is everything.  It’s taking the intellectual part, the understanding of res ipsa loquitur, the understanding of strict liability standards, the understanding of failure to warn doctrine, the understanding of inherently dangerous products theory, all of which are relatively easy to master in their basic intellectual component in a first-year torts course, and maybe a second or third-year products liability course, all those legal doctrines, the theories, the economics behind different approaches, are intellectually interesting.  But most good law students get it and understand what res ipsa loquitur is or they understand the difference between strict liability and negligence, they understand assumption of risk, they understand those doctrines.  We don’t get paid by our client to recite those doctrines, nor do we get paid because we understand the rules of the local court system on interrogatories or request for documents.

What we get paid for is translating that into the messy picture of a product that explodes and injures somebody, the multiple parties that were involved, the economic pros and cons of settling rather than pursuing the matter, the human factors that will influence what we think a jury would do, what we think an appellate court would do, or the trial judge would do, the business interests of the client, the full range of matters that are implicated if we recalled this product or don’t, if we add this warranty or don’t, if we settle this case or don’t, the creativity it may take to come up with different ways to resolve the case, different ways to defend the case, or if you are on the plaintiff’s side, different ways to bring the case to the plaintiff’s side – that’s all judgment, creativity, relationships with client, relationships with opposing counsel, that is the art of practicing law.  It’s complicated, it’s messy, it’s heavily dependent on facts, heavily dependent on the human equation, and law schools need to do better in exposing students to that, exposing students to problem-solving, to creativity, to how you interact with clients, how you interact with opposing counsel, how you interact with judges.  People who have criticized either law schools that are entirely theoretical or law schools that are pointed to as being pedestrian because they are too practical, I think missed the boat.  What you want is to work on that middle range.  I think that law schools for a long time ignored that range but they are starting to move and you’re starting to see a transformation.  What will evolve from that is a healthy blend of the kind of classical first-year instruction that we have, basic courses, some building on that in upper-class courses, but a richer mix of about a third to a half of the rest of law school being more problem-oriented, simulation of legal problems, less concerned with teaching a lot of doctrine, and more concerned with teaching students how to translate that into the kinds of judgment that you have to make as a lawyer.  That’s a long answer but I hope that builds for you in what you want to do.

AU: As dean of the law school at Washington & Lee University, you overhauled the third year curriculum, perhaps to address these issues of judgment as part of a legal education.  Tell us some of the specifics that you implemented for the new third year program.

RS: The Washington & Lee program was very dramatic, and I was very proud of the law faculty and very proud of the law school that it had the courage to take the steps it did.  The decision was to make a dramatic statement, turning the entire third year into a simulation of law practice, for actual practice experiences through the clinics that the law school ran, to reduce the number of subjects and just have a few subjects in which the student would be intensely engaged in the kinds of things I have described, with an eye towards teaching judgment, professionalism, writing, argument, conflict resolution, and what it really takes to practice law at a sophisticated level.  So the decision was made to do that, and after I left, the decision was made to continue to do it.  So it wasn’t just something that I personally was a champion of that the school embarked upon and is committed to for its future.  I am very proud of Washington & Lee for having the leadership in American legal education to do that and the law faculty continues to make adjustments.  They find things that work well, things that don’t work as well, and as you would expect, it continues to always try to tinker and improve it.  But the basic notion of making that third year a true transition to practice, is something they remain committed to.

AU: Were there any models at other law schools that you looked to when Washington & Lee was designing its own program?

RS: There were many models for individual courses; so we found examples at almost every law school in the country of a particular professor who taught a course that adopted new sorts of principles.  There was nobody that made the commitment to turn the entire third-year experience into that and to make it mandatory.  Of course, there were many law schools that had heavily emphasized clinical experience and may have made clinics the entire experience of a semester, for example.  Because we wanted this to be comprehensive and be available for every part of the curriculum, clinics were part of the mix of the Washington & Lee solution, but were only about a quarter of that mix.  The other 75 percent were simulations of law practice that covered many areas that traditionally weren’t the kinds of subjects where you’d have law clinics.  So that was very innovative and a real instructive change.

The other point worth making is we wanted to take the law school and put it out into the profession and also bring the profession into the law school.  We developed a lot of partnerships with law firms, lawyers, and judges in the area, and by the area, I mean not just Lexington, but reaching all the way to Washington and Charlotte and across Virginia and even relationships sometimes with lawyers who commuted from other major metropolitan areas to be part of this, which was a real commitment on their part.  We said we don’t want you to be an adjunct professor in the traditional sense; we don’t want you to come and teach a law school course in a traditional sense, we want you to treat this as if these are young lawyers in your law firm that you are bringing in on a matter in which you were the lead counsel and these were your associates and you’re walking them through their first grade products liability case or their first bankruptcy proceeding.  They are working side-by-side with you, through the first draft of materials to begin to interview clients and do the sorts of things that you would do; so we don’t want you to come be a law professor, or mentor, in the shelter of a law school environment, where your students get do-overs, and there’s no real client injured.  We found that practicing lawyers in law firms loved doing that and were very generous with their time and willing to be part of it; often we were able to pair a law firm with a member of the faculty, and as a team, they would create these experiences.  It was a marvelous growth experience for our law students.

AU: Do you see that sort of curriculum being the future of legal education or do you think it will remain entrenched in the Socratic method and case studies?

RS: I hope it’s the future and I am going to continue to be a champion for it being the future.  Don’t get me wrong – I love the Socratic method.  I love teaching first-year students.  I used to be a torts teacher.  I loved teaching first-year torts.  I loved teaching constitutional law, but I think after about a year of that, or a year and a half of that, it’s outlived its usefulness and the students have mastered that and they know how to think like lawyers.  Then we need to help them grow in other ways.

The other thing I believe is there was once a time, maybe 80 years ago in which the law school curriculum covered just about every subject matter that existed in American legal practice but the law has exploded.  You could never keep up with legal doctrine, you could never keep up with the expanse of subjects, and even within a field, if you’re just talking about the regulatory environment, the doctrinal environment, even within something like products liability law, you could never hope to master all the intricacies of all of the doctrines and the evolution of products law within a particular band of a particular industry in law school.  So you might as well give up that, because that’s not the point of being a lawyer.  The lawyer can keep up with their one area or their few areas and master what’s going on there and they go to conferences, subscribe to services, and so on – you want students to learn, master areas on your own, keep up with it, but there’s no way you’re going to get all of that in law school and that’s not the point of law school.  The point is that it’s to help you develop these competencies, not some pile of law that’s in your head.

AU: Today, there is an ongoing debate about the cost of a legal education, or for that matter any higher education, the debt load that creates for many students, and the value of that education, i.e. the salary the graduates of the institution can earn with their degrees.  Do you have any thoughts on the subject?

RS: I think it’s a very healthy and important debate to have.  There are probably some nuances and some differences between that debate at the bachelor’s degree level or that debate as it applies to public and private universities that are educating college students for their first college degree and how it applies within the professional school level, medical school and law school, for example.  It’s probably important to draw some distinctions between those two arenas.

Overall, it’s a very important debate and I don’t think as a society, we’ve figured it out yet.  There are a lot of complexities.  My own thinking is evolving to separate the debate into two different types of questions.  One is the strategic question and the other is a more moral public policy question.

Strategically, from the perspective of universities and from the perspective of law schools, the pricing question is simply like any business question, what will the market bear?  Are there enough students that will come to this law school, at this price, to allow us to run at this level of activity.  A law school or a university can make those judgments based on how many applicants it has, how successful it is in filling its class, how much financial aid its clients have to give out in order to attract qualified students.  Those strategic judgments are not unlike any business judgment that any of our clients in the law would routinely make.  The answers to those strategy questions will vary depending on the school; some schools are more competitive than others; some schools will have tremendous applicant pressure because everybody wants to go there if they can, and value that and understands that those schools are successful in getting students jobs, and so they have the luxury of charging what the market will bear.  Other schools are less competitive, worry about filling their classes, maybe do not have the same success rate, and have to be very concerned about their price and the sensitivity of the price, although a lot of that is strategy, your position in the market.

Setting that aside, there is a giant moral dimension to this and that moral dimension is tied to the role education plays in our democracy, to our belief in the American dream, and upward mobility, to our belief that highly qualified students who could contribute to society, should go to college and go to law school if they want to be law students, and money ought not keep them out.  I believe in that personally as a value; I believe in that as a citizen.  I believe in that as a member of the profession.  So figuring out how to guarantee access to students from poor backgrounds and families from middle-class backgrounds where the cost of attending universities is approaching what it costs to own a home, in many cases more expensive than what it costs to own a home, is a giant issue facing the country.  Some might argue, well that’s the role of the public education, that’s what state universities are supposed to do, make education universally acceptable, and that’s why in-state tuitions are lower and that’s why we support in-state institutions with tax dollars, and state law schools fulfill that role in our society.  But I’m a believer that it’s also a part of the obligation of private universities and that private universities also fulfill a public function and have a public obligation.  I certainly feel that way about Furman.

I feel that Furman must remain a place that is accessible to students who grew up in poverty and students from lower-middle class background, or we’ll be failing the country and we’ll be failing society, we will be a less vibrant environment and a less rich environment, no pun intended, for our students.  So that means we have to work very hard to figure out how to finance that and how to raise the money you need and the scholarship money you need or manage our economic resources so that we can provide the scholarship aid to remain accessible.  I know that’s a long answer.  Value is not strictly an accountant’s calculation.  The value to the country and the value to an individual of a liberal arts education or a superb law school education that is rounded, rigorous, and develops a young lawyer in a whole sense, goes beyond simply their earning power and their ability to pay back loans.  That’s a fair part of the mix but there are so many other intangibles that make for life being fulfilling and I think that’s true of college.  I think being a lawyer is a wonderful life and very fulfilling for many members of the profession and that law school is still worth it, even as the market changes and the economics and the profession changes.

AU:  Setting aside the movie based on your book, Deliberate Intent, what’s your favorite legal movie?

RS: If it’s a legal movie, it’s an easy answer, To Kill A Mockingbird.  Not just my favorite legal movie, probably my favorite movie, period.  I just think it’s a magnificent movie.  It’s one of those rare examples in which the movie and the book are equally magnificent.  I think it’s one of the great works of literature in American history and the movie stands alone, on its own, with magnificent performances by everyone.  Atticus Finch is the most romantic, ideal vision of a moral, ethical, righteous lawyer that one could have.  I still cry when I see the courtroom scene in that movie.  So that’s my favorite.

BIOGRAPHY: Rod Smolla is a 1975 graduate of Yale University, where he was a member of the football team.  He graduated first in his class from Duke University Law School in 1978.  He is currently President of Furman University, in Greenville, South Carolina, a national liberal arts university founded in 1826.  President Smolla previously served as Dean and Professor of Law at Washington & Lee School of Law and at Richmond School of Law.  He also previously served as Director of the Institute of Bill of Rights Law at the College of William & Mary.  He is a nationally recognized scholar, teacher, advocate, and writer, and is one of America’s foremost experts on issues relating to freedom of speech, academic freedom, and freedom of the press.  President Smolla’s latest book, The Constitution Goes to College (New York University Press, 2011), describes the constitutional principles and ideas that have shaped American higher education.

Abnormal Interviews: Rodney Smolla, Lawyer and President of Furman University [Part 1 of 2]

Today, we here at Abnormal Use continue our series, “Abnormal Interviews,” in which we conduct brief interviews with law professors, practitioners, and other commentators in the field.  For this installment, we turn to Rodney Smolla, lawyer and current President of Furman University right here in Greenville, South Carolina.  President Smolla was Dean and Professor of Law at Washington & Lee School of Law before becoming President of Furman in July 2010.  We will be running this interview in two parts.  The first, published today, was conducted by Stuart Mauney, while the second, to be published tomorrow, was conducted by Frances Zacher. In today’s installment, Smolla talks about civility in the legal profession, tips for appellate lawyers, and his varied First Amendment scholarship and litigation.

ABNORMAL USE: Since you came to Furman University in July of 2010, you have emphasized civilized public discourse.  In fact, that was the theme of your speech to the South Carolina Bar Annual Meeting in January 2012.  How did that become a passion of yours?

ROD SMOLLA: I guess it’s the flip side of my interest in freedom of speech.  Even though I am a strong defender of freedom of speech, which often means defending highly offensive speech, I really don’t like it.  So I think part of it is that the notion that has become almost a cliché, but I think should not be a cliché, that the mere fact that we have freedom doesn’t mean we ought to exercise it irresponsibly.  There’s a fundamental difference between having freedom and being a responsible member of our society.  I think that’s one reason.

Another is what I absorbed as part of the value system of the legal profession.  Although we have lawyers that practice in an uncivilized manner and we have episodes of incivility within the profession, overall, there is a strong consensus I think, and commitment among the best lawyers, to the notion of civility in the way we practice law.  Many lawyers embrace that as a core value and is one of the principal meanings of professionalism.  I think great lawyers realize you can be a very passionate advocate for your client, and a zealous advocate for your client, and still stay within the bounds of courtesy, civility, respect for the other actors in the system, and drawing the distinction between attacking one’s opponent on the merits, on the substance of the facts and the legal principles and policies, and hitting below the belt and making the attacks personal.  I also think the very best lawyers don’t see it as their job to amplify the emotional intensity of their client but to filter and to absorb it and to seek conflict resolution that resolves controversy, if that’s not inconsistent with acting in the best interest of one’s client.

If that is true within the legal profession, it ought to also be true within the value system of most universities.  If you think about it, we are committed to freedom of speech and wide open discourse and examining ideas and having a combat of ideas but also are committed to an ethos of professionalism in the way that we conduct ourselves in the combat of those ideas.  Teaching students that it is possible to debate the issues of the day, to debate the fundamental issues of science, religion, politics, and the arts with intensity yet with respect to others, is a very important part of their education.

AU: How can Furman be a leader in the community on the issue of civility?

RS: I think Furman, or for that matter, any university, can play a constructive role within a community by convening discussion, hard issues that face the community, and in those discussions, using the prerogative of the convener, of the chair, to try to model and encourage and facilitate civility in those discussions.  I think that’s something that Furman can do and contribute in our immediate environment and across the State of South Carolina and that any university can do within the community in which it resides.

AU: You have written several books, one of which is Deliberate Intent, which describes your involvement in the Hit Man case.  You represented the families of murder victims in a lawsuit against the publisher of a murder instruction manual.  At the time you were involved in that, you had already become a noted First Amendment scholar.  How were you treated by your colleagues in the law after your involvement in that case?

RS: Well, it depends on which side they were on.  (Laughter.)  I think that that was a case that people were passionate about on both sides, and as any lawyer knows from your involvement in a case in which people have strong feelings, you will get passionate praise and passionate criticism depending on the side that the critique is coming from.  I did maintain and I continue to maintain very good friendships and very good collegial relationships with the lawyers that were on the opposite side of me in that case, both as parties and friends of the court.  I count them among my professional friends, and in some instances, personal friends notwithstanding the fact that we were on opposite sides.  In some instances, I would later work with lawyers that were on the opposite side of that case as friends of the court, for example, but were on the same side as me in a different manner. So I think it was an exemplar of civility of discourse, and that best part of our legal tradition, which is we don’t take personally the fact that one is on the opposite side of an issue or represent clients that are on the opposite side of an issue.

AU: Deliberate Intent was made into a movie.

RS: It was made into it a movie and was the first FX television movie, I’m proud to say.

AU: And Timothy Hutton played Rod Smolla.  How did he do?

RS: I wish I had his hair, I’ll tell you that.  (Laughter.)  I thought he did a great job, and the script writers did a great job.  It’s not easy to take a complicated legal matter and reduce it to a movie and particularly a legal matter such as this, which has very complicated issues of legal doctrine.  I thought that they did a great job of weaving in the murder mystery and the murder story, which was a good old fashion “Law & Order” style thriller, and the intellectual issues that were posed by the case.  So I was pleased by the movie.

AU: You have argued before the U.S. Supreme Court, including the Virginia v. Black case, which involved the Virginia statute that banned cross-burning.  One Supreme Court reporter described the advocacy in that case in this way: “When you have a good oral advocate doing a good job on a good issue, the place always arcs up like a tinfoil in a microwave.”  I think she was describing you.  What was it like to argue before the U.S. Supreme Court?

RS: It was what I imagined it’s like to be the quarterback in the Super Bowl.  I would do it again tomorrow morning.  I have a recurring fantasy that somebody scheduled to argue in the Supreme Court unfortunately gets sick and can’t do it and is looking for someone to come in as a substitute at the last second and calls me and I show up the next morning and take the case.  And, of course, the person always turns out to be all right the next day, but I would argue a case in Supreme Court again in a heartbeat.  If you are an appellate lawyer, it’s going to the Super Bowl.  I savored every second of it as a personal experience.  It was, in fact, a very fascinating, interesting case on its legal merit and in its emotional intensity and it was a dramatic oral argument.  So I loved the experience and hope that I get to do it again some day.

AU: What advice would you give to lawyers who are preparing for an appellate argument at any level?

RS: I guess it’s the usual – I like to encourage appellate advocates to not bring anything to the podium.  I am in that school of thought that you should have no papers with you at all, the entire case should be in your head, and that you should imagine the entire case as a grilling from the bench and so canned speeches – the idea that you have a set piece that you have to get through is the antipathy of effective oral argument.  Rather, what you want to do is anticipate the questions you will be asked, according to ones you are most likely to be asked but also all the strange questions that might come out of what appears to be left field.  What I liked to say to other appellate lawyers and to law students is you need to ask yourself if I lose this case, why would I lose it?  If the most brilliant person in the world who is my worst enemy wanted to go for the weakness in my case, the jugular in my case, wants to write an opinion that’s going to cause me to lose, what will that do to my case, what’s my biggest vulnerability, what’s my biggest weakness?  Think of all of the ways you can be pounded on that, all the clever ways that they can ask you questions on that.  Then figure out what your answer is.  Don’t have a mushy version of what your answer is.  Figure out what your position actually is.  Nothing frustrates an appellate court more than a fuzzy answer.  Even if the answer you know will alienate a judge or two, or a justice or two, its better to at least know what you stand for and what your arguments are going to be, and have thought through your answers to all of those questions and welcome them.  So that’s my first admonition.

The second is sort of the flip.  If I’m going to win this case, how am I going to win it?  What answers to questions will help me when it will give me a chance to win it?

Then the final thing I’ll say is be totally zoned on the judges and justices.  Be looking at them, be feeling them, their body language, their eyes, their lips, the tone of their voice; be totally delved in on them and try to understand where they’re coming from, what their problem is, because if you sense somebody’s against you, if you sense somebody is not persuaded, you’re not helping your client if you don’t engage.  You’ve got to try to figure out what’s bothering that judge and be almost conversational in not trying to avoid the judge’s question but coming back at it and looking for ways to get inside what’s bothering them so that you can start to say, oh now I see what your worry is about, as to “let me tell you judge why you should be worried.”  I think you’ve got to do that, and I think if you do that, if you just treat it as the judge is a colleague, that they are not above you, they have a different role but they are trying to do justice, you’re trying to advance your client’s interests.  This is your chance to get inside that judge’s heart or mind and let them know your reason for why they should rule your way and don’t be afraid of that, welcome that; it’s your chance to persuade, and if you approach it that way, which could be frightening to lawyers because that’s spontaneous, that’s not canned, that makes for a great appellate advocate.  If you watch the masters, they get a chemistry going with the judges.  Even the judges that are opposed to them, and there’s a feeling of honesty in the exchange, not trying to pull one over.  You’re never going to persuade a person if they think you’re trying to pull one over on them.

AU: You have a busy schedule as a college president.  Are you going to have time to practice law?

RS: Not very much.  But, I have the permission as most college presidents do, to occasionally consult or take on a matter.  If I had the opportunity to be engaged in a case and there was no conflict of interest with Furman in the strict sense, and no conflict in the larger sense, drawing too much of my time or putting me in the vortex of an issue that is just too controversial for one to be in, then I think I would probably be given permission.  It’s in my contract that I could be and I’d ask for permission and would get it.  My guess is that when that comes along, it will probably be some higher education case in which the advocacy I would be engaged in was in alignment with Furman’s position.  So if there were a big battle over a Title IX principle or over a financial aid issue, or over diversity in education issue, or an academic freedom issue, and the University’s position was in alignment with the client, whoever that might be, then I think that would make logical sense.

AU: What do you tell high school students who are thinking about coming to Furman, like my daughter who is 17 and a senior?  Why Furman?

RS: I think the first question is why get a liberal arts education.  So the first answer applies not just to Furman but to any liberal arts university.  And I always say that a student should look for the best fit so it may or may not be that it’s the best fit for any particular student.  The beauty of a liberal arts education is the blend of the broad exposure to a number of different disciplines.  The strong emphasis on discovery, creativity, the ability to see problems or multiple perspectives, the ability to solve problems, the learning to construct arguments, the learning of how to research a matter on your own, the learning of how to write well and articulate your position – that’s magical.  It sets you up to succeed at many, many different callings and it also enriches you as a person, it makes your life more fulfilling, makes you a more interesting person, a more soulful person, a more engaged human being, and all of the things that make for a good life.  Whether you’re interested in science and math and technology, engineering, or in art and music, or social sciences or politics, that blend is effective.

One of the most interesting things in the recent new Steve Jobs biography – he was a very complex and in some ways negative figure and in other ways positive figure – his drumbeat at Apple and at Pixar, the two companies that he was responsible for, constantly emphasized that the progress of the human race comes from the intersection of science and technology and the liberal arts.  He saw that intersection as where human progress comes – where success and life comes – he saw that as Apple’s ethos.  He wanted employees who were technically proficient but who also had a broad liberal education and understood the world; those are the kinds of folks he thought to hire because he believed they were the creative ones, the innovative ones.  It is fascinating that a technology guru, who didn’t even go to college, would see the liberal arts as so critical.  Whenever Apple would roll out a product, they’d put on the screen a street sign logo and the sign had science and technology on one street and liberal arts on the other street – a very fascinating story.

Furman’s unique case is wrapped up in the things that are wonderful about this particular university.  Part of it is the commitment to the education of the whole student; we think your intellectual development is important, but also your development as a human being is important – your character, your sense of service, your sense of engagement, your sense of commitment to the community.  We’re very open about that even though we are not a religiously affiliated university and we welcome students of all faith or no faith; we do want you to examine the important questions of life and the spirit and why you’re here and what you have to contribute to the world.  This is part of what you should do when you come.  So I think that for students that are looking for that, Furman’s a great place; a beautiful campus, 100 percent residential, on the make in many areas, a fantastic community.  Greenville is one of the gems in the United States.  You won’t find many medium-sized cities in this country that are more vibrant and exciting and interesting to live in, so you put that combination together, it’s a fantastic place to go to college.

BIOGRAPHY: Rod Smolla is a 1975 graduate of Yale University, where he was a member of the football team.  He graduated first in his class from Duke University Law School in 1978.  He is currently President of Furman University, in Greenville, South Carolina, a national liberal arts university founded in 1826.  President Smolla previously served as Dean and Professor of Law at Washington & Lee School of Law and at Richmond School of Law.  He also previously served as Director of the Institute of Bill of Rights Law at the College of William & Mary.  He is a nationally recognized scholar, teacher, advocate, and writer, and is one of America’s foremost experts on issues relating to freedom of speech, academic freedom, and freedom of the press.  President Smolla’s latest book, The Constitution Goes to College (New York University Press, 2011), describes the constitutional principles and ideas that have shaped American higher education.