Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct interviews with law professors, practitioners and makers of legal themed popular culture. For the latest installment, we turn to Brook Bristow, a brewery lawyer based in Greenville, South Carolina. You may remember that we’ve done a few beer related interviews in the past, the first with Adam Avery of the Avery Brewing Company about its Collaboration Not Litigation Ale, the second with Daniel Hartis, the author of the book Charlotte Beer: A History of Brewing In The Queen City. There have been some recent changes in South Carolina’s brewery laws, and because we like to talk about beer, we asked Brook to answer a few questions for us. He was kind enough to agree. The interview is as follows:

1.  How is South Carolina responding to the craft beer movement?

When it comes to change in South Carolina, I always like to say that we have two speeds: slow and stop. However, craft beer has been an exception to that rule. In fact, the craft beer movement has only really hit South Carolina in the last ten years. Since 2007, the law has been changed three times when it comes to local breweries. That’s incredible. Prior to 2007, brewers here couldn’t make anything over 5 percent ABW. Now, with the changes in law, our breweries are producing world class beers and are gaining notoriety nationwide. We’re producing many jobs both in the craft beer industry and related ones. Additionally, since the law was changed in 2010 to allow beer tastings at breweries, we’ve seen a proliferation in the number of breweries opening, with more on the way. We have many bottle shops throughout the state that offer growlers, bottles, and kegs. Our fan following has grown exponentially the last few years, as more and more people are exposed to craft beer. We’re also seeing a significant increase in beer tourism. On a weekly basis, there are hundreds of craft beer enthusiasts that attend tours and tastings at the breweries.  Many of these patrons are coming from surrounding states, as well as many reported foreign visitors. This is true of all of the breweries in South Carolina. We’re also having quite a bit of reach. For example, while I was in Colorado recently at Rocky Mountain National Park, my girlfriend and I actually pulled off the road to view some elk. A guy who worked at the national park actually walked up to me because he saw my Holy City Brewing shirt and started telling me about how much he loved their brown ale called Pecan Dream. It was unbelievable to see the reach that our brewers are starting to have.

2.  What do you think is the biggest legal obstacle to small brewers in South Carolina?

Prior to the passage of the new Pint Law, it would have been the inability to sell more than four 4 ounce tasters glasses to a consumer per day.  That was a big source of revenue that was being missed out on, not to mention the beer tourism implications.  The biggest issue now is probably excise taxes.  While there is some proposed legislation in Washington to reduce the federal excise rate on brewers who make less than 60,000 barrels of beer per year, the bigger problem is the South Carolina excise tax.  For every gallon of beer, there is a $0.77 excise tax.  That’s good enough for being in the top ten of states that charge the most on beer.  Compare that with states at the bottom, like Wyoming that only charges $0.02, Colorado and Oregon at $0.08, and Montana at $0.14.  That would be a big savings.

3. What do you think is the biggest obstacle to consumers of craft beer in South Carolina?

Compared to where we were a year ago, craft consumers have it pretty good in South Carolina.  Sure, you’ll occasionally hear complaints that there is a consumption limit of 48 ounces in brewery taprooms per day, but people understand how far we have come.  Perhaps one obstacle for some craft beer consumers in the state is the availability of local beer in some areas, but this has changed in recent years.  While some areas of the state do not have their own local brewery yet, we’ve seen very large growth over the last few years and certainly after the recent change in law on tastings.  I’d expect that trend to continue and for breweries to keep popping up all over South Carolina.

4. What do you think has been the biggest legal victory for the craft beer movement in South Carolina?

There have certainly been a few going back to 2007.  The Pint Law was huge and the tasting law before that was very big.  But, you have to start somewhere and the Pop the Cap movement was the catalyst for everything.  Pop the Cap was the effort to raise South Carolina’s ABW cap on beer.  When the movement started in 2005, the cap was a mere 5 percent ABW.  After a long and grueling effort to educate the public and legislators, the law was changed in 2007, which raised the cap to 14 percent ABW.  What that did was it allowed South Carolina brewers to make new beers, to be more creative, and to educate the public about what craft beer could be.  Without Pop the Cap, South Carolina wouldn’t be where it is today.

5.  What was the Pint Bill, and how did it come about? What’s next in light of that victory?

Since 2010, our breweries have been allowed to have limited tastings. Prior to passage of the Pint Bill, breweries were only allowed to serve 4 tasters to customers (at most). Usually, those were 4 ounce tasters; however, if the ABW was high enough, then the specific beer could only be a 2 ounce pour. So, at best, as a customer you could come to a brewery and only have 16 ounces in tasters. As for growlers to take off-premises, the law was the same as it is now – 288 ounces. It’s important to note that our breweries just won the right to have tastings at all in 2010. Prior to that, breweries could do nothing but produce beer. The Pint Bill was an effort to boost the revenues of the breweries and also allow them to start competing more meaningfully with the states around us, including North Carolina, which has much more expansive laws. Like everyone, we saw that those laws not only led to a boom for new local breweries, but also landed the state two $100 million plus investments by West Coast breweries that are moving East – New Belgium and Sierra Nevada. That in addition to the millions of dollars being contributed by a third large West Coast brewery – Oskar Blues. Prior to passage of the bill, those breweries wouldn’t have even considered South Carolina. However, now, we can at least provide some incentive for popular western breweries that would like to expand their operations to the east coast. The Pint Bill (now Law) provides that our breweries can sell 48 ounces a day to a consumer for on-site consumption. There are many restrictions that go along with that, but the concessions made for passage were more than worth it.

What’s next? More breweries on the way, for sure. Quite a few in fact. By my last count, we’ve got at least nine in planning with probably about four opening up in the next few months. It’ll be interesting to see how we deal with this golden age of craft beer in South Carolina. We’re well on our way to having about 20 breweries open by the beginning of next year. That’s a new experience for us. I’m hopeful that we can not only maintain those numbers, but continue to grow them and produce great quality beer.

6. How has the expansion of social media assisted in the growth of the craft beer movement?

It’s been huge.  It certainly was instrumental in getting the word out for advocacy on the Pint Law here in South Carolina.  It’s also being used with great success nationally, whether that is in Tennessee with efforts to reduce the nation’s worst beer excise tax or recently in Alabama and Mississippi to finally legalize homebrewing.  As to craft beer generally, it’s a great way to communicate with other beer fans nationally and internationally, as well as to find out what is new from the growing number of breweries across the country.  While some might complain that it has added to the sometimes unwarranted hyping of certain beers and breweries, to me, it’s like any other information source – that being you should take what you see and hear with a grain of salt, and evaluate it for yourself. If nothing else, it’s a way to keep yourself informed of what’s going on in a more up-to-the-minute sense.

BONUS QUESTIONS:

Favorite South Carolina beer?

It really is hard to go wrong with craft beer in South Carolina.  Some of my favorites are Holy City Brewing’s Pluff Mud Porter, Coast Brewing’s Barrel Aged Blackbeerd Imperial Stout, Brewery 85’s Quittin’ Time, and Quest Brewing’s Kaldi Imperial Coffee Stout.

Favorite North Carolina beer?

There is certainly is a wide selection!  I’ve always enjoyed what I have had from Foothills in Winston Salem and Fullsteam in Raleigh.  At the moment though, I’m fascinated with Burial Brewing in Asheville.  It’s an up-and-coming nanobrewery co-owned by a former brewery lawyer from Seattle.  Their Voorhamer Imperial Stout is one of best I have had.

Favorite non-Carolina beer?

Depends on my mood, but I’m a big fan of Founders Breakfast Stout, Heady Topper, Black Tuesday, and Parabola.

Favorite style of beer?

Easily, imperial stout.  But I also like porters and bigger IPAs.

Favorite beer related website?

Believe it or not, I don’t go on too many beer blogs. Since part of my law practice entails representing breweries, the Brewers Association website is a great resource on some of the issues involved, so I check that out on a regular basis.

Favorite song about beer?

I’ll go the dive bar route and go with George Thorogood’s “One Bourbon, One Scotch, One Beer.”

BIOGRAPHY: Brook Bristow is an associate in the office of Bradford Neal Martin, PA in Greenville, South Carolina.  His practice is primarily in business and employment law, where he represents local businesses, including several South Carolina breweries.  He runs the Beer of SC beer blog, where he focuses on legal issues affecting small brewers, especially in South Carolina.  He also works with the South Carolina Brewers Association on legislative and legal issues. You can follow him on Twitter at either @beerofsc or @brookbristow.

Depicted above is the cover of Judge Dredd #2, published 30 years ago in 1983.  You may have learned of the character from the two big budget forgettable films it spawned (one starring Sylvester Stallone as the title character, the other featuring Karl Urban in the role). But who is Judge Dredd? Of what judiciary does he call himself a member? Wikipedia tells us that he is “an American law enforcement officer in a violent city of the future where uniformed Judges are empowered to arrest, sentence, and execute criminals at the scene of crime.” So he’s a municipal judge? We have always wondered if Judge Dredd has a civil litigation counterpart. We’d watch that movie.

Can you believe that it was two years ago this month that R.E.M. called it quits? Revisit our post “The Life and Death of R.E.M.,” originally published on September 26, 2011.

Cheap Trick remains in litigation. Cue the “I Want You To Sue Me” jokes.

We wonder how many of our dear readers were at the Mumford & Sons concert this past Wednesday in Simpsonville, South Carolina, just a few short miles from our Greenville home office. It was very, very crowded.

The latest edition of the G-Bar News is out! That’s the Greenville, South Carolina local bar association’s publication, if you are not already in the know. See here ( and be sure to check out page 5, 6, 7, 8, and 9 for references to GWB attorneys!).

By the way, don’t forget that today is Friday the 13th. Be careful out there, folks. (Please note that we resisted the urge to post the cover of a Friday The 13th comic book adaptation.).

On the heels of an adverse ruling regarding the alleged deceptive advertising of its VitaminWater line, Coca-Cola finds itself back in court facing similar claims over its soft drinks. According to reports, George Engurasoff and Joshua Ogden have sued Coke, alleging that the company has been deceiving consumers by failing to mention that its signature soft drink contains artificial ingredients. These plaintiffs drink only organic, all-natural soft drinks, apparently.

The plaintiffs take particular exception to Coke’s alleged use of phosphoric acid as a flavor-enhancer. According to the plaintiffs’ complaint, Coke’s website indicates that phosphoric acid is “one of the basic elements of nature” and is used in certain soft drinks “to add tartness to the beverage.” These claims, according to the plaintiffs, are misleading. Phosphorous is a naturally occurring element bearing the atomic number 15 on the periodic table. Phosphoric acid, on the other hand, is not one of those “basic elements of nature.” As such, the plaintiffs allege that it is an artifical flavoring – one that has not been disclosed by Coke.

Whether or not phosphoric acid is an artificial flavoring is a question we here at Abnormal Use will leave for the court. Regardless of the answer, we do question just how these plaintiffs have been damaged. They claim that they relied on the soft drink’s labeling and would not have purchased Coke had they known its true contents. Call it a hunch, but we doubt there were too many true “all-natural” soft drink alternatives out there. We also doubt they were all that concerned about phosphoric acid consumption in the first place. Here is the real kicker. They allege that they have only purchased around $25 worth of Coke in the last four years. Using loose, faulty math, $25 of Coke over four years equates to one can of Coke per month. One can. From someone who consumed $25 worth of Coke in the last four days, we don’t feel too sorry for these plaintiffs’ loss of investment.

We agree that there are valid reasons for product labels and that companies should abide by those regulations. But if a class wants to organize and sue a company over it, make sure the named plaintiffs are out more than $25.

The lawsuit is George Engurasoff, et al. v. the Coca-Cola Co., No. 1:13-cv-03990S (N.D. Ca. 2013)

It’s the anniversary of that awful day, and as usual, it prompts some level of reflection. Twelve years later, I wonder what it must have been like for practicing lawyers on that day.  For example, a Westlaw search of state and federal cases for the term “September 11, 2001” produces more than 6,600 results, and of the first ten, several concern events unrelated to the terrorist attacks which just happened to occur that day. Surely, in these fifty states, there were trials, depositions, hearings, roster meetings, worker’s compensation proceedings, and the like, which were all initially scheduled for that day but ultimately cancelled or otherwise disrupted as a result of the news.  (I can’t even fathom what it must have been like for those practicing law in New York City or Washington, DC that terrible, terrible morning).  But for the lawyers in the rest of the country, are there transcripts of hearings where practitioners and jurists and deponents are discussing these events on the day that they happened?  How many records exist detailing proceedings that were abruptly cancelled or postponed as a result of the news, and what was said? How many depositions were noticed for that day, and how many of those actually took place? Did previously scheduled hearings for that day – which began well after the news – continue onward? Did courtrooms and courthouses attempt to persevere or allow themselves the day to monitor and attempt to process the day’s sad news? Or did security concerns prompt the cancellation of most public hearings? I’m sure each of our offices has evidence of such things, as most lawyers planned to go about that like any other before they heard the news. That day, I was not yet a lawyer. I was a 3L at Baylor Law School in Waco, Texas, and as I noted in a previous post, the building had no television that morning:

In the autumn of 2001, the new law center was immense, immaculate, and quite simply, amazing.  So new was the building, in fact, that there were no televisions in the public areas of the building on September 11, 2001.  Many students sat in the student lounge by the radio, of all things, listening to the news in the same way people must have on December 7, 1941.

In fact, we began class that morning without a meaningful understanding of what had just occurred. I can remember walking down the stairs from the second floor of the building to the student lounge when a friend rushed up to me and told me what had happened. Our classes were not officially canceled, but we spent most of that day in class discussing the frightening ramifications of what had just occurred that day. During a break, I can recall finding my way into the law review office and attempting to access some news website – any news website – to learn more about the attacks.  However, the Internet was so slow that day – brought to a halt by all the other users doing the same thing – that I could find little of value.

Thinking back to that day, I wrote to my old friend and classmate Eric Nordstrom, who was with me in class on 9/11. Nordstrom serves as Baylor Law’s unofficial historian, and he now practices in Houston. In a recent email to me, he shared his own memories of that day:

We started Practice Court at 8:00 a.m. AA Flight 11 had hit the North Tower minutes before that. I remember the murmurs before class started that a small plane had hit the World Trade Center, but none of us had any idea of the magnitude of the events unfolding in New York, DC, and Pennsylvania that morning. I don’t believe [Practice Court professor William] Underwood even addressed it . . . .

As we’d soon learn, UA 175 subsequently hit the South Tower, which fell before class was over.

When we broke from Practice Court, everyone went to the lounge. The law school had just opened its new facility, and it hadn’t yet installed televisions. There was an old-school TV on a media cart someone had wheeled in. I recall antenna wire taped to the windows for reception. No wifi, no Internet, and no smartphones. We had a few moments to try and digest the news through the grainy local Waco TV broadcast. I ducked outside and called my father’s secretary to make sure he was on the ground. Thankfully, he was.

We started Evidence at 10:30 central time. Professor Gerald Reading Powell, resplendent in his customary three-piece suit and pocket watch, had the heavy burden of addressing the class. He began by stating that some people were asking him if he intended to cancel class. I’ll always regret not transcribing his response. The gist of it was something along the lines of “if I do that, then whatever these people hoped to accomplish has worked,” but it was delivered much more powerfully than I could ever hope to muster under such circumstances, even now. I remember not so much the words, as a palpable sense of patriotism that permeated his remarks. I like to think we all felt the same feeling that morning, and were all moved to similar degrees by Powell’s words which, given the limited time, must have been delivered extemporaneously. It was a tremendous speech, by the end of which most of us would have moved heaven and earth, much less sit through an evidence class, so that we might do whatever small part we could to stand against those who would sow such destruction.

Then, after Powell had sufficiently kindled our patriotic fervor, and we set about the day’s instruction — he called on me.

Memory is a funny thing. I don’t remember there being a television in the lounge at all, but Nordstrom recalls “an old-school TV on a media cart someone had wheeled in.” Perhaps it arrived later in the day.

On February 9, 2002, at a Baylor Law graduation ceremony, Professor Powell gave a notable speech on the post 9/11 world, which we previously referenced here on this site.  A representative excerpt:

You can no longer focus on just yourself, on your career, or even on just your own family.  More will be asked of you.  As Americans, and especially as lawyers, you will carry with you great responsibilities.  After September 11, each of you must be willing to stand guard over our liberty, to serve your country selflessly, and, if the need arises, be a hero.

…

Each of us must take our turn as sentinels.  And as lawyers we have our own post to man.  Our watch is over the Constitution.  Our perimeter is the outposts of liberty.  Our weapon is the law.  Our mission is to see that justice is done.

…

[W]e also hope that each of you will have inside of you that seed of heroism perhaps dormant until a moment of truth, when it will spring forth in the energizing light of adversity to give us the hero we need.  And until that time comes, or whether it ever comes, we hope and pray that you will act heroically in the conduct of your everyday lives, professional, public and personal.

It’s difficult to believe it has been twelve years.

To read our post on the tenth anniversary of September 11, please see here.

Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct brief interviews with law professors, practitioners and other commentators in the field. For the latest installment, we turn once again to torts professor Jill Wieber Lens of the Baylor Law School in Waco, Texas. This is the second time we’ve interviewed Professor Lens, the first occasion being way, way back in December of 2010. You can read that interview here.

1. What do you think is the most significant new development in torts or products liability of the last year?

One significant new development in products liability in the last year has to be the Supreme Court’s decision Mutual Pharmaceutical Co. v. Bartlett, in which the Court found that design defect claims based on generic drugs are preempted.  The result was not surprising based on the Court’s prior finding in Pliva, Inc. v. Mensing that failure to warn claims based on generic drug manufacturers were preempted.  Both of the results are based on FDA regulations that require generic drugs to mirror the prior FDA-approved name brand version; thus, generic drug manufacturers lack any ability to alter the design of the drug or the warning.  Because of the practical inability to both comply with FDA regulations and to use a design/warning that would comply with tort law obligations, the Supreme Court has found that defective design and warning claims against generic drug manufacturers are preempted. The Bartlett and Mensing decisions have huge consequences.  After these cases, people injured by design or warning defects in generic drugs have no legal redress against the drug manufacturers.  Ironically, had those injured people taken the name brand version, their claims against the name brand manufacturer are not preempted.  But if the injured people take the generic version — which most people do because it is cheaper and state law allows pharmacists to automatically fill the prescription with a generic version — they have no legal redress against the generic drug manufacturer.  This is something to be concerned about when considering President Obama’s health care law.  Health insurance companies are likely to push generic drugs even more to further lower costs.  But patients injured by design or warning defects in the generic drugs will be unable to pursue relief against the drug manufacturer. Admittedly, this issue becomes moot if the FDA alters its rules regarding a generic drug manufacturer’s ability to change the design of the drug and the warning. That, however, would also likely increase generic drug manufacturers’ costs—and the prices of generic drugs.

2. If you could change one component of federal punitive damages jurisprudence, what would it be, and why?

I wish I could eliminate the idea of a reasonable ratio between the amounts of punitive and compensatory damages.  The Supreme Court first introduced its guideposts for evaluating the constitutionality of a punitive damage award in BMW v. Gore in 1996.  One of those guideposts is whether there was a reasonable relationship between the amounts of the damages.  The Court has never defined that reasonable relationship, but did once mention that a single-digit ratio is most likely to be constitutional.  The Court also has never applied the reasonable relationship ratio in a case involving physical injury, leaving courts to wonder if that single-digit ratio still applies in those cases. Regardless, I understand the attractiveness of a ratio — it’s easy to understand and to apply.  It’s also what many state legislatures use to cap punitive damages.  But a ratio makes little sense if you look at the punishment and deterrence purposes of punitive damages.  Punitive damages should be based on the defendant’s conduct regardless of whether the plaintiff suffered minimal or exorbitant compensatory damages.  The defendant’s same malicious conduct battering two plaintiffs could leave one plaintiff with $500 in compensatory damages and the other with $5 million based on the plaintiffs’ different ages, medical conditions, jobs, etc.  If the tortious conduct is the same, there should be no reason to lower the first plaintiff’s punitive damages simply because he had only $500 in compensatory damages.

3.  Do you similarly see any problems with state regulation of punitive damages?

Generally, I wish legislatures and courts could coordinate better.   As an example, Georgia has a provision allowing only one punitive damage award for products liability claims.  That award is supposed to punish the defendant for selling the defective product to all consumers and a portion of it is paid to the State.  The provision is problematic after the Supreme Court’s opinion in Philip Morris USA, Inc. v. Williams, which constitutionally limits a punitive damage award to punishing the defendant for what it did to the specific plaintiff.  Now, put these together.  After Philip Morris, to comply with the Fourteenth Amendment, a punitive damage award in a products liability claim in Georgia can punish the defendant only for injuring the specific plaintiff.  But the separate Georgia one-award provision mandates that the one punitive damage award is the only one that can be imposed.  The two laws cannot produce a rational punitive damage award, but the Georgia provision is still the law.

4. You’ve now been a law professor for three years. What has been the biggest surprise of academia?

The students’ curiosity.  I love to see their enthusiasm to learn—they really do want to understand the material.  I also love to hear their questions.  I often hear far-fetched hypotheticals in Torts especially, but the students ask because they are curious and desire to learn.  It’s refreshing.

5. Unlike many law professors, you practiced for several years before joining the faculty. How do you believe your career in private practice has helped you as a professor?

I’m able to bring practical knowledge to class.  For instance, I am familiar with the difficulty of explaining things to clients.  And I’m able to explain that in class—you may understand that only final judgments can be appealed, but understand that you will also have to explain the final judgment rule to your client and your client likely won’t be happy about it.  As another example, I understand the importance of liability insurance in torts.  I spend time in class to make sure my students understand that even though analyzing the legal elements is not the only analysis—you may also want to find out whether the person your client wants to sue has insurance and whether that insurance covers the tort.  Otherwise, it may not be worth it either for you or your client.

6. As a law professor, how do you use the Internet to communicate with students and the general public?

I’m always trying to think of ways to use the Internet more.  I tend to be more traditional in my classes for entering students.  I also don’t allow them to use laptops because I find that they type everything down and neglect to actually listen to me. Baylor has a great Blackboard Internet system for class use.  It provides many mechanisms to increase feedback to students, which students appreciate.  One thing I would like to try at some point is to post quizzes that students can take in their free time to see if they are appreciating the material.

BONUS QUESTION: Who is your favorite television lawyer?

My answer is predetermined by my favorite shows.  I really enjoyed Oliver Babish on “The West Wing” and Baltimore’s finest representation for drug dealers, Maurice Levy, on “The Wire.”  I’m sure if there was an attorney on “Game of Thrones,” he/she also would be one of my favorites.

BIOGRAPHY: Jill Wieber Lens joined the Baylor University School of Law faculty in 2010 as Assistant Professor. In 2009, Professor Lens was a Visiting Assistant Professor at the University of Louisville School of Law. Before entering academia, Professor Lens practiced commercial and appellate litigation in St. Louis, Missouri. She teaches Torts, Products Liability, and Appellate Procedure. Her current research interests include tort reform generally and punitive damages.

Not too long ago, on August 21, 2013, the South Carolina Court of Appeals released its opinion in Lawing v. Trinity Manufacturing, Inc., No. 5166 (S.C. Ct. App. Aug. 21, 2013).  Implicating the “sophisticated user” doctrine, it is a products case with which any products liability lawyer should be familiar. However, because our firm was involved in the litigation of that matter, we will simply direct your attention to the opinion and leave the commentary to other bloggers.

“Beware of the creatures of the night – They have lawyers!” Above you’ll find the cover of Supernatural Law #45, published just this year. In that issue, The Toxic Avenger somehow finds himself as a defendant. Here’s a description of the issue straight from the publisher’s website:

Wolff and Byrd have a change of venue when they travel to Tromaville to defend none other than the Toxic Avenger! But can they prevail in a courtroom presided over by Judge Lloyd Kaufman?

You might remember way back in July of 2011 when we first referenced the Supernatural Law comic book series.  If not, please revisit this prior edition of Friday Links.

Well, federal courts are still commenting upon – and defining! – MySpace.  According to a brand new Ninth Circuit opinion, “MySpace is a social networking website that allows its members to set up online ‘profiles’ and communicate via email, instant messages, and blogs.” See Wynar v. Douglas County School Dist., — F.3d —-, No. 11–17127 (9th Cir. Aug. 29, 2013) (citing Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 208 & n.2 (3d Cir. 2011) (en banc)).  Our favorite part is that the court saw fit to provide a citation to a Third Circuit en banc case, which itself was citing a 2007 Western District of Texas case in its explanation of MySpace, which by now, really, is or was prevalent enough to no longer need citational support.

By the way, if you can believe it, this is our 991st post here at Abnormal Use.

Stephanie Kimbro of the North Carolina Law Blog (as well as the Virtual Law Practice blog) offers her thoughts on the issues of the duration of law school and practical training.  This is an issue we’ve written about before here, here, and here.  With the president himself weighing in on these issues of late, we feel we must stray into this debate once again.  Not today, mind you, but soon. Soon indeed.

FYI: The U.S. District Court for the District of South Carolina is inviting public comment on its proposed new and revised local rules. For more information, see here. The deadline for submitting comments is September 30.

Well, once again, we advise our lawyers friends to be careful what they post on Facebook. A new federal court case presents both social media and Blue Book citation issues.

On that note, we must direct your attention to Havard v. Epps, No. 5:08CV275KS (S.D. Miss. Aug. 30, 2013).  It’s a habeas corpus proceeding, not something we write about often here at Abnormal Use.  But because of its connection to social media, we feel compelled to offer an observation or two on this very new – and very brief – district court opinion. The Respondents in that case – various governmental officials including the  Mississippi Department of Corrections – filed a motion for clarification and motion to seal. Just so we can put it in proper context, here’s how the court described the procedural issue at hand:

This matter came before the Court on Respondents’ Motion for Clarification and their Motion to Seal. The Court earlier allowed Petitioner to amend his Petition for Writ of Habeas Corpus to reflect state court proceedings that have occurred since the original Petition was filed. The basis for Respondents’ Motion for Clarification is their contention that the Memorandum that Petitioner submitted in support of his Amended Petition may contain new claims that may go outside the scope of the amendment allowed by the Court. According to Respondents, “the State cannot determine whether (and where) Petitioner made substantive changes to arguments which Petitioner did not move to amend. Therefore, the State cannot identify which issues need responsive pleadings.” Respondents did file an Answer to the Amended Petition without objection; it appears that the issue lies with the Memorandum.

(Docket entry citations omitted).

The court denied the motion for clarification, but it is the motion to seal which interests us.  Apparently, the Respondents sought to ” prohibit any non-party from accessing documents filed in this case.”  That does not sound unusual, right? That, after all, is the purpose of a motion to seal.  Well, here’s the social media money paragraph:

Here, Respondents’ concern was apparently triggered by a Facebook post of one of Petitioner’s counsel about the Motion for Clarification discussed above. In particular, counsel wrote, “After responding to an asinine motion filed by the State, which not only wants to kill my client but doesn’t want to be bothered by actually responding to his claims of innocence, I am heartened by the following words penned by Kris Kristofferson.” However ill-advised this post may have been, in terms of the standards of professionalism by which lawyers are encouraged to govern themselves, this statement does not give rise, in the Court’s opinion, to a need to seal this record, for three reasons. First, there is no indication that the record of these proceedings in state court is unavailable to the public; second, the state court record was conventionally filed in this Court and is not available for electronic access; and, finally, information about this case is so widely available through Internet sources that closure of this record will not prevent dissemination of the details of the charges or the identification of the infant victim in this case. For these reasons, the Motion to Seal will also be denied.

(Emphasis added).

The State attached a grainy, black and white copy of the Facebook profile and wall of the attorney who made the post as an exhibit to the motion.  That attorney, in conjunction with the post, also embedded this YouTube post featuring the song. The motion to seal does not recite how the attorneys for The State came across the Facebook post in question, nor does it disclose the user who logged in to Facebook to print the profile.

Posting about one’s cases on Facebook is always a perilous enterprise, even if one’s Facebook profile is set to private, as any friend (or sometimes, friend of a friend) can access and capture the photograph.  Having one’s Facebook profile attached to a federal motion is not something one would expect, but as can be seen, it is a now possible consequence. Be careful out there, folks.

Our biggest disappointment, of course, is that the federal court did not see fit to quote – or cite to – the Kris Kristofferson.  If we were forced to guess, we would have assumed that the lawyer was quoting “Me and Bobby McGee,” written by Kristofferson (and Fred Foster) and made famous by Janis Joplin. “Freedom is just another word for nothing left to lose,” right?

But we would have guessed wrong.  We located the motion to seal in question, which was filed on August 26, 2013 (just four days before the order), and here is the Facebook post in full:

After responding to an asinine motion filed by the State, which not only wants to  kill my client but doesn’t want to be bothered by actually responding to his claims of innocence, I am heartened by the following words penned by Kris  Kristofferson. There are some similarities between prophetic songwriters and lawyers:

And you still can hear me singin’ to the people who don’t listen, To the things that I am sayin’, prayin’ someone’s gonna hear. And I guess I’ll die explaining how the things that they complain about, Are things they could be changin’, hopin’ someone’s gonna care. I was born a lonely singer, and I’m bound to die the same, But I’ve got to feed the hunger in my soul. And if I never have a nickle [sic] I won’t ever die ashamed. ‘Cause I don’t believe that no one wants to know.

How about that? That, by the way, is from Kristofferson’s “To Beat The Devil,” from his debut album Kristofferson, released way, way back in 1970.

On a final note, we do think the federal court in question missed an opportunity to cite to Kristofferson’s album using proper Blue Book formatting.  According to Blue Book Rule 18.6.1, “[i]f a particular song or musical work is referred to, cite it by analogy to shorter works in a collection according to rule 15.5.1”  That would be as follows: Kris Kristoferrson, To Beat The Devil, on KRISTOFFERSON (Monument Records 1970).

Just one week after we wrote about the impact of the NFL concussion/brain injury litigation, news broke that the parties reached a settlement. According to an AP report, the NFL has agreed to pay $765 million over the next 20 years to former players who developed dementia or other concussion related symptoms allegedly caused by football. The settlement applies to all past NFL players and spouses of those who are deceased — a group that could total more than 20,000. The vast majority of the settlement goes to compensating retirees with certain neurological ailments. In addition, it sets aside $75 million for medical exams and $10 million for medical research. The settlement now awaits court approval.

A three quarters of a billion dollar settlement sounds like a lot of money to most. To the NFL, however, it is less than one-tenth of its gross profit margin for the 2012 season. Couple that with the fact that the players sought $2 billion and the settlement might appear to be a sour deal for the plaintiffs.

According to a report out of Sports Illustrated, the deal may not be as bad as it appears. Apparently, U.S. District Judge Anita Brody informed the two sides that she was ready to side with the NFL and find that many who played during the former collective bargaining agreement (1994-2010) should be excluded. This ruling would have cut a large number of plaintiffs out of the class. SI notes that Judge Brody also indicated that since the league’s concussion committee wasn’t formed until 1994, those remaining in the suit would have a tough time proving any fraud allegations. And so it appears the players had some reason to negotiate. While the NFL had indicated it was willing to take the case to trial, it, too, had every incentive to reach a settlement. If the plaintiffs’ allegations are true, the NFL knew far more than it let on about the long term risks of concussions than it claims. By settling now, what it did and did not know won’t come out through the discovery process. Accordingly, the NFL can avoid the public relations nightmare of having to explain away any cover-up.

So, maybe this is one of those cases where just about everyone comes out a winner. Former players get a financial settlement. The NFL avoids a PR disaster. Current and future players benefit from additional research and a heightened awareness for safety. Fans get a new season without the hassles of litigation. Now, if we could just do something about those rule changes, everyone can move on enjoying the sport we all love.

In an interesting ruling earlier this week, a New Jersey appellate court held that you don’t have to be driving to get in trouble for sending a text message.   You can potentially be held legally liable for sending a text message to someone who is behind the wheel and causes an accident.  This ruling seems to open a whole new battlefield in the war on texting and driving. The Appeals Court agreed with the argument made by two Plaintiffs that were seriously injured in a crash with a teenager whose truck swerved across the center line and hit them riding on their motorcycle. The Plaintiffs settled with the driver, but they also sued his girlfriend for their injuries.  She allegedly texted him just moments before the crash. The court didn’t find the girlfriend liable because she didn’t appear to know her boyfriend was driving at the time.  Nevertheless, the judges accepted the general argument that a text sender may bear some legal liability if they know the relieving party is driving.  The opinion stated:

We conclude that a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving.

This is certainly an interesting new duty placed on non-driving texters.  Even if there is such a duty, one must wonder whether the sending of the text would be considered the proximate cause of any accident.  After all, wouldn’t the driver’s act of accessing and reading the text be the proximate cause of the accident, not necessarily the person sending the text? And how would the non-driving texter’s purported knowledge of the recipient’s driving be litigated under the circumstances? This opinion should make for some interesting future litigation.

The opinion is Kubert v. Best, — A.3d —-, No. A-1128-12T4, (N.J. Ct. App. Aug. 27, 2013).