Friday Links

spidey-jury

Okay, so above is the cover of Spider-Man: The Arachnis Project #3, published back in 1994.  The cover boldly proclaims: “The Jury is in and the verdict for Spider-Man is death.” Well, Spider-Man is certainly not in a courtroom. According to Wikipedia, “[t]he Jury is a fictional group of armored vigilantes in the Marvel Comics universe.” Get it? They’re armed vigilantes, and they call themselves “The Jury.” Sigh. In light of that, we suppose the cover above depicts Spider-Man exercising his peremptory challenges. Yes, you read that right. We tried to make a joke about a comic book vigilante group called The Jury. We’re sorry about that.

On a more serious note, the U.S. District Court for the District of South Carolina recently issued the following notice about its local rules:

The Local Civil and Criminal Rules for this district were amended effective August 20, 2014.  The amendments include numerous stylistic changes including changes to capitalization, punctuation, citation form, and sentence structure.  Two rules were modified substantively:  Local Civil Rule 83.I.07 (Withdrawal of Appearance); and Local Civil Rule 83.VII.07 (Application for Attorney Fees [in Social Security cases]).

The amended rules as well as redlined comparisons of the most recent amendments to the November 15, 2013 versions of the Local Civil and Criminal Rules are available on the court’s website (http://www.scd.uscourts.gov) under the “What’s New” and “Rules” tabs.

We have to hand it to the Popehat Twitter account, which has perfectly captured the ennui of Star Wars fans of a certain age in the tweet below. As you might guess from our posts here and here, we are sympathetic.

Finally, we hope everyone has an eventful and safe holiday weekend. We here at Abnormal Use will be watching college football.

Punitive Damages Award Against Wal-Mart Affirmed in South Carolina Weird Transaction Case

The South Carolina Court of Appeals recently upheld a Spartanburg county jury’s award of actual and punitive damages against Wal-Mart in an interesting case involving negligence at the checkout counter.  Solanki v. Wal-Mart Store #2806, No. 2012-213247 (S.C. Ct. App. Aug. 20, 2014).  In his dissent, Justice H. Bruce Williams references the trial court judge’s remark as to the “weirdness of the transaction” underlying the claim, and the transaction was weird, indeed.

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The Plaintiff, Mr. Solanki, trekked to the Wal-Mart in Boiling Springs for a shopping trip.  When he attempted to checkout, the clerk tried three times unsuccessfully to charge the amount owed to Mr. Solanki’s credit card.  The clerk then manually stenciled the credit card and entered the credit card number into the computer.  Unfortunately, the number was entered into the computer incorrectly, and the number actually entered belonged to Ms. Martin. She noticed the apparently fraudulent transaction and reported it to the police department.  Wal-Mart provided the police department with the manually sketched credit card bearing Mr. Solanki’s signature, the surveillance tape, and various other information pertaining to the transaction.  Mr. Solanki was subsequently arrested in Georgia and spent almost a week in jail in Georgia before being extradited to South Carolina.  Everything was eventually sorted out, and the indictment was dropped. However, Mr. Solanki filed suit against Wal-Mart as well as the police department shortly thereafter.  Following a jury trial, the Spartanburg jury awarded $50,000 in actual damages and $225,000 in punitive damages.

Judgment was entered on the verdict, and post-trial motions were denied.

On appeal, Wal-mart argued that the evidence presented did not support an award of punitive damages, which in South Carolina requires the plaintiff to prove “by clear and convincing evidence the defendant’s misconduct was willful, wanton, or in reckless disregard of the plaintiff’s rights.”  The Court of Appeals held that Mr. Solanki “presented sufficient evidence of Wal-Mart’s willful, wanton, or reckless misconduct to send punitive damages to the jury in two factual circumstances— the taking of the credit card information for the sale and the turning over of the credit card information to law enforcement.”  Regarding the taking of the credit card information for the sale, the Court took into consideration that “[a]t the end of the transaction, the receipt presented had Mr. Solanki’s signature but showed Martin’s credit card information.”  Regarding the credit card fraud investigation, the Court noted the trial court’s conclusion that “Wal-Mart was responsible for the creation and production of the evidence used to arrest Mr. Solanki and it was in the best possible position to point out the discrepancies to the police officers.”

This opinion is based on a unique set of facts, so its application to other contexts may be limited. However, it would appear at first glance that this holding imposes a heightened duty on retailers in the context of a criminal investigation, and eases the burden of proof for plaintiffs in punitive damages cases, either of which could create problems for defendants in the future.

Tech Giants’ Anti-Poaching Settlement Rejected In California Federal Case

“Not in my house!”  That is essentially what U.S. District Judge Lucy Koh recently said in rejecting a proposed settlement agreement in a federal case pending in California between several Silicon Valley tech giants and a class of tech employees who claimed that the companies conspired to suppress their wages.  As we here at Abnormal Use previously reported in April, the companies (including Apple, Intel, and Google) and the tech workers agreed to settle their dispute for approximately $325 million.  According to Judge Koh, that settlement amount “falls below the range of reasonableness.” Once the plaintiffs’  lawyers take their slice of the pie, the settlement would have provided the class members just over $3,500.  In reaching the conclusion that such an amount was unreasonable, Judge Koh noted that other class members settled the same claims last year against Pixar and Lucasfilm Ltd. more money per plaintiff, despite the fact these current plaintiffs had newly discovered evidence that made their claims even stronger.  The order also notes that to reach the same level as the previously settling class members, the current class members would need to receive $380 million. Check out the order’s conclusion:

This Court has lived with this case for nearly three years, and during that time, the Court has reviewed a significant number of documents in adjudicating not only the substantive motions, but also the voluminous sealing requests. Having done so, the Court cannot conclude that the instant settlement falls within the range of reasonableness. As this Court stated in its summary judgment order, there is ample evidence of an overarching conspiracy between the seven Defendants, including the similarities in the various agreements, the small number of intertwining high-level executives who entered into and enforced the agreements, Defendants’ knowledge about the other agreements, the sharing and benchmarking of confidential compensation information among Defendants and even between firms that did not have bilateral anti-solicitation agreements, along with Defendants’ expansion and attempted expansion of the anti-solicitation agreements. Moreover, as discussed above and in this Court’s class certification order, the evidence of Defendants’ rigid wage structures and internal equity concerns, along with statements from Defendants’ own executives, are likely to prove compelling in establishing the impact of the anti-solicitation agreements: a Class-wide depression of wages.

In light of this evidence, the Court is troubled by the fact that the instant settlement with Remaining Defendants is proportionally lower than the settlements with the Settled Defendants. This concern is magnified by the fact that the case evolved in Plaintiffs’ favor since those settlements. At the time those settlements were reached, Defendants still could have defeated class certification before this Court, Defendants still could have successfully sought appellate review and reversal of any class certification, Defendants still could have prevailed on summary judgment, or Defendants still could have succeeded in their attempt to exclude Plaintiffs’ principal expert. In contrast, the instant settlement was reached a mere month before trial was set to commence and after these opportunities for Defendants had evaporated. While the unpredictable nature of trial would have undoubtedly posed challenges for Plaintiffs, the exposure for Defendants was even more substantial, both in terms of the potential of more than $9 billion in damages and in terms of other collateral consequences, including the spotlight that would have been placed on the evidence discussed in this Order and other evidence and testimony that would have been brought to light. The procedural history and proximity to trial should have increased, not decreased, Plaintiffs’ leverage from the time the settlements with the Settled Defendants were reached a year ago.

The Court acknowledges that Class counsel have been zealous advocates for the Class and have funded this litigation themselves against extraordinarily well-resourced adversaries. Moreover, there very well may be weaknesses and challenges in Plaintiffs’ case that counsel cannot reveal to this Court. Nonetheless, the Court concludes that the Remaining Defendants should, at a minimum, pay their fair share as compared to the Settled Defendants, who resolved their case with Plaintiffs at a stage of the litigation where Defendants had much more leverage over Plaintiffs.

(Quotations and citations omitted).

This ruling is not at all surprising.  As we noted in our initial coverage, given the number of employees involved the settlement amounts to peanuts compared what the alleged conspiracy likely cost the workers.  We’re going to go out on a limb and guess that the class members and the defendants reach new deal for exactly $380 million. The order in question is In re High-Tech Employee Antitrust Litigation, No.: 11-CV-02509-LHK (N.D. Cal. Aug. 8, 2014).

Abnormal Interviews: Lawyer and She-Hulk Comic Book Writer Charles Soule

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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 Charles Soule, the writer of the current She-Hulk comic book series. As we have noted once and again (here, here, here, here, here, here, and here), the Marvel comic book superhero She-Hulk is, in her regular life, a practicing lawyer. As you also may know, we here at Abnormal Use like to write about legally themed comic books, and occasionally, we have been fortunate enough to interview creators of them. Back in 2011, we interviewed Mark Waid, the writer of Marvel’s Daredevil, a series which features a lawyer superhero. Last year, we interviewed Ryan Ferrier, creator of the series Tiger Lawyer. So, today, we are very pleased to run an interview with Charles Soule who, in addition to being a prolific comic book writer, is also a practicing lawyer. How about that? Without further ado, the interview is as follows:

She-Hulk has two full time jobs: lawyer and superhero. But, as an attorney and comic book writer, so do you. What are the challenges facing a practicing attorney who also writes comic books? How do you find the time to engage in both professions?

It can be difficult, honestly. As I type this, I’m in my office thinking about various client issues I need to handle, as well as some writing work that will kick in the very moment I’m done. I can say that law school and subsequent legal practice (both at the firms I worked for initially and in my own solo practice) gave me a pretty solid set of time management skills. I’m used to handling pretty significant workloads and self-motivating. It’s certainly very, very intense right now, but as I’ve told folks who have asked me this question in the past (I get it a lot), I’m writing incredibly fun projects using some of my favorite characters, building an audience, and running my own successful business at the same time. There’s a lot of work, but I wouldn’t characterize it as a chore.

How did you come to write comic books as a practicing lawyer?

In a nutshell, I’ve always been creatively-oriented. I’ve been playing music since I was very young, and I worked regularly as a professional musician for years before and during law school. Some of that continued afterwards, but it became apparent that I might want to find another creative outlet that I could do more easily around the weird, unpredictable hours of being a young attorney. Writing seemed obvious, and I started my first novel during my post-bar vacation. Novels were/are fun, but also very time-consuming, and after a few years of working in that field, I tried my hand at comics, which I had always loved. Cut through about a decade of near-constant work, networking and good times, and here we are today.

How do the deadlines in the comic book industry compare to those in the legal field, and how do you prefer to handle them simultaneously?

Deadlines are deadlines. I think the most important thing about deadlines is just to know they exist. If I know they’re there, I can handle them – I can’t recall a situation where I couldn’t make things work if I had a little bit of time to adjust. There are a lot of deadlines these days, big and small, but I think it helps that it’s my own practice (so I’m the boss…) and that I’ve learned how to manage my time on the comics end really well. I wouldn’t mind fewer deadlines – who wouldn’t – but I’m on it.

shprOne of the most interesting sequences in She-Hulk #1 is the associate performance review when She-Hulk meets the partners at her firm. What was the inspiration for that part of the narrative?

It’s taken very much in spirit from associate reviews either I had or friends of mine had. What you realize as a young associate at a big firm is that you’re courted to join, but once the honeymoon period is over (right around the time of those first reviews), it becomes clear that the goals of the partners do not necessarily align with those of the young associates. That’s totally fine, mind you – it’s a business – but it can be a bit of a rude awakening.

What has been the reaction of your fellow lawyers to the legal scenes in your run on She-Hulk?

So far, all good! I was interviewed by the ABA Journal, which was a fun little professional milestone. I get the occasional quibble over details from lawyers, but it’s mostly pretty relaxed. Attorneys seem pretty pleased to see a lawyer represented even somewhat realistically in comics, even if I mess up the occasional practice point. Fortunately, I can always rely on one line: “The laws are different in the Marvel Universe.” Easy.

shehulk4img4

In issue 4, She-Hulk meets briefly with Marvel’s other famous lawyer super-hero, Daredevil, who remarks that it’s odd the two have never faced each other in court. First off, is that foreshadowing, and secondly, what specific challenges face those who write about lawyer superheroes as opposed to non-lawyer characters?

Foreshadowing indeed. By this point, it’s out in the world that She-Hulk and Daredevil finally will face each other in the courtroom over issues 8-10 of the series. They’re working on a wrongful death lawsuit out in California. It’s been one of the most challenging things I’ve ever written – you can imagine that writing a case involving two brilliant lawyers, where both have to come off as brilliant lawyers, who can’t be shown in a non-heroic light . . . tricky. But fun! I’m very proud of that storyline.

Throughout your run on the series, we’ve seen immigration hearings, injunctive relief proceedings, daily life at law firms, and even the face of pleadings, all of which are unique to the medium. How do you determine which legal issues appear in your work?

It’s really about areas that I feel like I can write with some authority, or that I’m interested in researching. I’ve always liked admiralty, for example, as well as international law. I’m experienced with immigration, contracts, IP, licensing, transactional work . . . so all that stuff finds its way in. I’m not very experienced with litigation, but that’s the sort of thing people visualize when they think about a legal drama, so I can’t get away from courtroom scenes. I also have a ton of experience (obviously) with running my own small practice, which is something I bring into She-Hulk in every issue.

What is the best way to portray legal issues and proceedings to non-lawyers in a visual medium?

You would have to ask Javier Pulido, Muntsa Vicente, Clayton Cowles, Ron Wimberly and Rico Renzi, since they’re the artists who have to make my chatty scripts work. I’m constantly amazed and impressed by their ability to make ordinary conversations pop. She-Hulk wouldn’t work without the art team, there’s no doubt about it.

BONUS QUESTIONS:

Who is your favorite fictional lawyer, and why?

It’s hard to beat She-Hulk for me at the moment, but I’ve always had a soft spot for Lionel Hutz, and Saul Goodman was an amazing character among amazing characters in “Breaking Bad.” I guess I like my fictional lawyers to be on the exaggerated side.

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What is the first comic book you remember reading, and how did you comic across it?

Fantastic Four #224 – “Prisoners of the Space Gods.” They get taken prisoner by a bunch of Asgardians (which will happen). My dad bought it for me in the drugstore one day – he got them for my siblings and me to keep us quiet in the backseat – it totally worked.

What do you think is the best pop culture depiction of law school?

You know, law school doesn’t get a lot of representation, at least that I’m aware of. One L, probably?

Are there any legal or comic book blogs that you enjoy that you might recommend to our readers?

Other than this one? I wouldn’t dare.

BIOGRAPHY: Charles Soule, a graduate of Columbia Law School, has been practicing law for over a decade. Prior to starting his own practice (The Law Offices of Charles D. Soule, PLLC in Brooklyn), he worked in the New York offices of Ropes & Gray, LLP. He is a member of the New York State Bar and the American Immigration Lawyers Association. He earned his undergraduate degree from the University of Pennsylvania in Asian and Middle Eastern Studies, with a concentration in Chinese language and history. You can follow him on Twitter here.

The Art of War, Pomegranate Style, in The U.S. Supreme Court

Sun Tzu wrote: “All warfare is based on deception.”  In addition to the art of war, this sentiment reaches far into the world of consumer advertising, as well.  With recent mega-decisions coming from the United States Supreme Court, most notably the Hobby Lobby decision, we here at Abnormal Use overlooked a recent deceptive advertising decision of the Supremes.  As reported by Sam Hananel of the Associated Press and The Huffington Post, the Big Nine (err, Big Eight in this instance as Justice Breyer warmed the bench this go-round) ruled in June that juice maker Pom Wonderful can proceed with its lawsuit against the Coca-Cola Co. and its version of pomegranate juice.  See POM Wonderful LLC v. The Coca Cola Company, — U.S. — (June 14, 2014). The lawsuit alleged that the label on Coke’s “Pomegranate Blueberry Flavored Blend of 5 Juices” beverage of its Minute Maid line was somehow misleading to consumers.  Why? Well, Pom alleges that 99 percent of the pomegranate blueberry concoction is actually apple and grape juice.

Justice Kennedy, author of the 8-0 decision, focused on the Coke juice’s actual pomegranate and blueberry content, .3 percent and .2 percent, respectively, despite the drink’s potentially misleading label, which showed the words “Pomegranate Blueberry” in much larger typeface than the rest of the drink’s official name and included a large pomegranate graphic set among other small fruits.  Previously, the lower courts had sided with Coke, finding that the drink’s label conformed to the FDA’s rules and the law.  In a refusal to elevate form over substance, Justice Kennedy conceded that the juice may comply with FDA rules but rejected the notion that technical compliance with the FDA absolves a company from potential liability where a label may mislead consumers for different reasons.

In this instance, Justice Kennedy noted that Pom was not precluded from suing Coke under the Lanham Act for unfair competition based on false or misleading claims.

Representatives of Coke vowed to continue to fight the lawsuit against Pom now that the Supreme Court has permitted it to go forward.

But what are the larger ramifications of the ruling?  It appears the decision presents the distinct possibility that a company may have increased exposure to private litigation for deceptive labeling, despite its compliance with FDA rules and regulations.

Friday Links

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Above, you’ll find the cover of City of Heroes #5, published not so long ago in 2004. Apex, the superhero depicted on the cover, has received a jury summons (although we’re uncertain why he wears his costume to check his mail.). You may recall that the cover of the very recent She-Hulk #6 – published in 2014 – depicted that super heroine with a civil summons. In fact, at that time, our editor Jim Dedman speculated in a tweet that She-Hulk #6 might be the first comic book to depict a legal summons:

Well, obviously, in light of the City of Heroes cover above, the answer to that question is no. Alas.

You know, we never did write about Madonna potentially serving on a New York jury this summer. Did you hear about that? Apparently, she received some special treatment at the courthouse. What a voir dire that might have been! For more, see here.

By the way, speaking of legally themed tweets, here’s one of our recent favorites (authored by Colorado journalist Matt Sebastian):

Amazon Sued By FTC Over Unauthorized In-App Purchases

We have previously reported on Apple’s legal troubles over its mobile operating systems allegedly allowing unauthorized in-app purchases by minors.  Now Amazon.com is facing similar legal problems stemming from charges incurred by minors while using “apps” and playing games.  The interesting catch in the case of Amazon is the the suit was not brought by angry parents but by the Federal Trade Commission. In its lawsuit (which it brought in federal court in Washington), the FTC alleges that Amazon unlawfully billed parents for the children’s in-app purchases worth millions of dollars.  These unlawful billings allegedly occurred because the set-up on Amazon’s mobile devices allowed game playing children to spend unlimited amounts of money to pay for virtual items within the apps such as “coins” or “stars.”  Initially, no password was required in order for the children to make in-app purchases.  In early 2012, Amazon updated its system to require an account owner – presumably, an adult – to enter a password only for individual in-app charges. However, a password was only required for charges over $20.  Amazon updated its system once again in early 2013 to require a password for all such purchases. However, Amazon allegedly failed to disclose that such an authorization could open a window of up to 60 minutes during which unlimited charges could be occur without further authorization. The FTC’s lawsuit is brought under the FTC Act.  Section 5(a) of the FTC Act, 15 U.S.C. § 45, prohibits “unfair or deceptive acts or practices in or affecting commerce.”  According to the FTC’s complaint:

In numerous instances, Defendant has billed parents and other Amazon account holders for children’s activities in apps that are likely to be used by children without having obtained the account holders’ express informed consent. [This] constitute[s] unfair acts or practices in violation of Section 5 of the FTC Act, 15 U.S.C. § 45(a) and (n).

Regardless of the outcome of the lawsuit, this litigation risks a big PR hit for Amazon, a corporation which has always a prided itself on a “customer comes first” culture.  However, the allegations contained in this lawsuit doesn’t paint the company in the best light. We wonder at this point how the publicity may affect Amazon’s litigation strategy.  The complaint alleges that the Appstore manager described this situation as a “near house on fire” situation in 2011, yet it didn’t fully require parental consent for purchases until 2014.

The lawsuit is Federal Trade Commission v. Amazon.Com, Inc., No. 2:14-CV-01038 (W.D. Wash.).

A Farewell To Luanne Runge

As you may have heard, GWB shareholder Luanne Runge, who has been with the firm for more than 20 years, recently left to become the Associate Executive Director of the Liberty Fellowship. We are very proud of Luanne and wish her the best as she embarks on this new adventure and career. Luanne has always been a great success in both the legal field and the community, serving on many state and local boards. Recently, she completed a term as chairwoman of the Greenville Chamber of Commerce, a huge honor for her and our firm.

According to the Liberty Fellowship’s press release, Luanne “will focus on capital Fellow selection – interviewing nominees and building each class mosaic – as well as strategy and planning for the three Fellow seminars hosted by Liberty Fellowship annually.” In fact, Luanne herself graduated from the Liberty Fellowship program in 2009.

If you’re not familiar with the Liberty Fellowship, it describes itself as follows:

Liberty Fellowship is a statewide leadership initiative founded by Anna Kate and Hayne Hipp, Wofford College and the Aspen Institute. Through the Fellow program, Liberty Fellowship seeks to inspire outstanding leadership in South Carolina, empowering the state’s leaders to realize their full potential. Fostering a values-based approach, Liberty Fellowship exposes rising leaders to diverse perspectives, critical thinking, and intellectual and personal development.

If you’re interested in the Liberty Fellowship, please click here for more information.

We’d certainly be remiss if we didn’t mention that Luanne was an early supporter of the Abnormal Use Products Liability Law Blog. If memory serves, she may have been its very first proponent. As we have often said, we here at the blog have posted every business day since the first Monday in January 2010. In 2009, there was much discussion at the firm about whether or not to start a law blog, and if so, how such a blog might be administered. Back then, Luanne, serving as the firm’s chairwoman of its New Markets Committee, led the discussion of the merits of beginning a firm blog. Without her vision and leadership at that time, this enterprise may never have come to be, and of course, you know how much fun we’ve had here since then.

We will certainly miss Luanne, having worked with and alongside her for many, many years at Gallivan, White, & Boyd, P.A. Certainly, we wish her the best in her new endeavor.

By the way, you can follow Luanne on Twitter here.

South Carolina Court Of Appeals Explores Opinion Testimony In New Fire Damage Case

Whether in the form of anonymous comments to an article written by someone else, reviews of businesses, or drafting blog posts, tweets, musing on Tumblr, Facebook posts,  it often only requires a few keystrokes and hitting “enter.”  With all of this, we have become so desensitized to opinion in our daily lives that we do not ask the proper questions to learn if someone is reporting facts or opinion.  However, the South Carolina Court of Appeals recently reminded us that, during trial, we must be discriminating in an evaluating what constitutes fact and what constitutes an opinion. Fowler v. Nationwide Mut. Fire Ins. Co., No. 2012-213250 (S.C. Ct. App. Aug. 6, 2014) is a breach of contract and bad faith case arising from the denial of insurance coverage on a policy held with Nationwide for a house fire that occurred in 2009 in Oconee County, South Carolina.  The Friendship Fire Department, a volunteer fire department, led by its Chief David Wright, responded first to the fire at the Fowler home and found itself ultimately responsible for putting out the fire.  Following the fire, as required by state regulations, Chief Wright filled out a report about the fire, called a “Truck Report,” listing and explaining certain information about the fire. On the Truck Report, Chief Wright noted as follows: (1) for “Area of Origin,” Wright wrote “Living Room”; (2) for “Cause of Ignition,” Wright wrote “Unintentional”; and (3) for “Equipment involved in Ignition,” Wright wrote “Heater.”  Prior to trial, Nationwide moved to exclude the testimony of Wright regarding the cause and origin of the fire as well as the relevant portions of the Truck Report regarding same.

While Chief Wright was never admitted as an expert at trial—an issue which is the subject of a different appeal—he was permitted to testify about the Truck Report and his conclusions therein.  He testified that he wrote “Living Room” because it was the room that was the most heavily damaged and that he wrote “Unintentional” because he did not see or smell anything that caused him to suspect the use of accelerants or arson.  As to the “Unintentional” answer, Chief Wright testified that it was “just his opinion.” Finally, he testified that he believed the heater was involved because a kerosene heater was located at the base of a V-shaped burn pattern on the wall of the living room.  When asked to explain the V-pattern, Chief Wright testified that when he has been around investigators or inspectors, they call it a “V-pattern” when the fire starts at a point and moves up the wall and spreads out like a “V.”  Thus, Chief Wright testified that he believed the heater had instigated the fire because it was at the base of the V-shape.

The jury returned a Plaintiff’s verdict for over $500,000 on the breach of contract and bad faith claims.   On Nationwide’s motion for new trial, the circuit court found that the statements made by Chief Wright were admissible perceptions under Rule 701 of the South Carolina Rules of Evidence. Rule 701, SCRE, states that “[i]f the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which (a) are rationally based on the perception of the witness, (b) are helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) do not require special knowledge, skill, experience or training.”

Despite arguments by the respondents that Chief Wright was merely explaining what he observed, the Court of Appeals held that some of Chief Wright’s testimony was improper opinion testimony because that testimony required “special knowledge, skill, experience or training.” Additionally, the Court of Appeals held that the Truck Report should not have been admitted as a public records hearsay exception under Rule 803(8), SCRE, which includes “reports, . . . of public offices or agencies, setting forth . . . matters observed pursuant to duty imposed by law as to which matters there was a duty to report, . . . ; provided, however, that investigative notes involving opinions, judgments, or conclusions are not admissible.” The Court of Appeals also found that the improper admission of Chief Wright’s testimony and the Truck Report was prejudicial to Nationwide at trial such that a new trial was warranted.

Unlike the unregulated land of Internet reviews, tweets, blog posts, and other social media statements, Fowler makes clearer the delineation of opinion testimony for those who are not admitted as experts.  Going forward, an opinion is something that goes to causation or the underlying issues because it requires “special knowledge, skill, and experience.”

Suicide Can Be Prevented If We Learn To Recognize The Signs

Like many, we here at Abnormal Use were saddened to learn of the recent death of actor and comedian Robin Williams. The tragic suicide of Williams provides us an opportunity to discuss mental illness, especially clinical depression.  Fifteen percent of those suffering from clinical depression commit suicideSubstance abusers are 10 times as likely to commit suicide than the general population.  Women attempt suicide at least two times more often than men, but men are “successful” four times more than women.  Although most people suffering from depression are not suicidal, most suicidal people are depressed. These are very troubling statistics, and we must be aware of them. Just as important: we must learn how to distinguish depression and ordinary sadness, as they are not the same. Treating them as such is dangerous.

While some suicides occur without any outward warning, most do not.  Thus, we can prevent suicides by learning to recognize the signs and symptoms of someone at risk, taking those signs seriously, and knowing how to respond to them.  What are those signs?  Serious depression (low mood, pessimism, hopelessness, desperation, anxiety, inner tension, withdrawal, sleep problems), increased drug or alcohol use, recent impulsiveness, taking unnecessary risks, threatening suicide, making a plan (sudden giving away of possessions, purchase of firearm), and unexpected rage or anger. What to do if you recognize these symptoms in someone or fear someone you know may take his or her life?  Take it seriously. Seek professional help.  A person contemplating suicide may not believe her or she can be helped.  You may have to do more—go with them to the ER or a doctor.  If the person is an attorney, call your state bar’s lawyer assistance program.  Call your employer’s Employee Assistance Program (EAP).  Call the local office of Mental Health America or National Alliance for the Mentally Ill (NAMI).

The national suicide prevention number is 800-273-TALK.

Finally, here is a link to a good article on this subject.  Yes, Williams made a choice to end his life.  But it was a choice made out desperation and pain, symptoms we must learn to recognize to prevent suicide in the future.