Did you know that this past week saw the twentieth anniversary of the release of Pulp Fiction? How can two decades have passed?

Over at The UT History Corner blog, you can learn about a 110 year old feud between engineering and law students. Let’s hope there’s a movie.

A helpful iPad tip from Jeff Richardson over at iPhone J.D.: “Don’t let your iPad ring in court!” Good advice, that.

Our favorite legal tweet of late is one from mid-September which we only discovered this past week. Here goes:

I’ve always wanted to quote Sherlock Holmes in Court: he’s “twisting facts to suit theories, instead of theories to suit fact!”

— Bradley B. Clark (@bradleybclark) September 20, 2014

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 Daniel Hartis, author of the new book, Beer Lover’s The Carolinas, a handy and thorough guide to breweries, beer pubs, and other great beer joints in North and South Carolina. As we have previously noted, we here at Abnormal Use enjoy and remain proud of the beer scene in the Carolinas. Plus, we interviewed Daniel once before, shortly after the publication of his first book, Charlotte Beer: A History of Brewing In The Queen City. (You can revisit that interviewed – published not so long ago in July of 2013 – here.). When we learned that Daniel had written a new book, we knew, of course, that we’d request another interview. So, once again, he was kind enough to submit to an email interview, which appears below.

ABNORMAL USE: This is a book that likely could not have been written five or ten years ago. What do you feel has been the most exciting change in the Carolinas that has allowed the craft beer industry to flourish?

DANIEL HARTIS: There are many things that you could point to, but if I had to choose one, I’d credit North Carolina’s Pop the Cap movement. This bill passed in 2005 and allowed breweries to brew beers with an ABV as high as 15 percent, whereas before, they were limited to brewing beers at six-percent or under. Can you imagine how difficult it was to brew entire styles of beer, like high-gravity Belgian styles, imperial stouts or double IPAs? It wasn’t even possible in this state before Pop the Cap passed.

South Carolina passed similar legislation, as well, and two recent pieces of legislation – the Pint Bill and the Stone Law – have also been critical in allowing for continued growth in that state. Before the Pint Bill’s passage, you couldn’t go have a pint at a brewery – you had to go on a tour and have small samples. With its passage in 2013, SC breweries became destinations where you could visit to enjoy a maximum of four pints. In that same vein, the Stone Law – which passed earlier this year in an effort to lure Stone Brewing’s East Coast brewery to the state – allowed brewpubs to distribute their product and breweries to serve food. Like the Pint Bill, breweries have responded to these changes almost immediately, with several doing whatever they need to take advantage of the increased freedoms.

AU: What plans, if any, do you have to update the book as new breweries, bottle shops, and brewpubs continue to open throughout North and South Carolina?

DH: While I haven’t spoken to the publisher about it yet, I do know that they like to do new versions of books in the Beer Lover’s series every two to three years, depending on the market. The beer scene in the Carolinas is growing at such a tremendous rate that I’m sure they will want to update it in a year or two.

AU: How is it different for you when you visit a brewery or brewpub as a writer and reviewer than as a regular patron?

DH: As a writer, I make it a point to take note of a little more than I would as a regular patron, in which case I might be content to simply sit and enjoy a beer. Knowing that I’m writing for an audience who might not always share my taste in beer, I try as many of the brewery’s beers as possible (it’s a tough job, I know). Then instead of casting judgment on the beers by saying they are good or bad, I try to describe what I’m tasting and let the readers decide if the beer sounds good to them. Taste is subjective, after all. Fortunately the Carolinas are home to many great breweries producing a wide variety of styles, so there really is something for everyone. Aside from trying to be objective about beers, I try to take notes on the ambiance and environment of the places. Beer is the reason you go to these breweries, but at the same time, it’s only a part of the experience. I hope through my descriptions to help readers visualize these breweries and give them a taste of what they can expect. When I could, I would speak with the owners and brewers to get more information: what’s their philosophy on brewing, what’s their history, that sort of thing.

AU: There are many South Carolina beers currently unavailable for purchase in North Carolina, and vice versa. Why is that, and what is the biggest challenge faced by brewers who wish to distribute their beers in a neighbor state?

DH: I think it just comes down to the additional costs with having to distribute in another state – not to mention many of these breweries simply do not produce enough beer to get too far out of their own city, let alone state. That being said, I do think we’ll see breweries making the jump more frequently now, especially after building enough of a following in their respective areas. I heard recently that Lancaster’s Benford Brewing is looking to make the jump into North Carolina soon, and I think we’ll see other SC brewers following suit as well. Likewise, some North Carolina brewers are moving south as well (Green Man, The Olde Mecklenburg Brewery and NoDa Brewing are just a few that have recently started distributing in South Carolina).

AU: Besides your own website, Charlotte Beer, what sites should readers visit to keep current on issues affecting the craft beer industry in the Carolinas?

DH: With the growing interest in craft beer and breweries opening up seemingly every other week, many publications around the Carolinas are devoting more coverage to craft beer. Tony Kiss is reporting full-time on beer for the Asheville Citizen-Times and The Greenville News. You can also find Thom O’Hearn doing good work in Asheville at the Mountain Xpress. Here in Charlotte, Matt McKenzie does a good job covering the local beer scene with Charlotte Magazine’s On Tap blog, and Jonathan Wells has taken over as beer writer at Creative Loafing. Those are more of the traditional outlets, but there’s a lot of good beer coverage in blogs as well. The NC Beer Guys cover news, events and brewery happenings pretty exhaustively in North Carolina. In South Carolina, you have to follow Beer of SC and Drink. Blog. Repeat.

AU: What was the biggest challenge in attempting to visit and describe all of the breweries and brewpubs in North and South Carolina?

DH: I think it was just that: attempting to visit all of the breweries. I wanted the book to be as authentic as possible, meaning I wanted to visit as many places as humanly possible in a very short timespan. (I had just three months to write the book). I didn’t want to comb through things that had already been written; I wanted to visit these places firsthand to get my own impressions and observations, and I also wanted to make sure we got high-quality photos where possible (Eric Gaddy of Casting Shadows Photography did some excellent work in that regard). I’m so used to writing online and being able to update things on the fly, that it killed me to know that some breweries would open up after the book went to print. I knew that it would impossible to keep a printed product completely up-to-date, but I still agonized over it. I am proud to say that we visited several breweries in planning at the time that I knew would open up between the time I submitted the manuscript and the time the book was printed. Overall, I’m proud with how comprehensive the book is and look forward to adding even more breweries whenever the time comes to do a second edition.

BONUS QUESTIONS:

AU: What was your first craft beer, and what was it about that beer that made you starting thinking about beer differently?

DH: I guess it depends on your definition of craft beer. I really hated “big beer” and thought I didn’t like beer period until I started drinking Yuengling, which I enjoyed. When I moved to Asheville, NC to go to school, some friends and I stopped by Asheville Pizza. I told the waitress I’d try whatever their most popular beer is, and she brought back Shiva IPA. I’d like to tell you it opened up a whole new world for me, but I thought it was disgusting and abrasively bitter. My palate just wasn’t ready for it at the time, even though today I think it’s a great beer. Maybe a year or so later, UNC Asheville’s school paper asked me to write about the town’s microbreweries. This is where I got hooked. The one beer in particular that did it was Highland Brewing’s Oatmeal Porter, which I enjoy to this day. I’d never had a dark beer before then, and so it really opened up my eyes and sent me on my craft beer journey. (More on these earlier experiences,  as well as the article I wrote for UNC Asheville’s Blue Banner, can be found in “How I Came to Drink (and Write About) Craft Beer.”)

AU: If you could dispel any misconception about the craft beer industry, what would it be?

DH: There are lots of misconceptions about craft beer. Some that I encounter most often are that craft beer is too bitter or too heavy. That’s painting with a broad brush. The truth of the matter is that there is no more diverse a beverage than beer. From hoppy to malty to savory to sweet to sour to roasty to light – these are just a handful of the seemingly endless adjectives that we use to describe beer. I sincerely believe there is a beer out there for every palate.

AU: Cans or bottles?

DH: Cans have become trendy these days, but for good reason: they protect against light and oxygen better than bottles, and can be taken places where glass cannot. All things being equal I’ll say cans, though I’d never begrudge a good beer in a bottle.

BIOGRAPHY: Daniel Hartis is the founder of CharlotteBeer.com and the author of Charlotte Beer: A History of Brewing in the Queen City. His latest book, Beer Lover’s The Carolinas, was published by the Globe Pequot Press earlier this year. When he’s not writing about beer, he enjoys spending time with his wife and two children. You can follow him on Twitter at @CharlotteBeer.

According to a report from BevNet, energy drink manufacturer Red Bull has settled a proposed class action lawsuit filed against it for $13 million.  The suit, filed last year by Benjamin Careathers in the U.S. District Court for the Southern District of New York, alleged that Red Bull’s signature “It gives you wings” slogan is false and misleads customers about the drink’s superiority.  While the company’s advertisements may in fact show Red Bull drinkers growing wings, the plaintiff alleges that Red Bull offers no increased performance, concentration, or reaction speed.  As you might expect, Red Bull has denied any liability.

We assume – and hope – that the plaintiff didn’t actually believe Red Bull would give him actual wings.  (We doubt New York recognizes the “negligent failure to bestow wings” cause of action.). In fact, we seriously doubt that Red Bull would have paid out millions on such claims even if it was concerned about litigation costs. As such, we will refrain, mostly, from commenting on the absurdity of such a lawsuit and focus on the more plausible allegations.

This lawsuit was never about wings, but rather, it centered upon whether Red Bull actually delivers that energy fix we all crave.  After all, that energy boost is why people spend $3 on an 8-ounce drink in the first place, right?  Or, $2 for a cup of Starbucks coffee, for that matter.  The suit, however, alleges that Red Bull’s primary active ingredient (caffeine) is the same as that of coffee and, thus, it is not worthy of the premium price.  Maybe so, but the suit fails to take into account the cognitive effects that come along with drinking an “energy drink.”  Even if it offers a mere placebo effect, the energy drink didn’t become a multi-billion dollar industry without repeat customers.

The truth is that the energy drink is not some new phenomenon.  For centuries, people have been looking for ways to give themselves an extra burst of energy.  Coffee has been, and continues to be, the drink of choice for many across the globe.  However, in the 1960’s, Japanese manufacturer Taisho upped the ante when it released Lipovitan D – an energizing tonic sold in mini-bottles.  Thereafter, other beverage companies joined in the game.  Pop culture legend Jolt Cola was once marketed to the masses as having “all the sugar and twice the caffeine.”  Those were the days. Even the soft drink giants, Coca-Cola and Pepsi, have tried their hand at distributing coffee replacements over the years.  Today, the game has evolved into the billion dollar “energy drink” industry featuring companies like Red Bull and Monster.

Our guess is that this lawsuit will have little, if any, impact on the energy drink industry.  For those angry about Red Bull’s alleged false advertising, Red Bull has placed $6.5 million of the $13 million settlement into a fund for consumers.  If you have purchased a Red Bull in the last 10 years, you can go here for a $10 refund or two free Red Bull products.   No word on whether the free products give you wings.

We here at Abnormal Use took notice of a recent Wall Street Journal article which examined the use of adverbs in legal documents in the United States.  The article highlights the impact that the usage of adverbs have had in SCOTUS jurisprudence.  For example, in the recent Burwell v. Hobby Lobby case, the Court was faced with the determination of whether certain regulations “substantially burden the exercise of religion” as defined by the Religious Freedom Restoration Act (RFRA).  See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2759, 189 L. Ed. 2d 675 (2014).  In a recent “net neutrality” case, the United States Court of Appeals for the District of Columbia was forced to determine the impact of a rule requiring service providers to “serve the public indiscriminately.” Verizon v. F.C.C., 740 F.3d 623, 655-56 (D.C. Cir. 2014).

In the piece, the WSJ examines the glut of adverbs in the legal system against the backdrop of numerous opinions of successful writers, including Stephen King, who warns against the use of adverbs:

No part of speech has had to put up with so much adversity as the adverb. The grammatical equivalent of cheap cologne or trans fat, the adverb is supposed to be used sparingly, if at all, to modify verbs, adjectives or other adverbs. As Stephen King succinctly put it: “The adverb is not your friend.”

However, the article acknowledges that research on the subject has yielded mixed results:

According to a 2008 study by two scholars at the University of Oregon School of Law and Brigham Young University, lawyers who stuff so-call intensifier adverbs in their legal briefs—words such as “very,” “obviously,” “clearly,” “absolutely” and “really”—are more likely to lose an appeal in court than attorneys who avoid those “weasel words,” as Mr. Garner described them. But notably, the study found that the habit can actually work in a lawyer’s favor if the presiding judge really likes to use those adverbs, too.

Our take is that lawyers should be aware of their audience.  If the audience likes adverbs, use adverbs.  If the audience hates adverbs, don’t use adverbs.  If you are unsure whether your audience likes adverbs, or if you are writing a mystery novel in your free time, err on the side of avoiding adverbs. But do so carefully.

(Hat Tip: ABA Journal).

Good news: Fleetwood Mac is coming to the Carolinas.

Rest in peace, Jan Hooks.

Our Stuart Mauney has spent a good bit of this week at the ABA 2014 National Conference for Lawyer Assistance Programs. Of course, he’s been live tweeting the event. You can follow Stuart on Twitter and see his conference related tweets here.

Speaking of Twitter, our favorite legal tweet of late comes from Popehat:

Four things that are always better the next day: meat loaf, chili, pinto beans, and a trial as told to other lawyers.

— Popehat (@Popehat) October 3, 2014

Who foots the tab for the disposal of prescription drugs that aren’t (improperly) flushed down the drain or thrown into landfill?  One California county believes that such costs should fall to drug companies. Armed with that belief, county officials passed an ordinance in 2012 requiring drug companies to pay for a drug-disposal program.  Last month, the Ninth Circuit upheld Alameda County’s ordinance, which drug industry groups claimed was unconstitutional. The Safe Drug Disposal Ordinance at issue mandates that companies selling or distributing prescription drugs in Alameda County fund a program to ensure safe disposal of unused drugs.  The goal is to remove unused and unwanted drugs from households without contaminating water supplies. Under the law, drug companies must establish drop-off stations for the disposal of unused drugs.

Three trade groups sued Alameda County, alleging that the ordinance violated the the dormant commerce clause. If you don’t remember, the dormant commerce clause prohibits states from passing legislation that improperly burdens or discriminates against interstate commerce. The trade groups alleged that the ordinance would constitute an economic burden in the magnitude of approximately $1 million per year for each drug company required to comply.  Alameda County claimed this cost was exaggerated and argued that any burden would be minimal in comparison to the nearly $1 billion in drugs sales that occurred in their county each year.

The Ninth Circuit agreed with the county and unanimously held that the ordinance did not violate the dormant commerce clause. The court further held that the ordinance treats all manufacturers equally without respect to the geographic location of the manufacturer  Finally, the court held that the plaintiffs presented no evidence that the ordinance would substantially burden the flow of interstate prescription drugs.  In so doing, the court observed that the U.S. Supreme Court is “reluctant to invalidate regulations that touch upon safety.”  As such, it upheld the district court’s dismissal of the case. In concluding the opinion, the court stated:

Opinions vary widely as to whether adoption of the Ordinance was a good idea. We leave that debate to other institutions and the public at large. We needed only to review the Ordinance and determine whether it violates the dormant Commerce Clause of the United States Constitution. We did; it does not.

The case is PRMA, et al. v. County of Alameda, et al.,  No. 13-16833 (9th Circuit Sept. 30, 2014).

Several months ago, actor/comedian Tracy Morgan and several others filed suit against Walmart in a New Jersey federal court after he was involved in an accident with a Walmart truck on the New Jersey Turnpike which left one person dead and several others seriously injured.  The suit alleges that Walmart driver Kevin Roper had been awake for more than 24 consecutive hours when he crashed into the side of the limousine van carrying Morgan and several others.  Further, Roper was allegedly so fatigued that he fell asleep at the wheel prior to impact.  According to the investigation conducted by the NTSB, Roper was travelling 65 mph in a 45 mph zone.  He has pleaded not guilty  to death by auto and assault by auto charges.

Last week, Walmart filed its answer to Morgan’s complaint and, needless to say, it caused a bit of an uproar.  According to a report from the Hollywood Reporter, Walmart’s answer contains nine affirmative defenses – most of which are fairly typical in personal injury lawsuits (i.e. failure to mitigate damages, punitive damages are unconstitutional, et cetera).  One of those affirmative defenses, however, prompted much criticism.  Specifically, Walmart alleged that the plaintiffs’ injuries “were caused, in whole or in part, by plaintiffs’ failure to properly wear an appropriate available seatbelt restraint device.”  The media focused upon this defense and accused Walmart of a blatant “blame the victim” campaign.

Likewise, Morgan himself responded in a statement, “I can’t believe Walmart is blaming me for an accident that they caused.”

We here at Abnormal Use do not know the merits of either side of this case; however, we question the national lynching of Walmart at this early stage of the litigation.  Is Walmart attempting to shift all or some of the blame to the plaintiffs?  Certainly.  That is the very nature of an affirmative defense.  Should Walmart be publicly criticized for it?  Absolutely not.  Under New Jersey law, all passengers of a motor vehicle are required to wear a seat belt.  N.J.S. 39:3-76.2f. Unlike some jurisdictions wear the use of a seat belt is inadmissible in a civil action, in New Jersey, evidence of nonusage of a seat belt is a comparative negligence issue and is admissible on issues of whether the nonuse increased extent and severity of injuries.  As such, Walmart is raising a defense which it is entitled to raise by law.

We can certainly appreciate the sentiment that pleading the failure to use a seat belt “looks” bad when compared to the alleged negligence of the truck in this case.  However, Walmart is acting fully within the laws set forth by the State of New Jersey in its pleadings.  If the plaintiffs’ injuries could have been lessened or avoided altogether by using a seat belt, then Walmart is entitled to have that matter decided by a jury.  This isn’t a matter of Walmart claiming that Morgan and the other plaintiffs caused the accident itself but, rather, that perhaps some of the injuries could have been avoided if the plaintiffs had also followed the law.  Again, if the case goes to trial, a jury may determine that the defense is not applicable and award the plaintiffs sizable damages. But, it is completely unfair to chastise Walmart for raising the matter as an affirmative defense in its initial pleading.   As with any affirmative defense, if Walmart didn’t plead the seat belt usage defense, then it would be forever waived.  If discovery reveals that the defense is groundless, then Walmart can always withdraw it.

We wonder if the media would report on that development.

For those readers who were eagerly anticipating the arraignment of Mike “The Situation” Sorrentino, originally scheduled for this week, you must unfortunately wait even longer.  Reportedly, the arraignment has been delayed so that The Situation can film another reality TV show. For those unfamiliar with the case, The Situation and his brother allegedly falsified tax returns in order to avoid nearly $9 million in taxes. A Justice Department press release explains that The Situation and his brother “did not properly pay taxes on $8.9 million in income Michael Sorrentino received from promotional activities . . . .”  The press release goes on to explain that:

Michael Sorrentino is a reality television personality who first gained fame on “The Jersey Shore,” which appeared on the MTV network. Marc Sorrentino is Michael’s brother and manager. The pair conspired to fail to pay all federal income tax owed on approximately $8.9 million earned by Michael Sorrentino between 2010 and 2012. This income was largely received by two companies controlled by the brothers: MPS Entertainment, LLC and Situation Nation, Inc.

As part of the conspiracy, the brothers submitted or caused to be submitted to the IRS false documents which understated the gross receipts received by the brothers and the two companies. The brothers also submitted false personal tax returns which failed to report all of the income they received, and Michael failed to file a personal tax return in 2011, despite earning $1,995,757 that year.

As part of the conspiracy, the brothers also fraudulently claimed millions of dollars in personal expenses as business expenses, including payments for high-end vehicles and clothing, personal grooming expenses, and distributions – or direct payments – from the businesses to personal bank accounts.

The conspiracy count carries a maximum potential penalty of five years in prison and a $250,000 fine; the filing false tax return counts each carry a maximum potential penalty of three years in prison and a $250,000 fine. The count charging Michael Sorrentino with failing to file a tax return carries a maximum potential penalty of one year in prison and a $100,000 fine.

U.S. Attorney Fishman credited special agents of IRS-Criminal Investigation, under the direction of Acting Special Agent in Charge Larsen, with the investigation.

The prosecutors assigned to the case are Assistant U.S. Attorneys Evan S. Weitz and Jonathan W. Romankow of the U.S. Attorney’s Office Criminal Division in Newark, as well as Trial Attorney Tino Lisella of the Tax Division of the United States Department of Justice. Weitz is no stranger to high profile financial cases, having handled the case against Karen Febles, who allegedly stole millions from an investment banker. Romankow was involved in the prosecution of reality stars Teresa and Joe Guidice and Lisella has been involved with the case of the New Jersey doctor who allegedly participated in an oxycodon distribution conspiracy.  Point is, the prosecution team is no stranger to high profile cases.   The Situation’s defense attorney, Richard Sapinski, may have his work cut out for him.

For more information, the indictment is located here.

Well, it finally happened.

We have long suspected that someday it would happen, but recently, it finally did happen.

Of course, we are referring to the possibility that an opponent in litigation might cite to our blog in an effort to defeat our argument in a motion hearing.

We’ve been blogging here at Abnormal Use for more than four and a half years, and it has finally come to be.

The scene was thus: I arrived at a county courthouse relatively early, as I like to have a few moments to myself before court convenes to review my notes and any case authority once more before the hearing begins. Lawyers were beginning to enter the courtroom, although the judge had not yet arrived. I was there to argue a motion which was opposed by counsel for the plaintiff as well as other parties in the litigation. As fate might have it, the issue was being litigated that day was a relatively novel one, and there was not a wealth of authority on the particular common law issue in dispute. Counsel for one of the non-movants came into the courtroom, and as we had not previously met in person, we introduced ourselves and exchanged the customary pleasantries. We even chuckled about a few events in the case, as lawyers sometimes do before a hearing, and we then sat down – apart from each other, of course, so that we could finalize our preparations for the imminent hearing. Put another way, we had to get into character.

A few moments later, counsel for the non-movant looked back and raised a packet of notes in the air. Atop the stack was a color printout of a blog post from this website.

The conversation began.

“I guess I am supposed to show you this,” counsel for the non-movant said.

“What’s that?” I replied, not yet seeing what my opponent held before me.

“My associate found this for me. It’s from your blog.”

“Oh?” I asked, now realizing that what the opposing lawyer held was a printout from our blog and seeing several highlighted paragraphs from the post in question.

She read me the title of the post, and I immediately realized that it was not one that I myself had written. Getting a closer look, I saw that the post had run in our blog’s very early days – 2010! – and that the post in question was more in the form of a case summary than an argument on behalf of a legal principle.

“I’ve never had anyone cite my blog against me,” I said. “However, I don’t think that’s one of my posts.”

Looking disappointed, counsel for the non-movant gave the printout a closer look and realized that the author was another attorney.

“Oh, you’re the editor of the blog.”

“Yes, that’s right.”

Counsel for the non-movement seemed a bit crestfallen, as if this particular arrow in the quiver was suddenly less effective or appealing.

Ultimately, the blog post was not used during the hearing.

So, in the end, we suppose that we dodged this particular social media peril. But we knew something like this would happen someday.