A Reality TV Competition For Lawyers: Yes, It Has Happened Before

Recently, we here at Abnormal Use have become big fans of the reality show “Ink Master.” The show pits tattoo artists from across the country against each other to compete for a cash prize, and, in the current season, a guest spot at tattoo shops owned by the show’s judges, Chris Nunez and Oliver Peck. The show is currently in its 8th season, and it has been a huge success story from Spike’s channel lineup.

The success of a show about tattoo artists got us thinking. Why can’t we have a reality show with lawyers? Maybe one where they compete for a job at a big law firm in some big city. Well, guess what? There was, in fact, a reality show for lawyers competing for a “big time” legal job. But, unfortunately, a show about lawyers was not as entertaining to the masses as artists comparing their cover-ups of lower back tattoos. There were also nursing home abuse lawyer michigan in it.

The lawyer reality show, “The Partner,” aired on Fox way, way back in 2004. The show apparently lasted only one season, and there are few remnants of its existence on the Google search engine. (We here at Abnormal Use, as avid reality television fans, can recall watching the show, and as such, we can vouch for its existence). Reality TV World described the show as follows:

[T]he hour-long show, based on an idea by FOX reality programming executive Mike Darnell, will be eight to ten episodes in length and, similar to NBC’s The Apprentice, feature two competing teams. Unlike Apprentice however, rather than be divided by gender, the composition of the teams will be determined by the prestige of the contestants’ law schools — with Ivy Leaguers forming one team and graduates of “less prestigious” schools forming the other.

In each episode, the contestants conducted a mock trial of sorts in front of a jury. The jury determined the winning team, and the losing team had to face a judge who, in turn, would eliminate one of the attorneys from the competition. This process repeated each week until one contestant was left standing. According to the Reality TV World report, the winner was rewarded with a “position as a ‘partner’ in a major law firm.”

We must admit, the concept of the show sounds entertaining at the very least. (The show pre-dated this writer’s law life, and due to that small fact, it didn’t quite present the same intrigue at the time). While becoming a partner may be a bit much, in many ways, the competition isn’t too bad of an idea for hiring purposes. Certainly, observing lawyers in a courtroom (albeit a fake one) could be a more practical evaluator of an applicant’s potential to practice law than a law school transcript and a resume.  And, if the show is anything like every other reality show, you can probably discover who the jerks are as well so there is no fear of getting fooled during an interview. For repairs and installation of TV you could hop over to these guys.

On the other hand, “The Partner” is no more “real” than any other reality show. Even for trial lawyers, practicing law is so much more than stepping into a courtroom. We imagine the lawyer contestants of “The Partner” didn’t have any discovery or brief writing competitions. We doubt they were given the opportunity to earn immunity for the next elimination challenge if they could  be the first to find a case on Westlaw from the 1920s’ setting forth the elements of “assumpsit.” After all, who other than us legal nerds would have watched that, anyways?

Friday Links

Okay, so back in the 1980’s, when we here at Abnormal Use read comic books, we never really acquainted ourselves with Doctor Strange. Well, apparently, this weekend, we can remedy that issue and see the new Marvel film featuring that character. Anyone seen it yet?

Oh, and we heard that there was some baseball played this week. We’re not certain what to say about that.

If you’re on Twitter, be certain to investigate the brand new #PracticeTuesday hashtag for tips on appellate practice and more.

Our favorite legal tweet of the week is a real gem:

12 Steps Toward Fulfillment in the Practice of Law (Step 10)

Step 10 – Embrace Law as a “High Calling.”

Judge Carl Horn begins Step 10 with the proposition that the legal profession’s failing ideals were once healthy and widely held. At the center of these ideals was the assumption that the best lawyer was “not simply an accomplished technician but a person of prudence or practical wisdom as well.” This included wisdom about human beings and “their tangled affairs that anyone who wishes to provide real deliberative counsel must possess.” The virtue of practical wisdom is “central to human excellence that has an extrinsic value of its own.”   

Horn urges the profession needs to rededicate itself to these higher purposes; individual lawyers should treat the profession as a “high calling.” Horn suggests that we should take a higher road and understand that there are things we will instinctively know not to do. We will not lie or make misleading representations to the court. We will treat opposing counsel in a manner in which we would expect to be treated. We will not cheat or steal from our clients by doing unnecessary work. We will not take on work that we find morally offensive just because “everyone deserves a lawyer,” or for that matter, because we could use the extra money.  

Horn concludes that there is a connection between the collapse of historical ideals and the loss of professional self-confidence. “It follows, if we are to have realistic hopes for regaining professional self-confidence, that we must reaffirm ideals that transcend self-interest – including our individual and professional commitment to the “common good.” We must not allow the legal profession to become an amoral, dollar-driven business; indeed, we should not be afraid to make value based decisions or give advice grounded in moral conviction. In short, if we are to find fulfillment in the practice of law, we must take Step 10: we must embrace law as a high calling.”

Please join us next week for Step 11 – Be Generous with Your Time and Money.

South Carolina Product Liability Series – Innocent Seller Defense

Many of our clients are not familiar with the law of product liability in South Carolina. Often, clients are named in a lawsuit simply because they were the “seller” of a defective product. Under the current state of the law, it is arguably acceptable for the Plaintiff to do so. To be liable under a strict liability or warranty theory in South Carolina, a defendant must only have been a “seller” of a product that was defective and unreasonably dangerous, and which caused the plaintiff’s alleged injuries.

In some states, the fact that a seller is merely a “pass through” seller or a “broker” may absolve the seller of liability under a product liability theory. Some states refer to this as an “innocent seller” defense, which is supported by evidence that the defendant never handled, manipulated, inspected or otherwise had any direct involvement with the product beyond merely facilitating the sale. However, South Carolina does not explicitly afford such protections yet, and the plaintiff can choose to sue the seller of an allegedly defective product even if the seller merely acted as a middle man in the transaction. Lawing v. Univar, USA, Inc., 2015 S.C. LEXIS 398, *2-3 (S.C. Dec. 2, 2015); Rife v. Hitachi Constr. Mach. Co., 363 S.C. 209, 216, 609 S.E.2d 565, 569, 2005 S.C. App. LEXIS 19, *9 (S.C. Ct. App. 2005) (a plaintiff “can recover all damages that were proximately caused by the defendant’s placing an unreasonably dangerous product into the stream of commerce.”) (emphasis added); Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 540, 462 S.E.2d 321, 326, 1995 S.C. App. LEXIS 125, *14, CCH Prod. Liab. Rep. P14,387 (S.C. Ct. App. 1995) (In product liability cases in South Carolina, the focus “is on the condition of the product, without regard to the action of the seller or manufacturer.”) (emphasis added); Scott v. Fruehauf Corp., 302 S.C. 364, 371, 396 S.E.2d 354, 358, 1990 S.C. LEXIS 162, *9, CCH Prod. Liab. Rep. P12, 635 (S.C. 1990) (“Here, [distributor] and [lessee of the allegedly defective equipment] shared a common liability to the ultimate consumer, Scott, under our strict liability law.”).

In fact, a defendant can be liable as a seller “even though no sale has occurred in the literal sense.” Henderson v. Gould, Inc., 288 S.C. 261, 268, 341 S.E.2d 806, 810, 1986 S.C. App. LEXIS 301, *11 (S.C. Ct. App. 1986). A defendant that “simply brokered the transaction and never affirmatively passed ownership” of the product was potentially liable as a seller under a strict liability theory because the defendant “assisted in passing the gasoline can through the stream of commerce and received a monetary benefit for doing so.” Funchess v. Blitz U.S.A., Inc., 2010 U.S. Dist. LEXIS 121924, *9, 2010 WL 4780357 (D.S.C. Nov. 16, 2010).

On the other hand, there is support for the argument that the Court should take into consideration the degree of control the defendant exercised over the product when deciding whether the defendant can be liable as a seller under a strict liability theory. The South Carolina Supreme Court has held that because a pharmacy was “providing a service, rather than selling a product, it may not be held strictly liable for properly filling a prescription in accordance with a physician’s orders.” Madison v. Am. Home Prods. Corp., 358 S.C. 449, 456, 595 S.E.2d 493, 496, 2004 S.C. LEXIS 92, *11, CCH Prod. Liab. Rep. P16,980 (S.C. 2004). In reaching its decision, the Court considered that the South Carolina Pharmacy Practice Act “specifically states that ‘the practice of pharmacy shall center around the provision of pharmacy care services’” and that the statute defines “health care provider” to include pharmacists who provides health care services.  Id.

Defendants in subsequent cases have argued, based on Madison, that they were not liable as the seller of a product due to their limited involvement in the relevant transaction, and the results have been positive.  A defendant that was “compensated to install,  maintain and recalibrate the [a] machine. . . . [and was] compensated for training the [customer’s] employees” was not liable as the seller of the machine at issue, because it was merely an “after-purchase service provider having nothing to do with the actual sale of any product.” Martin v. A. Celli Nonwovens Spa, 2014 U.S. Dist. LEXIS 153557, *5-6 (D.S.C. Oct. 28, 2014).

We would argue that South Carolina’s appellate courts would adopt an innocent seller defense given the opportunity, and we hope that this opportunity will come sooner rather than later.