Yesterday, a federal jury in Houston, Texas rejected Plaintiff Jamie Leigh Jones‘ claims against Halliburton subsidiary KBR that she was raped and fraudulently induced into entering into an employment contract with the company.  See Jones, et al, v. Halliburton Co.,  et al, 4:07-cv-02719 (S.D. Tex.). Jones sought damages against the company in the amount of $145 million, claiming that KBR created a hostile sexual work environment at her barracks in Iraq.

The Houston Chronicle reports:

Jurors in a federal courtroom on Friday rejected a former Conroe woman’s claims that she was drugged and raped by several Kellogg Brown & Root firefighters while working for the company in Iraq in 2005.

The jury also rejected Jamie Leigh Jones’ claims that the former Halliburton subsidiary committed fraud by “inducing her to enter into an employment contract.”

By answering “no” to those two questions, the jurors rendered the other 12 questions in the jury charge moot, bringing an end to the month-long trial of Jones’ lawsuit.

We mention this verdict today because the Jones lawsuit was prominently featured in Susan Saladoff’s recent documentary, Hot Coffee, which we reviewed previously here. Specifically, the film chronicled Jones’ inability to have her claims heard by a jury due a mandatory arbitration clause in her employment contract (although we here at Abnormal Use did not explore the Jones case in our review because our interest in the film was prompted primarily by its discussion of the Stella Liebeck McDonald’s hot coffee case).  In 2009, the Fifth Circuit ruled that Jones did have the right to have her case heard by a jury. See Jones v. Halliburton Co., 583 F.3d 228 (2009).

Did anyone remember that it was Friday the 13th today, or was everyone simply to busy to notice?

If you’re in Charlotte, North Carolina next week, and you’re curious about music law, you might be interested in the Inn of Court event on Wednesday. Here’s the info:

“I fought the law, and the law won,” a rock band once proclaimed. At our next meeting, we will learn about the law of music from both a music performer and a rock musician turned lawyer. Entertainment lawyer and former disc jockey Coe W. Ramsey of Brooks Pierce’s Raleigh office represents radio and television stations, musicians, new media companies, and others in nearly every area of entertainment law. Before practicing in the area of workers compensation at Cranial Sumner & Hartzog, LLP in Raleigh, Michael Connell played guitar in The Connells, a power pop band that recorded 8 albums and toured the world. At this event, Coe will teach us the basics of music law and forming a band, while Michael will offer his practical insights on the rock world from the perspective of a musician and performer.

The event takes place next week on the evening of Wednesday, January 18, 2016 at Draught in Charlotte. For more details and to register, click here.

A recent tweet by our editor reveals the perils of new legal technology.

The court reporter emailed to alert me that I’d left my Apple Pen at opposing counsel’s office after a long, long day of depositions. Alas!

— Jim Dedman (@JimDedman) January 13, 2017

The question for today: Might emoticons assist in a hearsay inquiry?

That’s right. I just wrote that.  Let’s back up a bit and I’ll explain why that’s on my mind.

Carole Gailor of Raleigh, North Carolina recently spoke at a North Carolina Bar Association conference on the rules of evidence as applied to electronically generated information.  In so doing, she remarked upon the authentication and admissibility hurdles that litigants must confront when attempting to introduce electronic or digital evidence, such as emails, computer generated reports, social media profiles, and other such information.  However, she made a stray remark which prompted the law nerd in me to take particular notice.  Ms. Gailor noted that an emoticon might, in fact, assist in the analysis of whether a digital piece of evidence is admissible.

As a preliminary matter, we could turn to Wikipedia or Urban Dictionary or the like to find a formal definition of the term “emoticon.”  But that’s not really necessary, is it? But everyone knows that they are the little smiley or frowny faces – or sometimes far more complex textual graphics – utilized by writers on the Internet to convey all sorts of present emotions.

But why bother with a lay definition? A number of courts have already tackled the term.

A Westlaw search reveals that there are 26 reported state and federal cases which reference the word “emoticon” in the singular or plural, the earliest citation coming from 2004.  A handful of them cite to United States v. Cochran, 534 F.3d 631, 632 n.1 (7th Cir. 2008), which itself cited the Merriam Webster online dictionary. The most recent is this year’s State v. Jacques, 798 N.W.2d 319 (Table), at *1 n.2 (Wis. Ct. App. 2011) (per curiam). (“An ‘emoticon’ is a ‘group of keyboard characters … that typically represents a facial expression or suggests an attitude or emotion and that is used especially in computerized communications’ such as e-mail or instant messaging.”) (citing Cochran). There are other cases, as well. State v. Nero, 1 A.3d 184, 191-92 n.9 (Conn. Ct. App. 2010) (“An emoticon, as it is called in Internet vernacular, is a little cartoon face that can be added to the text of an instant message. The faces come in numerous expressions and are used to illustrate how the speaker is feeling or the intended meaning of what he or she has written.”); State v. Prine, 13 So.3d 758, 761 (La. Ct. App. 2009) (noting that an emoticon is “an online mode of expressing emotion”); Spanierman v. Hughes, 576 F. Supp. 2d 292, 312 n.13 (D. Conn. 2008) (defining emoticons as “symbols used to convey emotional content in written or message form (e.g., ‘:)’ indicates ‘smile’ or ‘happy,’ and ‘:(‘ indicates ‘frown’ or ‘sad’).”).

Most of these definitions state pretty clearly that the emoticon, by its very nature, is designed to convey the emotional state of the author of the statement which it accompanies.

The interesting question raised by Ms. Gailor is whether emoticons, in providing the recipient with a precise state of mind of the sender, aid in the admissibility inquiry.

Let’s turn briefly to the Federal Rules of Evidence.  Where might emoticons be relevant?

What about a “Then-Existing Mental, Emotional, or Physical Condition” under Rule 803(3), defined as “[a] statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.”?

That’s certain possible, and it might be that an emoticon could provide the statement with additional context to overcome a hearsay challenge.  If you could define or interpret the specific emoticon and argue that it established “then existing state of mind” or “mental feeling,” you might convince the court that the declarant’s statement can come into evidence.

Here’s a more fun one. Might an emoticon indicate that a statement is an “excited utterance” under Rule 803(2), defined as “[a] statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused”?  Maybe.  That’s a bit trickier, because usually an excited utterance is spoken, not written. When excited, agog, or what have you, what declarant will pause to write a note? However, in the past decade, the deliberate nature of a writing has become, shall we say, far more casual in the era of text messages, Facebook, Twitter, and the like. The spontaneity of instant messages, texting, tweeting and other such forms of new communication make it more likely that a communication is truly instant.

In 1998, a Massachusetts court focused on the issue of whether a particular writing, a fax sent several hours after an assault and battery, could be a spontaneous exclamation and thus not barred by the hearsay rule.  Commonwealth v. DiMonte, 692 N.E.2d 45, 48-49 (Mass. 1998). In so doing, the court noted:

The defendant argues that the acts of drafting and transmitting a facsimile message deprive it of the spontaneity required by the hearsay exception for spontaneous exclamations. Writing, he contends, is an inherently premeditated process; manipulation of a facsimile machine, once a message is written, is an additional deliberated sequence of actions. He further argues that the recipient of a written message has no percipient experience of the sender at the moment when she writes and sends the message, and cannot testify to the sender’s demeanor, tone of voice, or degree of observed excitement or stress. The arguments are persuasive.

Those concerns – written when the communications infrastructure in place was far, far different than that of today’s are now 13 years old. Wouldn’t an emoticon provide some context in lieu of the percipient experience of the sender at the moment of the writing? Wouldn’t the instant nature of text messages or digital writings ameliorate the issues addressed by the court?

Now all we need is a text case.

(This post was originally posted on the now defunct North Carolina Law Blog on December 7, 2011).

Our editor, Jim Dedman, is in Chicago today for the DRI Product Liability Committee Fly-In. You may remember that he is chair of that committee’s newsletter section. If you’re there, too, say hello! Because this is Friday Links, we tried to find an appropriate comic book cover depicting Chicago. However, we were unsuccessful. So instead, we bring you the cover of Kicking Television: Live in Chicago, Wilco’s 2005 live album recorded in the Windy City. In fact, according to Wikipedia, the album was recorded May 4 through 7, 2005, ten years ago this week. How about that?

Okay, if you’ve not seen the news story about the police officer suing Starbucks for spilling his free cup of coffee on himself, please see here. Apparently, he testified for eight hours on the stand at trial this week.

Are you following Abnormal Use on Facebook? If not, please join the discussion over there, as we’d love to have you! See here.

Our favorite tweet of late comes from our own Stuart Mauney:

Do not ask me if I want to eat in bar when I have a reservation at your restaurant. I don’t care if it is same menu & service.

— C. Stuart Mauney (@stuartmauney) April 27, 2015

Above, you’ll find the cover of  Rock N’ Roll Comics #7, published way, way back in the halcyon days of 1990. We post this cover this week because we here at Abnormal Use saw The Who live in concerts this past Tuesday night in Raleigh. What a show! We have now seen “Baba O’Riley” live! Good times.

Our own Stuart Mauney’s blog post on the lack of outrage over binge drinking was recently featured on the CoLAP Cafe  blog, the online newsletter from the ABA Commission on Lawyer Assistance Programs. Click here to read further.

We’re sticklers for certain rules in legal writing. Thus, our favorite tweet of late comes from Judge Dillard:

Every time I read “pled,” a little part of me dies inside.

— Judge Dillard (@JudgeDillard) April 21, 2015

Well, it’s Tuesday, December 24, 2013, which means that for some, this is a work day (at least in part). We here at the Abnormal Use law blog and Gallivan, White, & Boyd, P.A. hope our lawyer readers will sneak out of the office a bit early to spend some time with family and friends today. To celebrate this festive occasion, we present the comic book cover above – that of The Flintstones Christmas Party #1, published way, way back in 1977. “Holiday fun with all your favorites!” proclaims the cover. All we can say is that there are a LOT of Hanna-Barbera cartoon characters in that sleigh. Have a safe and fun Christmas Eve (and triple check to make certain you’ve bought all your presents!).

To check our our past Christmas Eve posts (and other Christmas related comic book covers), please see here and here.

There’s always one guy in the foursome who hits the ball six(teen) times and writes down a four.  He is the same guy whose ball miraculously lands on the edge of the fairway even though everyone in the group saw it drop directly into the middle of the woods without touching a branch.  He takes between 6 and 10 practice swings.  He often takes a “provisional,” which is really a mulligan, but when one calls it a provisional, it becomes an interesting type of shot that’s effect changes significantly from the time it is hit until the time that the player’s score is entered onto the card.  When provisional guy declares he is taking a provisional, he does so in a fashion similar to this: “I’m going to take a provisional. I’ll only take it if I can’t find my first one.”  The next step in the provisional process is usually:  1) the provisional guy will declare that he “lost his provisional but luckily he found his first one”; or 2) the provisional guy will not say anything and pretend that he never hit two balls in the first place.  The final step in the process is always the same – the provisional is not counted and it is as if the first tee shot never happened.

Point is, everyone who plays golf has this friend (note: if you don’t have this friend, you probably are this friend), and the good news is that you no longer must calendar the date that the statute of limitations will run on every one of his mulligans, at least in New Jersey.  Judge Vena’s recent opinion in Corino v. Kyle Duffy et al provides this provisional safety. In Corino, Thomas Schweizer and Bryan Chovanec decided to play a round of golf with Kyle Duffy on August 23, 2011 at Skyview Golf Club in Sparta, New Jersey.  On the 15th tee,  Duffy had one get away from him.  It is unclear where Duffy’s shot went, but he apparently did not like the outcome.  One thing is clear – Duffy has an awful slice, but a clear command of the aforementioned provisional maneuver.

Mr. Corino had the misfortune of being located on the 16th fairway when Duffy’s group was on the 15th.  The layout of the course apparently provided the basis for this misfortune, as the 16th hole ran parallel to the 15th hole.  Corino saw that all three members of Duffy’s group hit their tee shot, so Corino addressed his ball.  Unbeknownst to Corino, while he was taking practice swings, Duffy was laying a foundation for the provisional with his golfing buddies (Disclaimer – this part is not in the record.  All we know from the record is that Duffy took a provisional.  The rest is speculation on the part of the author of this post).  One does not take his time with a provisional. The quicker one steps up to hit a provisional, the less it seems like an extra stroke.  A provisional, like a card trick, should be executed with sleight of hand.  While Corino was hitting his shot on the 16th, Duffy quickly hit a provisional, which he (shockingly) sliced into the 16th fairway.  Apparently, no one yelled “fore”, so the errant golf ball was a bad surprise for Corino.  Duffy’s ball shattered Corino’s sunglasses and severely lacerated Corino’s eye.

Corino’s injuries were severe and not funny, but the fact that Corino joined Duffy’s golfing buddies in the ensuing lawsuit provides some comic relief to an otherwise dire situation.  Corino sued Schweizer and Chovenac for allowing Duffy to take a provisional and for not yelling fore.  Schweizer and Chovenac filed summary judgment motions.  After reviewing the official rules of golf and New Jersey golf case law, the judge determined that it was Duffy’s duty to yell “fore” (or to provide some other warning), and that the other two golf buddies were in the clear.  Summary judgment was granted and the claims against Duffy’s golfing buddies were dismissed. Great result for Schweizer and Chovenac, but does this holding have broader implications?  Do the rules of golf now preempt principles of common law negligence?  Does the violation of a rule of golf provide a basis for a negligence per se claim?  Is every hacker on the golf course now imputed with knowledge of the rules of golf?  Can someone be jailed for slowing down the group behind him or her? (the last one is wishful thinking).

(Hat tip: TortsProf Blog).

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.

Not too long ago, friend of the blog, Erik Mazzone of the North Carolina Law Blog, put together what he called a Legal Geek Meetup here in Charlotte.  This event was officially sponsored by the North Carolina Bar Association’s Law Practice Management Section (of which Mazzone is director). Assisting in the arrangements were two local Charlotte lawyers, myself and Ketan Soni.  (You didn’t think they would have a legal geek meeting in Charlotte without having us involved, did you?) The purpose of the first such event was to bring together like-minded young lawyers with an interest in social media and technology.  Here is the official description of the series of events:

Legal Geek events are designed to help lawyers and legal professionals interested in practice management and technology learn from each other. Each meetup focuses on a different topic, and may occasionally involve short presentations. While offered primarily to NCBA members, all local legal professionals are welcome to attend. There is no cost to attend these events.

The event was a success. Held at Charlotte’s new Heist Brewery, the meetup attracted at least 20 or so young lawyers.  (Even fabled North Carolina law blogger Lee S. Rosen made an appearance.). It was a fine – and low pressure – networking event (and by its very nature, it did not include a formal presentation or CLE credit).  Many, but not all, of the discussions had by the participants centered around tech or tech culture: Twitter, blogs, and using same to advance one’s practice. Basically, it was a just a fun get together for folks unafraid to refer to themselves as “legal geeks.”

There are upcoming events in Raleigh/Durham (April 11), Fayetteville (May 14), and, of course, Asheville (June 19).

If you’re interested in becoming a part of the events, see here.