Space Torts!

It’s been a big month for mankind’s space exploration. On August 5, NASA’s “Curiosity” rover executed a technically flawless controlled crash-landing onto the surface of Mars. Hopefully, once and for all, we’ll establish that our red-tinged neighbor is both rocky and barren. Haha! Just kidding, NASA. This is a totally cool project that is sure to reap tremendous scientific dividends. Great work; keep it up.

This piqued my interest about space torts, though. Who is liable in the event that a space vehicle—or more realistically, a piece of a space vehicle—comes crashing back to earth, causing injury or damage to the people down below? Somewhat to my surprise, this unusual legal question appears to have an answer. Granted, this circumstance doesn’t happen often. The rigors of atmospheric re-entry usually solve the issues presented by falling space debris long before they can become a problem. However, from time to time, what goes up makes it all the way back down. For example, in 1978, the Soviet-launched Cosmos 954 satellite crashed in Canada. In 1979, the United States’ Skylab crashed in Western Australia. And in 2011, debris from the United States’ UARS satellite crashed in Canada. So, there’s some concern that at some point, some space vehicle that’s outlived its useful life will go out in a true-life blaze of glory, and it may very well cause personal injury or property damage that should be compensated.

So who do we sue and how do we do it? This is largely determined by identifying, first, who launched the vehicle, and second, where the injury was sustained. In many cases, the country that launched a space vehicle is not going to be the country where the object comes crashing down. In these cases, the procedure for determining liability and obtaining compensation is addressed by the 1972 Space Liability Convention. The SLC provides that claims for personal injury or damage must be presented and resolved through international diplomatic channels; however, this does not necessarily displace any ordinary judicial process that may otherwise be available.

But what happens if a United States vehicle comes crashing back to Earth on United States soil? Presumably, in these cases, a person’s claim for injuries or damages could be pursued through the Federal Tort Claims Act, 28 U.S.C. § 2674. The specific procedure for bringing claims against the Government is laid out at 28 U.S.C. § 1346(b). Furthermore, the statute of limitations for claims under the FTCA is two years, 28 U.S.C. § 2401(b), and the only damages that can be awarded are those that are available under the law of the state in which the case is tried. In other words, if the state has an applicable cap on governmental liability, the feds get the benefit of that cap.

It’s actually somewhat quaint that we would be talking about liability for “space torts” in terms of the country that launched the vehicle. Most countries that engage in space exploration are able to do so only because they contract with private industry. To that extent, the economy of space exploration is sophisticated, globalized, and comprised of relatively few actors within private industry that have that resources and expertise available to support a country’s efforts to go into space. Therefore, in the event that a space vehicle comes crashing down, it may be wise to consider (from a litigation perspective) who the private industrial actors were who built and operated the vehicle, because they may be the same actors regardless of whether the vehicle is American, Russian, European, or Chinese.

In any event, there is almost a zero-percent chance that you will be impacted (haha…) by falling space junk. And if you are, then you probably won’t care about any of this discussion. Because, frankly, fate had cast your lot and it was time to go.

SCUTPA: Reining in Discovery With A Self-Critical Analysis Privilege

In my last two posts, I’ve been discussing the South Carolina Unfair Trade Practices Act, its overuse, and how that overusage can ironically—yet quite foreseeably—thwart the public interest the statute is designed to protect. The problem, specifically, is that the breadth of discovery in actions involving unfair trade practices claims provides a compelling disincentive for businesses to engage in thoughtful self-critical analysis to determine if their goods or services can be provided in a way that is safer or more effective in the hands of consumers. Chilling self-critical analysis is good for no one. The question becomes: How can we give businesses the latitude they need for self-improvement in a way that doesn’t punish them for being responsible corporate citizens? One way this can be accomplished is by the creation of a qualified privilege which would shield self-critical analyses from disclosure in the course of discovery.

Now before we go any further, let me confess that this is not-in any way, shape, or form-an original idea. I have never claimed to be original, and now is no time to start. The idea of a qualified privilege for self-critical analysis dates back at least 40 years, to Bredice v. Doctors Hospital, Inc., 50 F.R.D. 249 (D.D.C. 1970). Bredice was an action for medical malpractice. During discovery, the plaintiff sought information relating to the treatment of a particular patient (who was injured by the alleged malpractice) which had been disclosed to an internal committee comprised of health care providers, as well as the notes and records of the committee regarding the patient’s care. The committee existed for the purpose of monitoring the quality of patient care generally and, perhaps more importantly, for improving standards of health care delivery going forward. The court held that the discovery requested was privileged from disclosure precisely because of the need for health care providers to speak freely about the quality of patient care. The court identified four critical elements to the existence of the qualified privilege for self-critical analysis: (1) that the analysis had been performed by the party claiming the privilege; (2) that the analysis had been conducted under the expectation of confidentiality; (3) that the information sought through discovery would probably not have been prepared if it were discoverable; and (4) that the information prepared as a result of self-critical analysis promotes a significant public interest.

Since Bredice, many states have codified a qualified privilege for health care providers, including South Carolina. See S.C. Code § 40-71-10. However, as a matter of common law, courts have rarely recognized a qualified privilege for self-critical analysis, and almost never in circumstances other than health care. If any professional field deserves a privilege for discussion involving consumer deliverables, medicine is at the top of the list. But should medicine be the only field that deserves a privilege for self-critical analysis? Surely not. Any commercial actor who has the capacity to affect the health and welfare of consumers through the delivery of their products or services should have the benefit of discussing improvement in a venue that can be free from the reach of discovery. Yet the law has been terribly reluctant to embrace any type of general protection for self improvement.

A general qualified privilege, along the same lines expressed in Bredice, would be a welcome development in terms of corporate protection. Though there is no sign that such protection is forthcoming. However, in my next post, I’ll discuss how South Carolina may have already established a framework for reining in discovery of confidential, sensitive information in actions involving the Unfair Trade Practices Act.

SCUTPA: Adverse to the Public Interest?

Welcome back. In my last post, I was discussing how the South Carolina Unfair Trade Practices Act has become a standard tool for increasing the scope and expense of litigation. As if litigation needed to get any more expensive. In my concluding remarks, I offered an example of how SCUTPA can – and very often does – require defendants to become their own hangman. This is accomplished by the use of discovery to compel the disclosure of information a defendant may have in its possession relating to other similar claims, thereby providing the plaintiff with the playbook they may need to sustain an unfair trade practices claim that would otherwise be completely and utterly meritless. At the very least, it may substantially cut down the amount of legwork a plaintiff has to do for himself.

You may be thinking to yourself, Ok, if this is true, what company would be so silly as to keep records of other similar claims on file? Lots of them. And it’s not because they’re silly. It’s because they’re responsible. Regardless of whether we’re talking about the manufacturing of goods or the delivery of services, companies that are engaged in commerce responsibly keep track of how useful their goods or services are. And that’s measured by the number of complaints they may receive, as well as the type. Complaints about ineffective goods or services may be relevant to the quality control department; complaints about ineffective goods or services that hurt people may be relevant to quality control and risk management.

In any event, keeping records of claims/complaints is a good business practice. From the societal perspective, we want our businesses taking critical looks at themselves and their goods and services to figure out How can we make this better? How can we make this safer? That analysis is not done in a vacuum. It’s done in the crucible of the American market where only the strong survive.

And that’s why unfair trade practices acts – like SCUTPA – do more harm than good. If unfair trade practices acts can be used to expand discovery to include a company’s confidential information regarding other similar claims, especially in cases where the plaintiff is on a fishing expedition, that creates a strong disincentive – a chilling effect even – for companies to accumulate the information needed to perform the self-critical analyses we want them to do. The practical effect of this should be apparent. Goods and services are probably improved upon – in terms of effectiveness and safety – more slowly than they otherwise would be, if companies had the latitude to engage in self-critical analysis more freely without fear of having their own confidential information used against them in a court of law.

Certainly, there is a societal interest in allowing parties to engage in broad discovery against each other in the course of litigation. But that interest is not unlimited. And it should be more strictly limited in circumstances where more compelling societal interests – such as better, safer, more competitive goods and services – are at stake.  Ironically, one of the fundamental elements of an unfair trade practices claim is that the defendant’s business practice had an adverse impact on the public interest.  However, the law gives no consideration to the adverse public impact caused by unreasonably excessive discovery.

My next few posts will take a look at what could be done to make SCUTPA more equitable for plaintiffs and defendants, as well as what the South Carolina Supreme Court may have already done to rein in SCUTPA-related discovery abuses.

The South Carolina Unfair Trade Practices Act: Used and Abused

Prepare yourselves, faithful readers. This week’s post from Yours Truly actually offers substantive legal content. Or at least what passes for it under the Buckingham blog standard, which admittedly, is exceptionally low. This post addresses the South Carolina Unfair Trade Practices Act. It seems like almost every law suit I defend these days includes a SCUTPA cause of action. I don’t think it’s because there’s an onslaught of companies out there engaging in unfair or deceptive trade practices. No, I think it’s just because SCUTPA is overused. Extremely overused. To the point where I might be caught off guard if I got a complaint that didn’t assert a SCUTPA claim.

There’s a couple of reasons, I think, why the unfair trade practices act is tossed around so freely. The first two reasons are fairly obvious. Reason No. 1: The statute is one of the few vehicles through which a party can recover attorneys’ fees. Reason No. 2: The statute also authorizes treble damages. For those of you who are fortunate enough to live a life outside the legal profession, “treble” is more than just a musical clef. At law, “treble” means triple. Whatever damages you have, multiply it by three. By themselves, reasons 1 and 2 are incentive enough to bring a SCUTPA action. But wait! There’s more.

Reason No. 3: It’s easy to allege a violation of SCUTPA. All you have to do is claim that the defendant engaged in an unfair or deceptive trade practice (which is not clearly defined), that you were damaged by the practice, and that the practice had an adverse impact on the public interest. To allege that, you only have to claim that the practice was repeated, or that it is merely capable of being repeated. Add a pinch of righteous indignation and voila! You’ve tripled a defendant’s exposure! Whether you can actually prove unfair trade practices at trial, well, that’s a horse of a different color, one that you won’t have to ride for at least 18 months down the long road of litigation.

Theoretically, this is a tremendous advantage for plaintiffs. Settlement negotiations are based on a party’s risk. To the plaintiff, the risk is that trial will result in a defense verdict. To the defendant, the risk is that trial will result in a plaintiff’s verdict for the maximum amount of exposure. Therefore, by increasing a defendant’s amount of exposure, a plaintiff is also increasing the settlement range.

From the defense perspective, a frequently asked question is whether SCUTPA actions can be dismissed at an early stage of litigation. Regrettably, the answer is “maybe, but probably not.” Motions to dismiss are intended to test the legal sufficiency of pleadings. In other words, the court reviews whether the complaint uses the magic words needed to state a valid cause of action. As noted above, for SCUTPA claims, there are only a few magic words needed, and they’re not clearly defined. The statute doesn’t meaningfully define an “unfair or deceptive trade practice.” Furthermore, on a motion to dismiss, the deck is kind of stacked against defendants. The law requires courts to view the complaint in the light most favorable to plaintiffs. Also, plaintiffs needn’t offer proof in support of their allegations at the dismissal stage. Consequently, unless there’s some legal deficiency with the way a plaintiff has brought their SCUTPA action, the action is around to stay for awhile.

Which leads to Reason No. 4 of why SCUTPA actions are so prevalent these days: the long, arduous process of discovery. The scope of discovery is defined by the allegations of the complaint. Just as SCUTPA actions allow plaintiffs to increase the amount of a defendant’s exposure, they also allow plaintiffs to increase the scope of discoverable information. After all, a plaintiff must prove that a defendant engaged in other similar conduct, or that their policies make it likely that the defendant will engage in other similar conduct in the future. This information is critical to a plaintiff’s SCUTPA action, especially if he never previously had that information. And where better to obtain that information than from the defendants themselves? Consequently, SCUTPA is used as a tool for plaintiffs to embark upon fishing expeditions against defendants.

Let’s take this to a practical level. Suppose a person claims to have been injured by a defective product. They sue the manufacturer for negligence, strict liability, and breach of warranty – the holy trinity of products liability. Without a SCUTPA action, the plaintiff is limited ordinarily to discovery against the defendant on design and manufacturing issues. However, with SCUTPA, the plaintiff can arguably obtain discovery – from the defendant – on other similar claims that have been brought against it by other, unrelated individuals. Essentially, the law requires the defendant to become his own hangman. I’ll let you be the judge of how fair – or unfair – that is.

This post is already long enough. But there’s plenty more to talk about. In the coming weeks, I’m discuss why allowing such broad discovery is adverse to the public interest. Thereafter, I’ll suggest how SCUTPA can be fixed. Perhaps it goes without saying, but the opinions expressed in this post are just the thoughts of one simple lawyer. I certainly don’t have all the answers. But I know something’s broken when I see it. And I also know that there’s just not that much unfair and deceptive business going on in South Carolina.

The Flaming Rat Case: A Revisionist Analysis

Out of the thousands of cases I read in law school, I’m embarrassed to say there’s really only one I can remember: “The Flaming Rat Case,” otherwise known as United Novelty Co. v. Daniels, 42 So.2d 395 (Miss. 1949), from first-year Torts. Daniels was an action for wrongful death brought by the personal representative of a machinist who worked at a manufacturing facility. Among other things, the employee was responsible for cleaning machinery, and his preferred cleaning agent seems to have been gasoline. On the day of his death, the hero of our story went into a small, 8×10 foot room to clean a piece of machinery. As it turned out, in the same room, there was a gas-powered heater fed by a pilot light. What happened next was presumably an explosion of Wile E. Coyote proportions.

So why is this called the Flaming Rat Case? We have plaintiff’s counsel to thank for that. The theory at trial seemed to be that the explosion was caused by a rat who lived under the piece of machinery being cleaned. As the machinery was being soaked in gas, so too was the rat. When the rat had finally had enough, it scampered out of its home to vacation in a drier climate, a/k/a by the pilot light. Then the rat caught on fire. Scared out of its ever-loving mind, the rat immediately ran back to its home under the gas-soaked piece of machinery. Then . . . KABOOM.

At trial, the jury found for the plaintiff and held his employer liable for wrongful death. The company appealed, obviously on the grounds of “You’ve got to be kidding me.” In what universe is it reasonably foreseeable that a rat would get soaked by gas, find an open flame, and become a suicide bomber? However, the verdict was upheld by the Mississippi Supreme Court.

In law school, this case is presented as an illustration of the expansive concept of foreseeability. Oh, sure, no one could have foreseen the flaming rat, but it was foreseeable that using gasoline around an open flame could have caused an explosion. Therefore, even if the specific cause of injury wasn’t foreseeable, the general cause was. Or, at least, so the proposition was explained in school.

Well, faithful readers, today I’m going to propose an alternative reading to the Flaming Rat Case. One that doesn’t seem so contrived.

Although I think the Mississippi Supreme Court was amused by the flaming rat theory, I don’t think they bought it. First of all, there’s a proof issue here. Let’s cast a critical eye on the facts. The lawsuit resulted from a gas explosion in an enclosed space. Who was the witness? Anyone who would have seen the flaming rat would almost certainly have perished in the explosion. Notably, while the opinion discusses witness testimony, it does not mention anyone who could substantiate the flaming rat theory. More importantly, the court explicitly stated that the rat facts were inconsequential to its decision.

So why did the court affirm the plaintiff’s verdict? The court seems to have done so by referring to other theories of liability that could be established from the record. Those other theories are what we would now call “negligent training” and “negligent supervision.” The court’s opinion stated in no uncertain terms that the manufacturing company had a duty to warn its employees not to use gas around open flames. There was no evidence that the deceased employee had been warned. The court also held that, even if the employee had been warned, the company had a duty to enforce its policy against using gas around open flames. There was also no evidence of that. Because the breaches of these duties caused the employee’s death, it was appropriate for the company to be held liable. That seems like an open-and-shut case, and much more intellectually satisfying than making employers responsible for acts of God. Or Splinter.

I love the Flaming Rat Case. Always have; always will.

But now, after this revisionist analysis, I kinda feel like the Grinch who stole his own Christmas.

The Virtue and Vice of Malware: A Prediction

I’m frustrated. There is so much cool stuff happening in the world right now, and almost none of it involves the law. Let me preach on it.

As I was looking for inspiration for this week’s post, I came across a fascinating website: It’s a newsfeed for breaking information on the advancement of scientific knowledge. Now, because I’m a nerd, I love science-y things. However, in the interest of fair disclosure and embarrassing myself, I must admit that most of my scientific knowledge—at least these days—comes mainly from two sources. One of those sources is Morgan Freeman, courtesy of his show TV show, “Through the Wormhole.” The other is Dr. Sheldon Cooper, courtesy of his TV show, “The Big Bang Theory.” You may now color me ashamed. is a great resource because it not only posts information about real scientific achievement, but more importantly, it’s written in such a way that even a scientific tyro like myself can understand the significance of the work that’s being done. Which is an incredible achievement in its own right. Let me give you a taste of its content. As I’m writing this post, the articles on include “Scientists watch proteins self-assemble,” “Revealed: Secret of HIV’s natural born killers,” and “Nanotechnologists develop a ‘time bomb’ to fight cardiovascular disease.” Wow. And those are a selection of articles from just today. So like I said, in the scientific world, there are brilliant, beautiful minds making significant contributions in furtherance of alleviating the human condition. And that is truly inspiring.

And then there’s the law. Regrettably, it seems that the only interesting thing happening in my world is that Zach Morris just started Season 2 of “Franklin & Bash.” So take that, science.

Anyway, there’s one story trending right now in the scientific world which is not only utterly fascinating, but also has real-world implications for the law, litigation, and the integrity of the judicial process. You may recall that last year, the Republic of Iran discovered that its nuclear weapons facilities had been infiltrated by “Stuxnet.” Stuxnet is computer malware designed to subvert industrial systems, particularly, certain data systems that control and monitor uranium enrichment infrastructure. Essentially, Stuxnet was destroying Iran’s efforts to enrich uranium, which is necessary for developing nuclear weapons, all while reporting that everything was a-ok.

And it had been doing this for years.

I don’t care who you are. That’s really, really cool.

No one’s really sure who conjured up Stuxnet. But whoever did it decided that the only thing better than planting one insanely complex malware application with the Iranians was planting three of them. Stuxnet was followed up by Duqu, awesomely named after a dark Jedi master from the Star Wars universe. Whereas Stuxnet thwarted industrial processes, Duqu captured data—such as keystrokes—and secretly transmitted it back to whatever third party was listening.

Then, at the beginning of June, the world learned about Flame, yet a third malware application targeting Iran’s nuclear ambitions. Flame was Duqu’s more aggressive younger brother. Like Duqu, Flame was designed to collect and transmit data about Iran’s industrial processes, but was apparently also able to collect a vast amount of electronically stored information, such as email and voice messages. Then, once Flame was discovered, a “suicide” command was sent out which caused Flame to not only erase itself from every computer it had attached itself to, it also bombed those computers in such a way as to make impossible any forensic analysis about what data was transmitted and to whom it was sent.

If you’re not impressed by any of this, then you need to stop reading this blog immediately and check your pulse, because you are, in fact, clinically dead.

The folks who are reporting about the awesome triumvirate of Stuxnet, Duqu, and Flame insist that, due to their level of sophistication (and the expense associated with development and deployment), only a government would have the resources to craft such powerful cyber-weapons. And that’s probably true. But there’s two things to keep in mind. First, in our technologically empowered world, both the virtue and vice of cybernetics are the relatively low barriers to entry. Theoretically, anyone with a talent for programming and access to a computer can play the game. Second, the circumstance with Iran provides proof of concept for what malware like Stuxnet, Duqu, and Flame can do.

Now let’s bring that malware to the legal world. The implications are alarming. Although the resources necessary to craft Stuxnet, Duqu, and Flame were significant, we must anticipate that the cost to reproduce them will be substantially cheaper. Indisputably, there’s tremendous incentive to use these types of malware in civilian contexts. The information that could be covertly discovered would be invaluable. Maybe it comes in the form of corporate espionage between business competitors. Maybe it comes in the form of law firms, locked in contentious, high-stakes litigation, trying to discover information in another’s possession that would otherwise be protected from disclosure by privilege. Maybe it comes in the form of a litigant with a case pending before the Supreme Court, anxious to learn about the course of discussions among Justices and what decision may ultimately be issued. The possibilities are endless, but the market value of the inside information is undeniable.

Historically, the disincentive to attempting such espionage has been the risk of capture. As you might expect, the law frowns upon the use of electronic means to commit fraud, and usually rewards such efforts with the imposition of stiff fines and a lengthy stay in one of the nation’s finest federal penitentiaries. I hear Atlanta has a nice SuperMax.

But bear Flame in mind. Once discovered, a suicide command was executed that erased—permanently—any ability to trace its fingerprints. This sets up the possibility that the integrity of a corporation’s or government’s confidential information could be stolen, and there would be no way to track down the identity of the thief. It’s the perfect crime, in the sense that the perpetrator could get away scot-free.

Oh, well. Like I said, lots of cool stuff happening in the world. In the meantime, me and Zach Morris will be keeping it real down in the legal trenches. I’ll be the one fighting for truth and justice. He’ll be the one with hair.

Television Channels, Robots, and Product Usage

I have a love/hate relationship with TV.  At any given moment, I can stream hundreds of channels into my home, and technologically speaking, that’s really cool.  That’s the part I love.  But good luck trying to find just one channel at any given time that has anything remotely worth watching.  I dare you.

No luck?  Of course not.  It can’t be done.  And that’s the part I hate.

Between my wife and me, there are less than a dozen channels that we ever watch.  If we could just pay for those channels and slough off the rest, our monthly cable bill would be about $1.75.  But no.  To get cable service, we have to buy the “bundle” of channels that no one—absolutely no one—wants to watch under any circumstances.  Someday, I would love to name some of the worst offending channels, because let’s face it, they deserve to be ostracized.

Anyway, there’s a day coming—I’m convinced—when bundling will be given the unceremonious death it so righteously deserves.  Television channels will be purchased a la carte, and individual subscribers will be able to customize their home entertainment options.  This business of force-feeding the TV-watching public content that they don’t want is dying, and in my opinion, that death can’t come swiftly enough.

In the mean time, I’m exploring other options for home entertainment.  Option 1: Cancel TV altogether and read more.  Option 2: Replace cable with a combination of Netflix and Hulu.  Guess which one is far and away the clear front-runner. Which brings me to the set up of this post.  The other day, I’m scrolling through Netflix trying to find something to watch.  One of the categories Netflix presented me with was “Underdog Movies.”

I’ve always loved Underdog, so I took a look-see.  As you might expect, there were all sorts of movies where the protagonist battles against overwhelming odds to succeed, which he ultimately does.  And that’s when something caught my eye.  By happenstance, Netflix had positioned 2 unlikely moves—whose underdog status is questionable at best—next to each other: The Terminator and Short Circuit.

Maybe you’ve never heard of Short Circuit.  It’s a loveable movie from the mid-1980s starring Steve Guttenberg (from Police Academy) and Johnny 5, a military robot who gets struck by lightening, becomes self-aware, and decides that it doesn’t want to spend its existence as a weapon.  The Terminator needs no introduction.

There are significant differences between these films.  Most notably, whereas The Terminator is a violent story of machines rising up against humanity, Short Circuit is a heart-warming story of humanity fighting for the right of a machine to live its life in peaceful co-existence.  However, there’s a subtle, underlying common thread.  In both films, artificial robotic intelligence acquires true consciousness, and then, based on the way that the machine is treated, it determines whether its relationship with humanity will be peaceful or contentious.

For example, in The Terminator, it is explained that Skynet (the artificial intelligence that became self-aware) determined that humanity was a threat to its existence, and therefore, that humanity must be extinguished as a matter of self-preservation.  By contrast, in Short Circuit, Johnny 5 learns about the beauty of life and the finality of death, and is assisted by his human creators to live freely.

Now let’s bring the point home.  Here at Abnormal Use, we’ve taken the name of our publication from the legal principle that damages caused by unforeseen, unforeseeable uses of products are not compensable; that if the use of the product was abnormal, the manufacturer cannot be held liable for any injuries that may result.  And to be sure, plenty of abnormal product use goes on.

But that’s not the only way that products cause injuries.  Sometimes they cause injuries because they’re used in the right way, but they’re just used too much for too long.  The wear and tear causes the product to break down.  It’s not the manufacturer that’s liable for the product’s failure to perform, and it’s not the designer’s fault.  It’s our own fault for thinking that products—the things we use to make our lives easier—can serve us indestructibly no matter how much we use or abuse them. Everything has its limit.  And ultimately, it’s our choice whether we respect the limitations of the products we use, or whether we exceed them.  If we choose the former, then we can live in peaceful productivity with our products for the duration of their usefulness.  If we choose the latter, then we’re inviting the chips to fall where they may.

Phantom Vibration Syndrome: Yes, It’s a Thing, Maybe

So get this. I’m sitting at my desk the other day, minding my own business, when all of a sudden, my left leg starts twitching. Which is no big deal, really. I keep my cell phone in my front left pants pocket, and it’s almost always set to vibrate. And so, when my leg twitches, it has historically meant that I’m getting a phone call or text. I instinctively reached for my phone. And that is precisely the moment when I realized something was amiss. My phone wasn’t there. Despite the fact that my physical senses told me—without the shadow of a doubt—that my phone was in my pocket vibrating away, in reality, my phone was sitting on top of my desk, right in front of me, decidedly not in my pocket, and it was not ringing.

My first reaction was not one of scientific curiosity. I did not ponder the implications—physiological, psychological, perhaps even emotional—of this new, strange attachment that my left thigh had developed toward an inanimate object. Instead, I bowed my head in frustration and shame. My body never seems to get anything right. When I was growing up in East Tennessee, it was important to be good at sports. Unfortunately, my body interpreted the word “important” to mean “be as incompetent as possible.” The concept of hand/eye coordination eluded me the same way that the concept of an earth that revolved around sun eluded the medieval church. Not to be outdone by my eyes and arms, my knees have since decided that they will be largely ineffective in running long distances or handling downhill hikes. Now, it seems, one of my large muscle groups has developed an unnatural, metaphysical relationship with my iPhone. In my estimation, this was just another let-down in a long chain of body-related disappointments.

I’ve tried looking on the bright side. But I don’t think there is one. It would be one thing if my leg twitched only when my cell phone was actually vibrating. That would basically set my quad up to be a remote early warning detection device for a ringing phone, which I could at least pass off as a cool party trick. But, no. My leg wanted to develop a super-power so irrelevant that not even the local news would care.

And while I’m making embarrassing confessions, I’ve got a really bad habit about using the Internet to solve  unanswered questions I may have about anything. Usually, this is an awful idea, like when you’re sick and you Google your symptoms only to discover that you’ve developed typhoid, or alternatively, when you have Typhoid and you Google your disease only to find out that you can only catch typhoid if you’ve forded a river in a covered wagon and you’ve also just lost several of your oxen:

Regardless, I Googled my symptoms anyway. To my shock and chagrin, not only have other people experienced the same phenomenon, there’s a name for it: Phantom Vibration Syndrome. A fair number of people—ostensibly just as defective as I am—have reported the same circumstance where they believe they’re receiving an incoming call, feel their phone vibrating, and realize their phone is nowhere on them. And it’s a syndrome. Then I began to wonder if anyone has exploited this, say, through class action litigation, and if so, how do I get a piece of that pie??

The short answer: it looks like there’s no litigation out there. Sad. I guess it only makes sense when you think about it. There’s no physical damages. And to the extent there could be, I kinda brought it on myself. But who knows? Maybe there is a potential threat of litigation against cell phone manufacturers based on this phantom physical experience. And while I do believe such a suit would be ultimately unsuccessful, as everyone knows, there’s a lot of litigation to be done before the case would be kicked out of court.

In the mean time, I guess I’ll just continue to live with myself, biding my time til the next opportunity for my body to come up with some weirdo excuse for being lame.

Bovinova: Ingenuity, Intelligent Product Design, and Meat Comas

This week, for my triumphant return to the blogosphere, I’m not going to talk about the standard fare of “stupid plaintiff” this or “dumb product” that. Instead, I’ve got a positive message about ingenuity and the virtue of inspired product engineering. I’ve got a message about Bovinova.

For those of you that don’t know, Bovinova is a massive epicurean barbecue hosted right here in Greenville, South Carolina, and it happened not too long ago on May 19. The main event of Bovinova involves a whole cow (minus the head) which is slow-roasted over an open fire for 18 hours, all while a host of goats, pigs, lambs, llama, chickens, and turkeys are being cooked. This year, more than 700 guests were served more than 1,000 pounds of meat, which makes Bovinova the leading cause of acute food coma of any event in South Carolina, including Thanksgiving.

In any event, one of the coolest things about Bovinova is the engineering and design that went into the grilling apparatuses. Instead of roasting the animals rotisserie-style, they are secured to a grilling plane. There are only a few places in the world where whole animals are cooked this way, so there’s not a whole lot of institutional knowledge out there about how to design the grilling surface, how to support the weight of a suspended cow for a long period of time, and how to rotate the cow over the fire so that both sides get heat. Obviously, these are not insubstantial questions. If the grill is designed without these aspects in mind, the cow may fall into the fire, large portions of the cow may not be cooked properly, or worst, one of Bovinova’s patrons may get physically ill from the meat.

However, thanks to some forethought and a lot of planning, the team of guys who built the grill anticipated these concerns at the outset of the design stage and engineered their way into effective solutions. What resulted is a grilling system that makes your charcoal Weber look like an easy bake oven. The entire cow can almost effortlessly be pulled off the fire, flipped 180 degrees, and returned to the fire; it can also be elevated at an angle to allow fat to render more effectively. I’m not going to go so far as to say that this is a “set and forget it” type of assembly; but it’s pretty close. As a consequence of their exceptional craftsmanship, not only are the hosts of Bovinova able to stage the biggest, most unusual cookout you’ve ever seen, more importantly, they’re able to do it in a way that minimizes the risk of injury or liability.

And that’s why Bovinova is my new favorite holiday.

Abnormal Interviews: My Cousin Vinny Actor Mitchell Whitfield

Today, we here at Abnormal Use continue our week-long tribute to My Cousin Vinny with a look at a couple of the film’s actors. Today, we are proud to feature an interview with Mitchell Whitfield, who was kind enough to agree to an interview with our own Steven Buckingham late last year. Whitfield played Stan Rothenstein, one of the capital murder defendants represented by Vinny. You might know Whitfield from his role as Barry, the orthodontist and ex-fiance of Rachel, on “Friends.” He’s also done an immense amount of voice acting. Our interview with Whitfield, which features his memories of the film production, his thoughts on the film’s legacy, and his recollections of being offered the role of Ross on “Friends” and kissing Jennifer Aniston, is as follows:

STEVEN BUCKINGHAM: Here we are, it’s 20 years after My Cousin Vinny, coming up in March it will be 20 years.


SB: . . . [W]here did the time go?  Does it seem like it was 20 years ago?

MW: It seems like it was yesterday, but then I look and wonder what happened to my hair, and then I know that it was 20 years ago.  But if I don’t look at my hairline, it’s really hard to tell that it was that long ago.  The thing is, it’s one of those movies – that’s why I feel so lucky to be a part of it – it’s truly one of those iconic movies that everyone knows about, everyone knows a line from it . . . everyone remembers the movie so well, and it’s on TV all the time.  It’s almost like it’s constantly being revisited and relived, and I think the fact that it was popular – Oh, my God – now I’m thinking about what you said 20 years and it’s unbelievable.  But I think the fact that it’s still part of pop culture, and it still has a presence on cable, on DVD, on regular television, it sort of keeps it alive, and it’s one of those movies where I think the concept is still much fun.  And I think if you look at great movies, although I’m not saying this is one of the classics, but I’m saying if you do look at the classic movies from the forties and fifties, the one thing they all have in common is they’re still relevant today, whether it’s because of their sense of humor, or whatever the theme was in the movie, that still has relevance today.  And I think it’s one of those movies with that sense of humor, that fish out of water story, still has relevance and people still latch onto it.  So, . . . that was my long-winded answer for “Oh, my God, no, I can’t believe 20 years later,” it passed that fast.  It feels like I just made it.  I still remember auditioning for the movie.

SB: What was that experience like?

MW: Oh, my gosh.  Here’s the irony, okay?  I’m a New York kid.  Born and raised in New York.  New York City.  So, when they were casting this, I had just moved out to Los Angeles when I auditioned for that movie.  Maybe I’d been living in LA for a year.  So, I’d been in LA for a year, the audition came through, and at first, the reaction was, “Well, they’re really looking for a New York guy. ” I’m like, “Wait a minute, I am a New York guy.”  . . . They finally did see me, and they liked me, and they said “Well, we’re going to be screen testing in New York.”  I was like, “Oh, my God, you’ve got to be kidding me.”  I didn’t have to move at all.  I could have stayed in New York.  So, of course, I ended up flying back to New York.  I was there for some other stuff anyway, and I screen tested, and at the time, believe it or not, Will Smith was also up for the role.  For my role.  So, clearly, they didn’t know exactly which way they were going to go with the part.  I don’t think anyone would mistake Will Smith and myself from others.  You’d be looking and go, “Well, these are two distinctly different ways to go,” and I think it could have been funny either way.  So I read with a couple of guys, and then I finally read a little bit with Ralph Macchio, and we clicked and had a great time.  . . . [I]t wasn’t my first big studio movie, but it was my first big screen test where you go in there, and they audition you, and you’re there for hours – mixing and matching with different actors, and I remember when you do a screen test, you basically sign a contract, and then they have legally, and you’ll be familiar with this, they legally have a certain amount of time, usually a two-week period, for them to sign off and say “Okay, we’re going to put the contract in, we’re going to make the contract legal and binding.”  Now we’re moving forward.  Okay, you got the part.  They have two weeks.  It never takes two weeks to decide – ever.  Usually, it’s a few days, they let you know.  This one – the last hour of the last day at the end of the second week is when I got the phone call.

SB: Wow.

MW: Yeah.  I remember going out to see a movie . . . I think it was The Rookie, a Charlie Sheen movie.  That’s when Charlie Sheen was known for actually being an actor.  That’s when he was famous for being an actor.  I remember I walked to Mann’s Chinese Theater to kill time because I didn’t want to think about it, because it was the last day, and I was going to find out either way.  I walked to Mann’s Chinese Theater, I saw The Rookie, I came out, it was almost 6:00.  I was like, “Man, I’m not going to hear about it.  I guess I didn’t get the movie.”  And like one minute before six, my manager called me and said, “You got the movie.”

SB: What was the hold-up in the contract signing?  Did they have someone else they were looking at?

MW: More times than not they’re looking – I’m sure they were looking to get a name person.  And listen, at the end of the day, as much as we like to think it’s about us, it’s business.  And unfortunately, when it comes to business, actors, like any other business, are the commodity.  Except in this case, it’s people that are the commodities, not a product.  So, you have to put on sort of your business hat and say, “Okay, they’re probably looking to cover themselves and see if they can get a star name for the role.”  Because they had a lot of other names in the movie already, and they wanted to have the best shot of having a big opening weekend and getting people in the seats based on not just the quality of the movie but the names of the people that were in it.  So, I’m sure they were trying their best to put together the best cast possible.  But at the end of the day, I got the phone call, and it was going to be me.  So, ha!  So, I was very fortunate, and it was really, really exciting, but of course – I don’t know if you’ve ever heard of this – if you heard about this or read about this – basically when I went in, I had just come off a movie called Dogfight, and in that movie, I’d put on about 10 pounds, and I was playing a Marine, so we were exercising all the time and eating all the time, so I’d put on 10 pounds for this role.  When it came time for My Cousin Vinny, I had already lost some of that weight and I was – I played sports for a while, I played hocked for a while, so I naturally probably weighed about 180.  When I found out I was going to screen test, they told me to drop 10 pounds the week before the screen test.  Now, I was playing sports so I could do it.  If you’re an athlete, if you played sports, you’re used to your weight fluctuating based on how much you’re playing and all that stuff.  So I lost the 10 pounds for the screen test.  They called me and said, “Hey, you got the movie, congratulations!  We start shooting in six weeks.  Lose 25 more pounds.”

SB: Oh, wow!

MW: Now, we’re not talking 25 pounds of spare tire.  We’re talking just 25 pounds of regular weight.  So I went from basically, 180 and by the time we started shooting, I guess I had lost about 41 pounds.  So, I was about 139 when we started shooting.  And everyone was saying, “Are you’re sick? What’s wrong? Are you okay?”  They thought I was lying to them.  They thought I was sick and I wasn’t telling anyone.  I was like, “No, they just wanted me to get really scrawny for the movie so when I was in the prison cell with Joe Pesci there would be a real contrast.”  [I was the] scrawny guy, and Joe Pesci was intimidating me.  So I had to drop all that weight.  By the time I showed up I was like,”Oh my God, I’m not going to lose any more weight.”  So Ralph and I were always teasing each other about it. But yeah, I ended up losing over 40 pounds to do that movie.

SB: That’s incredible.

MW: Crazy!  I couldn’t do it again.

SB: How did you do it?  Were you just working out all the time, or were you just not eating?

MW: No, I was eating.  I was just being really careful.  You know what, I was so much younger then.  I was so much younger then!  And playing sports, your metabolism is pretty good.  As long as I was eating carefully and exercising, it came off.  At a certain point it was enough.  I wasn’t going to go any lower than that.  And now I think when we watch the movie back, I look and think, oh, look at poor little skinny me.  Poor little skinny Mitchell.  Somebody give him a sandwich.  My wife goes, “Oh, my God, you look so scrawny!”  I’m like, “Yeah, I know.  I know I do.”

SB: How often do you watch the movie with your family?

MW: Not that often.  Not really that often.  First of all, you know, I have two little ones.  My daughter is 6 and my son is 8 and a half.  With all the BS bombs daddy is dropping in that movie, either that, or try and turn the sound down.  I pretty much still remember the script, which is really sick.  I must have a certain Rain Man quality that I could probably still do all the lines from the movie.  And whenever I know that there’s one of daddy’s S bombs coming, I just sort of pause, just mute it very quickly and they go “What happened?”  I’m like, “I don’t know, what happened to the movie?  The sound suddenly dropped out.”  My wife and I also watch pieces of it every once in a while.  Usually, I see myself in something and go, “Oooh.”  It’s hard to watch when it’s you.  You have to get past reliving or I should have taken a different – oh, I hate that shot – I wish they’d done a different take.  And once you get past that, after seeing yourself a while, you can sit down and enjoy it.  Some movies, I just sit there and watch and I go, “Oh, that’s me, so weird.”  There I am on the screen, but here I am sitting right here.  I still get a kick out of that, that I do these things.  I can’t really sit down from beginning to end with my kids and watch it because, obviously.  When they’re older, I’m sure they’ll get a big kick out of it.  Now, we watch little scenes here and there then have to turn it off.

SB: Sure.  Since you put this out there about remembering the script, I’ve got to ask you.  Can you give me some of your lines from the movie right now off the top of your head?

MW: Oh, God.  I’m trying to think.  In the prison cell scene, because I think people remember that scene pretty well, where I’m in the prison cell with Ralph, and Joe comes in for the first time, and I’m not sure if he’s there to have me as a boyfriend or who he is.  So when they bring him in, I’m telling Ralph, “You know what happens in these places.  They bring some big guy in like Bubba and then you have to become his girlfriend.”  I remember when we were doing it, Jonathan Lynn, who ended up becoming a friend after we shot the movie, really nice guy, wonderful director, real gentleman.  He’s British.  So when you start working and rehearsing a script, sometimes you ad lib a little bit, depending on the writer and the director and how much freedom they give you, they’ll let you ad lib and see what you come up with, which is great, because it makes for a more natural sort of spontaneous scene.  So I remember in a couple of those scenes, I started ad libbing.  We actually shot that in a real prison, and when we were walking down – you know when Ralph and I were walking through the prison the first time like holding our blankets and walking to our cell and you hear the prisoners screaming at us.  Those are real prisoners, and they really were yelling at us.  . . . They had to tone it down with what they put in the movie because they were saying some horrible stuff.  Ralph and I were petrified.  So once we’re in the prison cell, and I was like, “You know what happens in these places, there’s some big guy,” and of course, I threw in the name Bubba, because I just pictured a big guy named Bubba trying to make me his girlfriend in prison.  So Jonathan then stopped and said Bubba, Bubba.  And her turns to the producer, Paul Schiff, another nice guy.  He said, “Paul, is Bubba funny?”  Because he didn’t get the reference.  So Paul looked at him and goes, “Yep, Bubba’s good.”  So we leave it in.  So there are those things that you ad lib, and they actually end up staying in the movie.  But Jonathan – if it was something that wasn’t familiar to him, if it was a colloquial term here, he acted sort of like, “Umm, I’m not familiar with that one.  Is that funny?”  We’re like, “Yeah, it’s funny, trust me.”  There are a couple of ad libs in the movie where they were generous enough to leave them in.  But Jonathan wanted to make sure – I want to make sure that’s funny.

SB: You were talking at the beginning about the classic nature of the move.  There’s no question about that.  In fact, two weeks ago, it was a lazy Sunday afternoon, and I was watching this movie on TNT before I even set this interview up with you.  So it’s just kind of fortuitous about this and for you to bring that up.  In terms of the relevance, the thing that struck me about the movie as I was watching it is that, especially over the past few weeks and months, things have been happening in the news that have made this seem more relevant.  Obviously, your character Stan Rothenstein is innocent of a crime of murder that he’s been accused of and just recently we’ve had the West Memphis 3 that have been released.

MW: Released after years.  Absolutely.

SB: Then we have Troy Davis in Georgia who was just recently executed under suspicious circumstances.  I’m wondering does this role, or do your roles generally, affect your political beliefs and form the way you look at the world?

MW: You know what they do more than anything – I think what happens with anyone in their line of work, when they’re presented with something, when sort of life imitates art or vice versa, I don’t know so much it affects, what it does is make you more aware.  Once you become more aware, for example, we’re an incredibly – I use the word credit but I think a lot of the time it’s not to our credit – an incredibly litigious society.  These days, something happens, I’ll sue – so that sort of stuff gets me crazy.  In general, I think the movie – especially something like this – definitely makes me more aware of the legal system and how it works, and more importantly, how it’s supposed to work.  Because, and especially after doing this movie, what you realize having friends that are lawyers and being involved – my aunt is a judge in Florida – so you hear about a lot of these things and the law, the law is a very interesting thing because it doesn’t really exist in a vacuum and it’s open to interpretation.  And as soon as you have something that becomes subjective that is meant to be objective, that’s when things get a little scary for me.  . . . [A] lot of these laws involve a lot of techniques that lawyers can use to get people off of cases because they’re really using the law in their favor . . . .  I realized after this because I was prelaw originally when I went into college.  And then I thought, “You know what, I think it would get me crazy.”  I think the minutia of it and using and twisting words, it would get me crazy, and I think doing the movie made me even more hypersensitive and hyper-aware to the legal system, how it’s supposed to work and when I see things that aren’t right, and you realize how sort of helpless you are in those situations, not only if you’re accused of something, but just as an outsider looking in, and you see something that maybe necessarily isn’t working the way it’s supposed to, it can be very frustrating from the outsider’s point of view – feeling that you don’t have that control.  And even worse if you’re being accused of something.  God forbid accused of something you didn’t do.  So if anything, these things make me more aware and it’s really hard because I think I have an overdeveloped sense of justice and when I see things that aren’t right, it gets me a little crazier than the average person.  So yeah, more than anything, I don’t know so much that it affects my views of the justice system, but it definitely makes me more aware and start to ask myself more questions.  I think its really good for anybody.  And I think that’s what movies do, and at their best, especially when it’s, obviously My Cousin Vinny’s a comedy with some undertones, like you said, have relevance in certain cases, then and now, but at their best, movies that are more serious, they make you think, and they make you examine, and they’re some great movies that you’ll see and say, you know what, people ask, “Did you like that movie?  I said I loved it.  And they say, “Would you see it again?”  I say, “Not in a million years.”  They say, “Well, how can that be if you loved it, how could you not see it again?”  I said, “It’s too hard.  It’s too hard to sit through.”  . . . [T]hat examination, whether it’s self-examination, or asking those hard questions, I think that’s really good.  It’s good for society, it’s good for the industry so, hey, sometimes I’m up for just a fluffy action flick, sometimes I like to think.  I depends on the mood like everybody else.  I think it’s good sometimes that these things that have practical application in the real world, that they do make you think about it, because that’s how people grow and learn.

SB: Do you recall if there was ever a time on the set when you and the other folks that were in the movie or involved in the production would talk about this issue?  You have folks who are here on trial, and we know that they’re not guilty, but here they are on trial anyway, and for the longest time, it looked like you were going to go to jail.

MW: Absolutely.  I think probably when we were shooting it was light.  We kept it light on the set.  Ralph and I got pretty close on that, and close on the movie, and stay in touch still.  And he’s a great guy.  . . . I’d love to be able to say we sat there and we got into in-depth conversations about the law and the legal system and how would this work if this were really happening, but I think we did really keep it light, and I think part of that was because when you’re shooting on location you sort of try and keep things as comfortable as you can and yeah, we looked more at the humor of it as opposed to the hard core aspects of the law and the ramifications of what was actually happening in the movie.  No, we didn’t get too deep about it, but we did have conversations, and I think we kept it on the lighter side.

SB: Sure, sure.  What would you guys talk about when you were on the set?

MW: Oh, God, everything.  For me, it was mostly when are we going to eat.

SB: I’m sure it was.

MW: It’s like “Come on, I need to eat something.  I can’t live like this.  I’m going to fly away on the set.  Put some rope on my feet.  I’m going to blow away.”  We talked about everything.  . . . [T]his is what drives me crazy when you hear about actors that don’t behave or that they behave badly or that they treat people – you hear a lot about this, you know, the spoiled Hollywood syndrome, and the bottom line is we’re being paid handsomely for me to play for a living and that’s the bottom line.  And even if it’s, like we were saying earlier, more serious themes or deeper, darker kind of movie, we’re getting paid to do things that most people dream about.  . . . [A] lot of the time we were sitting there talking about how appreciative we were to be where we were at the time, talking about life, family, getting home.  Because once again, when you’re on the road shooting something, even when you’re shooting a movie, I think at the time we were shooting six days a week.  I think we were shooting six days a week.  I’m pretty sure.  Hey, this was 20 some years ago.  So we talked a lot about home.  I got to travel a little bit, because when you’re on location also like for me, I wasn’t in every single scene so I got to head – we were shooting in Georgia, so I’d go visit family in New York.  I’d come back to LA for the odd week or so to be with my family and my friends out here, my dog.  And then I’d fly back.  But like every other job, you’re sitting there, shooting it by the water cooler except for us, it was by the Kraft service truck.  Over bottled water and an apple for me.  Everyone else, I’m sure they had a nice breakfast.

SB: Well, I’m sure between you and Ralph, and then in having Marisa Tomei in a tight dress out there, I’m sure that must have come up on the set once or twice.

MW: You know what, yeah, I think she caught a lot of attention.  She really did. But I’ve got to be honest with you, and this is going to sound silly and people have asked me because I was on “Friends” for a while and they said, “Oh, what’s it like to kiss Jennifer Aniston?”  Or “Marisa Tomei is so hot” – it was like, yes, clinically, yes, both beautiful women, but at the time, because of our relationship, I wasn’t even thinking along those lines.  But I could see the guys around me, kind of looking.  Someone once asked me, “What was it like kissing Jennifer Aniston?”  I said, “Okay, imagine kissing someone that you really have no romantic feelings for in front of 200 people in 120 degree lights with no top on in a dentist chair.  How do you think that went down?  Not too good.  Yeah, that’s about it.  Not too good.  It was kind of awkward and sweaty.”  But no, Marisa definitely turned a lot of heads, but getting to watch her on a daily basis in that particular role, which obviously she one the Oscar for.  I remember sitting in the editing because Jonathan let me sit in and watch him edit, because you learn so much about how a movie is made or broken in the editing room.  Because you can piece 20, 30 different movies with the same footage that you have depending on how and when you cut.  So I learned a lot about editing and how movies are put together by being in that editing room with them.  And when I watched Marisa’s performance from that perspective of sitting back in a chair and watching the footage, I was like, “Holy crap, she is good!”  And I remember saying to Jonathan Lynn, I said, “You know what, if they’re cool enough to nominate her, she could win an Oscar for this!”  And he looked at me and said, “Really?”  I said, “Absolutely.”  I remembered when it happened I was like, I made that call.  Everyone was so surprised.  She’s a wonderful, wonderful actress.  Yes, she’s pretty.  Yes, all that stuff.  She looks good.  But at the core, I think she works as much as she does.  First of all, she has interesting tastes.  She takes on different roles.  But she’s really talented.  And she deserved it.  So, yeah, she did turn some heads, but for me it was just my co-worker.

SB: It was surprising for me to learn just a moment ago that you were prelaw before you pursued acting.

MW: Yeah, that didn’t last too long but yeah, go ahead.

SB: Have you ever thought, you know, I’m just going to hang up this whole acting thing, and I’m just going to go to law school? Did that ever cross your mind?

MW: As much as I think I could probably do a good job, because I can talk and argue with the best, and I have an excellent memory for detail, although as I’m getting older, that memory is starting to go away.  As I said to you earlier, I tell you, Steve, I think it would literally drive me nuts.  Because I have that overdeveloped sense of fair play.  And as a lawyer, I think, you have these tools at your disposal, and you can use these tools, you can manipulate, you can gauge people, you can read people – all those things I probably have the skill set for, but I think the limitations would drive me nuts.  What I could, what I could not do.  Even knowing the way something went down and still having to defend someone, even though your instincts tell you they probably did it.  But that’s not my job.  My job is to tell them why he couldn’t and establish doubt.  Okay, let’s establish the doubt.  It would get me crazy.  I don’t think I could do it.  I don’t think it’s so much a moral thing, a moral compass, although I’d like to think I have a pretty strong moral compass, I think it would just make my head want to explode if I saw something that wasn’t right and I couldn’t fix it.  So, you’re like, “I’m faced with that every day, what’s your point?”

SB: Absolutely.

MW: Know what I mean?  I know myself, and I think, as much as I’d like to think, “Wow, that would be great!”, I think it would destroy me.  I think it would kill me on the inside.

SB: Right.  It sounds like you have some friends who have gone to law school, obviously.  I think you mentioned friends that are lawyers before.

MW: Yes.

SB: Would it surprise you to learn that it is not uncommon in law schools for My Cousin Vinny, snippets of it, to be shown…

MW: In the classroom?

SB: That’s right.

MW: I heard about this.  Somebody told me.  In fact, a friend of mine who’s a lawyer out here, he says, “I gotta tell you, that’s like our favorite movie.”  Lawyers seem to love the movie.  And I know they reference it.  I know they reference the Fred Gwynne scene where Joe’s in there to see if he’s going to allow them to try the case in Alabama, so I know people who are lawyers – maybe you can tell me – what is it about the movie, because obviously from a comedic standpoint, I get it. And I like the smarts of the movie, too bu,t what is it that draws the lawyers or the law school to want to show the clips?  What is it about it that people have latched to in law?

SB: I think what it is, it’s pretty much the same premise that explains why we like to sit around and tell war stories.  At the point in your life when you get to tell war stories, it’s like it happened to someone else.  So, it’s fun to sit around and watch someone else doing this forensic exercise where you don’t know how it comes out and sometimes, you get burned, and sometimes you succeed.  But the good news about it is, it’s not you.  And you can talk about someone else doing it.  The great thing about My Cousin Vinny for lawyers, I think, this is what’s true for myself, is you get to see someone who is just starting out their career as a lawyer, and that’s when you learn so much, and it turns out great for them, but it’s fun to watch along the way.

MW: Obviously, it’s trial by fire, no pun intended.  When you see him walking into certain things, and once again, it’s using common sense when common sense isn’t always the best way out of something.  And that’s what’s so interesting to me.  And you touched on something, I’ll just bring up really quickly because I also want to answer whatever you have.  I knew some of the people over at Fox.  We’ve heard rumors of a My Cousin Vinny 2, although now it’s going to be like My Cousin Vinny: The Geriatric Years.  That being said, one of the executives was saying, “They’re talking about doing a My Cousin Vinny 2,” and I jokingly said to them, I said, “Tell me they’re not going to make the classic mistake and like send Vinny to Europe.”  And everyone just sort of got really quiet and looked at me.  And I said, “What, seriously?”  And they said, “Well, what’s wrong with that? ” I said, “It’s not so much what’s wrong with it, but the thing to me that was trying that My Cousin Vinny is, it was a fish out of water with a guy that was a fish out of water in his own country.  That’s why it was funny.  He was out of place in his own country.  I mean, if Vinny was to go to Europe and there’d be that language barrier, lack of communication, we’d all be out of place in a country where they didn’t speak our language. But the funny thing about this was, they didn’t speak his language, and he was in America, and they were speaking English.  It was just two different worlds within the same world.  To me, that’s what made it special.  You send him to Europe, he’s going to be out of water just like any of us would be if we didn’t speak German, French, Spanish, whatever it was.  And they said, “Oh.”  And they were looking at me like I had just burst everybody’s bubble.  I said, “Now, if you send Vinny to California, then you keep it in that same theme where he’s a fish out of water.”  It’s New York and LA as opposed to New York versus the South in terms of different – then at least you’re keeping the same sort of them with the original where, okay, now Vinny’s somewhere else in his own country, and he’s out of place.

SB: That’s interesting that you bring that up because one of the things that always struck me about the movie is this idea of a fish out of water or the strange juxtapositions that are going on, you have this North versus South idea, have versus have-nots.  You have Ivy League versus Bush League.  There’s just so much that’s going on.  Was that just a comedic device, or was that something larger that the director was trying get across?

MW: . . . [F]or me, I can’t speak as to what exactly [director Jonathan Lynn] was doing with that.  I don’t want to say that he was if he wasn’t, and vice versa. But you can’t help but see that and take these themes and apply them to bigger things.  Like we were talking about earlier.  Taking these comedic themes and making them into something a little bit more serious or a little bigger than.  So I think in all comedy, obviously all comedy, as funny as it is, is based on something very real and sometimes very base.  Whether it’s human fears, human emotion.  That’s where most comedy comes from.  That being said, I know that it made me think a little bit bigger picture, but was that Jonathan’s intent?  I don’t know.  But I think if it’s a good movie that speaks on the comedic level about certain things, you can’t help but laugh and then look at them.  So, I don’t know if that was the intention but yes, I agree with you.  It was definitely there.  The bigger than what you’re seeing feeling was definitely there for me too.

SB: I have to ask you, too.  Being in the role of the criminal defendant, what was it like being tried by the late Herman Munster?

MW: Oh, my God.  Let me tell you something.  Fred Gwynne was such a great guy.  Such a great guy.  Such a good soul and a good heart.  He was a pro.  He was huge.  He must have been like 6’5”.  It’s a very intimidating presence and of course, growing up – a lot of people remember him, obviously, as Herman Munster, but he’s a great actor.  I remember seeing, I don’t know if you’ve seen him in The Cotton Club.

SB: No, I haven’t.

MW: First of all, if you’ve never seen The Cotton Club, you should go rent it.  A really cool movie.  Took place in Harlem, the music scene, Richard Gere.  It’s a really, really cool movie.  He’s done great performances in so many different movies and so many different TV shows.  Very understated, very self effacing, doesn’t buy into the whole Hollywood thing.  I don’t even think he flew when he traveled.  I think he took either his motor home and drove.  He’s very old school.  I remember one day on the set he saw me playing, I brought my Game Boy with me.  You’re sitting on the set a lot so I had my Game Boy.  I’m playing with my Game Boy, and I think I was playing Tetris.  And all of a sudden – I’m sitting in one of those director’s chairs, just minding my own business, and I see this giant shadow being cast upon me, and I sorta look up and of course it was Fred blocking out half of the sun.  He says, “What’s that?”  “That’s’ a Game Boy.”  “Let me see it.”  So, I gave it to him, and he starts, I like that.  So he gave it back and said, “Okay, I’ll see you on set.”  He gave it back to me and walked away.  A day later, he has one and he’s playing.  And his wife just walks by me and looks at me and glares and then walks away.  So, I introduced him to the world of Tetris on the Game Boy, and I don’t think his wife ever forgave me.  He was just a sweet, sweet man, really professional, loved working with him.  . . . When you work with professionals, things are so much easier and so much more fun.  It makes a huge difference.  When you’re working with pros, and I think you’ll attest to this as well, Steve, when you’re working with great people, you don’t mind putting in extra effort and working longer hours.  When you’re working with people that you don’t like, that aren’t nice and uncool, five minutes too long is too long.

SB: Absolutely.

MW: So people don’t realize, it doesn’t take much effort to just be decent and to be nice.  You have to go out of your way to go the other way, you really do.  But what do you get out of people when that happens?  The yellers, the screamers.  Professionals – you want to do more for them.  So I think because we had that kind of a set, people wanted to go the extra mile and put in the extra time and do the best they could.  You always do your job, but there’s definitely a difference when you have a sort of camaraderie and people just being decent and being professional.  So he was great.

SB: The casting seems to be one of the classic aspects of this movie.  Of course, there’s the subject matter, but the casting seems to be spot on.  In talking about Fred Gwynne, here you have this imposing figure that, as I’m talking about it, he seems to project the idea, the embodiment of judge, jury and executioner.

MW: Exactly.

SB: And it seems that every significant role in that movie was cast perfectly to a tee.  Maybe you have a different thought about that but it just seems – I can’t imagine the movie any other way with any other cast.

MW: Neither can I.  And I would never presume to do that.  I think they did an excellent job.  You look at the movie – everything just fit.  I have wondered because at the time Will Smith I think was doing “Fresh Prince” at the time. . . . Will Smith is brilliant.  He’s a great actor, comedic, dramatic – he does everything.  So every once in a while I wonder – that could work too.  I wonder how that would have been. I mean I’m glad it didn’t, because then I wouldn’t have had the job, and many more jobs after that because of it.  But, yeah, I look at that movie and I wish more television studios and film studios would have the faith to sometimes leave well enough alone.  I think there’s this skewed concept in Hollywood, and I’ve said this before, more so in television than the movies, but it sort of transcends both.  In Hollywood, there’s this idea that a star will make a TV show or movie.  And I think it’s the opposite.  I think a great movie or a great TV show will make a star.  So there’s this idea if you put this person – how many TV shows have you seen where they just wanted a celebrity name or this person from the movie is now doing a TV show.  How successful are those shows?  You see them a lot – they have this idea, if we put enough names together – animation which I also do a lot of, I do a lot of animated television and movies and stuff too – and you’ll see that classically in animated films.  They have this star-studded cast and I’m thinking – you know, the script is the star.  The animation is the star.  If you had really great voice actors that did a great job, do you think most people would really notice or care?  No, they wouldn’t.  There are very few iconic roles, especially in like animated ones – you can look at Shrek and say Mike Myers and Eddie Murphy, they did make that movie, they did.  They were brilliant.  But there’s this idea that the more celebrities you put in the better it’s going to be, and it doesn’t have to be that way.  Just put the right pieces in place, people that can do a great job, and you’ll end up making those people famous, rather than having to have famous people in roles and risk the movie.

SB: You know, that sounds like a very refreshing observation from someone that does live in the TMZ [era].

MW: I know.  People don’t bother me.  It’s good.  I wouldn’t mind being bothered a lot more.  Obviously, I could work more.  But you know what, I couldn’t imagine living under that kind of microscope.  And it happens.  But that’s something – I don’t want to say that’s what people sign on for, because they sign on for the job and fulfilling themselves creatively and working and making money, all that stuff.  But unfortunately, in this kind of business, that does go along with it.  Hopefully, it’s sort of balanced out by the money that people make.  . . .  And now that we’re in the digital age, you’re a bad decision away from being captured on someone’s iPhone and having it going viral in two minutes.  It’s kind of a scary situation out there.

SB: Coming back to the movie, I suppose, is there a particular scene or a moment from the set that you remember watching and thinking, “My God, I can’t believe I’m a part of this.  This is just incredible”?

MW: I think I had that from the first day on.  I think I literally had that from the first day on.  I was so excited.  Like I said, it wasn’t my first studio movie, but it was my first studio movie where I was on location and everyone was living in houses next to each other, and they would have the driver take you to the set, so it was really a great Hollywood experience.  But as far as being on the set, I think everyday I had that little bit of awe.  I remember we were shooting on Covington stages in Covington, Georgia, which is about 45 minutes outside of Atlanta.  And I think that’s about right.  There was no air conditioning on these stages.  Appropriately enough, they shot “In the Heat of the Night” there. . . that series with Carroll O’Connor.  So I remember hearing, “Oh, you’re going to sweat off some weight.”  I shouldn’t have lost the weight.  I would have lost during shooting anyway.  While we were shooting there, I remember we did a lot of our first shots there, and I just sat there in the courtroom like, “We’re really doing this.”  Because I’m always amazed when I read a script, when I read a television script or a movie script, and I actually go onto the set, I’m always in awe of the people, the production, the brilliant designers and people that build the set, and I’m looking at this piece of paper in front of me and saying, someone took these words and built this movie.  Look, this is the courtroom.  This is that set.  Here we are in that location.  I’m always amazed at the movie magic that goes into taking something on paper and then months and months later, there you are on set, saying those words in those places that someone had to go scout, create, build, clear.  It amazes me.  I think every day I was on the set I had that bit of awe.  But I will never forget how Austin Pendleton, who played my lawyer, how he tortured me.  Because while I was watching – when you’re shooting a movie, you’re doing it multiple times and shooting it from multiple angles.  Even if you have two or three cameras going at the same time, you’re still going to have your master shot, you’re going to have the single, which is the single shot of each actor.  You’re going to have the over-the-shoulder shots.  You’re going to turn the camera around, and then film the other people in the scene from someone else’s point of view.  So, in the movie, when you see them cutting back and forth between reactions of different people or to the master shot of the whole room – they have something to work with.  So they shoot something from multiple angles and you’re doing the same scene over and over again.  I don’t know how much you know about that.  That’s why I’m sorta explaining it.  So you’ll do this one scene, but you’ll do it over and over, because you have to take different shots, different angles.  So I remember when Austin Pendleton was walking around, “Ladies and gentlemen of the j-j-j-jury.”  He’s slapping a juror on the shoulder, and the guy’s cringing, and I was laughing my ass off.  I couldn’t help it.  In fact, if you watch the movie and you see us at the table when he’s stuttering, and my shoulders are going up and down like I’m crying, I was laughing.  I couldn’t help it.  It was funny.  But I remember the director, Jonathan Lynn, came over and said, “Mitchell, we see you laughing in the scene, so could you try not to laugh?”  I said, “Jonathan, I’m trying.  It isn’t like I’m trying to ruin anything.” And then he’d say, “Action!”  And he would turn his back to me so I would see him laughing.  I said to myself, “Look, you’re asking me not to laugh while I’m on camera so I know you don’t want me to laugh.  But you’re not helping by turning around, and I see your shoulders going up and down.” . . .  Austin Pendleton who is another brilliant actor, writer, director, great, he does everything.  I took Austin aside, I was like, “Sude, you’re killing me.”  I said, “Do me a favor.”  “When they turn the camera around for my shot, could you” – because they want the person, even though the camera isn’t on Austin at that time when they had the cameras turned around on me – he still has to walk and do the same walking that he did so my eyes follow him properly.  Again, so when the cut it together it looks right.  So I said, “Look, when you’re just doing the blocking and walking from place to place, don’t act.  Just say the words because I’ll laugh.”  Okay, so he said, “No problem, Mitchell.  No problem.  I’ll be there for you.”  So the cameras turn around on me.  We start the scene, “Action!”  And Austin was doing his thing, “Ladies and gentlemen of the j-j-j- ury!.”  The loudest – just stuttering – over the top – jury!  I just – I was like, “You son of a bitch.  You did that to me.”  And he was like smiling and he gave me a thumbs up, like “Good?” And I was like, “Yeah, great.”  Those of the things I think of – being in awe at the same time and having a blast.  So those are the things that I remember.

SB: That sounds like it was just a great experience on the set.  You mentioned a couple of times it’s not your first feature film that you were in.  And I notice that you were in Reversal of Fortune a couple of years before that, and of course, that’s another legal thriller.  What was that experience like compared to My Cousin Vinny?

MW: You know what, it was a very, very different vibe.  First of all, that was a much darker movie based on, obviously, the Claus von Bulow trial so that was – I think there was a much more serious tone.  Although, once again, obviously, when you’re working, you do have fun and joke and have fun with what you’re doing.  But the tone of that film was very different, and my part in the film was very different, although I’m still to this day not sure why they called me Curly, but I’m sure they had a good reason for it.  I think I was part of the black bag team.  There were different lawyers that were broken up the way that Dershowitz worked.  . . . He uses his own legal students from wherever he’s teaching at the time.  So, he took his students and broke them up under different parts of the case, so my part of the case was in breaking down the black bag, the evidence therein, and all that stuff.  So I was part of a smaller team on that, didn’t really have  a lot to do in the movie.  So it was a very different feeling, and I think because of that, the subject matter, it was darker, it was more serious, but I must tell you I had a blast with Jeremy Irons, who people didn’t realize what a great dry British sense of humor he has.  I think people were afraid of him.  And when he’d say something naughty, and I started to laugh, people would look at me like, “Why are you laughing?”  I’m like, “Because he’s funny.”  He’s nothing serious.  He’s just pulling your chain to get a reaction, and Jeremy Irons sort of looked at me and winked.  So I knew when he was being bad just to get a reaction from people.  So I had a great time on that film although even though it’s like anything else.  Even though it’s a legal thriller, this is a legal thriller as opposed to a legal comedy.  So a very different vibe but still a great experience.

SB: Right.  Did you have the chance to meet Alan Dershowitz from working on that film?

MW: He was there on set, but I did not meet him.  He would stop by.  I’d see the hair every once in a while.  I go, “I see the hair, there he is.”  I knew he was there, but I did not actually get to meet him, no.

SB: In terms of what you’ve got going on these days, you said you’re doing a lot of voice acting right now.

MW: Yeah.  Film and TV have been kinda slow for me out here, but the voice stuff I’ve been doing for the last thirty, over thirty years, I’ve been doing voice-over work for film and TV whether it’s for TV  commercials or animated stuff so I was actually the voice of Donatello in TMNT, the Teenage Mutant Ninja Turtles feature.  So that was me there.  The nice part of that for me, first of all, voice work – I love doing it, and I’ve been doing it for so long, and the thing I really love about it is the anonymity of it.  If they’re just hearing your voice, they can’t think to themselves, you know, he looks too old, too young, too short, too thin, too fat, too ethnic.  It is just what the voice is.  And if you can sound like you’re young, or sound like “Cowabunga, dude,” it doesn’t matter what you look like.  They’re just knowing what they hear.  So the beauty about doing the voice work is I’m still playing a lot of teenagers in the stuff that I do.  I mean, I play a lot of adults, too, and depending on the stuff that I’m doing, obviously I could do the different voice work for it, but I just like the fact that you’re no longer limited in the voice world by the physical.  And Hollywood judges you by the physical all the time for better or for worse.  You’re too old for this part.  You’re not right.  You’re judged physically all the time based on the idea they have in their head of what you’re supposed to look like.  In the voice world, as long as you can work your voice and have the right sound, you can be that older, younger, thinner, it doesn’t matter as long as you can sound that way.  So I like the fact that you’re not as held back by the physical when it comes to the voice work.

SB: The thing is, Donatello seems to be a perennial favorite among folks.  I remember back when I was growing up people kind of fought about who was going to be Donatello, and it seems like he’s still popular today.  But there’s always like one Ninja Turtle and people are like, man the smelly kid is going to play Leonardo, or he’s going to play Raphael or something like that.

MW: I was really excited to be Donatello, and I don’t know what it is – if I had to guess, I’d say Donatello was one of the earlier animated characters that made it cool to be smart.  It was okay to be smart.  And not only was it okay, he ended up helping them out but his scientific knowledge, he ended up solving a lot of the stuff just from his brain alone.

SB: And then, you have the Green Lantern project going on right now.

MW: We finished that.  The animated one.  That was so much fun.  I think I was Avra, who’s like the original, literally one of the first Lanterns or the first group of Lanterns.  So, even though he wasn’t Hal, I still get to tell, I wasn’t Hal Jordan, but I still get to tell my kids, “Hey, daddy was the original Lantern.”  . . . Yeah, that was really cool.  Once again, when you get to play in these films or even television shows, especially animated world, these iconic characters, it really is kind of cool.  And I love that.  I love being a part of it because I do, I still love comics.  I always loved comics.  I loved them.  I still do.  I love animation.  In fact, I think some of the most original shows and the best writing that we have and have had in the last ten years has been in animated shows.  I think, once again, it’s the lack of limitation, the fact that, do you think a live action version of “Family Guy” could ever be on the air?  Never in a million years.  But they get leeway.  They have a little more room the play when it’s animated, and I think that’s the general thing. You do have room to play and to push boundaries and to talk about things and talk about things that make you think.  Half the comedy of that is looking at how absurd we are and how horrible we are as people.  . . .  A lot of the animated projects like that today are some of the smartest and the most fun things out there because they have the room to be creative and if they slip a message in once in a while, all the better.

SB: Now, you also did some voice work on “Duckman,” right?

MW: Yeah.  Oh, my God, you’re really digging through the archives.  Yeah.  That was a long time ago.

SB: You know, I was looking through IMDB, and I saw that, and I hadn’t thought about “Duckman” in the longest time.  But I loved that show.  And I can’t find any “Duckman” reruns anywhere, but I thought that was just a brilliantly written show.  Of course, I probably wasn’t even old enough to appreciate it the way I would now.

MW: It was definitely smart and edgy at the time.  Now, was Jason Alexander Duck Man, he was, wasn’t he?

SB: He was, that’s right.

MW: Yeah, because I think it’s one of those things where I’ve been fortunate in certain cases when I didn’t get the part, because I was originally up for the role of Duckman.

SB: Oh, wow, how about that?

MW: But I didn’t get it.  Then he gave me something else, sorta, “Hey, we like you,” and that’s what happened with “Friends.”  I was actually, they called me at home to congratulate me on getting the part of Ross.

SB: Oh, wow.

MW: Then the next day, they were like, “Well, there’s one more guy we’re seeing, so let’s hold off on the contract,” and the rest is history.  And they ended up giving me Barry the orthodontist as the consolation prize, which was okay.  And to this day I don’t look at it – I think it gets to other people – they go, “Oh, my God, doesn’t that kill you?”  I’m like, “Not really.”  I’ve had  a lot of cool things that I’m really, really happy about.  I wouldn’t have turned down the millions, but I never look back, and like “Oh, my God, my life would have been different.”  Who knows?  Maybe I wouldn’t have met my wife, which would have sucked, because I love my family so.  I don’t know.  I’m very happy the way things turned out.  But yeah, I’ve had that kind of second prize thing where if I didn’t get the role, at least they were generous enough and liked me enough to give me another part in the project.  So that’s kinda what happened with “Duckman.”

SB: Huh, how about that?  Like I said, I had not heard about that story, but when I saw that on IMDB, I thought, “Oh, I’ve got to ask him about this.  This is fantastic.”  It’s a very underrated show.  I thought it was just exceptional.  Okay, I know I’ve kept you a long time.  I’ve got two final questions though here for you.  The first one is, hypothetically, let’s say that you were still on trial with Macchio, and things weren’t looking good for you.  Would you turn state’s evidence and testify against Macchio in exchange for a deal from the government?

MW: I will answer that with a very quotable answer.  I might have been neurotic but I was no pigeon.  I’m no narc.  I would not have turned state’s evidence.  Well, the funny part is, there’s no evidence to turn.  That’s why they ended up winning.  There was no incriminating evidence to turn.  It’s mostly circumstantial, but such strong circumstantial evidence that it would have been enough just because of the car, the time line.  . . . [B]ut let’s say it was different, and there was something that I had that I could have used to sort of say, “Oh, look, he’ll get five years and they’ll try him.” No.  Never.  I’m neurotic, but I’m not a narc.

SB: I like that.  That is quotable.  And then the final question.  Here we are looking at the twentieth anniversary.  Thirty years from now, when we’re looking at the fiftieth anniversary, what do you hope the staying power, the legacy, the continuing relevance is of My Cousin Vinny?

MW: First of all, I hope that I’m here for that.  That would be great.  And God willing that I am.  You know, it just goes to show you that the relevance for me for that – and hopefully that film is still being relevant, which I’m sure it will be – it’s funny.  Good writing is good writing.  Good comedy is timeless.  Look at “The Honeymooners.”  Look at “The Mary Tyler Moore show.”  Look at “The Odd Couple.”  I mean, these are all shows that were from the 70s, “The Honeymooners,” like in the 50s, the late 50s.  I mean, funny is funny.  They still rerun “Lucy.”  And I defy anyone when she’s doing the conveyor belt of chocolates and stuffing her face or stopping the line, people still laugh and get a kick out of it.  Funny is funny.  And I think it’s a message for everyone that – I think unfortunately, we are in a very quick fix time right now.  We’re people – we need that quick fix, in and out.  Everything is disposable.  We change our cell phones and televisions every two years.  We cancel TV shows after one episode because it didn’t get the numbers in one week.  They cancel something.  We’re really a “What have you done for me lately?” society right now, which is sad.  And I think everyone is looking for the new edgy this, that, and I think sometimes, the best stuff is right there in front of your face, and people don’t realize that.  We’re still obsessed with the newest and the best and the most technologically advanced, and we forget it’s the basic concept – are these characters funny?  Is it something I could watch either on a weekly basis for half an hour, actually 22 minutes, or someone I could sit through a movie and watch and root for or root against, because I either agree with them or really disagree with them.  And those sort of concepts are timeless.  I think while everyone is busy trying to reinvent the wheel, people forget the very basic nature of comedy and drama and what makes something good.  It’s down to writing, character and execution.  It doesn’t have to be cutting edge.  It doesn’t have to be the pretty – as long as it has some legs and good comedy does, it should be around forever.

(To see a full index of our My Cousin Vinny twentieth anniversary coverage, please see here.).