“I Met My Murderer!” proclaims the cover of Lawbreakers Always Lose! #10, published way, way back in 1949. For one, we kind of dig this comic book cover because the title of the series is a complete sentence. (Quick trivia question: How many films can you name where the title is a complete sentence, and of those, what is your favorite? Ours, clearly, is The Empire Strikes Back, but only the one released originally in 1980, not the souped-up, re-digitized detritus George Lucas would re-release later over the years.).  Second, the guy on the cover has a cool hat.  That’s probably a small consolation for meeting his murderer – although he may be the murderer.  We’re not sure.

From the Ultimate Classic Rock website: “15 Infamous Rock Lawsuits.” Yes, the Judas Priest litigation is included.

The New York Times offers this interesting piece on the use of Urban Dictionary by lawyers and even the courts.  We have to admit that we have consulted this resource a time or two, but we’d be way to shy to cite it as persuasive authority in briefing.

Our friend Ryan Steans of The Signal Watch muses on the past and present of The X-Men comic books.

Rest in peace, Ray Mazarek, fabled keyboardist of The Doors.  We were please to see this tweet from the actor Kyle MacLachlan, who played Mazarek in the 1991 film, The Doors, directed by Oliver Stone. Let’s all listen to “Riders on the Storm” this weekend, shall we?

Imagine this situation: Two parties to a dispute begin to talk settlement or potential resolution before suit is filed.  This is probably a good thing.  The two parties, both from different states, agree to meet in an attempt to resolve the dispute.  Suppose that this attempt at resolution, a formal mediation, takes place in the forum state at the offices of one of the party’s attorneys.  None of this is unusual.  The mediation is scheduled, and one party, coming from out of state, travels to the forum state, presumably in good faith, in an attempt to resolve the dispute.  After all, the only reason they have to be in the state is to attend to newly scheduled mediation.  The mediation begins, with each party offering its opening statement, and then proceeds in the traditional fashion, with the mediator shuffling back and forth between the room in an effort to bring the parties closer together and resolve the dispute once and for all.

But the hosting party has a different idea.  Although it may prefer to resolve the dispute once and for all, it realizes that if the mediation fails, as they sometimes do, then it has an advantage in that its opponent is physically present in the forum where it would like to litigate the matter.  So, the hosting party develops a contingency plan:  it prepares a complaint and instructs a paralegal to hold steady at the local courthouse and stand ready to file it, if matters turn for the worse.  Further, a private process server lurks nearby the site of the mediation, ready to serve the corporate representative of its opponent as they leave the mediation, if it is unsuccessful.

At first glance, it may make sense.  After all, the foreign party is present and the jurisdiction, and therefore, subject to service of process.  Why not take advantage of this opportunity to file and serve the lawsuit during the mediation if things do not go as planned?

Though this seems technically permissible under the rules, it is frowned upon by South Carolina jurisprudence and is, as aforementioned, uncool. Where a plaintiff or someone acting on its behalf induces a defendant to enter the jurisdiction for the purposes of effecting the settlement of a controversy, and the defendant is then served with process while in the jurisdiction, the service will be set aside as having been fraudulently obtained and the complaint will be dismissed.  See generally Shaw v. Hughes, 303 S.C. 337, 400 S.E.2d 501 (Ct. App. 1991).  So, if you are the hosting party, don’t be uncool. And if you’re the visiting party, you may want to address this matter up front and agree with your opponent that no one will attempt to employ this strategy at a pre-suit mediation.

Whatever the case, let us pause briefly to reflect upon the arrival of the “new” year, because, as you know, we’ve all written 2012 on some of our documents so far, even in May.  Accordingly, we need to be aware not just of the “new” year but also its potential effect on our brains and those of our clients.

Now matter the time of year, a good rule is: Be certain to double and triple check your documents to ensure they are dated properly.

Now, what do you do when you locate a document from the past wherein someone has made this type of dating error?

First, you say, “Yikes.” Then you proceed into analytical mode.

Perusing the document at issue, it may be apparent from the body of the document that the date is incorrect.  If it is a letter, then the context clues and subject matter may refer to issues or occurrences which indisputably occurred in the prior year, thus making the error in the correspondence apparent.  It may also be that there is no reason for the other party to dispute the incorrect date, and thus, the issue would be moot. However, if some confusion prompted by the error in date, you may wish to inquire whether the other party is to make an issue of it.  If so, perhaps the error can be accomplished by way of an affidavit, a verified discovery response, or, if necessary, part of an otherwise necessary deposition. However, the best advice may be simply to be more careful in executing such documents.

According to a representative of the group:

“In reviewing the history, it became more and more clear to us there really was not a rational basis for the current law. The fact the law says pharmacies, convenience stores and grocery stores are capable enough to sell the product warm, then it gets rather arbitrary about what temperature it can be sold at. When you change the temperature, it doesn’t change the alcohol content.”

Ironically, the grocery stores and convenience stores can already sell chilled wine.  I’d say the probably have a decent case that the law is indeed arbitrary.  Nevertheless, it’s probably still a long shot that they win the lawsuit, but here’s to hoping the good guys win this one.

Aside from the amount of the jury’s award, the more intriguing issue in this case is the role of the Consumer Product Safety Commission.  At trial, the estate argued that the slide did not comply with federal safety standards for swimming pool slides, citing to standards set forth by the CPSC in 1976.  Toys ‘R’ Us contends that the 1976 regulations do not apply to inflatable slides, but only to rigid pool slides.  According to the toy retail chain, inflatable slides were not around in 1976 and, thus, were not contemplated by the standards.

Nonetheless, the slides apparently were imported and never certified that they met any standards.  Regardless of whether Toys ‘R’ Us should be held responsible for this regulation snafu, it’s the CPSC’s response that draws our ire.  The CPSC did not recall the slide until May 2012 – months after the verdict and years after the 2006 incident.  The CPSC was also aware of at least two other cases of serious injury arising out of use of the slide.  If the slide really is afoul of CPSC regulations and has allegedly caused several cases of serious injury and/or death, then why wait until a jury verdict to issue a recall?  It is not like the CPSC has a firm rule to exercise due diligence in these things.  Remember Bucky Balls?

We have been critical of the CPSC in the past over its draconian measures.  Regardless, if the CPSC knows it is going to issue a recall, it might as well go ahead and do it – especially if the only fact that changed between the 2006 accident and the 2012 recall is a Massachusetts jury deciding the issue is worth $20 million.

Above, you’ll find the cover of the recent book, The Law of Superheroes, by friends of the blog James Daily and Ryan Davidson.  As you might recall, those two run The Law and The Multiverse blog, a site dedicated to”superheroes, supervillains, and the law” and the exploration of legal issues through comic books.  While we here at Abnormal Use typically feature a legal themed comic book cover each week, James and Ryan analyze in detail how particular statutes and common law rules might apply in a given comic book universe.  We’ve loved their site from the beginning, and we’re pleased that they’ve published some of their material in book form. (For more on this book, please see here.).

You may or may not watch TV’s “Survivor,” but we’re amused to note that this season’s winner – named this past Sunday – is a Harvard law student by the name of John Cochran.  Our favorite part of the season finale: Cochran, who has made it to the final three, is planning the opening statement that he will deliver to the jury, composed of former competitors who were “voted off the island.”  Cochran remarks to an interviewer that addressing a jury is something that Harvard Law school did not prepare him to do. Ouch.

We really shouldn’t be working today. We would much rather be seeing Star Trek Into Darkness.

Here’s another century old comp claim from @TweetsOfOld.

When is the last time you saw a witness being deposed on a lawyer television show? When is the last time you saw a young associate in a frightful warehouse in the middle of nowhere performing document review? When is the last time you saw a lawyer responding to discovery requests or lodging objections to same? Is it that such tasks are not cinematic in nature?  Surely, that’s not it.

We can certainly imagine an interesting episode of a television show regarding an associate’s trek to an industry site to review documents.  Further, we can also imagine the novelty of a large scale toxic tort plaintiff’s deposition with 20 defense lawyers in the room.

So why is it that we never see such things on television?

Is it that the writers of legal television shows themselves only know of our industry from other bad legal television shows?  Is it that the a program’s advisers do not have the breadth of legal experience to provide such anecdotes to the production?  Or is it that the traditional formula of a legal TV show is so well established and ossified that any deviation therefrom would simply require extra effort?

Perhaps we will never know the answer to these questions.  But we’d watch a show featuring such things.

Was I right?  A copy of the full opinion can be found here [PDF].  It’s well worth a full reading.

I’ve often thought that being a judge might sometimes get a little dry, and that writing legal opinions (or, rather, reviewing the opinions that my clerk wrote) might become mundane.  But every once in a while, a case lends itself to a bit of creative writing.

This ruling is simply hilarious.

I was also a bit curious about its author, U.S. District Judge Fred Biery, so I looked him up.  According to his official bio on the U.S. District Court for the Western District of Texas website, Judge Biery was appointed by President Clinton [withhold additional commentary here] and he enjoys basketball and gardening.  His Wikipedia page already has a citation to this fun ruling.

Law is serious business.  No one denies that.  Further, it is possible that the town of San Antonio and the strip club at issue do not find the judge’s lighthearted opinion at all amusing.  Perhaps they feel that their litigation is not being taken as seriously as they believe it should.  But for the rest of us, this opinion proves that lawyers–and judges–are not sticks-in-the-mud all the time.  And that’s a good thing!

Vijahy was privately suspended by the PGA a few months back after he admitted using a performance enhancing drug known as “deer antler spray.”  Deer antler spray allegedly contains substances banned by the PGA tour.  However, after some legal maneuvering, Vijahy was able to avoid serving any suspension. Now Vijahy claims that there never was any reason to suspend him in the first place. So, naturally, he has filed a lawsuit  alleging that the PGA tour negligently and intentional inflicted emotional distress upon him.

Emotional distress claims are notoriously difficult to prove.  Negligent infliction of emotional distress requires, at minimum, that a Plaintiff prove that he was in a zone of impact and suffered physical manifestation.  Intentional infliction of emotional distress claims require proving that the defendant intentional or reckless acted in a manner so heinous and beyond the standards of civilized decency or utterly intolerable in a civilized society.  Very very doubtful that Vijahy can prove either.

When you are pro golf and you admit to using suspect performance enhancing drugs, you run the risk of ticking off your employer and getting suspended.   Unless Vijahy’s got some really good hidden evidence in his golf bag, it is unlikely that this case is going anywhere.

It is one thing to allege that a product is defective. It is quite another to allege that the product is rigged to fail just after the expiration of the warranty. Apparently, this is exactly what the class has done. It appears that the suit alleges that Apple not only knew and failed disclose the defective button, but also that it designed the button to fail as to render the phone unusable. That’s harsh.

We here at Abnormal Use do not have enough information to comment on the validity of the defect allegations. However, even if defective, we doubt Apple “rigged” the button to fail. What would Apple’s motivation be to do so?

We appreciate the rationale of a profit-motive argument, but it lacks an understanding of Apple buyers. iPhone users constantly upgrade their devices – broken power button or not. Apple releases new iPhone models every 6 months, making you feel that your barely used phone is outdated. Apple doesn’t need to tamper with your phone to get you to buy a new one. They already use enough trickery in the marketplace. Plus, we hope Apple users would be smart enough to move onto a new product line if the one you are using is defective.

It will be interesting to see how this suit plays out. Of course, Apple probably has the case rigged, right?