It’s Christmas Eve.  Since many of our readers are fellow lawyers, we must ask you: are you in the office today? On the one hand, it is the day before Christmas, but on the other hand, it is a Monday.  It’s not even a federal holiday. But it seems exhausting to trek to the office on a Monday when Tuesday is, in fact, one of the biggest holidays of the year.  Especially if you find yourself traveling to faraway places.

By the way, depicted above is the cover of Xmas Comics #2, published way, way back in December of 1942.  Look at all of the superheroes with Santa in his sleigh! But even with that on the cover, we have to think that 50 cents is pretty expensive for a comic in 1942.

Know this: We here at Abnormal Use are off today.  This post you are reading – these words you see right now – were written long ago, and this post was set to publish far in advance so that we could enjoy the day with our families.

But if you need us, you know where to find us.

Shazam!  The folks at Abnormal Use are saddened to learn of the death of the great Andy Griffith, who played Sheriff Andy Taylor on the famed “The Andy Griffith Show,” on which he starred from 1960 to 1968. In addition to that role, Griffith starred in director Elia Kazan’s film, A Face in the Crowd (1957), and was nominated for a Tony award for his Broadway performance in “No Time for Sergeants.”  Griffith played the lead character in “Matlock,” a legal drama which aired on television from 1986 to 1995.  He graduated from the University of North Carolina at Chapel Hill with a bachelor of music degree in 1949.  In addition to his career as an actor, he was a Grammy Award-winning singer.  After Griffith left The Andy Griffith Show in 1968, he starred in many television films, playing the villain in “Murder in Coweta County.”  He also appeared as an attorney in the NBC mini-series “Fatal Vision” in 1984.  Many will also recall his comedy routine, “What It Was Was Football”.

In tribute to Griffith, we have prepared this obituary for Sheriff Taylor, his most famous character.

Sheriff Andy Taylor was a resident of Mayberry, North Carolina.  During his years as Sheriff of Mayberry, he was a widower and father to Opie Taylor, his son by his first wife.  He later had another son, Andrew Jackson Taylor, Jr., after he married Helen Crump.  Andy’s Aunt Bee was his housekeeper and helped raise Opie.  Andy enjoyed using his favorite fishing pole, “Eagle Eye Annie”, and even used the pole to barter with Mayor Roy Stoner to obtain a beautiful bed jacket for Aunt Bee’s birthday.  After dating for several years, Andy eventually married school teacher, Helen Crump.  Opie had previously referred to her as “Old Lady Crump” when she forced Opie and some of his school friends to memorize historical dates.  As a result, Opie and his friends formed a local club, The Mayberry Minutemen.  Andy later left Mayberry and was an agent for the State Bureau of Investigation.  He then retired as a postal inspector in Cleveland before returning to Mayberry.

Before marrying Miss Crump, Andy had several other girlfriends, including Ellie Walker, the “Lady Druggist”.  He also dated several nurses, including Mary Simpson and Peggy McMillan.  Helen was his true love and they shared many double dates with loyal deputy, Barney Fife, and his girlfriend, Thelma Lou.  They enjoyed picnics at Myers Lake and parking at the duck pond.  Mayberry residents still talk about the time Barney helped “rescue” Andy and Helen when they got trapped in the cave.

In addition to serving as Sheriff, Andy was also the Justice of the Peace.  Barney was his only deputy, unless Barney deputized some temporary help, including town drunk Otis Campbell, mechanic Gomer Pyle, and barber Floyd Lawson.  Andy also performed marriage ceremonies, including Charlene Darling and Dud Wash.  Before doing so, he had to deal with Ernest T. Bass and his rock-throwing tendencies.  After Barney took a job in Raleigh, Andy trained a new deputy, Warren Ferguson.

Sheriff Taylor usually did not wear a gun, although Barney always had his pistol and one bullet in his pocket.  When Barney bought a car from Mrs. “Hubcabs” Lesh, Andy helped Barney capture the scam artists who sold him the car.  It was one of the rare occasions Andy authorized Barney to actually put the bullet in his gun.

In addition to monitoring Barney’s attempts to arrest jaywalkers (especially Emma Watson), Andy’s law enforcement duties included chasing down the local moonshiners.  These included Rafe Hollister, who was discovered to have a talent for singing.  Barney helped Andy nab the Morrison sisters, who were making moonshine in their greenhouse.

Andy enjoyed playing his guitar and singing with Barney, or other local characters, including Jim Lindsey, who later played with Bobby Fleet and His Band with a Beat.  Andy also played the guitar with the Darling family when they came to town.  He liked playing checkers and hanging out at Floyd’s Barbershop.  He had a good relationship with local businessmen, including Emmett Clark (Emmett’s Fix-It-Shop), Orville Hendricks (undertaker and television repair), Charlie Foley (grocery store), and Wally, down at Wally’s Filling Station.

Andy was known throughout the community for his honesty and integrity, and for his good heart.  Andy allowed bootlegger Sam Muggins to celebrate Christmas in the jail over the objection of Ben Weaver.  He ate Aunt Bee’s homemade pickles even though they tasted like kerosene.  He helped a Mayberry resident prove that his bad luck was not a jinx.  When struggling door-to-door salesman, Bert Miller, was complaining of his sore shoulder, tired feet and the sound of ringing doorbells, Andy helped him stay in business against the strong-armed tactics of Ben Weaver.  Certainly, his kind treatment of Otis Campbell deserves special recognition.

The town of Mayberry and the State of North Carolina mourn the loss of one of its finest citizens.

“When a man carries a gun all the time, the respect he thinks he’s getting might really be fear.  So I don’t carry a gun because I don’t want the people of Mayberry to fear a gun. I’d rather they respect me.”

(Stuart Mauney previously memorialized actor George Lindsey, who played Goober Pyle on “The Andy Griffith Show,” on the occasion of his death earlier this year.).

As huge fans of “The Andy Griffith Show” and its spin-offs, we here at Abnormal Use are saddened to learn of the recent death of veteran character actor George Lindsey, who played Goober Pyle, who died on May 6 at age 83.  Lindsey played the role in “The Andy Griffith Show,” “Gomer Pyle, U.S.M.C., “Mayberry R.F.D.,” and various reunion programs.  He will be missed.

In tribute to Lindsey and his beloved character of Goober, we have prepared this obituary for Goober Pyle.

Goober Pyle was a lifelong resident of Mayberry, North Carolina.  He was 83 years old.  Goober was a mechanic at Wally’s Filling Station and later its owner.  Sheriff Andy Taylor and Emmett Clark, owner of Emmett’s Fix-It Shop, co-signed a bank loan that allowed Goober to buy the station.  He was the cousin of Gomer Pyle, who also worked at Wally’s, until he joined the Marine Corps.

Goober was just five years old when he was a witness in “The Case of the Punch in the Nose,” in which grocer Charles Foley accused barber Floyd Lawson of punching him in the nose.  He later trained as a mechanic in Raleigh, North Carolina, and served briefly in the North Carolina National Guard, where he learned the phrase “Yo!”  He briefly dated Flora, who was a waitress at the diner.  (“Eat Your Heart Out”). Flora filled in for Goober at the station when he went on a fishing trip.  (“Goober’s Replacement”).  Goober was not always lucky in love.  In desperation, he once tried a computer dating service.  (“A Girl for Goober”).  His first love was Lydia Crosswaith, who was originally from Greensboro, North Carolina.  (“Goober and the Art of Love”).  Lydia and Goober went on a date with Andy/Helen, Barney/Thelma Lou.  Goober suggested they play “Go Fish!”, but Lydia said, “I don’t gamble.”  They then suggested a movie, but Lydia responded, “I saw it.”  Finally, Andy suggested they go bowling.  Lydia declined.  “I’ve done it.  I can’t.  I have a bad back.  If I threw a ball, I’d be in traction for a month.”

Goober’s skills as a mechanic were legendary.  The residents of Mayberry still talk about the time he took Gilly Walker’s car apart and put it back together again inside the courthouse.  Sheriff Taylor had asked Goober to answer the phone in the courthouse while he attended the Sheriff’s Safety Conference in Mt. Pilot.  (“Goober Takes a Car Apart”).  Goober had a good heart, as evidenced by his not charging “Man in a Hurry” Malcolm Tucker to fix his car on a Sunday afternoon.  Despite this automotive talent, he was sometimes not as sharp in other matters.  He even grew a beard, thinking it made him look smart.  (“Goober Makes History”).  At one time, Goober thought his new dog could talk, until he realized that Opie Taylor and a friend were pulling a practical joke on him.  (“A Man’s Best Friend”).  Gomer once defended Goober’s honor, saying “My cousin Goober ain’t stupid.  He’s ugly, but he ain’t stupid.”

Goober loved to dance, along with his cousin, Gomer, demonstrating a high-stepping, swing dancing style in his double-vested, brown pinstripe suit with white socks.  He enjoyed dancing with Daphne and Skippy, the “Fun Girls” from Mt. Pilot.  He particularly enjoyed reading comic books, and even cited that as a reason that he did not actually see Floyd punch Mr. Foley in the nose.

Goober occasionally served as an emergency deputy.  On one occasion, he took over the courthouse while Sheriff Taylor was sick.  Goober was also known for his impressions of various celebrities.  He impersonated Cary Grant (“Judy Judy Judy”) and Edward G. Robinson (“Okay, you guys.  Come on, you guys.  All right, you guys.  Beat it, you guys.”)  He could also mimic Chester’s limp from “Gunsmoke.”  Goober was a bully as a youngster, which influenced Malcolm Merriweather to ask Goober for boxing lessons as he prepared to fight Ernest T. Bass.  (“Malcolm at the Crossroads”)  Goober was also in demand as a driving instructor.  He taught Aunt Bee how to drive.  (“Aunt Bee Learns to Drive”).

The Town of Mayberry will never be the same without one of its great characters and outstanding citizens.

Goober says, “Hey.”

[Editor’s Note: Recently, the Consumer Products Safety Commission warned that holiday injuries are on the rise – from falls from ladders while stringing lights and cuts from broken glass Christmas ornaments.  Given the potential for litigation arising from such holiday mishaps, our own Stuart Mauney, acting as a special correspondent to Abnormal Use, reports on a lawsuit recently filed by the Estate of Grandma against Santa Claus for grievous injuries suffered when she was allegedly run over by a reindeer.  If it isn’t fully true, it certainly ought to be, right?]

Grandma got run over by a reindeer.Walkin’ home from our house Christmas Eve.You can say there’s no such thing as Santa, but as for me and Grandpa, we believe.

In the complaint (which was of course filed in state court), the personal representative of the estate alleges that Grandma “had hoof prints on her forehead, and incriminatin’ Claus marks on her back.”  Word around the campfire is that the estate is also considering a negligence claim against the North Pole DMV, arguing “it never should issue a license to a man who drives a sleigh and plays with elves.” Get estate planning lawyers from Marc Brown, P.A. to help with such cases.

Santa Claus filed an answer to the complaint, asserting the affirmative defense of contributory negligence and noting that Grandma was, for lack of a better phrase, walking under the influence (“WUI”).  In the pleading, Claus claimed “she’d been drinking too much eggnog and we’d begged her not to go.”  Claus further alleges “she’d forgot her medication, and she staggered out the door into the snow.”  Claus is also expected to argue that Grandma failed to keep a proper lookout and was properly warned by Rudolph’s “very shiny nose.”

The Estate has made a claim for Grandma’s conscious pain and suffering, presumably for her slow and painful death before they “found her Christmas mornin’, at the scene of the attack.”  The Estate also has made a claim on behalf of Grandpa and various beneficiaries for wrongful death, alleging mental shock and suffering, wounded feelings, grief and sorrow, and loss of companionship.  Claus is expected to question the credibility of these claims during the discovery process, though in his answer, he offered only a general denial.

Despite our attempts at objective reporting of this legal news, we must confess that we’re also proud of Grandpa:

Now we’re also proud of Grandpa. He’s been takin’ this so well. See him in there watchin’ football. Drinkin’ beer and playing cards with Cousin Belle.

Further, Grandpa and the rest of the family do not appear to be suffering from “wounded feelings,” to the extent they debated “should we open up her gifts or send them back?”

We will keep you advised of any further developments in this case.  In the meantime, be careful out there!

[Editor’s Note: “Grandma Got Run Over By a Reindeer” was written by Randy Brooks and originally performed by the husband and wife team of Elmo Shropshire and Patsy Trigg way back in the halcyon days of 1979.]

Stuart Mauney can be followed on Twitter at @stuartmauney.

We here at Abnormal Use are in the Christmas spirit, which gives us the urge to post about Christmas movies acting under the color of law.  Last week, I settled in with my long-suffering significant other to watch Miracle on 34^th Street. Written and directed by George Seaton, and starring Maureen O’Hara, John Payne, Edmund Gwenn and a young Natalie Wood, the 1947 film is ostensibly a Christmas classic, but really, it’s a cinematic exploration of some of the worst legal malpractice I’ve ever seen.

For those of you who have never seen it or just don’t remember the plot, let me break it down for you. The movie begins on Thanksgiving Day in New York City. The Macy’s parade is starting. Except the Macy’s Santa Claus is drunk. Why? As if this question needed an answer, it’s because New York is cold and Santa must stay warm! This is the most reasonable part of the movie.

That’s when “real” Santa (a/k/a Kris Kringle, played by Edmund Gwenn) elbows his way through the crowd, taking command of the Macy’s sleigh from Drunk Santa. Kringle is so adept at cracking his whip, looking jolly, and waiving like Queen Elizabeth that he parlays the gig into a full-time job at Macy’s, where he is immensely popular with parents and children alike. So far, so good. Except that Kringle insists that he is, in fact, Santa Claus.

He is not. Let me be clear about this. Miracle on 34th Street is not about some Christmas magic where Santa Claus comes to New York, spreads good cheer, and gets confused for having dementia. It’s about a good-natured elderly man with a love of Christmas who is correctly identified as having dementia. Think I’m kidding? Think again.

Fact No. 1: When Kringle goes to work at Macy’s, he’s asked to produce his employment card. His home is identified as “Brooks’ Memorial Home for the Aged,” in Long Island. Not exactly the winter wonderland of the Arctic Circle.

Fact No. 2: Kringle learns that he’s going to be subjected to a psychological evaluation by Macy’s in-house psychiatrist (played by Porter Hall). (Sidebar: Does your employer have a good benefits plan if they provide you with on-site psychiatrists, or does that mean you’ve picked the wrong place to work? Discuss among yourselves.) Kringle is not concerned. He knows that he can pass any psychological exam, because in his words, he’s taken dozens of them.

Fact No. 3: This is a subtle one. One of Kringle’s treating physicians from the Memorial Home shows up at Macy’s looking for the Claus. He is asked directly whether Kringle poses a threat to anyone. He responds that Kringle is not a threat, “just like the guy in Hollywood who owns a restaurant and pretends he’s a Russian prince.” I had no idea what this line meant. So I Googled it. Turns out that during the 1940s and 1950s, there was a restauranteur in Hollywood who insisted that he was the nephew of Tsar Nicholas II. This was false and everyone knew it. But the lie wasn’t causing anyone any harm, so it was all in good fun. Just like Kringle. So what if he thinks he’s Santa? It’s not hurting anyone.

Eventually Kringle and the Macy’s psychiatrist get into an argument, which results in Kringle taking his cane up-side the shrink’s head. The shrink gets mad, presumably because he just got beaten up by an old man, and decides to have Kringle committed. Which leads us to the commitment hearing, also known as the climax of the movie, taking place on Christmas Eve. In the Santa Claus industry, this is known as “BusinessTime.”

At this point, it is critical that we define the issue presented to the court. The issue is whether Kringle should be subject to involuntary psychiatric commitment due to the fact that he suffers from diminished competence, which presents a significant risk of physical harm either to himself or to others. It is also critical that we keep in mind the material facts which would be offered in support of the petition. First, the commitment proceedings were commenced by a psychiatrist who we can presume is licensed by the State of New York. Second, the psychiatrist was, in fact, assaulted by Kringle. This seems like it would be an open-and-shut case for the state.

Except that both attorneys are trying their best, it seems, to be as incompetent as possible. In fairness, the state’s attorney (played by Jerome Cowan) is deliberately trying to lose his case. For obvious reasons, he doesn’t want to be the guy responsible for locking Santa Claus up on Christmas Eve. So he does what every decent lawyer would try to do in the same situation: just enough to not get sanctioned, or lose his license or his job. In retrospect, he should’ve tried a little harder.

Bear in mind that for involuntary commitment, the state bears the burden of proof. And that the psychiatrist who started the commitment procedure is sitting at counsel table. This makes it all the more perplexing that the state’s only witness would be Kringle. Kringle, the defendant. Kringle, whose mental competency is at issue. Kris [expletive] Kringle. The state’s examination is equally perplexing. It consists of two questions. First, where do you live? The North Pole. Second, do you believe that you’re Santa Claus? Of course. And that’s it. No further questions.

This turns out to be the only evidence that the state offers in furtherance of the petition for commitment. The court received no testimony whatsoever from the very psychiatrist who swore out the need for commitment, even though he’s sitting in the courtroom. I’ll circle back up to this in a minute.

Let’s turn our focus back over to Kringle’s lawyer (played by John Payne). This guy kind of annoys me. At several points he refers to himself as the world’s greatest lawyer, and not in the charming, sarcastic, self-deprecating kind of way. He really means it. That Christmas, Santa should’ve asked for a better lawyer.

Let’s start out with the most glaring mistake / “legal strategy”: The state calls Santa to the stand. Kringle’s lawyer does not invoke the privilege against self-incriminating testimony. In fact, he waives it while boldly proclaiming, “We have nothing to hide!” Trust me, guy, you’ve always got something to hide. In your case, it’s the fact that your client assaulted the shrink. You might want to sweep that under the rug. Luckily, because the state phoned its performance in, Santa gets away unscathed.

But what if Kringle’s lawyer had asserted the Fifth Amendment? Santa doesn’t take the stand, which puts the state in the box of either calling no witnesses or calling the psychiatrist. If the state calls no witnesses, then Kringle can move for immediate dismissal. If the state calls the shrink, then Kringle can rebut him with Kringle’s own treating physician from the Memorial Home (who, as you recall, is in town). It becomes a battle of the experts, which gives the judge an avenue to do what he wants to do, which is deny the petition for commitment on the merits and move on with his holiday.

Ultimately, it doesn’t matter. Once the state inexplicably rested its case after rigorously cross-examining Santa Claus, Kringle’s lawyer makes the opposite of a good decision: he chooses to not move for dismissal as a matter of law for the state’s failure to present evidence in support of its case. Why? Because Kringle’s lawyer has decided that he wants to keep trying the case until he’s ready to win. This is a tremendous tactical snafu, again, since the judge is begging for a quick way out of this case forever.

Kringle’s lawyer begins his case-in-chief. The first witness is none other than R.H. Macy himself (played by Harry Antrim). Macy testifies that he believes in Santa Claus. This prompts the state to pop out of his chair and object on the bases that the question is “Ridiculous, Irrelevant, and Immaterial.” This is  followed soon afterby the state’s ridiculous, irrelevant, and immaterial demand to the court to issue a legal ruling as to whether Santa Claus exists.

Kringle’s lawyer sees the state’s crazy and goes all in by calling his opponent’s five year old son. Without objection, the state’s lawyer allows his son to be cross-examined by “the world’s greatest lawyer” on whether he believes Santa exists. This results in the state conceding the existence of Santa Claus.

This doesn’t resolve the issue of whether Kringle is crazy, though. After all, the defense of the entire case has been that Kringle can’t be crazy if he is, in fact, Santa Claus. To prove this last element of his case, Kringle’s lawyer resorts to the Supremacy Clause of the United States Constitution and the doctrine of preclusion. Remember, this is the same guy who did not want to use the Constitution to keep his client from testifying. He’s now using the Constitution to make a very sophisticated argument that because the Postal Service will deliver Santa Claus’s mail to Kringle, the federal government believes that Kringle is Santa Claus, and therefore, that the State of New York must believe it, too.

And it works. Case dismissed. Kringle’s lawyer finally finds a way to give the judge a way to not commit Santa Claus to an institution, even if he picks the most complicated way to do it, and even if it required him to skip over easier procedural avenues. He still got a good outcome for his client. That is truly the Christmas miracle on 34th Street.

But now there’s a problem. Earlier I mentioned that the state’s lawyer was trying to do just enough to not get sanctioned or lose his license or his job. Now that the hearing’s over, Santa Claus can make life very tough for the state’s lawyer and Macy’s. After all, the state brought a commitment proceeding against Kringle, then offered almost no evidence in support of the petition. Furthermore, the state’s case was built upon the professional opinions of Macy’s psychiatrist, who lied about Santa’s mental evaluation just to have him committed. Santa may be full of goodwill and cheer, but come December 26, it would not be unreasonable for the Claus to file an action for abuse of process and malicious prosecution against his former employer and the State of New York.

Originally, I set out to detail why Santa should have lost his trial. Ultimately, I have concluded that the only folks who lost that trial were the fictional taxpayers, who funded the lawyering debacle, and myself.

As we’ve previously mentioned, our editor Jim Dedman is now contributing one monthly post to the North Carolina Law Blog.  This very morning, his third submission was published at that site.  The topic: “Can Emoticons Beat the Hearsay Rule?” Yes, you read that correctly.  He is actually analyzing where those little smiley faces people append to the end of their texts or instant messages might be helpful in a hearsay inquiry. His conclusion: They actually might help (maybe, sometimes). Here’s an excerpt of the new post:

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

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

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

Read the rest of the post here.

Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct brief interviews with law professors, practitioners and other commentators in the field. For the latest installment, we turn to law professor J. Stanley McQuade of the Campbell University School of Law in Raleigh, North Carolina. McQuade, a certified anesthesiologist, teaches courses on law and its interaction with medicine. The interview is as follows:

1.  What rule or concept in modern products liability jurisprudence do you believe is the most outdated, and why?

The two notions that I consider most outdated are strict liability and comparative fault. Taking them in order:

Strict liability is properly defined as liability without proof of a defendant’s fault and that due care by that defendant is irrelevant. This is already part of the law in many areas and [there is] nothing radical about it. What seems to me new is the term “strict liability” taken as a cause of action in itself. I think it is very misleading to jurors, and perhaps even to lawyers, suggesting some kind of liability without fault where they can let their imaginations run ahead of their judgment and find for a badly injured plaintiff willy nilly without locating the liability in any other recognized area of law like negligence or warranty, et cetera. The idea of liability without fault works well enough in manufacturing defect cases where the defect speaks for itself, but it is not needed here and does not apply in design or warnings defect cases which are generally admitted to be essentially based on fault. Throwing in the term strict liability only confuses things. I notice that neither the Model Uniform Product Liability Act (MUPLA) nor the Restatement of the Law (3d) of Torts—Products Liability use the term “strict liability.” I would therefore urge the North Carolina legislature to continue to ban that term.

With regard to comparative fault, I agree with the justice in the California Supreme Court case who commented that asking a jury to assign fault in a degree somewhere between “0” and “100 percent” was asking too much. I also consider modified comparative liability defective since, besides asking juries to assign large degrees of fault, it also asks them to consider the effect of their decision, i.e. that if fault exceeds 50 percent the plaintiff gets nothing (and the jury must be apprised of this rule). Psychologists tell us, and the good justice agrees, that people can only decide between 3-5 alternatives at the most. Applied to comparative fault, this suggests that the jury should first be asked to decide if the plaintiff should get the first alternatives, everything or nothing. If this cannot be done, they should be allowed to determine whether the plaintiff was 25 percent, 50 percent or 75 percent at fault. This they could manage, and split decisions could be rendered unanimous by the usual methods.

2.  You are a certified anesthesiologist.  What medical issues do you believe that lawyers misunderstand the most in their cases, and why?

The standard of care. This is, of course, what a reasonable practitioner in the same specialty and the same circumstances would  consider reasonable to expect of a doctor. What is sometimes overlooked here is that medical diagnosis and treatment have become so sophisticated and complicated that it is difficult for even specialists to keep up with things, and it becomes easier and easier to make a mistake. The standard of care is established by testimony of a physician, and physicians placed in this situation suddenly become very judicial and exacting (to show how professional they are).  I think that the standard of care (and breach of it) might better be established by a small panel consisting of a judge, a defense lawyer and a plaintiff’s lawyer (and no doctor) with the right of the plaintiff or defendant to ask for a second opinion. I realize that this is  a somewhat controversial opinion, but I would rather trust my reputation to informed lay persons such as lawyers than to medical opinion.

3.  What is the most important thing lawyers should keep in mind when reviewing medical records?

Adopt a methodical approach (see my manual on this subject – learn how a medical record is put together and what you expect to learn from each part of it) deciding first 1/ Why was the patient seeing a doctor or entering a hospital? 2/ What went wrong? 3/ What steps were taken when the wrong turn occurred? 4/ What is the resulting damage and disability?

BIOGRAPHY: A certified anesthesiologist, Stanley McQuade lectures on the topics of law and medicine. He received his law degree with top honors from The Queens University of Belfast in 1950. Thereafter he received BD, BA, PhD, and MD degrees from the same university, as well as a Masters degree in Theology from Union Theological Seminary. He has also served for 25 years as a Methodist minister and has published several works in the areas of law and medicine and jurisprudence.. He is also Medical Editor for Westnet’s ten-volume Attorney’s Medical Advisor and Atlas.

Tonight, at 9/8 Central on HBO, comes the long-awaited premier of Plaintiff’s attorney Susan Saladoff’s anti-tort reform documentary, Hot Coffee.  We here at Abnormal Use have taken a special interest in the film since its original debut at the Sundance Film Festival in January.  We have highlighted the background and potential bias of the film’s maker and prepared a detailed (and objective as can be) FAQ file on the infamous Stella Liebeck McDonald’s hot coffee lawsuit from which the documentary derives its name.  In so doing, we have received many comments criticizing us for “reviewing” the film prior to having seen it. In fact, we were even accused of perpetrating a “dirty corporate disinformation campaign.”  Well, after months of requesting a copy of the film from Saladoff, her publicity firm, and ultimately, HBO, we here at Abnormal Use obtained an advance screener.  With that DVD in hand, we now offer our official review and commentary on this well publicized film.

Written and produced by Saladoff, the film offers four case studies to illustrate the alleged dark side of tort reform.  Beginning with the Liebeck case, Saladoff argues that corporations improperly exploited that famed case to promote massive tort reform.  Specifically, Hot Coffee alleges that the American Tort Reform Association and the United States Chamber of Commerce misrepresented the Liebeck case and duped many state legislatures into passing caps on certain recoverable damages.  Further, the film suggests that these advocacy groups devastated America’s civil justice system by funding the judicial campaigns of candidates willing to serve corporate interests at the expense of consumers and sympathetic Plaintiffs. (The film points to three other cases, as well, though they are less famous than the Liebeck case.).

Those who see the documentary may likely be persuaded of the “evils of tort reform.”  Saladoff brilliantly selects cases that tug on the emotional heart strings of even the most stoic of viewers.  After witnessing the struggle of parents attempting to provide for a brain damaged child or hearing a woman explain her unsuccessful quest for a jury trial after being brutally raped by co-workers, uninformed viewers may leave the film with a distaste for tort reform – at least as Saladoff presents it.  As a filmmaker and “documentarian,” Saladoff is persuasive, and she has garnered much attention from Hollywood for her efforts. (Indeed, non lawyer film critics  are falling for her propaganda). Cynical as we are, and willing to dig deeper than casual viewers, we here at Abnormal Use are not so easily persuaded.  Once one cuts through Hot Coffee‘s emotionalism, we see a film that exploits the McDonald’s case and other sympathetic litigants to promote Saladoff’s own personal agenda.

Call us crazy, but we thought a film entitled, Hot Coffee, would mostly be about, well, the hot coffee case.  After all, the film’s website heralds: “Hot Coffee reveals what really happened to [famed McDonald’s hot coffee Plaintiff] Stella Liebeck . . .” and that “[a]fter seeing the film, you will decide who really profited from spilling hot coffee.”  Saladoff told IndieWire: “The McDonald’s coffee case is the most famous case in the world, and yet almost everyone has it wrong.”  Those are bold statements.  Yet the 88 minute film dedicates only ten minutes to the Liebeck case.  If the Liebeck litigation has become the “most famous case in the world” and misunderstood by the American public, Saladoff could have dedicated the entire film to debunking any purported misperceptions.  Certainly, that’s what the title suggests she planned to do. But that’s not what she’s done. In reality, the McDonald’s case is nothing more than a cinematic hook to bring viewers to Saladoff’s more general propaganda.

Despite the short shrift the Liebeck case receives in the film, Saladoff argues that there are certain facts of the Liebeck case that were either somehow concealed from the public or never brought to light which, if known, would change the perception of the case from frivolous to somehow meritorious. Those facts are these:

(1) Liebeck spilled coffee while a passenger in a parked car, not as a driver in a moving vehicle;

(2) Liebeck was actually injured; she suffered second- and third-degree burns;

(3) McDonald’s policy was to serve coffee between 180-190 degrees;

(4) McDonald’s had been notified of 700 prior burnings;

(5) McDonald’s only offered Liebeck $800 to settle the litigation; and

(6) The jury’s punitive damages award was reduced to $800,000.

In selectively presenting these facts in this fashion, Saladoff contends Liebeck’s lawsuit was meritorious simply because she suffered actual damages and failed to show any desire to get-rich-quick.  Unfortunately, it is not the presence of actual damages and a noble spirit which keeps a case from being frivolous.  In fact, Saladoff neglects to address the point often made here at Abnormal Use:  coffee is meant to be served hot and does not become “unreasonably dangerous” until negligently spilled by the consumer.  This past week, when asked about our assertions on National Public Radio, Saladoff skirted around the issue, citing the same line that McDonald’s knew that hot coffee was, in fact, hot.  Apparently, any effort to challenge her on that point is just another dirty corporate disinformation campaign.

Although the film makes much ado about corporate attempts to influence the process, the role of trial lawyer and civil justice groups is surprisingly omitted.  (Apparently, it is only corporations that fund promotional campaigns to influence the judiciary and the electorate.). Nevertheless, the film criticizes corporations for hiring PR firms and hiding behind benevolent sounding front groups like the American Tort Reform Association, the U.S. Chamber of Commerce, or the Citizens Against Lawsuit Abuse.  Saladoff herself, however, has a long history of being involved in opposing groups, such as the Trial Lawyers for Public Justice and the American Association for Justice.  Of course, Saladoff would have you believe that these groups are noble entities formed to protect our citizens which would never participate in such conduct.  Right.

Hot Coffee also documents the story of Oliver Diaz, a former Mississippi Supreme Court Justice, to accuse the U.S. Chamber of Commerce of funneling money into the judicial campaigns of pro-tort reform candidates.  The film suggests that Diaz found himself running against a candidate hand picked and funded by the Chamber.  But here’s the catch: the film concedes that trial lawyers often donate to their own judicial candidates. But the film attempts to minimize this fact by noting that trial lawyers are limited by law in the amount of money they can donate.  This seems a bit unfair, right?  Big corporations are buying seats for judges while trial lawyers must sit idly by due to unfair, oppressive campaign finance laws?  Is the story truly so bleak for trial lawyers and their own advocacy groups? Not really.

First, Diaz actually won his election thanks to a hefty donation from prominent trial lawyer, Paul Minor (whose well-publicized 2007 conviction for judicial bribery six counts of honest services mail fraud, two counts of judicial bribery, one count of honest services wire fraud, and one count of racketeering you might recall (though in full disclosure, the Fifth Circuit  reversed the feberal bribery convictions in 2009, though, Minor was recently re-sentenced to eight years in prison in connection with the other charges.).  Second, famous plaintiff’s attorney Richard Scruggs, referred to certain Mississippi counties as “magic jurisdictions,” which he defined as:

[W]here the judiciary is elected with verdict money.  The trial lawyers have established relationships with the judges that are elected. . . .They’ve got large populations of voters who are in on the deal, their getting their [piece] in many cases.  And so, its a political force in their jurisdiction, and its almost impossible to get a fair trial if you are a defendant in some of these places. . . .  These cases are not won in the courtroom.

For some reason, Saladoff neglected to include that information.  And, we thought it was tort reform which was trying to close the courtroom doors?

The film also chronicles the cases of Colin Gourley, a boy who sustained brain damage as the result of medical malpractice during his mother’s pregnancy and delivery, and Jamie Leigh Jones, a woman raped and imprisoned while working for Halliburton subsidiary KBR in Iraq.  By using these tragic and sympathetic stories, Hot Coffee garners sympathy for the anti-tort reform movement while deflecting attention away from the fact that it is not just plaintiffs who benefit by opposing tort reform.  Of course, trial lawyers like Saladoff benefit in the best of ways: financially.  The larger the verdict for the plaintiff, the larger the payday for the trial lawyer.  It is noble to stand up for those who may have been wronged, but don’t present yourself as a disinterested party and cloak yourself in the guise of pure altruism when doing it.

Our original piece chronicling Saladoff’s history as a plaintiff’s lawyer and longtime affiliation with the Association of Trial Lawyers of America rang truer than we even realized.  In fact, it was cited just yesterday in The New York Times by its legal correspondent John Schwartz who, however, downplayed Saladoff’s possible lack of objectivity.  (We wonder what Schwartz would think about an environmental film produced by an oil company.). Schwartz did concede, though, that Saladoff is an “advocate.”  As editorialists ourselves, we would never object to someone simply expressing a point of view; we love the vast marketplace of ideas (though we find Saladoff’s background highly relevant to the message she offers). In this case, our goal is, and has always been, to expose potential bias and inconsistency, especially in light of the film’s presentation as an objective documentary peddling in previously unknown “truths.”  Just as Saladoff accuses the media of exploiting an allegedly meritorious hot coffee case, Hot Coffee is guilty of the same offense.  Saladoff preys on the emotions of viewers to advance her profession’s own special interests.

Saladoff declined multiple requests from Abnormal  Use for interviews, both in January and this week prior to the film’s HBO premier. (Actually, she initially accepted an interview request in January, then canceled at the last minute after the interview had been scheduled, and we never heard from her again.).

The film premiers tonight on HBO at 9/8 Central.

• “No, no! I’ll tell all!” screams the apparent criminal defendant in the comic book cover above, that of Badge of Justice #4, published way back in 1955. The gavel comes down, leading us to wonder what “baffling adventures” take place within the issue, which cost only 10 cents at the time of publication. This cover, certainly, depicts a much more realistic and hard-boiled version of the criminal justice system than our usual superhero books.
• Plaintiff’s lawyer Bill Marler of The Marler Blog, asks: “What do Lady Gaga, food poisoning and the White House have in common?” A good question, that.
• We’ve cited to The Word Spy before (here and here), and we couldn’t resist linking its entry for Googleganger, defined as “[a] person who has the same name as you, and whose online references are mixed in with yours when you run a Google search on your name.” We here at Abnormal Use have certainly run into our own Googlegangers before, an experience which prompted existential crises, to be certain.
• The Constitutional Law Prof Blog writes about South Carolina Senate Bill 500, which calls for an analysis into whether our fair state should adopt its own currency. We’re for that if our logo would go on the new South Carolina quarter, but against it if it will not.
• The Rainmaker Blog, in a post entitled “Social Media for Attorneys: Brave New World or Business as Usual?,” posts an image of a lawyer advertisement originally published in the Indianapolis Gazette in 1822. My, how times have changed. Or have they?
• We learn from this piece at Stereogum that former Smashing Pumpkins bassist D’arcy Wretzky is facing her own set of legal troubles. Yikes.
• We’re always on the lookout for blog posts on law schools in North and South Carolina, that being our region and all. The Business Law Prof Blog notes that the Charleston School of Law is now seeking visiting profs. Meanwhile, The Constitutional Law Prof Blog reports on a Campbell Law Review Symposium entitled “Liberalism, Constitutionalism, and Christianity: Perspectives on the Influence of Christianity on Classical Liberal Legal Thought.” Campbell, of course, recently relocated its campus to Raleigh, NC.