Friday Links

Hey, it’s our first edition of “Friday Links” of 2017! Can you believe we’ve now been doing this blogging thing for 7 years now? In fact, we posted our very first post 7 years ago yesterday on January 4, 2010. How about that? My, how the time flies.

Did you know that TV’s “Night Court” first aired 33 years ago this week?

If you are on Twitter, are you following the hashtag #AppellateTwitter?

As you may know, we here at Abnormal Use and Gallivan, White, & Boyd, P.A. maintain an office in Charlotte, where some of the local citizens welcomed the new year at an Avett Brothers concert. We elected to skip the show, and if reports from the event are any indication, our failure to attend was, in fact, negligence.

Our favorite legal tweet of late, by the way, references a film we’ve mentioned once or twice on this site:

As Predicted, Distracted Driving Lawsuits Come Full Circle

Last year, we discussed a lawsuit filed in Georgia against Snapchat for allegedly causing a motor vehicle accident in which the at-fault motorist was distracted while using the social media application. In discussing the liability of product manufacturers in suits like this one, we offered the following concerns:

[W]e must disclose that our initial reaction to hearing of the suit was to cry foul and lament the future slippery slope of holding manufacturers liable for the poor decisions of users while operating a motor vehicle. After all, if Snapchat can be liable for allegedly distracting a driver who uses the app while driving, can cell phone manufacturers or service providers be sued for a driver’s decision to text and drive? What a perilous world we would live in right?

As we expected, those words would deem prophetic.

Recently, a lawsuit was filed in California against Apple because a Texas man was using FaceTime on his iPhone 6 Plus while driving when he rear-ended a vehicle in December 2014 and killed a 5-year old girl. The driver admitted using FaceTime and later found himself indicted by a grand jury on a manslaughter charge.  As for Apple’s responsibility, the family alleges that the company “failed to install and implement the safer, alternative design . . . to ‘lock out’ the ability of drivers to utilize the ‘FaceTime’ application on the Apple iPhone while driving a motor vehicle.” Moreover, Apple allegedly “failed to warn its users that its product was likely to be dangerous when used or misused in a reasonably foreseeable manner.”

In full disclosure, the company apparently applied for a patent for the “lock-out” technology in 2008 and had the patent issued in December 2014 (Ed. Note – It is uncertain whether the patent was issued before or after the December 2014 accident date, whether Apple actually developed the technology, and, if so, whether it could have been implemented prior to the accident). Nonetheless, our question is should it matter?  As we questioned last year in regard to the Snapchat lawsuit:

Even if the accident is foreseeable, isn’t a lawsuit such as this one akin to the much ballyhooed suits against gun manufacturers? The app and filter are legal and non-defective. We are not aware of any evidence that it is marketed as a “break the speed limit” filter. The choice to travel in excess of 100 mph ultimately falls on McGee, an able-bodied adult who knew or should have known of the dangers.

Now, we can replace “speed filter” with “FaceTime,” and the question still remains – who is really responsible for a distracted driving accident?

Friday Links

20268-2914-22609-1-star-wars

We were saddened to learn of the death of actress and writer Carrie Fisher this week. Of course, we knew her mostly as Princess Leia. But we enjoyed her work in When Harry Met Sally, The Blues Brothers, and Hannah and Her Sisters, as well. Her mother, Debbie Reynolds, died the following day. We can’t imagine what their family must be enduring right now. Above, by the way, is a copy of Star Wars #65, published more decades ago than we would like to admit. We  bought more than a few issues of that series back in the early 1980’s.

Rest in peace, Carrie Fisher and Debbie Reynolds.

Well, it’s the last Friday of the year, and this is our last edition of Friday Links for 2016. We can’t say that we’re disappointed to see this year end. It’s been a doozy. We here at Abnormal Use and Gallivan, White, & Boyd P.A. hope that you all have a festive and safe New Year’s Eve tomorrow night.

The Avett Brothers are playing a New Year’s Eve show here in Charlotte tomorrow night, and we negligently failed to purchase tickets. Alas.

Did anyone get a new iPad Pro for the holidays?

Read about “The Ten Most Ridiculous Lawsuits of 2016.”

For our favorite legal tweet of late, we direct you to the following excerpt from a cross examination.

Our Favorite Posts of 2016

Now is the time that we, as consumers of media, are inundated with year end best-of lists. So, just as we have done in years past, we here at Abnormal Use have collected our favorite posts of this past year. Looking back over our posts this year, it was difficult to choose our favorites. But, dear readers, the ones we enjoyed the most are linked for you below, along with their author and publication date. So, without further ado, fill yourself with nostalgia, just as we have, and revisit these entries from 2016.

$55 Million Reptilian Verdict in Erin Andrews Peephole Video Trial (Kyle White, March 8, 2016).

In “Game Of Thrones” Litigation, South Carolina State Court Enters Judgment Against George R.R. Martin (Jim Dedman, April 1, 2016).

Snapchat Sued Over Distracted Driving Accident (April 26, 2016).

Snapchat Lawsuit Inspires Inaugural Abnormal Use Field Test (May 9, 2016).

Golden Rule – Treat Everyone Like They Are A Potential Source of Business (Kyle White, May 10, 2016).

Hot Coffee May Be A Carcinogen? (Kyle White, June 20, 2016).

How I Became A Lawyer (Stuart Mauney, June 29, 2016).

Real Lawyers Don’t Cry (Stuart Mauney, July 18, 2016).

Hot Coffee Karma: The Day Was Bound To Happen (August 22, 2016).

Nirvana’s Nevermind: 25 Years of Influence (Nick Farr, September 26, 2016).

Turning Lawyer Life Into Home Life (Nick Farr, October 18, 2016).

Are Litigation Experts Entitled To Prepayment for Depositions? (Kyle White, October 24, 2016).

Cheer or Fear?

cheer

Did Santa delight with the fun, safe playthings you expected, or are you suspicious that they’re actually a disguised death trap from the crotchety Christmas antagonist Belsnickel? The vintage death traps of Christmas past seem obviously dangerous to us now, but 2016 revealed that the hidden batteries and power sources of our swanky tech gifts are the unseen danger of Christmas present. You might find that the nostalgia of simple toys has you reconsidering this year’s hot tech in favor of vintage playthings of your past. But there’s a reason you can’t find original metal-tipped Lawn Darts anymore. Over 6,000 children were injured by Lawn Darts hurled through the air, so you’ll have to make do with the modern, plastic iteration. The hot gift of 1996 was the Snacktime Cabbage Patch Kid, a cabbage-headed doll with a mechanical mouth that would chomp when offered snacks. Content that it was already a cabbage anyway, the doll preferred childs’ fingers and toddler hair over cannibalization of the included plastic vegetables. In 2007, the CSI Fingerprint Kit made headlines as a safety fail when the powder used to test fingerprints was found to contain 5 percent asbestos. Naturally, lawsuits followed.

Burning ourselves on Easy Bake Ovens, shooting each other with BB guns, and blacking eyes with slingshots was practically a rite of passage and ripe with expected and obvious dangers tied to misuse that we or our parents chose to accept. However, the potential for danger and hazardous results in modern toys and gadgets is getting more difficult to evaluate as the technology is farther removed from our purview. BB guns may shoot your eye out, but today’s batteries and power sources explode, burn, melt, and corrode.

If you struck out with an exploding mobile phone or similarly blazing hoverboard in 2016, you probably saw more fear than cheer. And now it looks like you should probably put the e-cigs down, too, before an unintended pyrotechnics show blows a hole in your pocket. Batteries and power sources are an often ignored component of toys that can render serious damage when swallowed, pushed into bodily crevices, become damaged or when they overheat. Queue up this episode of “The Monster Inside Me” and you might be on the lookout for battery-free gifts next year.

Now that the gifts are unwrapped, keep an eye out for recalls and announcements made by the U.S. Consumer Products Safety Commission. As always, follow minimum age guidelines recommended on product labels and properly supervise children. Most importantly, enjoy this holiday season and relish the joy in giving to others.

Friday Links

rudolph

We here at Abnormal Use and Gallivan, White, & Boyd, P.A. hope everyone will have a merry and festive holiday weekend! Don’t rush back to the office on Monday! To celebrate, we’ve appended the cover of a 1978 DC Comics special featuring Santa Claus and Rudolph. Who remembers that one?

What did everyone think of Rogue One? Come on, we know you’ve seen it by now.

Don’t forget that you can follow Abnormal Use on Facebook by going here!

Our favorite tweet of late you can find below. It features Charlotte, North Carolina, where we maintain an office, during the holiday season in the 1940’s. Enjoy!

Holiday Lawn Decorations: Family Fun or Lawsuit Fodder?

clark-griswold-660

Every December, we  decorate our house in traditional garb – a wreath on the front door and some garland around the mailbox. Simple, not over-the top. With small children, however, conservative decorations equates to no decorations at all. The children would much prefer a Griswold-esque display, including thousands of lights and giant inflatables.

In the past, I have been hesitant to give in to their demands. This year, however, I decided to compromise. I purchased a projector that uses lasers to cover the house in thousands of colored, chasing lights. The kids love it and the installation required almost no effort on my part and doesn’t litter my house with strings of light cables. Call it a win-win. But not unexpectedly, the addition of the projector opened the door to new demands – giant inflatables, music, laser light shows. After all, once you have broken the seal of tacky Christmas decorations, why not just go all the way?

As much as I really want to generate enough electricity through my lawn decorations to power a small village, the risk aversion developed through the practice of law is holding me back. It is not just the risk of fire from the overloaded power circuits that gives me pause. It is the neighbors, the HOA’s, or the city itself – the people who actually have to experience all the “joy” my lawn display has to offer. For example, consider Plantation, Florida residents Mark and Kathy Hyatt, who have been putting over 200,000 lights in their yard and on their house every year since 1990. They were sued by the City of Plantation back in 2014 for allegedly creating a public nuisance and safety hazard. (The Hyatts ultimately prevailed in the suit). Or, West Palm Beach resident Miriam Galan who was recently sued by some neighbors not too pleased with her light display complete with a dancing and singing Santa. As much as I want 10′ inflatable Santa, I just don’t know if I am willing to fight for it in a court of law.

Risk aversion aside, this time of year is meant to be fun and festive. Assuming decorations don’t violate any covenants and restrictions, why not just let the month of December be a time to let loose? Throw those lights up. Run up that power bill. Let’s have some fun. Admittedly, I, too, would’t be my happiest self when flashing lights and a singing Santa start interfering with my sleep. But, I can certainly cope for a month. And, I certainly wouldn’t make a holiday lawsuit out of it.

Friday Links

Well, this time next week, we hope to be seeing the new Star Wars film, Rogue One! To celebrate the arrival of the new film, we suggest you revisit our 2011 April Fool’s Day post, “Star Wars Prequels Unreasonably Dangerous and Defective, South Carolina Federal Court Finds.” How’s that for a Friday link?

If you enjoyed Kyle White’s series this week on the Reptile Theory, you might be interested to know that you can read all of his reptile posts from the beginning of time by clicking here.

On a related note, our own Stuart Mauney recently completed a 12 part series on the Twelve Steps for Fulfillment in the Practice of Law. You read all of those posts here.

Over at The Legal Profession Blog, they’ve once again referenced a film by famed director Ingmar Bergman in a post-title. The title in question: “Scenes from a Post-Traditional Marriage.” This isn’t the first time that they’ve made this reference, by the way. Back in June of 2011, we noted that they had referenced the film in an earlier post, as well. Kudos to them!

Reptile Series Part 3 – Harness The Reptile And Use it To Your Advantage

In our most recent Reptile posts, we introduced a simple, proposed strategy for defense lawyers to deal with the Reptile, and introduced step 1 of the process. The following is step 2 of the proposed plan:

  1. HARNESS THE REPTILE AND USE IT TO YOUR ADVANTAGE

As set forth in our prior posts, the effectiveness of the reptile strategy lies in its ability to simplify the message and convey it to jurors in a form that they can understand and care about. The defense bar tends to overcomplicate everything. Typically, defense lawyers feel the need to provide way too much detail. If the simple message is effective, why not simplify the message? I would argue that the reptile strategy can be used by defense lawyers to simplify the message and to make jurors care about the defense’s case.

This proposed strategy works best in situations where the defendant has asserted an affirmative defense such as contributory negligence or misuse of a product. The reptile strategy can be used to establish safety rules that the plaintiff must follow, and the consequences to the plaintiff and the public of not following those safety rules. For example, the defense counsel can establish that warnings and instructions are provided not only to protect the plaintiff, but members of the general public who may be in the vicinity of the plaintiff while the product is being used.

Consider the following line of questioning:

  • Plaintiff, you would agree that manufacturers provide warnings and instructions pertaining to the proper and safe use of their products?
  • And you would agree that a user of a product must read and follow the warnings and instructions provided by the manufacturer?
  • And one of the reasons you must read and follow safety instructions is so that you will protect yourself?
  • And when you use this product, there could be members of the public in the vicinity? And another reason you would of course want to follow the safety information provided by the manufacturer is to avoid endangering members of the public who may be in the vicinity?
  • So you would agree with me that when the user of a product fails to read and follow safety instructions, he could endanger not only himself, but members of the public who may be in the vicinity?

The line of questioning would then proceed through getting the plaintiff to agree that owner’s manuals and warning stickers are the type of safety information about which he was questioned earlier, and which he agreed must be read and followed. This strategy not only simplifies the information provided by the manufacturer by grouping it all into the category of safety information, but it establishes for the jury that the instructions are there to protect the plaintiff and members of the general public. Therefore, when the plaintiff fails to follow the safety information provided by the manufacturer, he endangers not only himself but members of the general public. The result is that the message is simplified, the consequences of the plaintiff’s conduct are of interest to jurors, and the reptile is harnessed.

Please feel free to reach out directly with any thoughts on this strategy, or leave thoughts in the comments section.

Reptile Series Part 2 – Don’t Give Them The Soundbite

In the most recent of our Reptile posts, we began a Reptile series that proposes a two-step plan for harnessing the Reptile instead of fearing it.  The following explains step 1.

  1. DON’T GIVE THEM THE SOUND BITE

Jury consultants and psychologists who have studied the reptile have debunked the scientific premise behind it. So why is the reptile so effective? My theory is that the reason the Reptile is so effective is because it simplifies what the plaintiff is required to prove and includes consequences of the defendant’s conduct about which jurors actually care. So the first step in this proposed method for dealing with the reptile is don’t let them simplify it. The reptile practitioner relies on simplified sound bites that can later be used to concisely breakdown what the defendant did wrong and how they did it.

The plaintiff’s attorney will attempt to establish through your witnesses various safety rules. For example, the classic reptile safety rule is the “umbrella rule,” which states that a reasonable [insert category of defendant] must never needlessly endanger the public. If your witness agrees, the plaintiff’s attorney gets his sound bite. If your witness disagrees, he looks nefarious and is led down a rabbit hole that will result in nothing more than your witness looking bad. So the solution is, don’t give them the sound bite.

The lawyer should object to these attempts to establish the safety rule. The witness should absolutely never give a yes or no answer to the safety rule questions. The witness should re-frame the question, ask for clarification, and again, should never give a yes or no answer only to the question. The witness should be instructed that no matter how many times the plaintiff’s attorney asks the safety rule sound bite question, a yes or no question should absolutely never be given. There is nothing improper about this, and the witness is always allowed to explain his or her answer. The witness should be instructed to calmly do this, and to not become combative with the plaintiff’s attorney. The plaintiff’s attorney will undoubtedly become combative, complain about the witness’s failure to answer with a yes or no, and hopefully, ultimately, move on from the line of questioning without having acquired the sound bite sought after.

We would argue that without the sound bites to over simplify the concepts that the plaintiff needs to prove, the Reptile will fail. A reptilian practitioner without sound bite ammunition isn’t a reptile at all. Stay tuned for the next installment in which we explain step two of the proposed strategy.