Friday Links

So, above, you’ll find the cover of Blade Runner #1, published way, way back in 1982. As you probably know, this issue is an adaptation of the film released that year directed by Ridley Scott and starring Harrison Ford. Why do we choose that cover today? Well, as you may remember, Ford plays Deckard, whose job as a blade runner is to pursue and kill replicants, cybernetic organisms which look just like adult humans. Rutger Hauer plays Roy Batty, a replicant hunted by Deckard. In the film, released 33 years ago, Batty’s “creation date” was January 8, 2016. That’s today.

Also, in case you weren’t aware, David Bowie released a new album today. It’s eerie.

Is anyone else going to the 6th Annual Sports and Entertainment Law Symposium at Duke Law next week?

Our favorite legal tweet of late concerns, of course, hot coffee warnings:

South Carolina Issues Order on Interest Rate on Money Decrees and Judgments

As it does each year at about this time, the South Carolina Supreme Court has issued its order on interest rates and judgments. In case you missed it, the complete order is as follows:

S.C. Code Ann. § 34-31-20 (B) (Supp. 2015) provides that the legal rate of interest on money decrees and judgments “is equal to the prime rate as listed in the first edition of the Wall Street Journal published for each calendar year for which the damages are awarded, plus four percentage points, compounded annually. The South Carolina Supreme Court shall issue an order by January 15 of each year confirming the annual prime rate. This section applies to all judgments entered on or after July 1, 2005.  For judgments entered between July 1, 2005, and January 14, 2006, the legal rate of interest shall be the first prime rate as published in the first edition of the Wall Street Journal after January 1, 2005, plus four percentage points.”

The Wall Street Journal for January 2-3, 2016, the first edition after January 1, 2016, listed the prime rate as 3.50%.  Therefore, for the period January 15, 2016, through January 14, 2017, the legal rate of interest for judgments and money decrees is 7.50% compounded annually.

You can find the full order here.

A Reminder: Depositions Should Start at 10:00 AM

It’s a new year, and everyone is returning their eyes to their litigations. There are mediations to schedule, discovery requests to serve, and of course, depositions to notice.

In light of our return to the profession from the holidays, we here at Abnormal Use feel it is necessary to remind our attorney readers of a critical unwritten rule: Depositions are to be noticed at 10:00 a.m. local time. Of late, we’ve seen a number of our colleagues serve notices setting the deposition to begin at 9:00 a.m. or even earlier. We remain aghast.

As we wrote way, way back in September of 2012:

We, as lawyers, learn many, many rules from many, many texts, including statutes, cases, regulations, and such.  But what allows a practitioner to rise above the rest is his or her knowledge of the unwritten customs of the practice of law.  These practices vary from jurisdiction to jurisdiction, state to state. The most universal of them all, though, is the old familiar rule:  no depositions should start before 10:00 AM local time. Really, this informal custom is part of the glue that holds our profession together.

Come on, folks. We’re obviously not talking about doctor depositions. But for parties, fact witnesses, and retained testifying experts, let’s make certain we abide by this custom.

New Year, New Apple Lawsuit

With the new year comes yet another Apple lawsuit. This one has nothing to do with patents, Samsung, reception issues, or any of the other plethora of things Apple has litigated in the past. This suit concerns the functionality of the iOS 9 software – not on those new iPhone 6 or 6s’s, but on the ancient (by technology standards) iPhone 4s. According to a report from Tech Times, Plaintiff Chaim Lerman filed a class action suit in New York, alleging that the iOS 9 software upgrade puts a damper on the iPhone 4s experience. Specifically, the suit alleges:

The update significantly slowed down their iPhones and interfered with the normal usage of the device, leaving Plaintiff with a difficult choice: use a slow and buggy device that disrupts everyday life or spend hundreds of dollars to buy a new phone.  . . . Apple explicitly represented to the public that iOS 9 is compatible with and supports the iPhone 4s. And Apple failed to warn iPhone 4s owners that the update may or will interfere with the device’s performance.

Moreover, the plaintiffs allege that Apple is “aware and has been aware” that the iPhone 4s is negatively affected by the software update. The disgruntled iPhone 4s users seek $5 million in damages.

We here at Abnormal Use are on the fence about this lawsuit. On the one hand, we can sympathize with the plaintiffs’ fateful plight. We, too, hate when we have a device which works to our liking and a company pushes a software update that seems to adversely affect its performance. It is even worse when the update is forced and irrevocable. Like these plaintiffs, we have spoken ill about more than one device (this isn’t limited to an Apple or phone problem) as a result.

While we can sympathize with the plaintiffs on the performance issue, the lawsuit violates the pig rule. Rather than stop at a point which can gather support, the suit goes on to argue that because of the iOS ecosystem, users are far more likely to buy a new iPhone than switch to an Android phone so they don’t have to reinvest in nontransferable content such as apps. In other words, Apple has knowingly slowed down their phones, forcing them to buy new ones while making it difficult to switch to the competition. So, Apple should be found liable by not making it easier to throw out their product and jump onto the Android bandwagon? We are thinking that argument is just not going to fly.

The real issue here is that the plaintiffs are a class of iPhone 4s users. Apple released the 4s way, way back in October 2011. In terms of technology in the smartphone industry, it might as well have been released in 1911. As we stated back in 2013 regarding another Apple lawsuit:

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.

At a certain point, it has to be time for an upgrade, right?

Happy Birthday To Us VI

Wow. So, today, January 4, 2016, is the sixth anniversary of this blog. Six years ago to the day, we began writing on this site, and we’ve posted a piece each business day since that fateful time. That’s a lot of blog posts. In fact, we’ve now exceeded 1,600 posts, which is certainly many.

Of course, this enterprise would not be possible without the support of Gallivan, White, & Boyd, P.A., and our writers, who include the indefatigable Nick Farr, the inimitable Kyle White, the tireless Batten Farrar, and, of course, many others. We can’t thank them enough for their contributions to this blog. We’re looking forward to yet another year at Abnormal Use, and as always, if you have any ideas for us, please let us know.

Above, by the way, is the cover of Donald Duck #286, published not so long ago in 1994. Donald appears to be having a stressful birthday.

New Year’s Day


Here’s Father Time again, this time on the cover of Strange #6, published way, way back in 1958. We’re thinking of Father Time today, the first day of 2016, which we prefer to think of as the 20th anniversary of 1996. We here at the Abnormal Use law blog and Gallivan, White, & Boyd, P.A. wish you a happy new year. To our lawyer readers, we say, try not to bill any time today! Spend it with your family and friends!

New Year’s Eve


Well, it’s New Year’s Eve, again, and we can’t say that we are in the office. We’re bidding farewell to 2015, a curious year, to say the least. We here at Abnormal Use and Gallivan, White, & Boyd, P.A. hope that you are your family have a wonderful and safe celebration tonight.

Above, you”ll find the cover of Superman #295, which was published way, way back in 1976. We find it appropriate for today because Supes is fighting someone who appears to be Father Time (whose duties in escorting the old year into the ether are implicated this very night).

By the way, tonight, December 31, 2015, is apparently the last concert performance of the rock band Motley Crue. Why do we write about that on a law blog? Back in February of 2014, nearly two years ago, our own Nick Farr wrote about the contract purportedly dissolving the band. Well, tonight’s performance is allegedly the band’s last (allegedly as a result of that contract). We’ve not seen the contract, but we suspect there may be some loopholes.

Climate Change Litigation?

Climate change post

Many in the United States reportedly experienced a record-setting, warm holiday season this December, and some are asking whether climate change is to blame. The discussion sparked our curiosity as to what if any climate change-related litigation may be brewing.

First of all, what is climate change? The rocket scientists at NASA have provided the following definition of climate change:

Climate change is a change in the usual weather found in a place. This could be a change in how much rain a place usually gets in a year. Or it could be a change in a place’s usual temperature for a month or season.

Climate change is also a change in Earth’s climate. This could be a change in Earth’s usual temperature. Or it could be a change in where rain and snow usually fall on Earth.

Weather can change in just a few hours. Climate takes hundreds or even millions of years to change.

This concept, seemingly innocuous on its face, is quite controversial in the United States, and according to a recent article on the subject, hundreds of climate change-related lawsuits have been brought in the United States. Apparently, while “[m]ost cases were brought by individuals or companies against the government,” there have been some suits “brought by individuals and groups seeking more climate change regulations or actions from government” and “other suits . . . to halt the enforcement of climate change regulations.”

One of the more interesting lawsuits that we ran across is a subrogation class action filed by Illinois Farmers Insurance Co., “accusing scores of Illinois municipalities of doing little to prepare for climate change and avoid storm losses its policyholders suffered.” Farmers alleged that the defendants “had adequate time and opportunity to plan, prestage and take other actions before the occurrence rainfall to maximize stormwater storage and/or transportation capacity within its stormwater system(s) and sanitary water sewer systems.” The case drew considerable attention, and many reportedly speculated that the case would serve as a bellwether case that could “unleash a wave of similar litigation.” Farmers reportedly decided to drop the lawsuit due to the fact that the litigation “gained the attention of the wider public.” Farmers added that it believed that the lawsuit “brought important issues to the attention of the respective cities and counties and that our policyholders’ interests will be protected by the local governments going forward.”

For a more in-depth review of pending climate change litigation, a chart prepared by a United States law firm purports to track the spate of climate change lawsuits which are apparently pending in the United States.

Give Us That Product Back! The First Line Of Defense To Potential Hoverboard Litigation.

Hoverboards have been in the news a lot in recent days. Unfortunately for hoverboard manufacturers, the added press has not been of the favorable variety. As we recently discussed, numerous outlets have been reporting that hoverboards are spontaneously catching fire. And, apparently, burning hoverboards are a bit of a problem. Not exactly the news hoverboard companies wanted to see just in time for the busiest retail season of the year.

It goes without saying that the potential to suddenly engulf in flames raises a number of product liability concerns for hoverboard manufacturers and others within the supply chain. With so many reports of allegedly defective products, what is a company to do when staring into the face of potential litigation? One option is to instruct hoverboard owners to trash the product. As reported by Yahoo!, online giant Amazon has decided to follow this path, instructing users in the United Kingdom to turn their boards over to a certified recycling center in exchange for a full refund. In addition, Amazon has pulled the vast majority of its hoverboards for sale in the United States. We are sure the Consumer Product Safety Commission is pleased.

Instructing users to discard a product in exchange for a full refund raises some interesting issues. The move is certainly noble and made with great expense to Amazon. However, despite the numerous news reports and instructions to discard the product, there will be many who continue to view hoverboards as a viable means of transportation. So what happens when those people (who either ignore the news or are completely unaware of it) become injured when their hoverboards catch fire? Amazon will undoubtedly argue that it warned the user not to use the hoverboard and that the user assumed the risk of being injured. Unfortunately, however, assumption of the risk may not be recognized as a valid defense to strict liability claims in some jurisdictions, leaving Amazon exposed despite its best efforts to protect itself.

The more pressing issue might be what are parents to do after telling their children that Santa needs to take their hoverboards back? We imagine the emotional distress the parents will feel when explaining that the elves made a product that might catch on fire is astronomical. We are uncertain how Amazon has prepared to handle that massive class action.

(Once Again) Litigating In The Arena

As litigators, we often try cases, and 2015 was no exception. Fewer and fewer cases go to trail these days, so much so that it now goes without saying. But some cases should be tried, and as lawyers, we should not be timid about taking cases to a jury if the facts and clients call for such an approach.

We’ve been thinking about this lately as 2015 draws to a close.

Five years ago this week, we ran a post entitled “Litigating in the Arena,” in which we shared with our readers an email from Howard Boyd, one of the name partners of our firm, Gallivan, White, & Boyd, P.A. As we approach the end of another year, we thought we’d share it again:

[W]e do not need to be afraid to try cases to juries. We need to properly evaluate the case for settlement purposes, but if a reasonable settlement cannot be obtained, we need to convince the client to try the case. At mediation, if the plaintiff doesn’t get into an acceptable range for settlement, simply advise the mediator and opposing counsel that we appreciate their attendance at the mediation but we will be delighted to see them at the courthouse for a jury trial. Juries almost always do the right thing. While there certainly have been bad jury verdicts, and occasionally a jury will do something crazy and deliver a runaway verdict, often those cases can be corrected on appeal or settled during the appeal for a much more reasonable amount, and these results are not typical.

As many of you know, I have decried the decline of jury trials over the last few years, and hope we can once again restore the jury trial to our arsenal of defense of civil litigation. There is simply nothing more grand than a jury trial, and no feeling more thrilling than a defense verdict after a hard-fought trial. . . . [W]hile trials are stressful and extremely hard work, the thrill of victory makes it all well worthwhile.

And, even if we don’t win, let’s always remember the immortal words of Teddy Roosevelt:

“It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcomings; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.”

Let’a all think about that as we prepare for 2016.