Today is an anniversary of sorts.  One year ago today, on December 6, 2010, we published what was to be a ground breaking, at least for us, interview with the actor who played one of pop culture’s most flamboyant attorneys, Jackie Chiles, the television lawyer from “Seinfeld.”  The character, now infamous, was played by actor Phil Morris.

Last year, he was kind enough to agree to an interview. Needless to say, we were overjoyed.

It took some doing.  We spent six months courting his agents and representatives to arrange the interview.  As fate would have it, Morris was reviving the “Seinfeld” character for a series of Internet videos on Funnyordie.com. Accordingly,  he was looking to promote himself on Internet websites and blogs.  We are sure glad he was. It was a perfect storm.

That success emboldened us a bit, and throughout 2011, we sought out additional interviews with pop culture figures.  In January, we ran an interview with Michael Sardo, the executive producer and creator of the USA television series “Fairly Legal.”  In March, we ran an interview with the writers and creators of the 1991 film Class Action.  We even interviewed Mark-Paul Gosselaar and Breckin Meyer, the two leads from the TNT program “Franklin & Bash,” although for that one, we must confess we were part of a larger press conference call rather than a one-on-one interview.

Spoiler Alert: We have some big things in store for you in 2012.

But it all started with Morris.  We even asked him about one of our favorite topics, the McDonald’s hot coffee case:

AU: What about people filing these lawsuits for burning themselves on hot coffee?

MORRIS: Well, we’re so litigious in this society, too much. It’s way beyond the pale. So that’s where I kinda jump off from Jackie. I certainly wouldn’t put stock in a lot of that stuff. I think, it’s just, we’ve gotten away with way too much here in the United States in terms of the legal ramifications of everything. I think, again like I said, beyond the pale. Jackie is an opportunist. So anything like that is manna for him. But personally, I think we’re really hurting ourselves and shooting ourselves in the foot. Not only are we giving our legal system a bad name, but we’re abusing it! We’re misusing those bits of legal power that we have – we’re fortunate enough to have in this country. It kind of drives me crazy.

So, if you would, take a look back at our fateful interview with Phil Morris from one year ago today.

(And while you’re at it, check out this brand new interview Morris gave to The Onion AV Club just last week!)

As we’ve previously noted on this site, Daredevil is a Marvel Comics superhero whose alter ego, Matt Murdock, happens to be a practicing lawyer. Murdock is  blind; his heightened other senses serve him well as a costumed vigilante.  The point: He’s a lawyer, thus, we can write about the character on our law blog! (If it’s been a while since you read comics, you might recall the 2003 film, Daredevil, which starred Ben Affleck in the title role.).

In his private life, Murdock is a partner at the small New York City firm of Murdock & Nelson, which handles, among other things, personal injury and civil rights cases.  Murdock’s partner, Foggy Nelson, is a brilliant attorney  who helps cover for Murdock when he’s out fighting crime.  Just a few months ago, Marvel Comics rebooted the Daredevil comics series and brought Mark Waid on as the writer of the new series. Waid is known for such popular works as Kingdom Come and Superman: Birthright. As Waid takes responsibility for the character, Daredevil finds himself a persona non grata in the eyes of other superheroes. In fact, because of some recent exploits, Daredevil’s secret identity has been compromised, and Murdock is now attempting to rebuild his life and law practice. Waid was kind enough to agree to an interview regarding the challenges of writing a lawyer superhero character. Waid’s latest issue, Daredevil #4, hits the stands tomorrow, and the first three issues can be found at any local comic shop.  Our interview with him (which includes a few minor – though clearly marked – spoilers about tomorrow’s Daredevil #4) is as follows:

JIM DEDMAN: Matt Murdock has two full time jobs:  attorney in private practice and costumed super hero.  You’ve described that as a sort of a “paradox of a vigilante by night, lawyer by day.”  How does he manage doing both those tough jobs?

MARK WAID: Like all good comic book superheroes, he manages to squeeze an awful lot in a 24 hour day.  When I go to the bank and the post office, I’m done, and I have to lie down.  But these guys, in Matt’s case, one of the things that’s enormously helpful to him is that he relies very, very heavily on his partner and best friend, Foggy Nelson. Their dynamic is such that Matt is brilliant in the courtroom.  He is a showman, he is charming, he is well spoken. What Foggy brings to the table is . . .  an eidetic memory for court history and for case history. So he’s the one who was always in law school, nose in the books, 23 hours a day, while Matt was out chasing skirts and stuff.  So, if you will, Matt’s the face, and Foggy’s the brain, and sorry to say, the brains have the harder job.

JD: Nelson & Murdock is a small New York City firm. You’ve mentioned that you’ll be introducing some interns and assistants at the firm in the future, which is foreshadowed at the end of issue three.  How do you go about depicting the day-to-day operations of a law firm in the comic book medium?

MW: With all due respect to the fine lawyers who have represented me in the past and can sue me out of existence today, basic office law work is not the most terribly visual thing in the world for comic books.  So, we don’t spend a whole lot of time in the Nelson & Murdock offices and what time we do there is – to the chagrin of many of my lawyer friends – is sort of the TV and comic version of what a law office looks like, which is not reality.  People having fun all the time.  People are having parties, blah, blah, blah.  Luckily, Marvel has a couple of really good writers who also have legal backgrounds.  Marc Guggenheim is one, and so I’m able to lean on these guys pretty heavily for background and to sort of back stop me to make sure that my rudimentary layman’s knowledge of how a law office works, at least has some grounding in reality.

JD:  We also spend some time in the courtroom.  What efforts do you make to accurately depict that process in that arena?

MW:  Same thing.  I talk to Gugenheim, I talk to a couple of my other lawyer friends.  It’s a fine line.  I mean, it’s fiction, it’s not a documentary, so every once in a while to make it visual or to sort of compress into 20 pages of comics what would, in fact, be an entire day’s worth of law proceedings, we have to cheat a little bit.

…

JD:  At this point, it’s public knowledge that Matt Murdock is Daredevil, at least for the most part, and the new assistant district attorney actually tells him, “Every litigator in the game is going to use your Daredevil identity against you every time you set foot in a courtroom.” You’ve said in a past interview that Murdock is doing his clients “no favors by representing them.”  Why is his identity as Daredevil such a problem in his private practice?

MW: Because every time he steps into the courtroom, a smart lawyer on the other side will invoke – especially in criminal cases, particularly criminal cases – the fact that Daredevil is an unsanctioned vigilante, and therefore, he must have some sort of antagonistic relationship with law enforcement or by nature must have some sort of antagonistic bent against authority, none of which is true, but it doesn’t matter.  . . . [W]hat I’ve been told is that, paradoxically, the courtroom itself is the only place where you don’t have to worry about slander because lawyers can say whatever they need to about each other in order to win the case, essentially.  There’s boundaries to that, but Matt is not in a position to sue an opposing attorney for slander for calling him Daredevil in court.

JD: Does Matt have a dilemma in that in his private practice he appears to be a very idealistic person who believes in due process of law, and presumably the rights of the accused, but he’s also out there at night fighting crime and presumably prompting the arrest of criminals who are going to end up in a courtroom in the future?

MW: Yeah.  That’s part of it.  The real problem for Matt gets back to the idea that a good attorney needs to be fairly invisible when it comes to the facts of the case.  The moment the attorney becomes more of the focus of the trials than the evidence or the clients, you’ve got a problem.  So then, it’s all about personality, and as we saw in issue one, it doesn’t always do the client any favors.  So Matt’s now in a position where he loves trial law.  It’s the thing he’s best at.  He’s really good at it – [but] what can he do to use that knowledge to help others?

…

If you come to Matt with a case that seems unwinnable, if you come to Matt with a case that nobody else will touch, if you come to Matt with a case that you cannot afford to have tried but he believes in you and he knows that you’re right because, again, he’s got the super senses, he can tell whether you’re telling the truth or not, then he’ll be your advocate.  He will work with you to be your own lawyer.

JD: . . . Is that the model that he’s going to adopt, where he is not [creating] the attorney/client relationship but instead assisting people in representing themselves pro se?

MW: That’s exactly it.  Exactly.  It’s a dangerous place for him to be, but frankly, it allows him to use his skills. He’s a very good coach, as it turns out, because again, he can read you like a book when you’re standing in front of him.  So,  he and his guys are not going to win every single case, but this serves two purposes for us.  One is that I kind of like the idea that it gets him back in a courtroom milieu without having to deal with the Daredevil identity.  The other, quite frankly, is that the problem with Daredevil, with Matt Murdock as a lawyer in comics, is that it’s not as interesting as Daredevil swinging across a rooftop, and you don’t want to spend a whole lot of time in a courtroom in comics because it kind of gets dull.  So this gives us a chance to do the courtroom material but not actually have to worry so much about having page after page after page of a guy in a business suit arguing in front of  a jury, which is deadly dull on the page.

JD:  Now, Foggy appears to be in a romantic relationship with the new assistant district attorney.  Is that going to present him any problems, romantic or ethical, in the future?

MW: I think the key word there is “appears,” so I’m afraid I will have to actually stall the question for a couple more issues.

JD: Fair enough.  As Daredevil, Matt has witnessed many crimes and foiled many villains. Now that his identity is out there, might he be subpoenaed to testify himself or even be sued by any of these villains for brutality?

MW: Yeah, absolutely.  It’s a dangerous place that Matt is in where he’s gone public . . . .  Like I described in the first issue, . . .  his identity is sort of out there, but following on Daredevil continuity from a few years ago, when he was originally exposed, he denied all charges.  He sued the newspaper that reported his identity and won the case.  He did everything he could to fight back.  Now, that’s past continuity, and that’s not my story.  I feel kind of squidgy about that, frankly, because as a reader, that bugged me that a superhero and a lawyer would deliberately mount a false case even though it was all for a greater good.  That he would sue the newspaper for telling the truth really bugged me.  But those are the cards I was dealt.  So instead of focusing on the history of that, what I take away from that is that the reality in Manhattan now is that about a third of the people remember that he was accused of being Daredevil and they think it’s probably true.  A third of them think this is crap because he’s a blind man and this is some sort of weird publicity hoax.  And the final third of them just don’t care anymore because it’s like news of Anna Nicole Smith at this point.  It’s old news.

JD: Now, there’s a police brutality civil rights lawsuit that plays a role in the first several issues. . . . [H]ow did you first come up with the idea of using that type of litigation to advance the narrative?

MW: I wanted something visual.  . . . [I]t couldn’t have been a criminal case per se.  People who are accused of crimes and are in prison, basically, they have a right to a lawyer.  You know this better than I do with the speech: “You have a right to an attorney.  If you cannot afford an attorney, one will be appointed to represent you. ” And Matt needs to be dealing with people who can’t get any sort of representation at all.  So, I needed to get away from criminal cases in that case.  But I needed something visual.  I needed something where . . . it was an open and shut case.  Matt has all the evidence, the poor guy is for real.  Matt knows that the guy is completely telling the truth when it comes to police brutality.  And it should have been a cake walk.  It should have been just a complete read through, easiest case Matt ever did, and the reason it backfired is because he wasn’t taking into account his own celebrity.  So, that’s why I wanted something visual – giving the guy a broken arm.  I needed something visceral . . . .  Readers have a very strong response to cases like police brutality and stuff.

JD: Are there other types of cases besides that you’re going to explore in the future?

[NOTE: SPOILERS FOR DAREDEVIL #4  BELOW]

MW: Yeah.  . . . [W]hat I like about setting this world up this way . . . is that all of these cases can lead to bigger things.  Not every case has to, but certainly, the cases we’ll be focusing on in the comic [are] the kind of things that are going to lead to bigger things.  For instance, in issue four, Matt takes the case of a kid who was fired without cause, apparently.  And he’s upset and he’s suing the company.  The problem is that New York is an “at will” state.  So, Matt says, “That’s why no one’s taking his case.  It’s a dog of a case.  He didn’t have a contract, he can’t win.”  And Foggy says, “Yeah, but I thought you may be interested because the kid is blind.”  And so now Matt’s intrigued – does it has something to do with disability?  . . .  And that ends up turning into a case where the kid inadvertently heard something that leads Matt in turn to a criminal conspiracy that in turn leads into something bigger as Daredevil.  So, that’s kind of the structure I see playing with.  You start with a small case.  And the more interesting ones turn into bigger cases that Daredevil needs to be involved with.

JD: I have to ask this. In the first issue, when Matt first enters the courthouse, he’s mobbed by newspaper reporters, including one law blog.  How did that reference come to be?

MW: That you would have to ask my editor, Stephen Wacker, because I believe I left that stuff fairly open, and I said, “Steve, let’s you and I figure out what these people are screaming.”  That’s also why one of the guys in the background is screaming, “Bababooey, bababooey!” because of Howard Stern.

JD:  . . . Have you had any reactions from lawyer readers?

MW: Yeah, a couple.  And luckily, everybody seems to understand that I’m doing my best.  I’m not a lawyer, but I play one in comics, and everybody sort of understands I’m trying to do my level best to keep it as accurate as I can, and at the same time, try and keep it as entertaining as I can, and sometimes, those are not always things that work in concert.  But so far, so good.

JD: Last question.  More generally, you tweeted very recently that “[n]ot all mainstream comics have to be written for the existing fan base.”  What’s your philosophy about that?

MW: My philosophy about it is that it makes me insane that most comics today, most super hero comics, are written specifically for the guys who’ve been reading them all their lives, which is a really inbred way of going about getting new readers.  When I sit down and write a first issue, whether it’s Daredevil or Fantastic Four or anything else I’ve done, but particularly with Daredevil – I bend over backwards to make sure that it’s a comic that you could hand to anyone if they’ve read a thousand comics or they’ve never read comics before – it doesn’t matter.  They understand who the character is, what he wants, and what’s in his way, and why we should care.  Those are the four litmus paper questions that need to be asked about every story.

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 associate dean of faculty development and law professor Tamara Piety of the University of Tulsa in Tulsa, Oklahoma.  She teaches courses in Corporate Law, Civil Procedure, Evidence, and Scientific Evidence. Dean Piety also knows a thing or two about corporate speech.  Her new book, Brandishing The First Amendment, argues that commercial interests should not have free speech rights. It will be published this fall by the University of Michigan Press. The interview is as follows:

1.  You’ve written and taught a great deal about commercial speech (including a book to be published on the subject later this year). Although this is primarily a constitutional topic, what aspect of this issue do you believe that civil litigators should be aware of in their daily practice of representing corporate defendants?

In Brandishing the First Amendment, which is forthcoming from the University of Michigan Press, I discuss the rise of an aggressive use of the First Amendment to fend of regulation of various sorts, as well as its use as a defense to fraud claims like that in Kasky v. Nike. Obviously, in the wake of Citizens United and perhaps more significantly still for business, Sorrell v. IMS, commercial and corporate speech and the First Amendment will continue to be a hot topic at the level of strategic corporate policy. Raising the First Amendment has become a sort of portmanteau, all purpose, weapon against regulation. That said, I am not sure there is much that will touch civil litigators in their daily practice of representing corporate defendants. Although presumably there will be cases in which a First Amendment defense could be raised to some sort of mislabeling or false advertising claim, the ordinary product liability case will probably not be affected.

2.  You teach a course called “Scientific Evidence.” What is the most significant evidence opinion to come out in the last year? Why is it significant?

The most significant case to come out of the Supreme Court last year for purposes of my scientific evidence course (which will be renamed “Expert Evidence” for Spring 2012) is the Bullcoming v. New Mexico case involving the application of the Confrontation Clause to the admission of lab reports. A lab technician will no longer be able to testify to the results of an analysis from a report where he or she did not actually observe the test. Many believe this is likely to have very significant consequences for prosecutors and forensic testimony involving DNA, drug residue and other chemical analysis and similar lab tests or expert assessments. However, this case won’t have much significance for civil practitioners since the Confrontation Clause is only of interest in criminal cases.

3.  Some states, including South Carolina, have not adopted the federal Daubert standard. What challenges, if any, do such states face in light of their decision not to follow the federal approach?

I think there are always challenges when it seems that you are failing to follow “industry standard.” And to the extent many view Daubert that way I suppose those states (or their legislators) which have not adopted the Daubert test  may face some pressure to adopt the federal standard. But it is not universally popular. And so I think that pressure is misplaced. Daubert is no magic bullet for determining how to sort good expert evidence from bad. As Ramirez v. State from Florida illustrated a few years back, it is possible for a court which is supposedly following a Frye standard to apply the Daubert standard in everything but name. So what standard nominally controls isn’t as important as it may seem at first blush. In Ramirez, the Florida Supreme Court reversed for (I think for maybe the 4th time) a conviction involving expert testimony from a tool marks expert that linked marks in a homicide victim’s body to a particular serrated knife found in the defendant’s possession. The witness claimed his method led to a 100 percent level of confidence in the identification and that he could identify the defendant’s knife  to the exclusion of all other such knives in the world. This claim was probably not well founded from a scientific standpoint and he may have fared better if he had simply said he was “very sure” or “reasonably certain” or words to that effect instead of reaching for an improbably high number. The Florida Supreme Court essentially used a Daubert type analysis to hold that this sort of claim was scientifically suspect and thus ought to be have been excluded as unfairly prejudicial. The decision in this case illustrates why you need to be familiar with the basic framework of Daubert even if your jurisdiction uses a different test. Judges may want the questions the Daubert Court asked– was the finding published in a peer reviewed journal? Is there a known error rate?, etc. – to be answered regardless of the phrasing of the local rule. So I am inclined to think that decisions like Ramirez illustrate that it doesn’t matter so much which standard a state adopts. If the court you are facing is inclined to find the evidence you want to submit unusual and bizarre versus conventional and routine it will probably exclude it because a court can usually find a means of doing so. The doctrinal test has more influence on the form the argument takes than the substantive outcome. That is why I don’t think Daubert necessarily represents the best test or the “industry standard” with respect to expert testimony. I’m not sure there is a good way of solving this problem since the problem arises because lawyers are trained in every field that they need to evaluate and there is no way that they could be. It is a problem that defies a completely satisfactory solution. South Carolina’s may be as good as the federal approach.

4.  What do you think is the most misunderstood issue in the scientific evidence arena?  Why is it misunderstood?

This is a tough question because there is so much that is misunderstood! I guess if I had to pick one thing it is the feeling that there is a really clear division between “science” and other kinds of expertise. And this goes back to my answer to the last question. Lawyers are scientists but scientists also aren’t infallible and the line between “science” and other types of knowledge is not always clear-cut. There are a variety of ways to try to “prove” something. Some are more reliable than others. For example randomized, double blind trials produce more reliable results for the types of studies for which they are appropriate than many other types of research. But this sort of test is not available or appropriate for every question. Furthermore, probabilities and regression analysis tell you a great deal and will help clinicians make diagnoses, ones we want, for example, our doctors to rely on in many cases. However they cannot say for certain that any one instance of a particular substance caused a particular condition. Yet the courts often seem to require that degree of precision from experts. If they don’t get it they will exclude the testimony. I think that is a mistake, particularly since we routinely and unquestioningly admit testimony that has lower levels of reliability than many regression analyses (and a lot lower than we imagine!), such as eye witness testimony.  I think we ask scientific evidence to do more than it can in some circumstances when much of what we want to prove in a court of law–the facts about the occurrence or non-occurrence of some acts, or a particular state of mind– are often probably out of the reach of not just the legal system, but of human capacity.  I think maybe we seek this sort of certainty from the legal system because too much uncertainty is paralyzing. So having a basis for making a decision, even if it is not always accurate, is sometimes preferred to saying “I don’t know” or “we can’t decide.”  There isn’t much room for compromise verdicts in courts of law, even though jurors try to enter them all the time.  I think this impossibility of knowing all the facts is one of the attractions of strict liability – it allocates fault without having to delve into one of the most difficult areas to prove – intent. Yet, of course, if you are the defendant who feels wrongly burdened because you feel like you were doing the right thing and taking all reasonable precautions, it is probably not satisfactory to say to that defendant, “Well, society is better off if we don’t try to figure out your state of mind so be comforted that you are contributing to social stability.” You want the system to be fair to you. Everybody does.  Yet that is an elusive goal. And in many cases it may be an open question which system – fault-based or strict liability  –is better for society as a whole. Neither approach is going to be satisfactory in every case.

5.  Why do you believe there was a popular misunderstanding of the facts of the Stella Liebeck McDonald’s hot coffee case? In a comment to one of our earlier blog pieces, you noted that McDonald’s “escaped appropriate censure because of the campaign to lampoon the case.” What censure do you believe McDonald’s should have received, and why?

On the first part of your question, I think the opening interviews with people on the street in the movie Hot Coffee, as well as some of the materials on the web suggesting that the McDonald’s case was a paradigmatic “frivolous” lawsuit, combined with the reaction the film makers got when they told people the facts of the case, combine to suggest that; (a) most people, when they know the facts, don’t think it was a frivolous case and (b) that the perception that it was frivolous was nevertheless widespread.  To me that indicates there was a popular misunderstanding. The  movie reflects that McDonald’s employees and management were aware that the holding temperature wasn’t fit for human consumption and that there had been a number of incidents in which people had been injured. When you combine these facts with a refusal to pay Ms. Liebeck what appeared to be a relatively modest initial request, McDonald’s actions seems worthy of censure. In terms of what censure it deserves, I guess the movie itself constitutes the deserved criticism I had in mind, particularly if it is widely viewed. On a side note, the movie illustrates that sometimes it is better to advise the client to settle even a case the company thinks it can or should win rather than face this sort of bad publicity.  Of course, it is also the right thing to do if you are at fault. Another aside, it is unfortunate that sometimes the consequences of appropriate apologies overwhelm the ordinary human instinct to apologize in appropriate circumstances and sometimes discourage settlements.  On the other hand, the problem I referred to in your earlier questions about scientific evidence and our ability to figure out what the facts are, make it difficult for management to sort out the deserving from the undeserving plaintiffs. And I think defendants are often fearful of the specter of an endless parade of plaintiffs, or of setting themselves up as a deep pocket.  All I can say to that is that defendants (and their attorneys) just have to do the best they can in trying to sort those cases out. Attorneys (as you undoubtedly know) need to look at these cases from the perspective of plaintiffs and of prospective jurors and be able to anticipate how those jurors, or the public, will view these facts and advise their clients accordingly. And clients need to understand that attorneys who advice them that way are doing their job and trying to prevent disasters down the road by offering reliable advice about how to sort out the cases that ought to be settled from those that ought to be contested, not just refusing to take their “side.” Clients should not want a “yes man” who is afraid to tell them which strategies will likely work and which won’t. I don’t know if McDonald’s got good advice in the Liebeck case, but it did it appears that it didn’t or it wasn’t followed. Of course, my observation on that point may be simply a result of hindsight bias – everything looks more obvious in retrospect!

BONUS QUESTION: What do you think is the best depiction in popular culture of corporate speech or scientific evidence issues?

On evidence generally it is (no kidding) My Cousin Vinny, although that now qualifies as an “old movie” and maybe not part of “popular” culture any more. A more recent one that touches on the difficulties of proving something is Doubt with Meryl Streep and Phillip Seymour Hoffman.  On corporate speech, I think the best is a documentary called The Corporation.  But I haven’t seen everything that is out there, so there may be better examples. I would be interested in hearing from others what they think are the best examples.

BIOGRAPHY: Tamara Piety is the Associate Dean for Faculty Development and Associate Professor of Law at the University of Tulsa College of Law. She is a nationally recognized legal scholar writing about the legal treatment of commercial and corporate speech. Dean Piety’s book, Brandishing the First Amendment, is forthcoming this fall from University of Michigan Press.  Dean Piety is an experienced former litigator who practiced law in South Florida for several years focusing on complex commercial fraud and criminal defense. She teaches a range of litigation-related subjects including, Evidence, Scientific Evidence and Law and Mind Sciences. Piety earned her bachelor’s degree in economics from Florida International University in 1985; her J.D., magna cum laude, from the University of Miami School of Law in 1991 where she was an Article and Comments Editor for the University of Miami Law Review and Order of the Coif; and her LL.M. from Harvard Law School in 2000 where she was the Executive Editor of the Harvard Women’s Law Journal. She served as judicial clerk for the Honorable Peter T. Fay on the United States Court of Appeals for the Eleventh Circuit and as an interim clerk for the Honorable Irving L. Goldberg on the United States Court of Appeals for the Fifth Circuit.

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.

Today, we here at Abnormal Use continue our series, “Abnormal Interviews,” in which we conduct brief interviews with law professors, practitioners and other commentators in the field. For this latest installment, we turn to Ernest Svenson of the Svenson Law Firm.  He’s a New Orleans attorney and author of the old school law blog, Ernie the Attorney, which began in 2002. As a longtime legal blogger, he knows quite a bit about legal technology, blogging, and social media, so we thought we would pick his brain about those topics. He was kind enough to agree to an interview.

1. You’ve been a legal blogger since 2002. What is the biggest change you’ve noticed in legal blogs since that time, and is it for the better?

The biggest change in law blogging has been the explosion in the number of law blogs and the topics covered. Definitely a wonderful development, in my view. Lawyers are powerful information processors. We can output and consume prodigious amounts of information, and we can parse information for reliability better than most other professionals. Not all, but most.

When I went to law school law reviews were a staple source of new legal analysis, and I was fortunate enough to be an editor of the law review at my school. I have a very strong appreciation for how intricate the process was to publish a law review, especially how long it took. Word processing tools were complicated and expensive, and distribution wasn’t cheap either. Now a law professor who wants to comment on a new legal development can bang something out in a few days, or even a few hours, and upload it to his or her blog where it’s instantly available to anyone with a computer and an internet connection. To me, this is an amazingly beneficial development.

2. What’s the next big thing in social media that attorneys should be aware of?

Google+ seems to be hot, but I’m not sure that it is of high value to attorneys. At least not yet. Frankly, I think that attorneys are still struggling to assimilate some of the “old things” in social media. Divorce lawyers are probably the most keenly versed in the implications of social media in litigation, especially Facebook. But social media will have implications in many spheres besides just litigation.

Still, if lawyers want something to focus on I’d say “geo-location” tools like Foursquare or Facebook Places. As more people buy and use smartphones with GPS capabilities, we’ll see more social networking platforms that leverage information about where you are. This can be good for users (if they want to find a nearby place to eat or buy gas) or bad users (if they inadvertently reveal where they are when they intended to conceal their location, or lie about it). But, whether you view geo-location as good or bad, you need to pay attention to it because it will inevitably be more prevalent.

3. These days, there are many, many social media platforms, such as Facebook, Twitter, LinkedIn, and now, Google Plus. How can attorneys maximize their use of social media without becoming overloaded or spreading themselves to thin with so many sites?

Information overload has two components: output and input. Mostly people fret about receiving too much information. I agree with Clay Shirky (the NYU professor and prominent speaker and author) that we don’t have an “information overload” problem so much as we have a “filter failure” problem. We need to find better ways of filtering inbound information. My main tools are: (1) RSS readers, (2) Twitter and (3) trusted agents (which are really just sub-filters that feed into my RSS Reader).

For information that one outputs, again, there are tools. I have three blogs, or four, if you count my law firm website, and just as many Twitter accounts and Facebook pages. If I had to login to each of those places and post stuff I’d never get anything else done. I use a service called SocialOomph that lets me dump things into buckets that then get parsed out on a regular schedule. Discovering this tool was a boon to my workflow and has eased my stress at the same time that it gives the impression of increasing my output.

4. What do you think is the most overlooked social media utility for attorneys? Why is it overlooked?

Twitter. Before Twitter appeared I spent a lot more time with my RSS Reader, constantly tweaking the information stream so that I could get a strong mix of opinions and viewpoints as well as breaking news. Twitter now supplies that to me with virtually no tweaking, and I can gather that same information as easily on my smartphone as I can on a computer.

Lawyers, and others, tend to dismiss Twitter by saying “I have nothing to say on Twitter.” Fine, but many people that you would find interesting do, and you are missing out on an efficient way to tap into those opinions by ignoring Twitter. Sure, you have to curate your Twitter feed to capture useful views and not shallow ones. But that’s not as hard as most people think, and so they stick to gathering news from traditional sources which have filters to be sure, but filters that are preset for mass markets.

5. As the general public increasingly uses the Internet and social media to communicate, how do you predict that state bars will react to the popularity of this social media among attorneys?

State bars are not as behind on social media as many lawyers think. The Louisiana Bar, my state bar, has a Twitter feed and a Facebook page. Other local bar associations have adopted social media as a cheap and yet effective way of communicating with its members. I predict that social media will be embraced by all bar associations eventually. Proprietary communication methods seem useful, until you realize that getting people to adopt a new communication platform is harder than herding cats. Facebook and Twitter may have funny names, but if more than a half a billion people know how to use those tools it makes sense to use them to talk to your constituents.

6. How can smaller firms and solo practitioners utilize social media and legal technology to simulate the advantages of a larger law practice?

Small firms have advantages now that we are only just beginning to become aware of. Larger is not better unless being larger helps tackle and otherwise insurmountable problem. Small firms can market better now because of social media and the internet, and they can collaborate with other practitioners anywhere in the world. That which is digital moves more quickly to more place and can be analyzed more precisely.

A small firm that wants to become paperless can do so much more quickly than a large firm. And at a much lower cost. Large firms have bloated overhead and are more easily trapped into longer term contracts. All of those large costs have to be passed on to clients. Small firms can work smarter and take advantage of innovation faster, thereby lowering their cost and delivering better service to their clients. Obviously, this assumes that the lawyers in both small and large firms are of the same caliber.

I believe that the quality of lawyering is not dependent on how large a firm is, but rather upon how clever the individual lawyers are. Being clever in arguing the law is paramount, but—increasingly—so is knowing how to use technology to gather information better and faster. Technology is increasingly important in how we persuade. An old (but wise) judge recently admonished a group of lawyers in New Orleans that “jurors expect lawyers to present visually compelling evidence,” adding that any lawyer who says “I’m too old to fool with this technology stuff” when addressing a jury is basically saying “I don’t know how to read very well.”

I couldn’t agree more.

BONUS QUESTION:  What is your favorite pop culture depiction of legal technology?

Probably The New Yorker cartoon where a guy with a hood is robbing a bank and the teller informs him politely that “You know, you can do this just as easily online.”

BIOGRAPHY: Ernest Svenson graduated from Loyola Law School in 1985 and then spent two years clerking for the Honorable Adrian Duplantier in the Eastern District of Louisiana.  He has practiced commercial litigation since then, first for a well-respected New Orleans law firm, and more recently as a solo practitioner.  He has started several weblogs, including PDFforLawyers.com and DigitalWorkflowCLE.com.  His Ernie the Attorney site (ernietheattorney.net) was chosen by the ABA Journal as one of the top 100 law weblogs two years in a row.  He believes that the practice of law is largely an “information processing business” and tries to help lawyers find more efficient ways to process their information. You can follow him on Twitter at @ernieattorney.

Today, we here at Abnormal Use continue our series, “Abnormal Interviews,” in which we conduct brief interviews with law professors, practitioners and other commentators in the field. For this latest installment, we turn to Bob Dorigo Jones, the Senior Fellow for the Center for America, the president of Michigan Lawsuit Abuse Watch, and the author of  Remove Child Before Folding, The 101 Stupidest, Silliest and Wackiest Warning Labels Ever.   Not too long ago, we wrote about his well known Wacky Warning Labels Contest.  Intrigued, we couldn’t resist requesting an interview, which he was kind enough to grant.

The interview is as follows:

1.  What was your inspiration for the Wacky Warning Label Contest?

In 1997, I heard about a Batman cape that actually came with a label warning, “Cape does not enable user to fly,” and that got me thinking about all of the obvious warnings we see in America. Most people have seen labels like that, and since they’re not only funny, but are there because of lawsuit abuse, we thought it would be a good way to spark a national conversation about the need for common sense legal reform.  It worked, and it’s been a great vehicle for educating the public about the larger lawsuit abuse issue and how it affects everyone from job providers and doctors to the Little League, Girl Scouts and soup kitchens that feed the poor.

2.  You’ve been doing the contest for 14 years.  What has been your favorite label submission from those years, and why?

One of my favorites is a warning label on a scooter that says, “This product moves when used.”  Well, of course, it does!  The manufacturer would probably be sued if it didn’t move.  Unfortunately, accidents often happen when kids are playing, so the manufacturer put this obvious warning on its products because, in America, if you make a product, you’re constantly looking over your shoulder for the next lawsuit. It’s sad, but it’s a fact of life now.  The next time you see one of those wonderful little silver scooters that kids all around America use, look for that label!

3.  Are there any products out there that do not have labels, but should?

I don’t know about products, but there’s a service that definitely needs a warning.  Every ad for plaintiff lawyers that appears in the telephone book or on television should have a label warning potential customers that there are often better (and by that, I mean more effective and less expensive) ways of solving disputes than lawsuits.  Many people who have legitimate grievances or injuries pay tens of thousands of dollars or much more to lawyers for problems that they could solve themselves or through mediation that might cost as little as $100 to $200.

4.  Have you noticed any recent trends in product labeling that you believe litigators should be aware of? If so, what are they?

One trend that troubles me is that labels are becoming so long and filled with so many obvious warnings that many people don’t read them anymore.  Certainly, there are many warning labels that aren’t wacky and that we all need to read, but there are also user guides that are so long that they have to come with a special key section just to explain the warning labels.  The Food and Drug Administration is well-aware of the problems caused by overwarning and therefore goes to great lengths, although they aren’t always successful, to keep warnings on medicines short and to the point.  I think this is wise.  People need to know about dangers that aren’t common sense.

5.  What do you think these labels tell us about our collective mindset in this country, if anything?

After reading all of the labels in this country that warn us about the obvious, people might think Americans are idiots.  I’m not that cynical.  We’re smart people, and by the way, we’re not anymore likely to hurt ourselves using a product than a person in any other country.  However, these labels do tell us that Americans have a litigation problem and that a certain segment of the population is willing to overlook personal responsibility and sue someone else when they injure themselves.  Even worse, a certain segment of the judicial profession is willing to allow these lawsuits in their courts.  My hope, by working with the Center for America, is to increase public awareness of this problem and help create a collective mindset that is unwilling to accept abuse of the civil justice system any longer.

6.  What do you say to consumer advocates and lawyers who believe these types of labels are necessary?

I ask them why there isn’t any evidence that Americans are better off for all of these warnings.  People in other advanced, industrialized countries like Germany, France, Japan and Australia aren’t being warned like we are that a scooter moves when used, but they aren’t piling up injuries faster than we are.  How do I know?  Because reporters from those countries have come here regularly to interview me and have told me so.  They don’t understand why we put up with the lawsuits that lead to these obvious warnings.  So where’s the benefit?  The only ones benefiting are the personal injury lawyers who now make so much money that they can run ads on TV all day long when legitimate product makers can’t even afford to do that.

Beyond that, I say to the so-called consumer advocates and personal injury lawyers that America is worse off today because of all of the fear they have created in our lives.  Many product makers have refused to bring consumer-friendly products to market because they fear being sued.  This is true in many areas, but it is worst in the area of medicine.  The long warning labels they’ve made necessary on drug packaging are bad enough, but when a mother dying of cancer has to leave her children to go to another country to get medicine that’s not available here because of America’s litigation problem, we have to say, “Enough is enough!”

7.  What do you believe is the best – or the funniest – pop culture depiction of a product label or products liability issue?

One of the funniest things I’ve ever seen is a spoof commercial for a product called “Happy Fun Ball” that aired on “Saturday Night Live” several years ago.  It has a warning that takes up about 90 percent of the commercial and is probably where America is heading if we don’t get a handle on our lawsuit problem.  If you’ve never seen it, I would highly recommend it. Also, one of the funniest books I’ve ever read about frivolous lawsuits was written by a former producer at “Saturday Night Live.”  James Percelay wrote a book called Whiplash! that is the first book you should get after you buy Remove Child Before Folding, The 101 Stupidest, Silliest and Wackiest Warning Labels Ever!

BIOGRAPHY: Bob Dorigo Jones, who serves as Senior Fellow for the Center for America, is the author of the bestselling Remove Child Before Folding, The 101 Stupidest, Silliest and Wackiest Warning Labels Ever. He is the host of a new national radio/Internet commentary, “Let’s Be Fair.” He has also appeared on dozens of national and international TV and radio programs, including NBC Nightly News, ABC News’ 20/20, BBC WorldNews, FOX News, and CNBC.  He also serves as president of Michigan Lawsuit Abuse Watch (M-LAW), a Center for America partner organization. Prior to joining CFA and M-LAW, Dorigo Jones served on the staff of the Michigan House of Representatives. He received a B.A. in economics and political philosophy from James Madison College at Michigan State University.

Today, we here at Abnormal Use continue our series, “Abnormal Interviews,” in which we conduct brief interviews with law professors, practitioners and other commentators in the field. For this latest installment, we turn to attorney and social media guru Megan Erickson of Dickinson, Mackaman Tyler & Hagen, P.C. in Des Moines, Iowa. Erickson runs the popular Social Networking Law Blog and practices in the areas of commercial litigation, appellate practice and business law. The interview is as follows:

1.  As the general public increasingly uses the Internet and social media to communicate, how do you predict that state bars will react to the popularity of this new technology among attorneys?

I’m not sure anyone can predict how state bars will respond, but I do think one of the biggest challenges will be in the area of professional regulation/ethics.  In particular, I think we’ve already seen problems arise when the people in charge of regulating others’ online activity are people who are themselves relatively unfamiliar with the technology they want to regulate.  Although people are increasingly accepting of Facebook and online networking, there are still plenty of people out there whose attitudes range from “I’m reluctant to use Facebook” to “Facebook is Satan.”  As we get more and more interactive online tools and Web 2.0 becomes more pervasive, the division between the tech savvy and the tech not-so-savvy becomes more pronounced.   Folks who use these tools find themselves increasingly engaged online and dependent on the technology; folks who inherently distrust the online world feel more compelled to restrict it.  Of course, an unrealistically optimistic view of social media is unhealthy, and there should be some rules in place.  I just think state bars should make a more concerted effort to ensure those rules aren’t being articulated by someone who (regardless of how well-intended) is ill-informed on the very technology being regulated.

2. How can, and how should, lawyers manage their time between work, more traditional marketing and business development, and the usage of social media?

It depends.  (How’s that for a “lawyer” answer?!)  I think every attorney approaches client development and marketing initiatives differently, and attorneys also have different demands and priorities at work and at home.  To the extent you find online tools a convenient, effective, and heck – maybe even fun way to market, then by all means, use them!  Some firms may find it beneficial to experiment a bit.  For example, does it make sense to change a quarterly practice group newsletter mailing to a quarterly e-newsletter?  The answer will depend on the audience preferences, the comfort level of the attorneys in making the change, and the practical realities of whether they have an effective way to make that transition.  Does it make sense for a practice group to give up a newsletter altogether and instead focus efforts on a blog?  Again, the answer should come only after thoughtful consideration.  Some groups may welcome such a change:  it may be easier to start writing a piece when you know you can keep it shorter; it may be more useful to an audience to receive a more concise post than lengthy article; it may be more convenient for some attorneys to try this without imposing a particular schedule or deadline – which may elicit more contributions or make it more convenient for the authors.  Of course, it may be a nightmare for others:  if the group doesn’t have anyone familiar with blog platforms, learning the technology may be unduly burdensome; some groups may not be able to make a blog work without a particular schedule or deadlines; some may spend an inordinate amount of time concerned with search engine optimization, and let SEO overshadow the substance.  If you’re running into too many challenges or you feel like a new technology just isn’t your cup of tea, don’t force it!  Some of us are more comfortable with speaking engagements.  Some of us prefer lunches with clients.  Some want to network at the golf course, while others dedicate themselves to community involvement.  Just as we all have different talents and preferences for traditional forms of client development and networking, we’ll all have different approaches to how we implement or supplement our marketing with social media and other relatively new online tools.

3. What advice would you give to lawyers who are consider using blogs and Twitter to market their firms and practices?

Drawing from my prior answer, you may want to experiment, but don’t force something that isn’t working for you.  Twitter may seem like the cool, new “thing” you’re supposed to be doing – but only participate if it makes sense for you.  If you choose to participate, learn the rules of the road.  You wouldn’t take prospective clients to the golf course without understanding the basics:  teeing up, how to use a ball marker, the difference between a wood and a putter, what to do when your ball goes in the water . . .  (I’m very familiar with that last situation, myself.)  Likewise, don’t use Twitter or other online tools without learning basic etiquette and lingo.  You’ll do yourself more harm than good if you skip this step.

4. Do you believe that blogs and Twitter are successful independent means of generating business, or are they now simply a necessary part of larger contemporary marketing efforts?

As my earlier answers suggest, I think the role of social media in a lawyer’s client development efforts has to be an individualized choice.  My personal opinion is that very few lawyers would be able to – or would want to – use only blogs and Twitter to generate business . . . if for no other reason than effectively using blogs and Twitter itself generates other marketing opportunities.  If your blog is popular, you’ll be asked to speak.  If you have interesting posts, you’ll be called for interviews.  And so on.  To the extent lawyers want to use blogs and Twitter, I think most will want to use them to supplement other marketing efforts – not replace them.

BIOGRAPHY: Megan Erickson is an attorney at the Dickinson, Mackaman, Tyler & Hagen law firm in Des Moines, Iowa where she practices primarily in employment law and also maintains a general practice including but not limited to commercial litigation, appellate practice and business law.  Megan is a frequent author and speaker on legal issues related to technology and social media.  She maintains the Social Networking Law Blog, and has been interviewed and quoted on legal implications related to social media in various publications and websites across the country.

Remember a few months ago when we – along with our pals at the Drug and Device Law blog – compiled a list of all of the rock songs mentioning lawyers? It was during that time that we discovered Chuck Brodsky’s song, “Talk To My Lawyer,” which we enjoyed and included on our list. Brodsky‘s “Talk To My Lawyer” chronicles a series of relatively minor events and their potential as lawsuits if presented to the proper lawyer.  While we have grown weary of lawyer jokes over the years, we couldn’t help but chuckle when he heard Brodsky’s tune and its reference to the infamous Stella Liebeck McDonald’s hot coffee case. We soon learned that Mr. Brodsky lives in nearby Asheville, North Carolina, so we felt we had to contact him and request an interview about the genesis of the song. So, today, Abnormal Use once again continues its series, “Abnormal Interviews,” in which the site will conduct brief interviews with law professors, practitioners, and makers of legal themed popular culture.  Note: Brodsky will be performing live this Friday night at a CD release party at The Grey Eagle rock club in Asheville, North Carolina, and we suspect he may play “Talk To My Lawyer” at that show. Finally, for those who’ve not heard the song, though, here is a video of him singing that wonderful ode to litigiousness at the Shrewsbury Folk Festival. Watch it, and then read the interview which follows.

1)  What was your inspiration to write “Talk To My Lawyer”?

Well, at the time I wrote it many years ago, probably, if I had to guess, I’d say around 1990, give or take a couple of years. I think there were just a lot of frivolous lawsuits flying around at the time.  Maybe even the McDonald’s coffee case.  I can’t remember exactly because it was so long ago, but I think it was a way to have a laugh at it, treat it with irony.

2)  Did you ever want to be a lawyer?

I joke that I do.  When I’m on stage I often tell people that I wanted to be a lawyer but my parents talked me into being a folk singer.

3)  [Besides the McDonald’s case] were there any other cases in the news that inspired any of the verses?

Not any one that I can recall after all these years but you know . . . frivolous cases come up all the time.  There probably were several that were in the news at the time, maybe a couple.  Why not have a little bit of fun writing about them?

4)  Have you had any comments from lawyers about the song?

Yeah.  Lots, and they tend to really get a laugh out of it.  It’s pretty popular.  I’ve had law firms that have bought a copy of the CD with the song on it for all their partners and employees.  I’ve never had any lawyers that didn’t laugh.  Nobody has came up to me and has taken offense.  Never meant to be offensive.  Just a little bit of irony, little way we can laugh at ourselves.

5)  How would you describe your music both stylistically and lyrically?

Well, I think I pay a lot of attention to detail.  I think my music is rooted in traditional music. . . or Americana type singer-songwriter.  I think my lyrics all have something to say.  I don’t ever write a song that’s meaningless in my opinion.  I like to tell stories, but not all of my songs are story songs.  The ones that are tend to be about real people that inspire me to words that I feel are touching and might touch other people.  But I also have commentary in my songs about the world as it is and my feelings about it.  I feel like my songs are honest.  I try to be honest.  I try to address real issues, but not in a way that makes anybody feel excluded.  That’s really not what it’s about.  It’s about making everybody feel welcome and part of it.

6)  Are you excited about playing the Gray Eagle?

I’m very excited.  I live in Asheville, and I only play there a couple of times a year and this particular show will be a CD release for a brand new album [Subtotal Eclipse].  I’m very excited.

BONUS QUESTION:  What is your favorite song about lawyers or legal themes?

Mine.  I don’t really know of any others to be honest.  I said that half jokingly.  I really am not aware of any other songs.  Oh, Warren Zevon has a song, “Lawyers, Guns and Money.”

BIOGRAPHY: Chuck Brodsky is a singer-songwriter whose music has been influenced by the mountains of Western North Carolina and traditional folk.  His song, “Radio,” appeared in the feature film of the same name.  Brodsky, born in Philadelphia, Pennsylvania, now resides in Asheville, North Carolina.

In anticipation of TNT’s upcoming legal dramedy “Franklin & Bash,” which premiers tomorrow night at 9 p.m. Eastern, we had the opportunity to fulfill a lifelong dream briefly interview the two stars of the show, Mark-Paul Gosselaar and Breckin Meyer (during a multi-party press conference, but still).  Gosselaar is famous, of course, for playing the iconic character of Zack Morris in “Saved by the Bell” and, more recently, for his role on ”NYPD Blue.”  As for Meyer, you may recognize him as the  skateboarding high school student in Clueless or for his roles in Road Trip or Can’t Hardly Wait. So, once again, we here at Abnormal Use continue our series, “Abnormal Interviews,” in which we bring you interviews with practitioners, commentators, and, now, actors.

“Franklin & Bash” is a comedy featuring Gosselaar and Meyer as two small-time lawyers with big-time courtoom antics who are recruited by a powerful megafirm.  So begins their fish-out-of-water experience, which is the central premise of the show.  Both stars seem to be very exited about their new legal show, and for good reason. By their own accounts, they’re having fun filming the series, and as you’ll see from our review of the pilot episode tomorrow, the show offers its viewers an entertaining – though not necessarily realistic – glimpse into the lives of its fictional young lawyers.

As mentioned above, we were on a multi-party press conference call with Gosselaar, and then some time later, a separate multi-party call with Meyer. Accordingly, we were only able to ask each of them one question. Fortunately for you dear readers, we here at Abnormal Use are ace interviewers, and all we need is one question. Bearing in mind that caveat, the following is a full transcript of our exchange with Gosselaar, who plays attorney Peter Bash.

Simons:  Hey, Mark-Paul.

Gosselaar:  Hey, there.

Simons:  Our readership is made up primarily of lawyers, and I know that you’ve played lawyers in the past, but I wondered what, if anything, you did to prepare for this role.

Gosselaar:  I got a tan. That’s basically it. You know, I mean, I – you know, I’d had my legal fill when I did “Raising The Bar.”  Thankfully, you know, I was able to go with David Feige, who was the creator of that show, and my character was loosely based on him. You know, I went with him and was an intern at the Bronx Defenders for about a week and sort of got my legal, you know, insight during that week, and for the last two seasons. So no, there wasn’t much that I had to question.

But if I did have a question, one of our producers and writers, one of our head writers, Bill Chais, was a defense attorney and a lot of the stories that we deal with on the show are from his background. So, if we ever have questions we have people that we can go to, and that’s always important. And well, I think we’re pretty true to – I mean obviously it’s television, you take some liberties, but I think we’re pretty true to staying true to the sort of legal, call it, the legal frame.

During an earlier part of the call, Gosselaar also shared what makes “Franklin and Bash” different from all the other legal dramas viewers have seen before on the small-screen:

Gosselaar:  Well, I think — you know, we haven’t seen comedy in the courtroom in a while. I mean, “Boston Legal” is probably the last one, “Ally McBeal” is another one, “L.A. Law” was a brilliant legal drama with elements of comedy, so I think that’s what sets it apart from what’s currently on television, as well as sort of the relationship between the two guys.

You know, you go home with these characters at the end of the day, so I think that that’s a very important element that isn’t on television on your typical legal dramas at the moment.

Later that afternoon, we joined the press conference call with Breckin Meyer, who plays attorney Jared Franklin on the series.  Here’s a transcript of our interview with him:

Simons:  Hi, Breckin.

Meyer:  Hey, how’s it going?

Simons:  Good. Our readership is made up primarily of lawyers…

Meyer:  Okay.

Simons:  . . . I wonder if I were a client of Franklin and Bash, why would I want your character, Jared, to represent me?

Meyer:  Well, the good thing is with Franklin and Bash, you get both Franklin and Bash. . . .  Jared’s a kid who grew up with a silver spoon in his mouth. His father was a — still is a high powered litigator, and he rebelled against that by not wanting to be a lawyer, but eventually had to accept that it was his calling, but if he’s going to do it he’s going to do it on his own terms. And I think you’d definitely — you’d get lawyering like you hadn’t seen before. How about that?

Simons:  Okay. And your character’s been described as quick-witted and scrappy. Do you have anything to add to that description?

Meyer:  Really kind of almost off the chart remarkably good looking. That — I mean that’s not me, that what — I mean, that’s what I’ve heard. . . .Yes, so that’s how I’d describe it.

Turn back to Abnormal Use tomorrow for our official review of the pilot, which airs tomorrow night on TNT.

Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct interviews with law professors, practitioners, and other commentators in the field. For the latest installment, we turn to University of Maine School of Law professor Jennifer B. Wriggins, who teaches Torts, Insurance Law, and Family Law. Last year, her book, The Measure of Injury: Race, Gender, and Tort Law, was published by the NYU Press. The interview is as follows:

1. What do you think is the most significant recent development in torts and products liability litigation?

I think that the continuing lack of conceptual clarity about comparative fault is very significant and interesting. What I mean is this: While contributory negligence has been on the wane for decades now there remains, I think, lots of vagueness about how its replacement, comparative fault (comparative negligence), is supposed to work. Statutes and jury instructions are often not at all clear about how the defendant’s action is supposed to be compared to the plaintiff’s action, even when they are engaging in the same activity, like driving. This is particularly the case with multi-party litigation. There is, relatedly, rather little clarity about how to quantify (and thus compare) actions by many different parties that are very different in nature. Yet, comparative fault is widely accepted and generally seen as an important improvement over contributory negligence. There is a huge disconnect, I think, with the everyday way that people think about causation and fault, and the fascinating and unwieldy system we have now with comparative fault and comparative responsibility.

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

One rule that strikes me as possibly outdated is the rule that juries are not allowed to learn about liability insurance policies. Even when a case involves an auto accident, and auto insurance is mandatory in a state (as it is in almost all states), so that jurors who are car-owners (probably most jurors) know that there is likely to be insurance, jurors are not supposed to know about insurance. I understand that it is important for the liability and damages issues not to be affected by the presence or absence of insurance, but I think it is very likely that jurors think about insurance anyway. I would want to think about this more before advocating it, but perhaps we should just give jurors the insurance information and tell them it should be kept separate from the liability and damages determinations. If they are hypothesizing about insurance and taking it into account anyway, then giving them accurate information should not hurt the process. I can see both sides of this, but I think we are probably deluding ourselves if we pretend jurors don’t know and aren’t thinking about the existence of liability insurance.

3. You have written much on the role of race and gender in litigation. In your view, how do these concepts affect tort cases specifically, and what would you advise civil litigators to keep in mind on that front?

One place where race and gender can come into play is damages. In my book, The Measure of Injury: Race, Gender and Tort Law (NYU Press 2010), my co-author Martha Chamallas and I talk about how in cases where an individual lacks an earnings history (for example a child) and suffers an injury that will affect future earnings, experts and courts still use race-based and gender-based earnings tables to project earnings into the future. Many experts and lawyers, I think, simply assume that these categories have to be used and don’t think of them as problematic at all. We argue that this use of tables is deeply problematic and potentially unconstitutional because using the tables in court is in effect a race-based or gender-based classification. Judge Weinstein of the Eastern District of New York issued a ruling in October 2008 that agreed with this position. We also talk about how caps on non-economic damages can affect claims of women, members of racial minorities, and minority women, who may have serious injuries but small lost earnings, making their claims perhaps too small to be worth bringing. Research has suggested this is happening in California and Texas, for example.

BONUS QUESTION: What do you think is the most interesting depiction of the interaction of law and medicine in popular culture, and why?

One of the most insightful depictions of the interaction of law and medicine in popular culture is a book, Damages, by Barry Werth (1998). He deals in a very nuanced way with the interaction of insurance, doctors, patients, and lawyers in a heart-breaking Connecticut infant cerebral palsy case. It’s also a great read.

BIOGRAPHY: Professor Jennifer B. Wriggins, the Sumner T. Bernstein Professor of Law at the University of Maine School of Law, teaches Torts, Insurance Law, and Family Law. Upon receiving her J.D., Professor Wriggins served as Clerk to Hon. Edward T. Gignoux, U.S. District Judge in Portland, Maine. She was a Visiting Professor at Harvard Law School and Boston University School of Law in Spring 2005.