The Honorable Matthew J. Perry, Jr. (1921 – 2011)

We here at Abnormal Use and Gallivan, White, & Boyd, P.A. were saddened today to learn of the passing of U.S. District Judge Matthew J. Perry, Jr. Admitted to the South Carolina Bar in 1951, he was appointed to serve as a U.S. District Judge for the District of South Carolina by President Carter in 1979.  Following that appointment, Judge Perry became the first African American federal judge in South Carolina. Sixteen years later, he would assume senior status. He was a true gentleman and a delightful person. Our thoughts and prayers go out to his family. To learn more about Judge Perry’s long and varied career, see here and here.

Friday Links

We’ve decided to go wholesome with this week’s legal themed comic book cover simply because one of our fellow lawyers here at our firm complained that last week’s comic book cover was not entirely work appropriate. We’re crestfallen. We’re agog. The last thing we wanted to do was incur the animadversions of one of our colleagues (one, in fact, whose office is right next door to this site’s editor’s office). Alas. So, today, dear readers, you get Archie’s Girls Betty and Veronica #92, published way, way back in the safe days of 1963, just before the counterculture rose and began to shock us all into submission.  We particularly like how Archie himself is tagged as Exhibit C which, we suppose, means that he will be taken back to the jury room for deliberations.  Betty, pro se, appears to be delivering her opening statement, which makes it all the more unusual for Veronica to be in the witness stand. Oh, well. It’s wholesome, right?

But that’s not all, dear readers. Another lawyer in our office gave us grief this week for saying “We here at Abnormal Use . . . .” as a preface to certain posts. We explained to him that it was our hip way of communicating our opinions, but he wasn’t buying that nonsense. “They know you’re from Abnormal Use,” he exclaimed. “They’re already on the blog.” Well, in the end, we just like saying that, so don’t expect us to abandon that statement, however superfluous, anytime soon. It’s our trademark. Or something.

Rumor has it that Steve McConnell of the Drug and Device Law Blog has written a Star Wars themed post set to run sometime next week. In the mean time, please revisit the one post this site dedicated to that series of films. Make certain you pay attention to the date it was originally published.

Law professor Mark Osler (who we once interviewed for this site here) has an interesting, though brief, post about bad job interview questions at his blog, Osler’s Razor. Our favorite: “I have stolen a pie. Have you ever stolen a pie? How about something else?” We’ve never heard that one before.

Chad Bray at The Wall Street Journal Law Blog reports on Marvel Entertainment, L.L.C.’s victory in federal court in a suit brought by the heirs of famed comic creator Jack Kirby.  Writes Bray: “On Thursday, a federal judge found that Kirby’s creation, along with Stan ‘The Man’ Lee, of characters like the Incredible Hulk, the X-Men and the Fantastic Four was “work-for-hire” under the Copyright Act of 1909 and Marvel owned the rights to those characters.” Interesting news.

Dutch Poultry Linked to Superbugs? Uh, yikes. recently reported on a study which found that bacteria in raw poultry may be a source of superbugs in people.  Our first thought upon reading this story was, “What the heck is a superbug?” Well, we did a bit of cybersleuthing and learned that a superbug is a bacteria that has multiple antibiotic resistance genes. Or something like that. We’re not quite sure we get it. But, anyway, the theory goes: Superbugs have been spawned due to the overuse of antibiotics in animals. Yikes.

According to the study, found in the Center for Disease Control’s Emerging Infectious Diseases journal, a bacteria resistant to third-generation cephalosporins (i.e. medications to treat bacterial meningitis, pneumonia, and E. coli) was found on 80 percent of raw poultry purchased from grocery stores in the southern Netherlands.  By comparison, the bacteria was only found in 12 percent of the pork, beef and ground meat sampled.  Further, the study concluded that people infected with the bacteria where 2.5 times more likely to die within a month of infection.

If the image above is any indication, then the human race better take cover. (To be honest, we don’t know if that artistic rendering is of an actual superbug, but it’s scary, and it looks like what we think a superbug should look like). The study was silent on whether the superbugs possessed carnivorous teeth.

Before we abandon our local supermarkets and vow to buy only organic poultry, we must disclose that the Netherlands is one of Europe’s largest users of antibiotics in farm animals.  The animals are exposed to more antibiotics; therefore, they have a higher likelihood of breeding drug-resistant bacteria.  However, the use of antibiotics among residents of the Netherlands is also among the lowest in Europe. Whatever the case, we fear superbugs. Immensely.

Film Review: Class Action (1991)

You might recall that back in March, we interviewed the writers and producer of the 1991 film, Class Action, which starred Gene Hackman and Mary Elizabeth Mastrantonio as an estranged father and daughter, both lawyers, who find themselves on opposite sides of the same products liability case. We always intended to revisit and review the film, but as sometimes happens, time slipped away from us, and we never finished our draft of the review.  Tardy, but unfazed, we here at Abnormal Use resolved to use the recent Fourth of July holiday weekend to finalize the review, and so we have finally done so.

Primarily written by Carolyn Shelby and Christopher Ames, and directed by Michael Apted, the film is actually pretty good, and holds up well as a legal drama, even when viewed by weary and cynical attorneys 20 years after its original release. Shelby and Ames apparently came on board after the initial draft by attorney Samantha Shad had been developed. Their script received much praise from Roger Ebert in his 1991 review:

The screenplay by Carolyn Shelby, Christopher Ames, and Samantha Shad contains dialogue scenes so well-heard and written it’s hard to believe this is a Hollywood movie, with Hollywood’s tendency to have characters underline every emotion so that the audience won’t have to listen so carefully. There is a scene, for example, where father and daughter are preparing dinner together, and their civility gradually collapses into anger and tearful recrimination. And other scenes, deliberately of few words, in which lawyers try to say things without saying them – to imply what must be done, without being trapped into actually issuing unethical orders.

The film begins with a intercut sequence comparing the styles of Hackman’s fiery Plaintiff’s attorney Jedediah Tucker Ward and his estranged and far more conservative defense lawyer daughter, Maggie, played by Mastrantonio. While Maggie is a by-the-book defense lawyer who opines that certain principles are “deeply embedded in the black letter law of the state” and that “appeals to the contrary based on emotion have no place in a court of law,” Jed simultaneously argues in an adjacent courtroom that those assembled are “not in a court of law, but ‘rabbit hole’ leading to ‘Wonderland’ and ‘Mad Hatter’s tea party’.” Maggie, an associate who desperately wants litigation experience in order to make partner, is also sleeping with Michael, the junior partner liaison to an automotive company client. We ultimately learn this is not a very good idea. For his part, Jed is the type of plaintiff’s lawyer we all know who complains of “fascist Reagan judges” who throw cases out if they target big corporations. The two main characters are also huge law nerds. Jed and Maggie, during brief periods of personal détente, actually quiz each other about the underlying facts of old cases, including Weems v. United States, 217 U.S. 349 (1910), a cruel and unusual punishment case. Nevertheless, their long standing personal conflict escalates when they find themselves on opposite sides of the bar in a products liability case involving an allegedly defective automobile (although the film is careful to include a scene confirming that all necessary waivers have been signed – although we wonder if that conflict could be waived). The relationship is further exasperated when Jed’s wife and Maggie’s mother (JoAnna Merlin) dies of an aneurysm in the courthouse immediately following a contentious motion to compel hearing.

The products lawsuit proceeds as many depicted on film do, with the Plaintiff (Robert David Hall) – who viewers will recognize now as the medical examiner on television’s “CSI: Crime Scene Investigation” – painted as a sympathetic victim of obvious corporate gross negligence. The automotive company, of course, is the villain of the film; its corporate execs have disposed of an unfavorable report indicating circuitry problems in the vehicle at the behest of the aforementioned junior partner. Further, the fictional auto company internally concluded that it would be cheaper to defend 200 subsequent lawsuits than to recall the model of vehicle in question (not unlike the famous Ford Pinto case). We bet you can guess who wins the suit.

In 2011, the narrative remains interesting, even to legal viewers, although there is some nitpicking required.  Spoiler Alert!

At a motion to compel hearing at which Jed is seeking the addresses of current and former employees of the automotive company, Maggie properly responds and notes that the request may be unduly burdensome and require them to investigate the whereabouts of many, many people. However, Jed responds by admitting he called the automotive company’s pension department in a feigned attempt to locate an old friend.  He claims the department provided him with a current address, which the judge uses as a justification to grant Jed’s motion to compel. No objection to improper contact is made.

Near the conclusion of the trial, Jed calls Michael, the aforementioned junior partner who represents the auto company, to the stand. Although much ado is made of this move, no one mentions the attorney-client privilege and the fact that he cannot be compelled to discuss his communications with his client. Further, Maggie has a chance to examine the witness, and she does so! She elicits testimony that she knows to be false (in what is later revealed as her attempt to do justice at the expense of her own client because of her misgivings about the junior partner’s destruction of relevant evidence). However, during the examination of her colleague, she does nothing in that immediate moment to alert the court that Michael has given false testimony about the existence of the unfavorable report that he destroyed. Oh, my, the ethical dilemmas pile up quickly in this film.

The senior partner at Maggie’s Big Law firm, Quinn (Donald Moffat), notes that he will attend the deposition of the plaintiff and expresses some concern about whether Maggie has the fortitude to “eliminate” him as an effective witness. At the deposition, Maggie confronts the plaintiff with a number of facts, including evidence that he was treated by a psychologist for “car phobia,” his history of past accidents and tickets for driving to slow, and photographs of the accident scene, all of which seemed perfectly appropriate and relevant to the line of questioning in a products liability lawsuit. However, Jed and his law partner, Nick Holbrook (Laurence Fishburne, back in the days when he was credited as Larry Fishburne), strenuously object to the line of questioning and prematurely terminate the deposition upon the presentation of the accident photographs. Maggie copes with the aftermath of this deposition by drinking alone at a bar and comparing herself to a contract killer. However, the types of questions being asked by Maggie seem like standard, almost boiler plate, queries for a plaintiff’s deposition (particularly a class rep), though they are treated as if they are affront to justice and human dignity.

The large corporate film depicted in the film is portrayed as completely and totally unethical. The aforementioned junior partner, Michael, advises the corporate client that a report that he has not read is acceptable. When this report ultimately comes to light during the litigation, he makes efforts to destroy or bury the report when he learns it is actually unfavorable. When Maggie objects to such misconduct, she takes it to the attention of the senior partner Quinn, who initially appears to understand her dilemma. Quinn suggests that the report be buried in the voluminous set of documents delivered to Jed in dozens and dozens of banker’s boxes. However, Quinn ultimately condones Michael’s purposeful error in misfiling the report amongst those documents to make it even more difficult to find than a needle in the haystack. Maggie later learns that the report was not produced at all – even in the voluminous document dump. At the end of the film, we learn she uses this information to advise her father of a particularly relevant witness who can confirm the existence of the report. However, her actions to correct the discovery abuse and unethical conduct of her fellow members of the firm is done on the sly and not with the advice and counsel of an outside lawyer, the state bar, or even the judge. In light of that, although Maggie was acting to correct misconduct, she may have done so in a fashion that subjected her to disciplinary review as well, although that is not explored in the film.

Some fun other notes: At the time of the release of this film in 1991, Mastrantonio was just about to appear in Robin Hood: Prince of Thieves, while Hackman was on the verge of appearing in that year’s Unforgiven (a role for which he would win the Oscar). As revealed in our interview with Cort, Shelby, and Ames, Julia Roberts was nearly cast as Maggie over Mastrantonio, which would have made for a very, very different film.

Thoughts on Practical Legal Education II

Recently, Patrick G. Lee of The Wall Street Journal remarked upon an increasing trend: law schools dedicating their curricular efforts to practical legal education. The tone of the article suggested that this was a new development and that law schools were now in the process of adapting their curriculum to add more practical components for the benefit of their graduates.  Lee writes:

Looking to attract employers’ attention, some law schools are throwing out decades of tradition by replacing textbook courses with classes that teach more practical skills.

“Law firms are saying, ‘You’re sending us people who are not in a position to do anything useful for clients.’ This is a first effort to try and fix that,” says Larry Kramer, the law dean at Stanford.

The moves come amid a prolonged downturn in the legal job market. Only about one-quarter of last year’s graduating law-school classes—down from 33% in 2009—snagged positions with big law firms, according to the National Association for Law Placement, an organization that collects employment data.

In past years, a law firm could bill clients for a new lawyer’s work, even if that time were spent getting the novice up to speed. During the recession, corporate clients started limiting the number of hours a firm could charge and made it a policy not to pay for first-year associates, explains Don Liu, general counsel for Xerox Corp.

However, as we have previously discussed on this site, this is a familiar issue and one which other institutions addressed long ago. Of course, under the traditional model, the burden of instilling legal skills now falls upon the licensing agencies – which sometimes require new graduates to complete practical CLEs before or shortly after being sworn in to the bar – or law firms themselves, which much dedicate their own resources to teach new associates the most basic legal practical skills. But why is this? Is there a reason not to require a law student to enroll in a course on discovery? Even if that student does not plan to litigate, isn’t a basic understanding of discovery – including the drafting of both discovery itself and discovery responses – appropriate? But it’s not just about discovery. Can it be that students are graduating from law school without an understanding of the practical mechanics of how to file a complaint at the courthouse, or use e-filing? What about trial advocacy, or even arbitration and mediation practice? Are these forlorn topics in today’s curriculum?

As we wrote last November:

[L]aw school administrators should consider more dramatic changes in the law school paradigm. The second and third years can be transformed into true opportunities to learn practical legal skills (as well as everyday ethical issues and the business of law). State bars should be confident that students graduating from accredited institutions have been properly trained both in the nature of substantive law and legal thinking but also practical skills that will be employed on a daily basis as lawyers. Last but not least, law students are consumers of legal education. If we expect them to spend three years of their lives and hundreds of thousands of dollars to enter our profession, there should be no gap to bridge upon graduation.

Another question: Why is it that a decision by law schools to engage in practical training is still news worthy? That simply shouldn’t be the case. In this day and age, when graduates are entering into an uncertain job market and arriving to the profession with significant and sometimes crippling debt, they should at least be equipped with practical legal skills. (Being able to cite the facts of a bunch of King’s Bench cases won’t pay the bills). This is not a difficult concept. Law schools require few courses during students’ second and third years; thus, it would be relatively easy to add required practical courses. While that may interfere with students’ pursuits of golf outings or interesting electives, practical legal training is something that law students need.

Third Circuit Upholds Application of “Negligence-Type Concepts” in Products Liability Cases

Earlier this month, on July 12, the Third Circuit upheld a jury’s verdict in favor of a manufacturer of bicycle helmets, and in doing so, affirmed the lower court’s application of a relatively new interpretation of product liability law.  Covell v. Bell Sports, Inc., No. 10–3860, —F.3d—, 2011 WL 2690396 (3d Cir. July 12,  2011). The case was filed by the parents of a 36-year-old schoolteacher who sustained serious brain injuries when he was hit by a car while bicycling to work in 2007.  The parents, in their capacity as guardians, filed suit against the manufacturer of their son’s helmet, alleging that it was defectively designed and lacked adequate warnings.  At trial, over the plaintiffs’ “strident objections,” the court permitted the helmet manufacturer to introduce expert testimony regarding the Consumer Product Safety Commission’s “Safety Standard for Bicycle Helmets.” In turn, the plaintiffs responded with their own expert regarding the CPSC safety standard.  Both experts testified at trial that the CPSC standard forms the “starting point” for any bicycle helmet design, and both agreed that the helmet at issue satisfied CPSC standards in all respects.  At the conclusion of trial, the court instructed the jury that in determining whether the helmet was defective, it could consider evidence of standards in the industry, including the CPSC standards.

The Third Circuit recognized the “core conflict” that exists within provisions of the “strict liability regime” of the Restatement (Second) of Torts: that courts are to ignore evidence that the seller “exercised all possible care in the preparation and sale of his product,” yet imposes liability only for products that are “unreasonably dangerous.”  It is, of course, often impossible for a jury to determine whether a product is “unreasonably dangerous” without referencing evidence that the seller did or did not exercise “care in the preparation” of its product. Ultimately, the court held that federal courts applying Pennsylvania law are to use the Restatement (Third) of Torts to guide both their decisions regarding the admittance of evidence and in their usage of jury instructions.  In this regard, it allows for a more negligence-friendly products liability regime than previously recognized in Pennsylvania, where juries may properly consider industry standards and government regulations.  This is certainly a defense-friendly analysis and decision.  Short of doing away with strict liability laws in their entirety, incorporating more negligence-type concepts into the analysis of manufacturer liability is a positive approach.

Emily Pincow of the Product Liability Monitor blog has additional thoughts on the case here.

Friday Links

We here at Abnormal Use have previously mentioned that She-Hulk, the Marvel Comics character, is a lawyer and litigator, and our friends at The Law & The Multiverse recently analyzed the issue of She-Hulk’s disbarment. With that prompting, we revisit the super heroine. Depicted above is the cover of She-Hulk #7, published not so long ago in 2006 and featuring She-Hulk sitting on a bench which happens to feature an advertisement for her alter ego Jennifer Walters’ personal injury practice. We wonder if it complies with the lawyer advertising rules of the Marvel Universe. (Interestingly, although the advertisement asks potential slip and fall Plaintiffs to call her for representation, there does not appear to be a phone number on the ad.).

Dave Lake of Seattle Weekly’s Reverb music blog offers a list of interest: “The 11 Most Notorious Rock & Roll Crimes.” Our question: Shouldn’t Bob Dylan’s latest string of live performances be included on any list of musical crimes? Or even his albums from the 1980s? Those things Mr. Lake does not address.

Well, it’s not a hot coffee lawsuit (and we bet you’re tired of hearing about those on this site!), but McDonald’s has now been sued in federal court in California over its advertising, which the Plaintiffs in that case contend is designed to “lure” children into the fast food company’s restaurants. How specifically, pray tell? The Happy Meal. That’s right. There is a class action lawsuit pending in federal court over Happy Meals. Wouldn’t it be fantastic if McDonald’s presented Grimace as its 30(b)(6) witness?  (More here from Reuters).

There’s a new blog dedicated to lawyers using iPads. It’s called IPAD4LAWYERS, and it’s run by Tom Mighell. We’ll have to add that to our list of daily legal technology reading which, of course, starts with the iPhone J.D. blog. (Hat tip: Cocky Law Blog).

Don’t forget: You can follow Abnormal Use on Twitter at @gwblawfirm. (In fact, check out our GWB 2.0 website for all of our social media endeavors as a blog and law firm.).

“Well, Whaddya Think? Is It Ours?”

Every area of law has its particular discovery challenges, including products liability.  Quiz: How many times have you been out at the scene of an inspection, face to face with a destroyed ________ (fill in blank here: vehicle, boat, grill, house, et cetera), and asked the question of your client/engineer, “Well, whaddya think?  Is it ours?”  The question gets even trickier with component manufacturers.  “Well, did we sell that one inch piece of ______ in the destroyed ______?”

What a maddening area of practice, where you can go for months defending a case (or, for that matter, suing a manufacturer) and not even be certain the correct parties were involved.  In fact, you might actually resolve a case or two without ever having a definitive answer to that question. Ah, the perils of products cases!

That brings us to the relatively recent case of Fisher v. APP Pharmaceuticals, LLC, No. 08–CV–11047, — F. Supp. 2d —, 2011 WL 812277 (S.D.N.Y. March 1, 2011).  The case centered around the use of the drug heparin by the plaintiff’s decedent following elective heart surgery.  The plaintiff alleged that, rather than preventing blood clots as the drug was designed, the heparin actually caused the decedent’s blood to clot, which resulted in the decedent’s death of a heart attack. The personal representative of the decedent’s estate sued Hospira and John Doe Corporations asserting theories of strict liability/failure to warn, design defect, negligence, breach of warranty, negligent misrepresentation, fraud, and wrongful death.  Through two amendments to the original complaint, Plaintiff added APP Pharmaceuticals and Baxter Healthcare Corporation as defendants.

Motion to Dismiss Based on Lack of Product/Manufacturer Identification

Both APP Pharmaceuticals and Baxter moved to dismiss.  APP argued that the complaint failed to sufficiently identify the manufacturer of the heparin (the classic “it wasn’t me” defense, challenging Plaintiff to prove identity).  Baxter asserted that the complaint did not allege that Baxter’s product injured the decedent.

The Court cited the applicable pleading standards as follows:

Federal Rule of Civil Procedure 8(a)(2) requires a claim for relief to contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” While the Rule 8(a)(2) pleading standard does not require “detailed factual allegations,” it does require more than “labels and conclusions” or a “formulaic recitation of the elements of a claim.” In a New York products liability action, a plaintiff must prove (1) that the defendant’s product had a defect that rendered it unreasonably dangerous at the time it left defendant’s control and (2) that the defective product supplied by the defendant caused plaintiff’s injury.
The Court then reviewed the substantive allegations of the complaint, which alleged that “Defendants,” defined as APP, Baxter, and Hospira, manufactured heparin, which was administered to the decedent and caused his injury.  Motion to dismiss denied.  Not that Plaintiff had actually, truly identified the proper manufacturer – the Court simply decided that Plaintiff’s exclamation “It was one of you, I know it!” was sufficient.  [We will refrain from expressing our opinions about this so-called standard.]
Time Barred Claims

Defendants also argued that several of the claims were time barred, based on the late addition of the Baxter and APP defendants.  Plaintiff argued, of course, that the claims related back to the original complaint.  We all remember the relation back rule:

Plaintiff argues that the [second amended complaint] relates back to the original Complaint because the John Doe Defendants named in the original Complaint served as place-holders for APP and Baxter under New York Civil Practice and Rule 203(f). Under New York law this argument is only successful if the original pleading gave notice to the newly added parties. N.Y.P.L.R. 1024 and 203(f). It is Plaintiff’s burden to establish that “(1) both claims [arise] out of the same conduct, transaction or occurrence, (2) the new defendant is united in interest with the original defendant, and (3) the new defendant knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against him or it as well.”
The Court held that the discovery rule did not apply in this case.  First, the decedent was told that he was suffering from heparin-induced blood clots before he died and, therefore, Plaintiff could not say that the cause of the injury remained unknown or undiscovered.  As the Court so aptly put it, “Plaintiff relies on the argument that the discovery rule should apply in cases where the plaintiff does not know who caused the injury versus what caused the injury.”  Well said.  Accordingly, several of the causes of action were dismissed as being time barred by the Court.
The discovery rule is so important to products cases, where it is common to be faced with a piece of machinery, or a house, or a car, that has been totally destroyed by the incident at issue in the case.  When that happens, the burden to determine the proper defendants that designed, manufactured, and sold the product is often no small task.   As illustrated by this case, pharmaceutical litigation can also become a maze of several manufacturers, brand and generic names, and company spin-offs.  And let’s not forget the inevitable successor liability problem. But that’s a tale for another day.

Abnormal Interviews: Ernest Svenson a/k/a Ernie the Attorney

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 and  His Ernie the Attorney site ( 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.

News from the Hot Coffee Front: McDonald’s Settles Canadian Lawsuit

In recent weeks, no beverage on earth has been more widely discussed, analyzed, and investigated than hot coffee.  Indeed, it has been the subject of a recent HBO documentary and a point of contention on the many legal blogs that elected to review the film.  Just as the the media frenzy had finally begun to subside, hot coffee litigation is once again back in the news. It never seems to end, does it?

The Toronto Sun recently reported that McDonald’s has settled a claim with a Quebec woman after hot coffee spilled onto her leg back in May.  Reportedly, the woman ordered several cups of coffee from a McDonald’s drive-through.  As the attendant handed her the beverages,  the cardboard carrying tray allegedly buckled, spilling three cups of coffee into her car and onto her person.  Following the spill, she was transported by ambulance to an area hospital for second-degree burns.  She demanded $12,313.24, and the fast food company’s insurer honored the request.

Let’s not get ahead of ourselves and claim this settlement is evidence that McDonald’s serves an unreasonably dangerous product.  There are clearly other factors at play here to explain McDonald’s willingness to expeditiously settle this woman’s claim.  First, there is no real dispute among credible sources that hot coffee can cause burns when spilled onto someone.  Second, after all of the recent bad press, McDonald’s may have an incentive to tidily dispose of such matters. Let’s remember: McDonald’s has taken its share of criticism for refusing to settle medical claims due to hot coffee burns.  Be it right or wrong, McDonald’s needs to temper the potential for any additional bad press.

Finally, this is not your typical Stella Liebeck-style hot coffee case.  The Quebec woman – the potential plaintiff – was not herself the spiller of the coffee.  Not only was the coffee reportedly spilled by a McDonald’s employee, but also, the spilling may have been the result of an apparently dysfunctional carrying tray.  Obviously, the facts are subject to discovery, and there may be a number of unknown factors, but at present, there is no evidence from the Toronto Sun article suggesting the woman played any role in the spill apart from being the victim.  Even if McDonald’s maintained the position, often asserted here at Abnormal Use, that coffee is a beverage meant to be served hot, it still must account for the possible negligence of its own  employee and the reportedly defective tray it chose to carry said beverage.

Nevertheless, this case may be exploited to advance the questionable proposition that hot coffee is, by its nature, unreasonably dangerous and defective.  Let us remember, however, that coffee is meant to be served hot and when it is spilled, it will burn.  That is simply the nature of the product.