Happy Easter!

Happy Easter from the Abnormal Use law blog and Gallivan, White, & Boyd, P.A.! We hope that you are your family have a wonderful and safe holiday. In honor of the occasion, above, you’ll find the cover of Yogi Bear’s Easter Parade #2, published way, way back in 1978. Note that Yogi apparently teams up with a host of famed characters, including Scooby Doo, Fred Flintstone, George Jetson, Top Cat and Quick Draw McDraw!

Friday Links

Above, you’ll find the cover of Captain America #611, published not so long ago in 2010. This issue features the first installment of the storyline “The Trial of Captain America,” which you may recall we previously mentioned here and here. Apparently, Captain America is taken into custody by the law enforcement authorities, but they fail to remove his mask. How do they log him into the system without removing his mask and determining his identity? How do they ascertain any prior offenses or warrants if they do not confirm his real name? Is it the respect and awe that the officers must hold for the fabled Captain American that prevents them from performing their routine? Isn’t there a safety concern in allowing a suspect to remain in a costume? Why do superheroes always receive special treatment from cops or prison wardens with respect to the retention of their costumes? We may never know.

Robert Kessler of The Atlantic Wire asks: “Why aren’t there cameras allowed at the Supreme Court again?

Buzzfeed, as you know, is always making lists. List after list and list. But here’s one we couldn’t resist sharing: “The 33 Most Beautiful Abandoned Places in The World.” There are some hauntingly beautiful – or beautifully haunting – photographs in that collection, so we encourage you to pause today from your quotidian toil and investigate.

This weekend, of course, is Easter. We here at Abnormal Use and Gallivan, White, & Boyd, P.A. wish you and your family a happy and safe Easter.

Don’t forget! You can follow Abnormal Use on Twitter here and on Facebook here! Drop us a line! You know you want to! Did you know, also, that you can follow our lawyers Gray Culbreath and Mills Gallivan on Twitter, as well? Since it’s #FollowFriday on Twitter, why not give them a follow today as we head into the weekend?

A Bizarre New Lawsuit Against McDonald’s

Someone needs to tell McDonald’s to take down the “Please think of some ridiculous reason to sue us” sign firmly planted on the grounds of its corporate headquarters. The fast food giant is back in the news after being sued by Chicago, Illinois woman, Anishi Spencer. According to a report from the Huffington Post, Spencer claims that in February 2012, her 2-year old and 3-year old sons discovered a used condom on the floor of the restaurant’s play area.  At some point thereafter, the 2-year old allegedly coughed up a piece of the condom, and both boys required medical attention.  The suit claims that McDonald’s failed to detect “deviant” activities on-site.  On behalf of herself and her two boys, Spencer seeks at least $50,000 in damages.

Call us crazy, but we would have thought Spencer herself would have had some duty to supervise her own old children.  Such duty should include stepping in to avoid condom interaction.  This situation suggests one of two possibilities, neither of which are good for Spencer:  1) either Spencer was supervising and failed to take any measures to prevent her child from encountering the condom, or 2) she was not supervising at all and should share the blame.  The only other explanation – the condom had nothing to do with McDonald’s at all.

Again, we have no way to verify Spencer’s claims or to attest to McDonald’s cleaning procedures.   That being said, this case is simply another example of the need to gather all the facts before the judgment.

Taking Issue With “Blame The Lawyers”

While killing time recently, I ran across this rant posted on the Opinion page of CNN.com, written by Dean Obeidallah, who is apparently “a political comedian,” and a former attorney, among other things.  Well, we don’t think he was trying to be funny in this column.

In fact, I take issue with his tone.

Obeidallah’s basic point is that—wait for it–America is too litigious.  Certainly not new material.  He uses a recently-filed lawsuit against the TV doctor personality “Dr. Oz” as the latest evidence for this theory.  Apparently, a diabetic man is suing Dr. Oz because the remedy Dr. Oz suggested caused the man to suffer burns on his feet.  Of course, as Obeidallah notes, the gentleman seems to have ignored some of the basic instructions for the remedy.  You can read more about the lawsuit here.  Obeidallah then continues his column by providing a list of other “ludicrous” lawsuits (although we noticed that he does not mention the infamous Stella Liebeck McDonald’s Hot Coffee case).

Obeidallah’s verdict on the reasons for our litigious society?  A perfunctory “Blame the lawyers” slogan, especially plaintiffs’ personal injury lawyers, who hope for a quick settlement “so that they can do as little work as possible before seeing their own payday,” and “taking a questionable case that will reap you some media coverage and money.”

Now, we here at Abnormal Use have worked with–and against–a number of hard-working, honorable plaintiffs’ personal injury lawyers who are not just good, but great, attorneys.  We’ve also worked with some who didn’t quite hit the mark.

But we’ve met and worked with just as many great and not-so-great lawyers on our own side of the bar.

Despite his anger, Obeidallah does make one point that we don’t see often in such analysis.  There are a “growing number of lawyers out there struggling to make ends meet,” he says.  He might be on to something.  According to a recent Wall Street Journal column, there are approximately 21,800 new legal jobs each year for the approximately 44,000 law school graduates.  Those numbers don’t crunch.  Hungry lawyers, Obeidallah suggests, might be more willing to take a questionable case simply to keep their practices afloat.

There is, of course, a larger conversation in the legal community these days—about the role of law schools, the quality of legal education, and the available jobs for graduates and seasoned lawyers alike.  We will continue to monitor these issues, comment upon them, and invite your input, as well.  We hope that the tone of these discussions remain civils, and don’t always have to be accompanied by column headings as abrasive as Obeidallah’s “Dr. Oz suit is another reason people hate lawyers.”

We think these heavy subjects deserve a more nuanced approach than that.

Breaking News: Sasquatch Spotted In Abnormal Use’s Backyard

We here at Abnormal Use are taking a break from our traditional witty commentary on product liability news to bring you this important announcement.


And, apparently, he has beautiful hair.

According to a report from Greensboro, North Carolina’s Fox 8, a Cleveland County man, Tim Peeler, came into contact with a 10 foot tall Bigfoot with “beautiful hair” while he was calling for coyotes on his property. Thankfully, Peeler was able to scare Sasquatch away by “rough talking” him. Peeler was able to provide authorities with a sketch of the creature (pictured in the linked video above), observing that Bigfoot has six fingers on each hand. Law enforcement has filed a suspicious person report. The creature remains at large. So, beware.

Peeler is not the first to encounter the creature. Tales of Sasquatch date back to the indigenous population of the Pacific Northwest. Nonetheless, this report has a more meaning to us as it is in our own backyard.

Indeed, we are concerned about the ramifications that a population of sasquatch creatures may have on the legal system of the Carolinas.

Many bigfoot encounters take place when the creature is caught stealing chickens from a chicken coop or messing with other small animals. Had this conduct been that of a coyote or other wild animal, the property owner may have no legal recourse. But, what if the tortfeasor is a large, hairy, bipedal humanoid? The creature may be too human-like to be considered an animal, but is it also too non-human to be subject to suit in a Carolina court? Questions like these must quickly be addressed by the North Carolina legislature.

Even if Sasquatch could be sued, he is likely uninsured and judgment proof. Nonetheless, assuming suit is inevitable, he will need legal counsel. We will look forward to that opportunity. After all, Sasquatch has to make for a great witness with that beautiful hair and all.

GWB’s Howard Boyd on March Madness

One of the great things about our firm is the flood of sports related emails which deluge our email inboxes on the eve of any big contest. This is a big part of our firm culture, in fact. March Madness is no exception.  Inevitably, Howard Boyd, senior name partner of the firm, shares his wisdom with the recipients of such emails. Today, we couldn’t resist sharing the email he sent at 8:41 PM this past Friday night:

Some of you are aware that Florida is playing a directional school tonight – Northwestern Louisiana State University in Natchitoches, Louisiana. I am confident I am probably the only one in the firm who has actually been to Natchitoches and watched the Purple Demons play. While stationed at Fort Polk in the Army in 1973, I went up there to watch Robert Parish, then a freshman at Centenary, play against NSU. He was as good as advertised, and he went on to a great college and pro career. I and a few hundred fans rattled around a high school like gym to watch that game that night. Glad to see the Demons in the Big Dance. They have come a long way. Not to be confused with the infamous USL (University of Southwestern Louisiana),  which was an outlaw program which received the death penalty after Dwight “Bo” Lamar led them to a near NCAA title before they were caught for 125 major recruiting violations in 1973. Centenary also got probation for recruiting Parrish – the nation’s best big guy who inexplicably signed with little Centenary.

Northwestern State ultimately fell to Florida.


Friday Links

Behold, the cover of Daredevil By Ed Brubaker & Michael Lark Ultimate Collection – Book 1, published not so long ago in the late 1990’s. As you can see, Daredevil finds himself in jail, although once again, for some reason, the prison warden has permitted a superhero to remain in costume while incarcerated.  Here’s how Amazon describes the narrative:

For the past few years, Matt Murdock’s life has been teetering on the edge of destruction. Now, pushed beyond the limit, Matt finds himself behind the eight ball with no clear way out, the people he calls friends slowly deserting him, and Hell’s Kitchen gradually slipping out of control. The question is, when his back is against the wall. just how far will Daredevil go to get back what is his? Plus: a special episode focusing on Daredevil’s best friend, Foggy Nelson. Spinning out of the stunning finale of Brian Michael Bendis and Alex Maleev’s ground-breaking run, Brubaker and Lark pick up the billy club and run as hard and as fast as they can to leave their own mark on one of comics’ most enduring legends.

Um, that doesn’t really tell us why he’s in jail.  Or what charges he faces. Maybe we’ll just go back and read our September 2011 interview with Daredevil writer Mark Waid.

Uh-oh.  Bob Dylan is touring again, and he’s playing right here in our backyard in Charlotte, North Carolina. What to do? For our previous thoughts on him, please see here, a brief reference  here, here, and here).

Have you ever thought to yourself, “Gee, I really dig Abnormal Use and would like to know more about its writers!”  If so, you’re in luck.  Today, we’d like to introduce you to Nick Farr, so please read his official attorney biography here.

In Our Daily Lives, We Cannot Escape Our Lawyer Brains

Many years ago, during my first quarter of law school in Waco, Texas, the legal writing professor warned the students that a legal education would forever transform the way we think.  We were, of course, skeptical.  But as the weeks and months passed, we realized that he was correct.  Previously innocuous advertising and billboards prompted warranty analysis.  Coupons and advertisements in the newspaper – yes, there were newspapers, then – became subject to contractual analysis.  Suddenly, our relationships with our landlords became much more formal, as we, the new law students, actually read the provisions of our leases and discussed them in detail with leasing office employees when problems arose. Armed with just a little knowledge, we were likely annoying.

As most of you lawyer readers know, this reshuffling of the mind continues throughout the rest of our lives.  Once one matriculates through law school, you view everything with lawyers’ eyes.

Recently, I was traveling western North Carolina, and I found myself at the registration desk of my hotel.  The attendant assigned me a room; it was room 403.  Lawyer that I am, I couldn’t help but conjure up the rules of evidence in my mind. Federal Rule of Evidence 403, of course, is the federal rule of evidence governing the admissibility of relevant, though unfairly prejudicial, evidence.  You’ll recall that one proper objection, when invoking Rule 403, is that any probative value of the proffered evidence is outweighed by the potential for unfair prejudice.

Now, as I recite that rule, I remember the refrain of my evidence professor, who noted that it was always “unfair” prejudice that the rule excludes because any evidence that one seeks to introduce against one’s opponent is always, by its very nature, prejudicial.  It’s only unfair prejudice that the rule is barred against.

And so, whereas a carefree non-lawyer might have simply trekked to his room and began to enjoy his day off, I immersed myself in the rules.

Oh, well.

WSJ Article Highlights Heavy Hitters In The Courtroom – And The Gym

As if being a Supreme Court Justice wasn’t reason enough, Justices Ginsburg and Kagan have just given us a new reason to admire them.  In a Wall Street Journal article published on March 19, 2013, these two judicial heavy-hitters show that they can bring it in the gym as well.

The article focuses primarily on personal trainer Bryant Johnson, who counts not only Justices Ginsburg and Kagan as clients, but U.S. District Judges Thomas F. Hogan, Ellen S. Huvelle, Emmet G. Sullivan and Gladys Kessler.  His is a great story of American entrepreneurship.  By day, Johnson is a records manager in federal court’s clerk’s office.  A veteran and fitness guru, he began training a friend from the clerk’s office and built his resume of VIPs from there.  In the evening, he drives over to SCOTUS and works out with some of the greatest legal minds of the day.

Justice Kagan boxes with Johnson for her workouts.  Justice Ginsburg likes to work on her pushups:

“When I started, I looked like a survivor of Auschwitz,” Ginsburg said in an interview. “Now I’m up to 20 push-ups.”

This is a fun article, and it makes an important point about judges being real people who, like us, get haircuts, go to the grocery store, and gain weight if they sit behind their desks too long with no exercise.  As they move through their own lives, they interact with “ordinary” people.  I have actually lived this story on a much smaller scale–during my first year in practice, I was introduced by a colleague to a state circuit judge as we sweated side-by-side on Stairmasters.  I knew who he was, of course, but he didn’t know me.  We decided not to shake hands that day.  I have also run into another judge in a local CVS, who gave me a wink after checking out my holey jeans and arms full of baby diapers and a pint of ice cream.

Even though these moments are awkward, they have the wonderful and important effect of bringing the Bar closer. They make my city and state an even better place to practice law.  These moments also illustrate to all that the judges are part of the community.  These are important messages in today’s society when our profession doesn’t always conujure up the Atticus Finch vision of lawyers.

The McDonald’s Hot Coffee Case: Distinguishing Between Facts and Theory

The late paleontologist Stepehen Jay Gould once said, “Facts do not ‘speak for themselves.’ They are read in the light of theory.” We here at Abnormal Use never really understood what Gould meant until we read this editorial by Daniel Leddy at silive.com. The piece, entitled, “Advance legal columnist: Look at all the facts behind outlandish jury awards,” suggests that there is normally a rational explanation found in either the law or the facts when a lawsuit produces a seemingly absurd result. While not all results are warranted, we agree that people should gather all the necessary facts before forming any opinions.That said , Leddy’s opinions on the legitimacy of jury verdicts is not what caught our eye. Rather, it is his one and only case sample – the famed Stella Liebeck McDonald’s Hot Coffee Case.

To demonstrate that not all jury awards are as bad as they seem, Leddy proposed to reveal the “actual facts” of the case. For the most part, the facts Leddy outlines are consistent with those found in our comprehensive FAQ file. While we have both attempted to provide an objective account of the infamous hot coffee case, we ultimately reach different conclusions about the case. So, how can this be?

Stephen Jay Gould was a wise man.

Facts are facts. But, their meaning is all in how you read (or present) them. For example, Leddy indicates that McDonalds served coffee at temperatures close to 190 degrees and that, according to the plaintiff’s expert, liquids at 180 degrees could inflict burns in just a few seconds. All true. However, he omits evidence that Liebeck would have suffered the same burns had the coffee been served at 130 degrees – well below the optimal temperature range (155-160) recommended by the plaintiff’s expert. More actual facts, but these paint a much different picture.

The difference is in theory and what one wants to prove. The facts can’t be changed. They are what they are. Nonetheless, both sides have a job to do. Whether it is the lawyers at trial or legal bloggers some 20 years later, the facts have to be presented in a manner that supports your theory.

Again, we agree with Leddy’s premise that people should learn the facts before forming any rash opinions. However, it is not always that easy. As is the situation with the Liebeck case, the notion that one is going to present you with the “actual facts” so that you can see the truth is misleading. More often than not, those facts are being filtered through a theory and may not be telling the complete story.

We don’t mean to discourage anyone from gathering information. Rather, our purpose is quite the opposite. Just pay attention to your source – whether it is Abnormal Use, Leddy, or anyone else – and form your own theory.

P.S. In light of this fact/theory distinction, we must continue to refer readers interested in the hot coffee case to our FAQ file. The FAQ is a comprehensive, source-based account of any and all information readily available to the public.