Friday Links

What a week. First, we lose David Bowie, and then, Alan Rickman. We here at Abnormal Use are fans of both of those talented artists, and we mourn their loss. A sad week for music and film.

The website Charlotte Beer turned five this week. We congratulate its author, Daniel Hartis, on this occasion. We’ve interviewed Daniel twice, once in 2013, and again in 2014.

No, we have not yet watched “Making A Murderer.”

Our favorite legal tweet of the week involves syrup. Make certain you spell it correctly.

DRI Product Liability Conference

As we do, we here at Abnormal Use will be attending the annual DRI Product Liability Conference. This year, it’s in at the Marriott in New Orleans from February 3 through 5. We expect that it will be a quite a program. We’ve not yet decided if we’ll be live tweeting the event, although you can certainly expect a few tweets and updates from our editor, Jim Dedman (who also serves as the chair of the DRI Product Liability Committee’s Newsletter section). If you’d like to join us at the conference, you can find the registration information here. We’ll be posting a bit more about the conference before we make the trek, so look out for future updates here in the coming weeks.

E-Filing Pilot Program to Expand to Sumter and Lee Counties on January 19, 2016

If you’ve been paying attention, South Carolina is experimenting with e-filing in state court. Pilot programs are appearing, and recently, the South Carolina Supreme Court expanded the e-filing pilot program to include Sumter and Lee Counties. In case you missed it, here’s the two paragraph order expanding the pilot program to include those two counties:

IT IS ORDERED that the Pilot Program for the Electronic Filing (E-Filing) of documents in the Court of Common Pleas, which was established in Clarendon County by Order dated December 1, 2015, is expanded to include Sumter County and Lee County, beginning January 19, 2016.  Beginning January 19, 2016, all filings in all common pleas cases commenced or pending in Sumter County and Lee County must be E-Filed if the party is represented by an attorney, unless the type of case or the type of filing is excluded from the Pilot Program.

Attorneys should refer to the South Carolina Electronic Filing Policies and Guidelines, which were adopted by the Supreme Court on October 28, 2015, and the training materials available at to determine whether any specific filings are exempted from the requirement that they be E-Filed.  Attorneys who have cases pending in Pilot Counties are strongly encouraged to review, and to instruct their staff to review, the training materials available on the E-Filing Portal.

You can read the full order here.

My Cousin Vinny CLE? Sign Us Up (If Only We Lived In Pennsylvania)!

As the calendar turns to a new year, it is time to check on the status of your continuing education credits. If you are a few hours short an just happen to practice in Pennsyvlania, we have found the perfect CLE opportunity for you. On January 21, 2016, the Pennsylvania Bar Institute is sponsoring a very intriguing CLE entitled,”A Morning With My Cousin Vinny:  Developing and Presenting Your Case.” According to the course website, the CLE will offer insights on numerous trial techniques, including cross-examination, expert witnesses, eyewitnesses, discovery, and opening statements, presumably with My Cousin Vinny as a backdrop.  The course offers three substantive CLE credits and well as one ethics credit.

As is the case with many lawyers, we here at Abnormal Use are quite fond of My Cousin Vinny. So much so that back in 2012, we honored the 20th anniversary of the film by dedicating a whole week of blog space to Vinny-related posts, including interviews with the writer, director, actors, and our own lessons learned from the film. It goes without saying that we were more than pleased to learn about the PBI’s Vinny initiative and wish all states would use the film as a teaching tool. For example, here are few of the Vinny lessons we previously reflected upon:

Lesson 1 – Pick Your Battles

Scene:  Vinny doesn’t ask any questions at the preliminary hearing.  His client, Stan, angrily asks, “Why didn’t you ask them any questions? Maybe if you’d put up some kind of a fight, you could have gotten the case thrown out!”  Vinny calmly responds, “Hey, Stan, you’re in Ala-f*&%in’-bama. You come from New York. You killed a good ol’ boy. There is no way this is not going to trial!”

Lesson:  Sometimes, as an attorney, you need to know when to pick your battles.  Of course, by this point in the movie, Vinny didn’t have all the great exculpatory evidence he acquired later.  However, Vinny is probably right that  there was no way the case would be resolved without a trial.  It may have been a smart move to play it close to the vest and not reveal too much of his trial strategy.

Lesson 2 – No Argument in the Opening Statement

Scene:  The prosecutor, Jim Trotter, delivers a textbook opening statement – a fine recitation of the prosecution’s version of the facts combined with a clever attempt to massage the  jury’s collective ego.  Then, Vinny stands and delivers his own rather brief opening statement:  “Uh . . . everything that guy just said is bullsh*t. Thank you.”

Lesson: You’ve been dying to deliver this same opening statement for years, haven’t you?  It’s punchy; it cuts right to the chase.  But alas, such a retort is an improper argument.  Perhaps Vinny should have saved that approach for his closing argument.

Lesson 3 – Match Your Negotiation Strategy to Your Opponent

Scene:  Vinny finds out his girlfriend got stiffed on a game of pool with some yokel.  He flies down to the pool hall to collect, and the yokel asks, “How ‘bout I just kick your ass?”  Vinny retorts, “Oh, a counter-offer. This is a tough decision here. Get my ass kicked or collect $200?  Well, here’s my counter-offer: What if I were just to kick the ever loving sh!t out of you? . . . If I was to kick the sh!t out of you, do I get the money?”

Lesson: So much for that “Getting to YES” model where everybody wins.  Vinny invokes the old school tradition in his negotiations. Sometimes, that works.  It’s all about knowing your opponent.  Some are unreasonable. There’s no getting to “yes” without cracking skulls and forcing them to into agreement.  Vinny’s method succeeded, and he eventually collected that $200.

Lesson 4 – Do Some Digging

Scene:  There’s a long montage where Vinny performs his own investigation into the case.  He has his girlfriend take some photographs along the way.  Vinny is clearly annoyed when she’s trying to show him the pictures in the middle of trial.  He starts ranting, “Where’d you shoot this, from up in a tree? What’s this over here? It’s dog sh!t… That’s great! Dog sh%t, what a clue! . . . I should’ve asked you along time ago for these pictures.”  But then he realizes there’s a picture of the tire tracks, which really is the case cracker.

Lesson:  Most of the time, the facts will make or break your case.  As an attorney, you can’t always wait for the facts and evidence to come to you.  Even when you think you’ve got everything you need, keep digging.  Get out there and visit the accident scene, personally inspect the physical evidence, and talk to everyone you think knows anything about the case.  You never know what you are going to find if you keep digging.  It sure paid off for Vinny in his trial, and some day, that same diligence may pay off for you in one of your cases.

Lesson 5 – Be Collegial with Fellow Attorneys

Scene:  At one point in the movie, Vinny and the prosecutor engage in friendly discussion about their entry into the legal profession.  Later in the film, the prosecutor takes Vinny on a hunting trip, lets him borrow his cabin, and even congratulates him after Vinny’s victory over him at trial.

Lesson:  It’s a given that you should be a zealous advocate for your client.  But that doesn’t mean you can’t be civil, or even friendly, with opposing counsel.  At the end of the day, you are both just doing your job.  As everyone knows, one’s profession is more enjoyable when you’re working with friendly and respectful people.  Two attorneys should be able to duke it out in the courtroom and then grab a drink together after the trial concludes.

Lesson 6 – Stay Calm

Scene: As Vinny’s defense of his clients begins to unravel, he asks himself, “How the f*&k did I get into this sh!t?”  Luckily, Vinny keeps it together and eventually earns his clients their freedom.

Lesson: For many attorneys, your first trial will feel just like this movie (although hopefully, it won’t be as bad in reality).  You’ll have things that will go way off course, and there will probably be a point where you feel like you’re in way over your head.  You may even start asking yourself “Am I cut out for this?” or “How did I get into this?”  Don’t despair. Stay calm and press on.  By your second or third trial, things will seem much better.

There is certainly much, much more that can be learned from the movie and we are sure our friends with the PBI will do an excellent job of bring it to the everyday practice of the CLE attendees. For those of you who don’t live in Pennsylvania and remain interested in seeing what the film says about expert testimony, eyewitness testimony, opening statements, and discovery, feel free to check out these interviews on those subjects (and more) with the Jonathan Lynn (director), Dale Launer (writer), Raynor Scheine (actor who plays an eyewitness), and James Rebhorn (actor who plays State’s expert witness).


David Bowie (1947 – 2016)


We here at Abnormal Use were saddened this morning to learn of the death of musician David Bowie. Just last week, in our Friday Links posts, we commented upon the release of his new album, Blackstar (which we spent most of the weekend listening to). That Friday, in fact, was Bowie’s birthday.

We encourage everyone to revisit Bowie’s discography this week. We’re going to blast “Heroes,” “Young Americans,” and “Something In The Air.”

Above, you’ll find the cover of Rock N’ Roll Comics #56, published back in the halcyon days of 1993.

Friday Links

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

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

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

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

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

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

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

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

You can find the full order here.

A Reminder: Depositions Should Start at 10:00 AM

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

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

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

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

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

New Year, New Apple Lawsuit

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

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

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

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

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

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

Apple releases new iPhone models every 6 months, making you feel that your barely used phone is outdated. Apple doesn’t need to tamper with your phone to get you to buy a new one. They already use enough trickery in the marketplace.

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

Happy Birthday To Us VI

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

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

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