Twelve Years Later: 9/11 and Lawyers

It’s the anniversary of that awful day, and as usual, it prompts some level of reflection. Twelve years later, I wonder what it must have been like for practicing lawyers on that day.  For example, a Westlaw search of state and federal cases for the term “September 11, 2001” produces more than 6,600 results, and of the first ten, several concern events unrelated to the terrorist attacks which just happened to occur that day. Surely, in these fifty states, there were trials, depositions, hearings, roster meetings, worker’s compensation proceedings, and the like, which were all initially scheduled for that day but ultimately cancelled or otherwise disrupted as a result of the news.  (I can’t even fathom what it must have been like for those practicing law in New York City or Washington, DC that terrible, terrible morning).  But for the lawyers in the rest of the country, are there transcripts of hearings where practitioners and jurists and deponents are discussing these events on the day that they happened?  How many records exist detailing proceedings that were abruptly cancelled or postponed as a result of the news, and what was said? How many depositions were noticed for that day, and how many of those actually took place? Did previously scheduled hearings for that day – which began well after the news – continue onward? Did courtrooms and courthouses attempt to persevere or allow themselves the day to monitor and attempt to process the day’s sad news? Or did security concerns prompt the cancellation of most public hearings? I’m sure each of our offices has evidence of such things, as most lawyers planned to go about that like any other before they heard the news. That day, I was not yet a lawyer. I was a 3L at Baylor Law School in Waco, Texas, and as I noted in a previous post, the building had no television that morning:

In the autumn of 2001, the new law center was immense, immaculate, and quite simply, amazing.  So new was the building, in fact, that there were no televisions in the public areas of the building on September 11, 2001.  Many students sat in the student lounge by the radio, of all things, listening to the news in the same way people must have on December 7, 1941.

In fact, we began class that morning without a meaningful understanding of what had just occurred. I can remember walking down the stairs from the second floor of the building to the student lounge when a friend rushed up to me and told me what had happened. Our classes were not officially canceled, but we spent most of that day in class discussing the frightening ramifications of what had just occurred that day. During a break, I can recall finding my way into the law review office and attempting to access some news website – any news website – to learn more about the attacks.  However, the Internet was so slow that day – brought to a halt by all the other users doing the same thing – that I could find little of value.

Thinking back to that day, I wrote to my old friend and classmate Eric Nordstrom, who was with me in class on 9/11. Nordstrom serves as Baylor Law’s unofficial historian, and he now practices in Houston. In a recent email to me, he shared his own memories of that day:

We started Practice Court at 8:00 a.m. AA Flight 11 had hit the North Tower minutes before that. I remember the murmurs before class started that a small plane had hit the World Trade Center, but none of us had any idea of the magnitude of the events unfolding in New York, DC, and Pennsylvania that morning. I don’t believe [Practice Court professor William] Underwood even addressed it . . . .

As we’d soon learn, UA 175 subsequently hit the South Tower, which fell before class was over.

When we broke from Practice Court, everyone went to the lounge. The law school had just opened its new facility, and it hadn’t yet installed televisions. There was an old-school TV on a media cart someone had wheeled in. I recall antenna wire taped to the windows for reception. No wifi, no Internet, and no smartphones. We had a few moments to try and digest the news through the grainy local Waco TV broadcast. I ducked outside and called my father’s secretary to make sure he was on the ground. Thankfully, he was.

We started Evidence at 10:30 central time. Professor Gerald Reading Powell, resplendent in his customary three-piece suit and pocket watch, had the heavy burden of addressing the class. He began by stating that some people were asking him if he intended to cancel class. I’ll always regret not transcribing his response. The gist of it was something along the lines of “if I do that, then whatever these people hoped to accomplish has worked,” but it was delivered much more powerfully than I could ever hope to muster under such circumstances, even now. I remember not so much the words, as a palpable sense of patriotism that permeated his remarks. I like to think we all felt the same feeling that morning, and were all moved to similar degrees by Powell’s words which, given the limited time, must have been delivered extemporaneously. It was a tremendous speech, by the end of which most of us would have moved heaven and earth, much less sit through an evidence class, so that we might do whatever small part we could to stand against those who would sow such destruction.

Then, after Powell had sufficiently kindled our patriotic fervor, and we set about the day’s instruction — he called on me.

Memory is a funny thing. I don’t remember there being a television in the lounge at all, but Nordstrom recalls “an old-school TV on a media cart someone had wheeled in.” Perhaps it arrived later in the day.

On February 9, 2002, at a Baylor Law graduation ceremony, Professor Powell gave a notable speech on the post 9/11 world, which we previously referenced here on this site.  A representative excerpt:

You can no longer focus on just yourself, on your career, or even on just your own family.  More will be asked of you.  As Americans, and especially as lawyers, you will carry with you great responsibilities.  After September 11, each of you must be willing to stand guard over our liberty, to serve your country selflessly, and, if the need arises, be a hero.

Each of us must take our turn as sentinels.  And as lawyers we have our own post to man.  Our watch is over the Constitution.  Our perimeter is the outposts of liberty.  Our weapon is the law.  Our mission is to see that justice is done.

[W]e also hope that each of you will have inside of you that seed of heroism perhaps dormant until a moment of truth, when it will spring forth in the energizing light of adversity to give us the hero we need.  And until that time comes, or whether it ever comes, we hope and pray that you will act heroically in the conduct of your everyday lives, professional, public and personal.

It’s difficult to believe it has been twelve years.

To read our post on the tenth anniversary of September 11, please see here.

Abnormal Interviews: Law Professor Jill Wieber Lens of Baylor Law School

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 once again to torts professor Jill Wieber Lens of the Baylor Law School in Waco, Texas. This is the second time we’ve interviewed Professor Lens, the first occasion being way, way back in December of 2010. You can read that interview here.

1. What do you think is the most significant new development in torts or products liability of the last year?

One significant new development in products liability in the last year has to be the Supreme Court’s decision Mutual Pharmaceutical Co. v. Bartlett, in which the Court found that design defect claims based on generic drugs are preempted.  The result was not surprising based on the Court’s prior finding in Pliva, Inc. v. Mensing that failure to warn claims based on generic drug manufacturers were preempted.  Both of the results are based on FDA regulations that require generic drugs to mirror the prior FDA-approved name brand version; thus, generic drug manufacturers lack any ability to alter the design of the drug or the warning.  Because of the practical inability to both comply with FDA regulations and to use a design/warning that would comply with tort law obligations, the Supreme Court has found that defective design and warning claims against generic drug manufacturers are preempted. The Bartlett and Mensing decisions have huge consequences.  After these cases, people injured by design or warning defects in generic drugs have no legal redress against the drug manufacturers.  Ironically, had those injured people taken the name brand version, their claims against the name brand manufacturer are not preempted.  But if the injured people take the generic version — which most people do because it is cheaper and state law allows pharmacists to automatically fill the prescription with a generic version — they have no legal redress against the generic drug manufacturer.  This is something to be concerned about when considering President Obama’s health care law.  Health insurance companies are likely to push generic drugs even more to further lower costs.  But patients injured by design or warning defects in the generic drugs will be unable to pursue relief against the drug manufacturer. Admittedly, this issue becomes moot if the FDA alters its rules regarding a generic drug manufacturer’s ability to change the design of the drug and the warning. That, however, would also likely increase generic drug manufacturers’ costs—and the prices of generic drugs.

2. If you could change one component of federal punitive damages jurisprudence, what would it be, and why?

I wish I could eliminate the idea of a reasonable ratio between the amounts of punitive and compensatory damages.  The Supreme Court first introduced its guideposts for evaluating the constitutionality of a punitive damage award in BMW v. Gore in 1996.  One of those guideposts is whether there was a reasonable relationship between the amounts of the damages.  The Court has never defined that reasonable relationship, but did once mention that a single-digit ratio is most likely to be constitutional.  The Court also has never applied the reasonable relationship ratio in a case involving physical injury, leaving courts to wonder if that single-digit ratio still applies in those cases. Regardless, I understand the attractiveness of a ratio — it’s easy to understand and to apply.  It’s also what many state legislatures use to cap punitive damages.  But a ratio makes little sense if you look at the punishment and deterrence purposes of punitive damages.  Punitive damages should be based on the defendant’s conduct regardless of whether the plaintiff suffered minimal or exorbitant compensatory damages.  The defendant’s same malicious conduct battering two plaintiffs could leave one plaintiff with $500 in compensatory damages and the other with $5 million based on the plaintiffs’ different ages, medical conditions, jobs, etc.  If the tortious conduct is the same, there should be no reason to lower the first plaintiff’s punitive damages simply because he had only $500 in compensatory damages.

3.  Do you similarly see any problems with state regulation of punitive damages?

Generally, I wish legislatures and courts could coordinate better.   As an example, Georgia has a provision allowing only one punitive damage award for products liability claims.  That award is supposed to punish the defendant for selling the defective product to all consumers and a portion of it is paid to the State.  The provision is problematic after the Supreme Court’s opinion in Philip Morris USA, Inc. v. Williams, which constitutionally limits a punitive damage award to punishing the defendant for what it did to the specific plaintiff.  Now, put these together.  After Philip Morris, to comply with the Fourteenth Amendment, a punitive damage award in a products liability claim in Georgia can punish the defendant only for injuring the specific plaintiff.  But the separate Georgia one-award provision mandates that the one punitive damage award is the only one that can be imposed.  The two laws cannot produce a rational punitive damage award, but the Georgia provision is still the law.

4. You’ve now been a law professor for three years. What has been the biggest surprise of academia?

The students’ curiosity.  I love to see their enthusiasm to learn—they really do want to understand the material.  I also love to hear their questions.  I often hear far-fetched hypotheticals in Torts especially, but the students ask because they are curious and desire to learn.  It’s refreshing.

5. Unlike many law professors, you practiced for several years before joining the faculty. How do you believe your career in private practice has helped you as a professor?

I’m able to bring practical knowledge to class.  For instance, I am familiar with the difficulty of explaining things to clients.  And I’m able to explain that in class—you may understand that only final judgments can be appealed, but understand that you will also have to explain the final judgment rule to your client and your client likely won’t be happy about it.  As another example, I understand the importance of liability insurance in torts.  I spend time in class to make sure my students understand that even though analyzing the legal elements is not the only analysis—you may also want to find out whether the person your client wants to sue has insurance and whether that insurance covers the tort.  Otherwise, it may not be worth it either for you or your client.

6. As a law professor, how do you use the Internet to communicate with students and the general public?

I’m always trying to think of ways to use the Internet more.  I tend to be more traditional in my classes for entering students.  I also don’t allow them to use laptops because I find that they type everything down and neglect to actually listen to me. Baylor has a great Blackboard Internet system for class use.  It provides many mechanisms to increase feedback to students, which students appreciate.  One thing I would like to try at some point is to post quizzes that students can take in their free time to see if they are appreciating the material.

BONUS QUESTION: Who is your favorite television lawyer?

My answer is predetermined by my favorite shows.  I really enjoyed Oliver Babish on “The West Wing” and Baltimore’s finest representation for drug dealers, Maurice Levy, on “The Wire.”  I’m sure if there was an attorney on “Game of Thrones,” he/she also would be one of my favorites.

BIOGRAPHY: Jill Wieber Lens joined the Baylor University School of Law faculty in 2010 as Assistant Professor. In 2009, Professor Lens was a Visiting Assistant Professor at the University of Louisville School of Law. Before entering academia, Professor Lens practiced commercial and appellate litigation in St. Louis, Missouri. She teaches Torts, Products Liability, and Appellate Procedure. Her current research interests include tort reform generally and punitive damages.

New South Carolina Court of Appeals Opinion on Sophisticated User Doctrine

Not too long ago, on August 21, 2013, the South Carolina Court of Appeals released its opinion in Lawing v. Trinity Manufacturing, Inc., No. 5166 (S.C. Ct. App. Aug. 21, 2013).  Implicating the “sophisticated user” doctrine, it is a products case with which any products liability lawyer should be familiar. However, because our firm was involved in the litigation of that matter, we will simply direct your attention to the opinion and leave the commentary to other bloggers.

Friday Links

“Beware of the creatures of the night – They have lawyers!” Above you’ll find the cover of Supernatural Law #45, published just this year. In that issue, The Toxic Avenger somehow finds himself as a defendant. Here’s a description of the issue straight from the publisher’s website:

Wolff and Byrd have a change of venue when they travel to Tromaville to defend none other than the Toxic Avenger! But can they prevail in a courtroom presided over by Judge Lloyd Kaufman?

You might remember way back in July of 2011 when we first referenced the Supernatural Law comic book series.  If not, please revisit this prior edition of Friday Links.

Well, federal courts are still commenting upon – and defining! – MySpace.  According to a brand new Ninth Circuit opinion, “MySpace is a social networking website that allows its members to set up online ‘profiles’ and communicate via email, instant messages, and blogs.” See Wynar v. Douglas County School Dist., — F.3d —-, No. 11–17127 (9th Cir. Aug. 29, 2013) (citing Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 208 & n.2 (3d Cir. 2011) (en banc)).  Our favorite part is that the court saw fit to provide a citation to a Third Circuit en banc case, which itself was citing a 2007 Western District of Texas case in its explanation of MySpace, which by now, really, is or was prevalent enough to no longer need citational support.

By the way, if you can believe it, this is our 991st post here at Abnormal Use.

Stephanie Kimbro of the North Carolina Law Blog (as well as the Virtual Law Practice blog) offers her thoughts on the issues of the duration of law school and practical training.  This is an issue we’ve written about before here, here, and here.  With the president himself weighing in on these issues of late, we feel we must stray into this debate once again.  Not today, mind you, but soon. Soon indeed.

FYI: The U.S. District Court for the District of South Carolina is inviting public comment on its proposed new and revised local rules. For more information, see here. The deadline for submitting comments is September 30.

Federal Court Denies State’s Motion To Seal Following Habeas Counsel’s “Ill-Advised” Facebook Post Citing Kris Kristofferson

Well, once again, we advise our lawyers friends to be careful what they post on Facebook. A new federal court case presents both social media and Blue Book citation issues.

On that note, we must direct your attention to Havard v. Epps, No. 5:08CV275KS (S.D. Miss. Aug. 30, 2013).  It’s a habeas corpus proceeding, not something we write about often here at Abnormal Use.  But because of its connection to social media, we feel compelled to offer an observation or two on this very new – and very brief – district court opinion. The Respondents in that case – various governmental officials including the  Mississippi Department of Corrections – filed a motion for clarification and motion to seal. Just so we can put it in proper context, here’s how the court described the procedural issue at hand:

This matter came before the Court on Respondents’ Motion for Clarification and their Motion to Seal. The Court earlier allowed Petitioner to amend his Petition for Writ of Habeas Corpus to reflect state court proceedings that have occurred since the original Petition was filed. The basis for Respondents’ Motion for Clarification is their contention that the Memorandum that Petitioner submitted in support of his Amended Petition may contain new claims that may go outside the scope of the amendment allowed by the Court. According to Respondents, “the State cannot determine whether (and where) Petitioner made substantive changes to arguments which Petitioner did not move to amend. Therefore, the State cannot identify which issues need responsive pleadings.” Respondents did file an Answer to the Amended Petition without objection; it appears that the issue lies with the Memorandum.

(Docket entry citations omitted).

The court denied the motion for clarification, but it is the motion to seal which interests us.  Apparently, the Respondents sought to ” prohibit any non-party from accessing documents filed in this case.”  That does not sound unusual, right? That, after all, is the purpose of a motion to seal.  Well, here’s the social media money paragraph:

Here, Respondents’ concern was apparently triggered by a Facebook post of one of Petitioner’s counsel about the Motion for Clarification discussed above. In particular, counsel wrote, “After responding to an asinine motion filed by the State, which not only wants to kill my client but doesn’t want to be bothered by actually responding to his claims of innocence, I am heartened by the following words penned by Kris Kristofferson.” However ill-advised this post may have been, in terms of the standards of professionalism by which lawyers are encouraged to govern themselves, this statement does not give rise, in the Court’s opinion, to a need to seal this record, for three reasons. First, there is no indication that the record of these proceedings in state court is unavailable to the public; second, the state court record was conventionally filed in this Court and is not available for electronic access; and, finally, information about this case is so widely available through Internet sources that closure of this record will not prevent dissemination of the details of the charges or the identification of the infant victim in this case. For these reasons, the Motion to Seal will also be denied.

(Emphasis added).

The State attached a grainy, black and white copy of the Facebook profile and wall of the attorney who made the post as an exhibit to the motion.  That attorney, in conjunction with the post, also embedded this YouTube post featuring the song. The motion to seal does not recite how the attorneys for The State came across the Facebook post in question, nor does it disclose the user who logged in to Facebook to print the profile.

Posting about one’s cases on Facebook is always a perilous enterprise, even if one’s Facebook profile is set to private, as any friend (or sometimes, friend of a friend) can access and capture the photograph.  Having one’s Facebook profile attached to a federal motion is not something one would expect, but as can be seen, it is a now possible consequence. Be careful out there, folks.

Our biggest disappointment, of course, is that the federal court did not see fit to quote – or cite to – the Kris Kristofferson.  If we were forced to guess, we would have assumed that the lawyer was quoting “Me and Bobby McGee,” written by Kristofferson (and Fred Foster) and made famous by Janis Joplin. “Freedom is just another word for nothing left to lose,” right?

But we would have guessed wrong.  We located the motion to seal in question, which was filed on August 26, 2013 (just four days before the order), and here is the Facebook post in full:

After responding to an asinine motion filed by the State, which not only wants to  kill my client but doesn’t want to be bothered by actually responding to his claims of innocence, I am heartened by the following words penned by Kris  Kristofferson. There are some similarities between prophetic songwriters and lawyers:

And you still can hear me singin’ to the people who don’t listen, To the things that I am sayin’, prayin’ someone’s gonna hear. And I guess I’ll die explaining how the things that they complain about, Are things they could be changin’, hopin’ someone’s gonna care. I was born a lonely singer, and I’m bound to die the same, But I’ve got to feed the hunger in my soul. And if I never have a nickle [sic] I won’t ever die ashamed. ‘Cause I don’t believe that no one wants to know.

How about that? That, by the way, is from Kristofferson’s “To Beat The Devil,” from his debut album Kristofferson, released way, way back in 1970.

On a final note, we do think the federal court in question missed an opportunity to cite to Kristofferson’s album using proper Blue Book formatting.  According to Blue Book Rule 18.6.1, “[i]f a particular song or musical work is referred to, cite it by analogy to shorter works in a collection according to rule 15.5.1”  That would be as follows: Kris Kristoferrson, To Beat The Devil, on KRISTOFFERSON (Monument Records 1970).

Happy Labor Day!

Happy Labor Day! Above, you’ll find the cover of Legionnaires #21, published not so long ago in the halcyon days of 1995.  Here’s the summary of the issue from Comicvine:

Live Wire joins the Workforce, a team created by Leland McCauley to compete with R.J. Brande’s Legion of Super-Heroes, after he quits due to legality issues. Meanwhile, the Legionnaires answer a plea for help from a prison located in a sun. Things seem to be going well until they are attacked by a spacecraft, causing the power to die in the prison eventually, letting loose all the criminals.

The Legionnaires – also known as The Legion of Superheroes – is a team of super powered heroes operating in the far, far future in the DC Comics Universe.  The Workforce is a rival team of The Legion, and with a name like that, how could we not spotlight them on Labor Day itself? Here’s what Wikipedia has to say about this “semi-heroic” team from the future:

The Workforce was founded by the corrupt industrialist Leland McCauley as a response to the Legion of Super-Heroes, founded by his rival R.J. Brande. When Live Wire was replaced in the Legion by his sister Spark, he joined the Workforce with the belief that McCauley could help him find his brother Mekt. While the team often appeared to be performing heroic deeds, everything they did was designed for McCauley’s profit. Karate Kid commented that the only reasons for being in the Workforce were selfish ones.

That is troubling indeed. Whatever the case, we hope that you had an eventful and safe Labor Day weekend.  Now, of course, it is Monday, the last day of the three day weekend, and the inevitable dread of the coming working week will soon arrive. What to do? You can check out our past Labor Posts (which also feature some labor themed comic book covers): here, here, and here.

Friday Links

In honor of Labor Day, above, we showcase the cover of JLA: Welcome To The Working Week #1.  (JLA, of course, stands for the Justice League of America, whose members include Batman, Superman, and the rest.). Here’s how Comicvine describes the plot:

How does the JLA act behind closed doors? You’re about to find out! When Marlus Randone stows away on the JLA Watchtower, he relies on his notebook and disposable camera to document the petty squabbles and inside decisions made by the members of the JLA.

Now, we expect that a day at the office of the JLA Watchtower – which Wikipedia tells us is either “a building on Earth’s moon [or] a space-station in orbit in the Justice League Unlimited cartoon – is no typical day at the office.  Whatever the case, we suspect that JLA was forced to remove its daily operations to the moon or to outer space because their unique issues simply aren’t contemplated by modern employment law. Perhaps this issue would shed some light on that predicament.

If you’re into writing tips, here are “Elmore Leonard’s 10 Simple Rules For Writing.”

“Protect Our Super-Rights!” A few years back, we shared some labor themed comic book covers.  Do you remember? If not, you can revisit those here.

Okay, you’ve had a long week. So have we.  But as you prepare for this holiday weekend, there is something in your future that will bring you much joy.  Yes, that’s right, all five monster cereals are returning! Even Fruit Brute and Yummy Mummy!

Speaking of odd food products, are you ready for Pepsi-flavored Cheetos?  PepsiCo doesn’t think so, according to this article.

The Return of College Football

Well, the wait is over. As of today, college football has returned. We here at Abnormal Use couldn’t be more excited. So, to prepare for this momentous occasion, we have prepared a list of links to our prior football related posts.  Mind you, some of these posts concern professional football (which seems to result in more litigation). However, we won’t let that get in the way of assembling the list below, which includes posts from each year our little blog has been in existence.  So, we hope you enjoy revisiting our past. Oh, and let us know which Carolina you’ll be rooting for tonight in the big game! (Since we have offices in both North and South Carolina and lawyers with alma maters in both states, it may be a tense day.).

NFL Litigation May Forever Change Football” (August 19, 2013).

PA vs. NCAA: Does the Commonwealth Have Standing?” (January 16, 2013).

NFL Punter Claims Turf Unreasonably Dangerous” (November 29, 2012).

Former NFL Players Allege NFL Concealed Risks of Injury” (September 14, 2011).

The Return of College Football (And Some Law Stuff)” (September 1, 2011).

South Carolina’s College Football Stadium Parking Jurisprudence” (July 12, 2011).

Oh, and here’s one that sounds like it’s about college football, but it’s really not:

Georgia vs. Texas” (March 25, 2010).

Friday Links

Above, you’ll find the cover of Daredevil: The Movie #1, a comic book film adaptation published a decade ago in 2003. Ben Affleck, as you may recall, portrayed Daredevil. Yesterday, we learned that Mr. Affleck will play Batman in the upcoming sequel to the Superman movie Man of Steel. Twitter fell over itself responding to the news. We here at Abnormal Use are not certain how to react.  On the one hand, Affleck played George Reeves, the actor who played Superman on television in days of yore, in the 2006 film, Hollywoodland.  He wasn’t too bad in that.  But on the other hand – it is Ben Affleck! Gigli! Jersey Girl! How can this be? We are crestfallen. (Note to our readers: Technically, this is a legal themed comic book post because, after all, Daredevil’s alter ego was attorney Matt Murdock. So there.).

Okay, so imagine that you had to open a new matter and run a conflicts check on this dispute.

We think we remember these Empire Strikes Back trading cards. Those were the days, no?

In huge legal name change news, there’s this.

Friend of the blog Neil Burger of the Carrington Coleman firm has unveiled a new blog: Sua SponteThe Dallas Appellate Blog. Check it out.

Eric Goldman asks: “Are the Days of Independent Legal Blogging Over?” We think not.

Our friends over at the North Carolina Law Blog reran our post “There Is Now Federal ‘Selfie’ Authority.”  Check out that post at their site, or here, as well as their archives of other news.

There Is Now Federal “Selfie” Authority

Who says the federal courts lag behind technical advances?

Well, thanks to last week’s United States v. Doe, No. 1:12–cr–00128–MR–DLH (W.D. N.C. Aug. 14 2013), we now have a federal definition of “selfie.” Well, kind of.

The opinion arises from a motion to suppress, and since we don’t opine on criminal law, we won’t recite the facts and specific issues.  But check out this footnote:

The term “selfie” is the name given to a self-portrait photograph, “often snapped at odd angles with smartphones[,]” and “typically made to post on a social networking website (or sen[t] in a text message)[.]”

See id. at *8 n.6 (citing Katy Steinmetz, “The Top 10 Buzzwords of 2012,” Time, Dec. 4, 2012, http://newsfeed.time.com/2012/12/04/top–10–news–lists/slide/selfie).

According to our very, very brief Westlaw search, this is the only state or federal court to use the word “selfie.”

Curiously, the link cited in the footnote is no longer active; the correct portion of the cited article can be found here.

The court also noted:

With the popularity of social media sites like Twitter, Facebook, and Instagram, together with cell phones’ capability to send text messages and pictures, common sense would lead a practical person to conclude that human behavior includes the making of flattering or unflattering “selfies.” That the Defendant’s phone probably would contain evidence of the three crimes listed in the warrant application was within the issuing magistrate’s realm of lawful consideration. The issuing magistrate, therefore, had a substantial basis for concluding that probable cause existed.

Id. at *8.

It’s good to see courts catching up to the technological trends, and we hope any selfie-related litigation cites to this opinion.