Above, you’ll find the cover of Saved By The Bell #2, published way, way back in the wonderful days of 1992. Can you believe that was 21 years ago? Why are we showing this comic book cover to you today, when we typically only depict legally themed comic book covers? Well, two years ago today, we published our interview with Mark-Paul Gosselaar and Breckin Meyer, the stars of “Franklin and Bash,” a silly lawyer show on the TNT network.  Gosselaar, of course, played Zach Morris on “Saved by the Bell.”  Apparently, “Franklin and Bash” is still airing, and its third season premieres in several weeks.  We will not be doing another interview with them, though. Alas.

Over at Law360.com, there’s an article entitled “5 Ways Law Firms Screw Up Their Blogs,” in which we are mentioned (as an example of how NOT to screw up a legal blog):

“If a blog is well-written and sufficiently targeted, it can create the perception of market leadership quickly,” said Ross Fishman, CEO of Fishman Marketing. “It can help put you on the automatic short list for certain types of legal work or industry practices.”

…

Fishman pointed to Abnormal Use, a product liability blog written by lawyers at Gallivan White & Boyd PA, as an example of a blog with strong writers who convey substantial information with a sarcastic sense of humor. Blog posts have discussed a suit stemming from an explosion at a manufacturing facility, known as “the flaming rat case,” and ruminated over the perils of dropping pop culture references at depositions.

“They don’t take themselves too seriously,” Fishman said. “They are willing to show their personality, and that’s attractive.”

If you’re feeling nostalgic, here is the “flaming rat case” post mentioned in the article, and our old post “The Perils of Making Pop Culture References at Depositions” chronicled a failed attempt to invoke Bryan Adams on the record.

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Well, we’re not turning into Buzzfeed or anything, but we did think we would take advantage of this short week and do a bit of pop culture court blogging.  Like some of you, we saw the new cinematic adaptation of F. Scott Fitzgerald’s The Great Gatsby (about which we decline further comment).  It got us thinking: How many courts have referenced the novel?

So, here are seven courts which refer to the novel by name, some in much more detail than you would suspect.

1. Legacy Healthcare Servs., Inc. v. Provident Foundation, Inc., No. 1:03CV00515., 2007 WL 275974, at *3 (N.D. Ohio Jan. 26 2007).

“While the billing documentation procedures will not likely read as clearly or fluidly as The Great Gatsby, the Medicare rules and regulations are not beyond the ken of the average layman.”

2. New York State Trawlers Ass’n v. Jorling, 16 F.3d 1303, 1312 (2d 1994).

“In closing, we are reminded of the words of F. Scott Fitzgerald. In the final passages of The Great Gatsby, Nick sits on the beach looking out over the Long Island Sound. While contemplating the Sound, Nick reflects upon the ‘fresh, green breast of the new world’ as it must have appeared to its first explorers. Not long ago, it would indeed have seemed that the Sound ‘year by year recedes before us.’ Increasingly, however, New York is recognizing its interest in protecting the rich natural resources of the Sound. The Amendments to N.Y.Envtl.Conserv.Law § 13-0329 are rationally related to that interest. Perhaps, ‘one fine morning-‘.”

3. In re Compton, 97 B.R. 970, 980 (Bkrtcy. N.D. Ind. 1989).

“It strains the court’s credulity to believe the Defendant’s love-starved and tearful explanation for her conduct. The old adage that ‘the third time is a charm’ is not applicable on these facts. As they say in baseball, three strikes and you’re out. The court is not swayed by the Defendant’s tearful exhortations. The Defendant’s conduct bears a harsh resemblance to that of F. Scott Fitzgerald’s character Daisy in The Great Gatsby. The difference however, is that Daisy’s seemingly endless wealth could support her financial follies with the men and opportunities in her life. The Defendant did not have the same riches and affluence at her disposal.”

4. Stainton v. Tarantino,  637 F.Supp. 1051, 1082-83 (E.D. Pa. 1986).

“Plaintiffs’ theory of the case was that plaintiffs were a naive shop teacher and his wife who were hoodwinked by two unscrupulous lawyers. Tarantino’s theory of the case was that two educated, sophisticated people, with great wealth, set out to destroy him because Mrs. Stainton considered him a social climber. The closing argument of defense counsel presented Tarantino’s theory of the case. The references to the wealth of the plaintiffs, including the quotation from F. Scott Fitzgerald’s Great Gatsby, were relevant to the financial sophistication of the plaintiffs and the motivation for bringing the lawsuit.”

5. Summum v. Pleasant Grove City, 499 F.3d 1170, 1179 (10th Cir. 2007)

“No one thinks The Great Gatsby is government speech just because a public school provides its students with the text. This is because the speech conveyed by the physical text remains private speech regardless of government ownership.”

6. CA, Inc. v. Simple.com, Inc., 780 F.Supp.2d 196, 250 (E.D.N.Y. 2009) (citations omitted).

“According to Simple, finding that the JavaScript Bible is enabling ‘is no different than saying that a dictionary would enable an author of ordinary skill to write a novel like The Great Gatsby, because it discloses all of the words used by F. Scott Fitzgerald.’ In other words, Simple asserts that CA has not met its burden of clearly and convincingly showing that the JavaScript Bible offers sufficient guidance to enable one skilled in the art to practice the subject matter claimed in the patents in suit.”

7.  In re Veal, 450 B.R. 897, 912 n.25 (9th Cir. 2011)

“The converse is also true: one can be a ‘person entitled to enforce’ without having any ownership interest in the negotiable instrument, such as when a thief swipes and absconds with a bearer instrument. See Comment 1 to UCC § 3–301. The ability of a thief to legitimately obtain payment on bearer instruments, such as bearer bonds, has factored in literature and film focusing on the dark side of humanity. See, e.g., F. Scott Fitzgerald, The Great Gatsby ch. 9 (1925) (part of Gatsby’s downfall connected with the theft or falsification of bearer bonds); Die Hard (Twentieth Century Fox Film Corp. 1988) (thieves masquerading as international terrorists seek to steal a highly valuable trove of bearer bonds); Beverly Hills Cop (Paramount Pictures 1984) (friend of protagonist is murdered for stealing bearer bonds from a drug operation’s kingpin).”

Finally, the authors of both R-Boc Representatives, Inc. v. Minemyer, No. 11 C 8433, 2012 WL 2905733, at *1 (N.D. Ill. July 16, 2012) and Metropolitan Life Ins. Co. v. Barbour, 614 F. Supp. 2d 47, 48 (D.D.C. 2009) begin their opinions by quoting the very last line of The Great Gatsby: “So we beat on, boats against the current, borne back ceaselessly into the past.”

Above, you’ll find the 400th issue of Sgt. Rock, published long, long ago in 1985. Wikipedia tells us: “During World War II, Sgt. Rock fought in the infantry branch of the U.S. Army in the European Theatre and eventually rose to authority within his unit, Easy Company.” We here at Abnormal Use and Gallivan, White, & Boyd, P.A. hope you had a safe and fine Memorial Day weekend. As we do each year, today, we pause to reflect upon all of the sacrifices made by American servicemen and women and all they have done for the country, both in present times and years past.

We’ll resume with regular posting tomorrow.

“I Met My Murderer!” proclaims the cover of Lawbreakers Always Lose! #10, published way, way back in 1949. For one, we kind of dig this comic book cover because the title of the series is a complete sentence. (Quick trivia question: How many films can you name where the title is a complete sentence, and of those, what is your favorite? Ours, clearly, is The Empire Strikes Back, but only the one released originally in 1980, not the souped-up, re-digitized detritus George Lucas would re-release later over the years.).  Second, the guy on the cover has a cool hat.  That’s probably a small consolation for meeting his murderer – although he may be the murderer.  We’re not sure.

From the Ultimate Classic Rock website: “15 Infamous Rock Lawsuits.” Yes, the Judas Priest litigation is included.

The New York Times offers this interesting piece on the use of Urban Dictionary by lawyers and even the courts.  We have to admit that we have consulted this resource a time or two, but we’d be way to shy to cite it as persuasive authority in briefing.

Our friend Ryan Steans of The Signal Watch muses on the past and present of The X-Men comic books.

Rest in peace, Ray Mazarek, fabled keyboardist of The Doors.  We were please to see this tweet from the actor Kyle MacLachlan, who played Mazarek in the 1991 film, The Doors, directed by Oliver Stone. Let’s all listen to “Riders on the Storm” this weekend, shall we?

We are crafty, we lawyers.  We often fancy ourselves as clever makers of legal strategy.  We employ wiles and stratagems on behalf of our clients.  Sometimes, a novel legal argument will carry the day.  However, at other times, we out think ourselves and utilize strategies which, though technically permitted by the rules, may actually be, for lack of a better word, uncool.  Sometimes, public policy suggests that these maneuvers, uncool as they are, are not permitted in the legal arena.  Such is the case with sham mediations designed to lure out-of-state defendants into the jurisdiction only to serve them with process if the mediation ultimately fails.

Imagine this situation: Two parties to a dispute begin to talk settlement or potential resolution before suit is filed.  This is probably a good thing.  The two parties, both from different states, agree to meet in an attempt to resolve the dispute.  Suppose that this attempt at resolution, a formal mediation, takes place in the forum state at the offices of one of the party’s attorneys.  None of this is unusual.  The mediation is scheduled, and one party, coming from out of state, travels to the forum state, presumably in good faith, in an attempt to resolve the dispute.  After all, the only reason they have to be in the state is to attend to newly scheduled mediation.  The mediation begins, with each party offering its opening statement, and then proceeds in the traditional fashion, with the mediator shuffling back and forth between the room in an effort to bring the parties closer together and resolve the dispute once and for all.

But the hosting party has a different idea.  Although it may prefer to resolve the dispute once and for all, it realizes that if the mediation fails, as they sometimes do, then it has an advantage in that its opponent is physically present in the forum where it would like to litigate the matter.  So, the hosting party develops a contingency plan:  it prepares a complaint and instructs a paralegal to hold steady at the local courthouse and stand ready to file it, if matters turn for the worse.  Further, a private process server lurks nearby the site of the mediation, ready to serve the corporate representative of its opponent as they leave the mediation, if it is unsuccessful.

At first glance, it may make sense.  After all, the foreign party is present and the jurisdiction, and therefore, subject to service of process.  Why not take advantage of this opportunity to file and serve the lawsuit during the mediation if things do not go as planned?

Though this seems technically permissible under the rules, it is frowned upon by South Carolina jurisprudence and is, as aforementioned, uncool. Where a plaintiff or someone acting on its behalf induces a defendant to enter the jurisdiction for the purposes of effecting the settlement of a controversy, and the defendant is then served with process while in the jurisdiction, the service will be set aside as having been fraudulently obtained and the complaint will be dismissed.  See generally Shaw v. Hughes, 303 S.C. 337, 400 S.E.2d 501 (Ct. App. 1991).  So, if you are the hosting party, don’t be uncool. And if you’re the visiting party, you may want to address this matter up front and agree with your opponent that no one will attempt to employ this strategy at a pre-suit mediation.

Wow, it’s already May.  We’re still writing 2012 on our checks. Well, actually, sometimes, we still write 1997 on our checks.  But that’s another story.

Whatever the case, let us pause briefly to reflect upon the arrival of the “new” year, because, as you know, we’ve all written 2012 on some of our documents so far, even in May.  Accordingly, we need to be aware not just of the “new” year but also its potential effect on our brains and those of our clients.

Now matter the time of year, a good rule is: Be certain to double and triple check your documents to ensure they are dated properly.

Now, what do you do when you locate a document from the past wherein someone has made this type of dating error?

First, you say, “Yikes.” Then you proceed into analytical mode.

Perusing the document at issue, it may be apparent from the body of the document that the date is incorrect.  If it is a letter, then the context clues and subject matter may refer to issues or occurrences which indisputably occurred in the prior year, thus making the error in the correspondence apparent.  It may also be that there is no reason for the other party to dispute the incorrect date, and thus, the issue would be moot. However, if some confusion prompted by the error in date, you may wish to inquire whether the other party is to make an issue of it.  If so, perhaps the error can be accomplished by way of an affidavit, a verified discovery response, or, if necessary, part of an otherwise necessary deposition. However, the best advice may be simply to be more careful in executing such documents.

Above, you’ll find the cover of the recent book, The Law of Superheroes, by friends of the blog James Daily and Ryan Davidson.  As you might recall, those two run The Law and The Multiverse blog, a site dedicated to”superheroes, supervillains, and the law” and the exploration of legal issues through comic books.  While we here at Abnormal Use typically feature a legal themed comic book cover each week, James and Ryan analyze in detail how particular statutes and common law rules might apply in a given comic book universe.  We’ve loved their site from the beginning, and we’re pleased that they’ve published some of their material in book form. (For more on this book, please see here.).

You may or may not watch TV’s “Survivor,” but we’re amused to note that this season’s winner – named this past Sunday – is a Harvard law student by the name of John Cochran.  Our favorite part of the season finale: Cochran, who has made it to the final three, is planning the opening statement that he will deliver to the jury, composed of former competitors who were “voted off the island.”  Cochran remarks to an interviewer that addressing a jury is something that Harvard Law school did not prepare him to do. Ouch.

We really shouldn’t be working today. We would much rather be seeing Star Trek Into Darkness.

Here’s another century old comp claim from @TweetsOfOld.

We’ve talked before about the depictions of lawyers on television and our relative disappointment with the portrayals thereof.  The other day, one question occurred to us:  Why is discovery rarely, if ever, depicted on lawyer television shows?

When is the last time you saw a witness being deposed on a lawyer television show? When is the last time you saw a young associate in a frightful warehouse in the middle of nowhere performing document review? When is the last time you saw a lawyer responding to discovery requests or lodging objections to same? Is it that such tasks are not cinematic in nature?  Surely, that’s not it.

We can certainly imagine an interesting episode of a television show regarding an associate’s trek to an industry site to review documents.  Further, we can also imagine the novelty of a large scale toxic tort plaintiff’s deposition with 20 defense lawyers in the room.

So why is it that we never see such things on television?

Is it that the writers of legal television shows themselves only know of our industry from other bad legal television shows?  Is it that the a program’s advisers do not have the breadth of legal experience to provide such anecdotes to the production?  Or is it that the traditional formula of a legal TV show is so well established and ossified that any deviation therefrom would simply require extra effort?

Perhaps we will never know the answer to these questions.  But we’d watch a show featuring such things.

Above, you will find the cover of Superman #41 published way, way back in 1946.  As you can see, Superman seems to be frustrated with a case of writer’s block.  We definitely empathize with his dilemma – especially when due dates are upon us.  But, we must wonder why Superman is writing his own comic in the first place.  Talk about the opportunity to flatter one’s self.  Faster than a speeding bullet?  More powerful than a locomotive?  Able to leap tall buildings in a single bound?  Whatever you say, Superman.  It’s amazing he ever revealed the whole green Kryptonite vulnerability thing.  Alas.

Here is an interesting article from The New Yorker discussing the drawbacks of Entropica, the latest artificial intelligence system garnering tons of internet buzz.  We think the authors could have saved a lot of time and Internet space by simply reminding us of The Matrix.

According to a Gawker report, a supermarket chain in the United Kingdom has been ordered to recall bags of nuts for failing to disclose that they contain nuts.  You might recall our own Stuart Mauney discussing a similar issue some time ago.  (Hat tip:  Overlawyered).

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Here’s a tip:  When deposing a doctor, or any other witness, Google their name and see if he or she maintains an official website.  These days, almost anyone in business maintains a website.  Doctors, retained testifying experts, contractors, fact witnesses, essentially anyone you might depose, likely has one.  Accordingly, such sites can be mined for information prior to their depositions.

You’d be surprised at how much information doctors place online about themselves.  This is not the type of personal information that one might find on a social media profile like Facebook.  This is the public presentation of that person’s business identity.  Accordingly, you might find biographical information, representations of their skill sets, or information about how often they do the type of work at issue in your case. You may be learn that the doctor actively solicits patients from lawyers or hawks his services as one who treats accident victims.  If the doctor does that, such representations can be explored at the doctor’s deposition.  Further, it is unlikely that the doctor may recall the precise wording of the representations on the website and will be unprepared to answer questions about them.

Other information may also be obtained.  For example, you may learn the names of all of the staff members of a doctor’s practice, and thus be able to identify other potential witnesses.

So, for good measure, seek out the official website before your deposition. It might be worth it.