Just as D minor is the saddest of all keys, laches is the most forlorn of affirmative defenses.  Nevertheless, it has always been our favorite, and our dream is to one day win summary judgment based solely on our invocation of laches. But even after all of these years, we are still waiting for such a victory. Why does laches get no respect in dispositive motions?  As an affirmative defense, it’s something slightly less than the statute of limitations defense, which bars claims based on the passage of a set number of years.  Laches, as we all know, means that a party should be prevented from recovery because he or she has sat on their rights for too long, even though that period of time that they waited, may still be within the statute of limitations.

We have all seen plaintiffs wait until the last day before the statute of limitations before they file their lawsuits.  We have all seen plaintiffs appear to suffer no injury or damages whatsoever until their lawsuit is filed the day before the statute of limitation runs.  But how can a defendant successfully invoke laches?

Here’s how North Carolina defines the laches defense:

To establish the affirmative defense of laches, our case law recognizes that 1) the doctrine applies where a delay of time has resulted in some change in the condition of the property or in the relations of the parties; 2) the delay necessary to constitute laches depends upon the facts and circumstances of each case; however, the mere passage of time is insufficient to support a finding of laches; 3) the delay must be shown to be unreasonable and must have worked to the disadvantage, injury or prejudice of the person seeking to invoke the doctrine of laches; and 4) the defense of laches will only work as a bar when the claimant knew of the existence of the grounds for the claim.

MMR Holdings, LLC v. City of Charlotte, 148 N.C.App. 208, 209–10, 558 S.E.2d 197, 198 (2001); compare Hallums v. Hallums, 296 S.C. 195, 198–99, 371 S.E.2d 525, 527 (1988) ( “Laches is neglect for an unreasonable and unexplained length of time, under circumstances affording opportunity for diligence, to do what in law should have been done. Whether a claim is barred by laches is to be determined in light of [the] facts of each case, taking into consideration whether the delay has worked injury, prejudice, or disadvantage to the other party; delay alone in assertion of a right does not constitute laches.”) (citations omitted).

When you think about it, there’s actually a number of circumstances where this defense might apply readily.  Plaintiffs sit on their rights all the time, forgetting key or relevant information (whether it be the basis of the claim itself or even the names of doctors they’ve seen or the location of notes or photographs which might shed additional light on their claims).

Its time to allow laches to prevail more often in the courtroom. That would be something.

Above, you’ll find the cover of Real Fact Comics #19, published way, way back in 1949.  An interesting evidentiary issue is presented on the cover, which proclaims: “Exclusive! I Am A Camera Cop! The True Story Of A Lawman Whose Pictures Sent Criminals To The Chair!” If we were law professors (and woe unto our students if we were), we would simply place this comic book cover within our final examination and ask the students to describe how, under the relevant rules of evidence, the Camera Cop’s photographs would be made admissible. That would be cool.

“Is the Past a Foreign Country,” asks historian Suzannah Lipscomb in a TEDx video. An interesting answer.

Hey, folks, friend of the blog Brian Comer serves on the DRI Products Liability Steering Committee, and he is currently planning the DRI Products Liability annual conference, set to begin on April 3, 2013 in Washington, DC. (We are confident that the talk of that conference will be the genius of our upcoming April Fool’s Day post, which will have been published and received much acclaim two days beforehand.). You may even be able to meet one of us there, as Abnormal Use and our firm, Gallivan, White, & Boyd, P.A., usually sends a representative or two. For more information, including a link to the registration procedure, head on over to Brian’s blog and check out this entry. And, if you decide to attend, drop us a line, and we’ll look out for you.

Happy 15th anniversary to one of our favorite films, The Big Lebowski.  For anniversary coverage, please see here.

Mark our words: The casting of Harrison Ford, Mark Hamill, and Carrie Fisher in the new Star Wars sequels is bad, bad news. Trust us on this one.  We’re nostalgic, too, perhaps overly so.  But we sense doom on this one. Check back with us in 2015, and we’ll collect our accolades and vindication.

It’s funny how the Internet works. We here at Abnormal Use have previously extolled the virtues of the @TweetsOfOld Twitter account, which in its own words, “attempt[s] to reveal the lives of our predecessors through the tweets of yesteryear.” In so doing, that Twitter account utilizes “real one-line brevities from old newspapers, as they appeared – or close.” Usually, the folks behind that account offer compelling, intriguing, and occasionally curious moments from periodicals published at least a century ago. Sometimes, the tweets center around some type of legal issue, made all the more interesting by the age of the event being profiled. On December 29, 2012, the TweetsOfOld account issued the following tweet:

“The Ohio Supreme Court says a man can whale a boy for snowballing him. IL1912.”

The alpha-numeric abbreviation at the end of the tweet signifies that this report came from an Illinois newspaper in 1912.

This got us thinking.  If the Ohio Supreme Court made a ruling which made the news in Illinois, surely we could locate that opinion.

We assume that any such ruling would have been issued in 1912, although it’s possible it could have been released in late 1911.

So we turned to Westlaw and the trusty Ohio Cases (OH-CS) database. We set a date field restriction such that only cases between 1910 and 1913 would be searched. The search term “Whal!” revealed two cases, neither of which were the one at issue.  The search term “snow!” produced 11 cases, most of which were not Supreme Court cases and none of which were the opinion in question.

We then went to the Ohio Supreme Court’s official website, and its oldest featured opinions online are from 1992.

After a total of five minutes of looking, we gave up, as other duties called. Oh, the Internet, what crazy errands you prompt.

Lawyers in South Carolina should be aware of an alert issued by the South Carolina Bar related to the LinkedIn social network. In its entirety, the new notice, issued last week, is as follows:

LinkedIn loophole
The social media site LinkedIn has proved problematic for S.C. Lawyers, owing to an as-yet unremovable section on each lawyer’s page titled “Skills and Expertise.” Any member of the public may endorse a Bar member and note areas of “expertise.” However, under Rule 7.4 of the S.C. Rules of Professional Conduct, only certified specialists may use the term “expert” or other forms of the word. To avoid possible discipline while maintaining your LinkedIn page, follow these instructions on how to hide skill endorsements and minimize the risk. For ethics and professional responsibility assistance, contact Risk Management Director Jill Rothstein at jrothstein@scbar.org. For questions about running your law practice, contact PMAP Director Courtney Kennaday at pmap@scbar.org.

In response to the alert, we here at Abnormal Use have investigated this issue further. First, it seems clear from the alert that LinkedIn endorsements themselves are not necessarily prohibited by the South Carolina rules. Rather, the alert simply reminds South Carolina attorneys of the requisites of Rule 7.4(b) of the South Carolina Rules of Professional Conduct, which provides:

A lawyer who is not certified as a specialist but who concentrates in, limits his or her practice to, or wishes to announce a willingness to accept cases in a particular field may so advertise or publicly state in any manner otherwise permitted by these rules. To avoid confusing or misleading the public and to protect the objectives of the South Carolina certified specialization program, any such advertisement or statements shall be strictly factual and shall not contain any form of the words “certified,” “specialist,” “expert,” or “authority” except as permitted by Rule 7.4(d).

Here’s the problem: LinkedIn endorsements, by their very nature, are included in a section of the user profile entitled “Skills & Expertise.”  The rule prohibits attorneys from referring to themselves as “experts” except where certified as such.  Thus, because the LinkedIn endorsements can only appear in a section with an objectionable title, the South Carolina Bar has warned its members that any such endorsements should be hidden from view and/or deleted. In sum, it appears that the Bar’s position is that nothing should be listed under “Skills & Expertise” section of one’s LinkedIn profile.  We have learned that members of the South Carolina Bar have already contacted LinkedIn about removing the word “expertise” from the section.  We do not know how, or whether, they will respond.

Okay. Why are comic book superheroes and villains always being tried, and more importantly, why are the covers of the comics featuring those trials always set OUTSIDE the courtroom? What gives?  Above, you’ll find the cover of Spider-Man #60, published not so long ago in 1995. Here’s how Comicvine describes the narrative:

Peter Parker goes on trial for multiple murders in Utah committed by his clone Kaine.

The clone defense?  Must that be pleaded or waived? Sigh.

In this piece, entitled “Suicide as Gender Issue,” The Journal of Gender, Race, & Justice cites our own Stuart Mauney’s blog post on “The Lawyers’ Epidemic: Depression, Suicide, and Substance Abuse.”  Stuart recently served as the chair of the South Carolina Bar’s HELP Task Force, an entity dedicated to educating lawyers and judges about substance abuse and mental health issues in the legal profession.Check it out.  Speaking of Stuart, don’t forget that you can follow him on Twitter  here.

GWB’s own Tom Vanderbloemen recently met with the Sterling School‘s 4th thru 8th grade First Lego League/USFirst Organization team about an invention they have developed. He spoke with students concerning patent law, its history, and the processes involved in patenting a new invention. For more, see here.

As you know, sometimes we here at Abnormal Use discuss popular culture, whether it be comic books, music, or the cinema. This weekend, we received a curious email from an associate at our firm: “Did you know that our Charlotte office was in Shallow Hal? The exact building and everything. I just had this realization.” Pictured above is the screen capture he attached to that email.

Oh, my goodness.  That is, in fact, the entrance to the building which houses our Charlotte office.

It could not be more clear.  Compare to the pictures we previously posted here and here, and you’ll find the resemblance unmistakable.

Does this mean our office was once famous?  Well, let’s see.

Shallow Hal, an otherwise forgettable attempt at comedy, was releaed on November 9, 2001. It starred Jack Black and Gwyneth Paltrow.  According to the Internet Movie Database, the film was shot in and around Charlotte, North Carolina during that time frame. As for us, we did not move into this building until late 2011, so we missed the brush with fame by eleven years. Alas.

This news has presented an existential dilemma of sorts: we’d prefer that a better film had been shot here.

Now, our researchers are working diligently to determine whether or not our Greenville and Columbia offices have been featured on film.

On a related Hollywood note, Wilford Brimley once left us a voicemail.

Some thoughts on recent postal news of note:

1.  The United States Postal Service has announced that it will no longer deliver letters on Saturdays.

2.  This, of course, means that letters you would have received on Saturday will now arrive Monday at the earliest, possibly later.

3.  The news also means that some letters you deposit into the mail on Fridays may not even be retrieved by the Postal Service until Mondays.

4.  Many, if not most, of our state and federal rules of civil procedure contemplate service by mail.

5.  Rule 6 of the Federal Rules of Procedure contains a provision entitled “Additional Time After Certain Kinds of Service,” otherwise known as “the mailing rule.”   As has been noted by other bloggers, this rule “gives lawyers an additional three days if served by mail.”

6.  Although the number of days the post office will be delivering letters has decreased, the number of days a lawyer has to respond to items served by mail will remain the same for the time being.

7.  Discuss.

Depicted above is the cover of Captain America #615, published not so long ago in 2011.  As you might surmise, this issue is a part of – and indeed the finale to – “The Trial of Captain America” storyline, which we previously mentioned here back in July of that year.  At that time, we noted:

The secret identity of the Captain America we all knew growing up was Steve Rogers.  Apparently, somewhere along the way, that Captain America’s sidekick, Bucky, replaced the original Captain America, but not before moonlighting as a Russian hitman during the Cold War when the original Captain America thought he was dead.  It’s his actions as a Soviet agent that caused him to be on trial.  That’s confusing (although we wonder if there was a motion in limine on whether he could wear his costume at trial).

We’re still a bit confused, but we suppose it makes sense that Captain America is on trial if it is not the real Captain America. Oh, and if you need some background and persuasive authority on him, here you go: “Captain America, a.k.a. Steve Rogers, was an army-reject turned superhero who was charged with protecting America from all enemies, especially Nazi spies.” Marvel Characters, Inc. v. Simon, 310 F.3d 280, 282 (2d Cir. 2002) (previously mentioned by Abnormal Use way back in July of 2010 here).

Adam Liptak of The New York Times has this interesting piece on cameras in the U.S. Supreme Court.  It seems that nominees to the U.S. Supreme Court are much more excited about the possibility than actual members of the U.S. Supreme Court, and those initially curious nominees become far more skeptical of the issues following their confirmation.  Hmmm.

Behold: The Courtroom Video Supercut.  Described by the maker of this video as “Hollywood’s most hackneyed genre,” the courtroom film does, typically, rely on annoying cliches. But if you’ve got four minutes today to watch an amusing YouTube video, this is the one.

And last but not least, this article is not about the law, but it is the most interesting thing we read all week. We promise.

Here we are again on Presidents Day (or, as the federal government officially refers to it, Washington’s Birthday).  As we noted last year on this festive occasion:

5 U.S.C.A. § 6103(a) sets forth that today, the third Monday in February, is Washington’s Birthday, and thus, a legal public holiday. George Washington was born on February 21, 1732 (although confusingly, under the old calendar in effect at the time of his birth, he was actually born on February 11, 1731). Perhaps that’s an issue that will be litigated someday.

Above, you’ll find the cover of Prez #1, published way, way back in 1973. We must confess that we had never heard of this series before we took drafting this post. Here’s what Wikipedia has to say about this curious series:

Prez: First Teen President was a four issue comic series by writer Joe Simon (the creator of Captain America) and artist Jerry Grandenetti, released by DC Comics in 1973 and 1974. It followed the adventures of Prez Rickard, the first teenage President of the United States of America, whose election had been made possible by a Constitutional amendment lowering the age of eligibility to accommodate the then-influential youth culture of the baby boom . . . .

Um, okay. Whatever the case, just remember that there is no mail today.

So, apparently, Hollywood made yet another Die Hard film. Really? That prompts us to direct your attention to the cover of Die Hard: Year One #1, published by BOOM Studios! back in 2009. That series shows us the origins of John McClane, the street smart New York Cop played by Bruce Willis in the films.  We wonder how much Supreme Court criminal procedure jurisprudence McClane’s time on the force would have generated were he a real police officer. The narrative, apparently, takes place during the Bicentennial in 1976.  We’d rather see that as a movie than another tired sequel starring Bruce Willis in the role, but hey, that’s just us.  Alas.

Maybe this dispute between Justin Bieber and the drummer for The Black Keys will lead to litigation.  Maybe.

Remember in the days before the Internet when you could safely avoid spoilers of your favorite films and television shows? Well, you’ll be pleased to learn that we were never, ever safe from pop culture spoilers.  Behold: the first Star Wars spoiler, back in 1978!

Don’t forget! You can follow Abnormal Use on Twitter here and on Facebook here! Drop us a line!