Okay, you’re not nerdy like us. You don’t know the DC Comics hero Booster Gold.  Well, he’s a super hero.  From the future.  He came back to our time – from the future – and uses all of his advanced technology to help us, the citizens of his past.  Above, you’ll find the cover of Booster Gold #14, published way back in the simple and easy days of 1987. Here’s our question: If, as the cover indicates, Booster Gold is a fugitive, sought by the police, why does the wanted poster say he is wanted for “treason and theft”?  I mean, isn’t it enough to just say he’s wanted for treason?   Do we really need to throw theft in there, too? That’s like saying: “Wanted for Treason and Jaywalking.”  Keep it simple, future police!

Andy Mergendahl at Lawyerist concludes that “Music on Vinyl is Better.”  This is one of the most important issues facing lawyers, actually.  We will not be left out of this debate. We will respond with a far more substantive post sometime in the future, but until then, read Andy’s piece.  We welcome your comments on this issue.

In this interesting post, our friends at The Law and The Multiverse blog answer this question:  “[W]hat would happen if a superhero was summoned for jury service in his/her secret identity, and the case turned out to be one where the character had been involved as a crimefighter and might even be expected to appear as a witness?”

By the way, since we’re talking about music, friend of the blog Matt Wake had his first piece published in Paste Magazine this week.  The title: “16 Musicians Discuss Their First Concert T-Shirts.”  We here at Abnormal Use would tell you about our first concert t-shirts, but unfortunately, they were all purchased during our embarrassing heavy metal stage.

Lo and behold! David Francis of The Blog respond to our prior post, “Deposing Siri,” in his own post, entitled “Suing Siri: Deceptive Advertising or Frivolous Lawsuit?“

As we’ve previously mentioned, our editor Jim Dedman is now contributing one monthly post to the North Carolina Law Blog.  Yesterday, his most recent submission was published at that site.  The topic: “iPads at Depositions.”  In this age of tablets, laptops, and portable communication devices, Jim asks an important question with respect to discovery practice:

[W]hy are we are we continuing to bring [all] these papers with us to depositions?  Well, the custom is, and the rules generally require, that the deposing lawyer provide copies of each exhibit to any lawyer present at the deposition.  We also need for the witness to be able to physically hold a copy of the exhibit, which, of course becomes the property of the court reporter who attaches it to the deposition in question. Lots of paper, that.

There’s a better way.

Indeed, there is.  Jim envisions a world in which trees live, thrive, and survive based without fear that they will become deposition exhibits.

There’s more, so click here to read the rest.

Here’s something particularly irksome: Plaintiff’s lawyers who instruct their clients not to answer deposition questions about criminal history because it is too embarrassing to answer.  As defense lawyers, we all have our personalized deposition outlines, and most of them include questions relating to a plaintiff’s past lawsuits, worker’s compensation claims, disability applications, and of course, prior criminal history (including convictions and arrests).

“Have you ever been arrested?”

“Have you ever been convicted of a crime?”

These are standard questions.  Oftentimes, plaintiffs reply in the negative, and any pre-deposition investigation has already confirmed that answer, and the deposition moves forward.  However, diligent counsel typically already know the answer to this question, having done an investigation into the background of the plaintiff prior to the deposition.  So, when these questions are asked, we know what the answer will be.  Plaintiff’s lawyers may or may not be aware.

But in a number of cases in the past, plaintiff’s lawyers have actually instructed their clients not to answer these questions.

But on what basis?  Sometimes, on the basis of “harassment,” although that’s a tough sell, because the rules of evidence specifically provide that a party can be impeached by a past criminal conviction.  Questions about past convictions can lead to relevant impeachment evidence; and questions about arrests (which themselves may not be admissible) are appropriate in that they could lead to admissible evidence, i.e. subsequent convictions.

Sometimes, though, plaintiff’s lawyers will instruct their clients not to answer on the grounds that the answer itself is not admissible.  What?  How can that be?  Deposition testimony is often not admissible.  In pretrial hearings, we often fight tooth and nail over the admissibility of certain facts elicited in depositions.  Simply because something is discussed at a deposition does not mean that it is later admissible at trial.  We can explore topics at depositions that are technically not admissible at trial because those questions may be calculated to lead to admissible evidence. So, really, this is just another way to state the “it’s way too embarrassing” objection.

Once, at a deposition, I asked a plaintiff if he had ever been convicted of a crime. Of course, I already knew that he had been arrested and later convicted of a number of crimes.  “Not in the last ten years,” he quickly and carefully replied, automatically suggesting that he had had a substantive discussion about the rules of evidence with his attorney about what may or may not be admissible.  I couldn’t help but chuckle.  Clearly, though, the fact that a conviction may be a decade old, and thus stale under the Rules of Evidence, does not prohibit the deposing party from asking about past arrests or convictions.  The rules have exceptions relating to stale convictions, and the court has discretion under the rules to admit into evidence even a stale conviction into evidence.  Thus, questions about past arrests and convictions can lead to the discovery of relevant admissible evidence even if the convictions at issue are decades old.

Further, there are other reasons why such criminal history might be admissible other than for impeachment.  When a plaintiff claims that a particular injury or issue affects future employment opportunities, or when a plaintiff’s expert opines about the type of work that a plaintiff might not be able to do, former criminal convictions and arrests are important evidence factoring in to the Plaintiff’s future employment opportunities.

So, let’s stop with the instructions not to answer on criminal history.  These questions are not abusive, they are not harassing, and they certainly may lead to relevant admissible evidence, impeachment or otherwise.

If you only read Abnormal Use on weekdays, you may have missed our Sunday, April 1 post, entitled “American Bar Association Denies Provisional Accreditation To Miskatonic University School of Law.”  Yes, of course, it was an April Fool’s Day joke. We figured since our traffic is generally low on the weekends, we could reference something far, far more obscure than usual, in this case the mythos and milieu of horror writer H.P. Lovecraft.  The mythic Miskatonic University – which even has its own Wikipedia entry! – is a fictional institution created by Lovecraft and referenced by other writers who have followed in Lovecraft’s footsteps.  It’s an eerie place dedicated to the study of the ancient and occult. There are even books solely dedicated the fictive school. The existence of Miskatonic University: A Sourcebook, a role playing game guidebook, should tell you something about how Lovecraft’s creations have been honored over the  years.  (And that’s not the only book dedicated to the faux institution.). We thought it would be as good fake university as any upon which to base a parody piece on the ABA accreditation process, but in the end, the reference may have simply proven that we are far, far nerdier than you ever thought we were. (We know at least one of you caught the reference!) By the way, the image above is the cover art for the aforementioned Miskatonic University: A Sourcebook, which pretty much captures the spirit of the school, we think.

By the way, in the interests of completism, we present these links to our two past April Fool’s Day Posts:

“Star Wars Prequels Unreasonably Dangerous and Defective, South Carolina Federal Court Finds” (April 1, 2011)

“Unsatisfying Snickers Bar Unreasonably Dangerous and Defective, Texas Court Holds” (April 1, 2010)

So, five days after this year’s April Fool’s Day, you can now go back and revisit our posts from April Fool’s Days past.  Better late than never, eh? Enjoy.

Someone has made a federal case out of Siri. Friend of the blog Kevin Underhill, author of the very funny Lowering the Bar legal humor blog, directs our attention to a new proposed class action in which “a New York man alleges that the virtual assistant Apple built into his iPhone 4S doesn’t work as advertised.” (See Kevin’s post “Lawsuit Claims Siri Doesn’t Know What She’s Talking About,” March 30, 2012).  The plaintiff filed his suit in federal court in California.

Wikipedia tells us that Siri is a “is an intelligent personal assistant and knowledge navigator which works as an application for Apple’s iOS.” Kevin quotes the complaint (available online here): “For instance, when Plaintiff asked Siri for directions to a certain place, or to locate a store, Siri either did not understand what Plaintiff was asking, or, after a very long wait time, responded with the wrong answer. . . . Upon information and belief, Plaintiff’s problems with Siri are not unique . . . .” In his post, Kevin scrutinizes the distinction between Plaintiff’s claim that he was “exposed” to Apple’s alleged marketing misrepresentations and the traditional legal requirement that one must have “relied” upon misrepresentations in order to recover in such a lawsuit.

Concludes Kevin: “You do have to wonder if Siri will suddenly become especially good at finding things in the Northern District of California (San Jose Division), especially things that federal judges might need. Don’t do it, Siri. It’ll just look bad.”

We got to thinking about the discovery in this case.  Perhaps there will be some pre-certification interrogatories and requests for production.  But wouldn’t it be interesting if Siri, the most famous example of artificial intelligence, was deposed in the litigation?  We couldn’t wait, so we noticed that depo and began.

Of course, there are the formalities which must be addressed:

Even artificial deponents must be sworn, right?

We have found that a little background questioning is always appropriate:

That may sound like an error, but a lot of witnesses ask for clarification on that question, not being familiar with the process.

Of course, sometimes it’s best to just cut to the chase and get straight to the allegations in the lawsuit.

“I’ve never really thought about it?” An interesting concession!

Let’s go in for the kill!

Ouch! Maybe this wasn’t such a good idea after all.

(Oh, and see Kevin’s follow-up post on this type of litigation here.).

At an unusually scheduled Sunday morning meeting today, the American Bar Association’s Council of Legal Education and Admissions to the Bar voted not to approve Miskatonic University School of Law’s accreditation application. The administration of the Massachusetts-based law school, named for the nearby river of the same name, learned of the decision this morning via a two page facsimile. Following on the heels of the somewhat controversial accreditation denial of Tennessee’s Duncan School of Law, Miskatonic Law’s dean, Dr. Henry Armitage, III, expressed his disappointment at the decision and noted that the institution may challenge the ruling in the immediate future.

A centuries-old conservative institution steeped in tradition, Miskatonic Law is known for its significant dedication to historical (sometimes ancient) jurisprudence, the study of ecclesiastical law, and its extensive library collection.

“We have met all of the standards set forth by the ABA, and the academic credentials of our students and faculty are unequaled,” said Miskatonic Law’s Dean of Students Ward Phillips IV. “We believe this is an unnecessarily punitive act simply because our institution has declined to adopt a number of novel curricular norms which have permeated legal education for the past several decades.”

Contacted today by Abnormal Use, the Council of Legal Education and Admissions to the Bar had no official comment. However, some associated with the committee are speaking privately about the denial.

“Something just didn’t sit right with us about this place,” said one ABA Council member who requested anonymity because he was not authorized to speak publicly about the accreditation process.

According to reports, the ABA Council objected to the lack of faculty diversity at Miskatonic Law.  Said one ABA Council member, who also wished to remain anonymous:  “Most of the professors at Miskatonic attended Miskatonic, and the supermajority of them are children or grandchildren of prior Miskatonic Law professors.  We simply did not see an appropriate diversity of faculty credentials at this university.”

Said another Council representative: “As you know, we look to the make-up of an institution’s student body when making an accreditation determination. Although their grades and LSAT scores were more than adequate, Miskatonic Law’s incoming students did not have the typical backgrounds that you would expect in a more familiar law school setting.  There were almost no business or political science majors among the applicants and first year students; rather, the law school student body is composed of former archaeology, anthropology, and parapsychology majors. Quite frankly, many of them had studied unfamiliar disciplines which we had to research further to identify. There were a good many that had the prefix paleo- preceding the field of study, as well.”

“There are an unusual number of evening classes at Miskatonic,” said an ABA staffer familiar with accreditation proceedings.

Despite the denial, representatives of the ABA’s Council of Legal Education and Admissions to the Bar specifically commended Miskatonic Law’’s “impressive collection of old volumes” in its many libraries, a factor which would ordinarily earn an institution significant points in the accreditation process.  But apparently, according to one source, its library only contains “old and archaic volumes and had no access to modern legal databases.”

Armitage, whose grandfather once served as the University’s librarian, remarked, “Harvard is not punished for its early editions of Blackstone’s Commentaries, and that’s a much newer set of books than many we use on a daily basis.”

“We are a different type of law school, to be sure,” said Armitage. “Certainly, our students seek a more specialized understanding of a very remote subset of law. But we should not be punished and denied accreditation because of that. Despite the fact that their backgrounds may be different than those students seeking admission into a Harvard or Yale, our students love the craft of the law.”

Rumors of a lawsuit challenging the accreditation denial abound.  In addition to various antitrust causes of action, the administrator may assert a curious freedom of religion claim.

Armitage has scheduled a press conference to be held later today at the law school’s Asenath Waite Memorial Hall.

Behold, the cover of Sam Hill: Private Eye #4, published way, way back in 1950. In that issue, we see that a trial is taking place, and Sam Hill, “America’s hard-boiled, wise-cracking sleuth,” is called to the stand to testify as a witness. “Careful what you say, Sam!” says a villain. “My boys will be watching you.”  Undeterred, Sam replies, “Tell ’em to listen real close, too! They’ll hear the whole truth and nothing but!” Replies another gangster: “If we do, you’ll never leave that witness chair alive!” This is some frightful courtroom conduct. We trust that Sam stayed true to his guns, testified against the criminals, and justice triumphed in the end. Surely he did, right?

As you know, we here at Abnormal Use are big fans of the rock group R.E.M. Back in September, we wrote an obituary of sorts when the band announced its break-up after 31 years. We bring that up so as to direct you to this fantastic piece at The Onion AV Club, in which writer Steve Hyden explores his life-long love the band. It’s the first component of a multi-part series in which he explores the band’s output, starting with the material from the late 1980s, when he first encountered the group and its music.

Speaking of music, a columnist at The Philly Post has published a piece called “Why I Hate Bruce Springsteen.”  What the heck? We’re going to have to ask our blog pals Steve McConnell of the Drug and Device Law blog and Max Kennerly of the Litigation & Trial law blog to investigate this blasphemy. (Hat Tip: @blogness).

In a post entitled “Brainstorming Warning Labels for Purchases of a Legal Education,” Attorney Indy at the Mercho Legal Services blog responds to our writer Frances Zacher’s series of posts this week on legal education.

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

No comic book covers today for this edition of Friday Links, dear readers. It’s an Abnormal Use tradition to see Bruce Springsteen and the E Street Band whenever they come to the region, and so it was this past Monday evening when we found ourselves at Springsteen’s concert at the Greensboro Coliseum in Greensboro, North Carolina.  Present for the show were editor Jim Dedman and author Phil Reeves (along with non-blogger GWB attorney Art Howson). You can find the great set list here (and note that he played “Because the Night!”). We don’t blog enough about Springsteen. Not too long ago, we paused to reflect upon the passing of Springsteen’s saxophonist, Clarence Clemons, who passed away last summer at 69.  In that post, we included a photograph taken at Springsteen’s 2009 Greenville, South Carolina show at the Bilo Center, at which we captured a photograph of E Street Band member Steven Van Zandt holding a handmade sign made by Reeves.  What a day that was. (Oh, and if you haven’t heard it already, here is a link to Bruce Springsteen’s keynote address at the recent South by Southwest music festival in Austin, Texas.).

Whoa! We just learned that we were named the “Blog of the Month” for January 2012 by the Penn State Dickinson School of Law Alumni Connection! Thank you!

The wonderful TweetsofOld Twitter account reports on an 1884 Louisiana on the job injury.  We wonder if it was litigated.

This week, Philip K. Howard at The Atlantic asked “Should the Courts Be Allowed to Repeal Obsolete Law?” An interesting read, that..

This week, Abnormal Use broke through into a new medium, taking the public airwaves by storm.  Our own writer Nick Farr was a guest on KUCI-FM‘s “The Docket” to discuss the legacy of My Cousin Vinny.  Nick enjoyed some great conversation with host Evan Simon about the film and its practical application in our legal careers.  In case you missed it, we understand that a podcast of that interview may be forthcoming.  Keep checking for updates!

As we’ve previously mentioned, our editor Jim Dedman is now contributing one monthly post to the North Carolina Law Blog.  Last week, his most recent submission was published at that site.  The topic:  “How To Blog: A Primer (And Not A Boring Primer, Either).” We’ve been doing this blogging thing for more than two years now, and so we are often asked by readers and friends, “How does one actually write a blog entry?”

Here’s part of his response to that question:

When you think about it in detail, the quest for subject matter – blog fodder – is the easiest part of blogging. We’ve all got legal anecdotes, war stories, and opinions on issues large and small.  You can write not just about the latest cases, but about your legal pet peeves, awkward moments at depositions, and even our thoughts on the blog entries of other writers.  Really, any story you tell another lawyer at lunch or any minor tirade you embark upon as the result of an irksome legal annoyance is appropriate and good subject matter.  Anything you read in the news, anything you see in pop culture, or anything you encounter on the vast expanse of the Internet can prompt a post large or small, even if it only offers the tiniest connection to the world of law.

…

Just as with a motion or brief, it’s stressful when you sit in front of a blank screen on the computer and know that you cannot get up again until you have finished a draft. There is a better way.  Bloggers should carry blog ideas with them and allow them germinate and develop in their minds before sitting down to write the post.  They can scribble notes on a legal pad, or if they have the ability and desire, dictate a rough draft of a post.  That way, when they sit down in front of their computer, they’re not facing blank screen but starting with a series of their own notes or even a dictated rough draft of the post.

Click here to read the full post.

As you know, each Friday, we here at Abnormal Use post some to other sites and articles of interest.  Keeping with this week’s theme – the commemoration of the twentieth anniversary of the release of My Cousin Vinny – we asked some of our favorite bloggers to share their thoughts on the film and its place in cinematic history.  As previously noted, these are some real heavy hitters in the legal blogosphere.  This week, each of them published their own post on the film’s anniversary and the lessons that we as lawyers can learn from the characters in the film.  Today, we will direct you to those posts and collect our favorite excerpts from each of them.

Jay Hornack of the Panic Street Lawyer blog at the Pittsburgh Post-Gazette, “Law and the Art of Automobile Maintenance,” (3/11/12). Hornack, a lawyer and professor at Carnegie Mellon University in Pittsburgh, discusses his students’ thoughts on the film and notes that most of them were born after the release of the film in 1992. He also explores the potential musical influences of the screenwriter, Dale Launer, who took a road trip to the South to develop the character of Vinny.(By the way, if you are not following Jay on Twitter, you need to do so here.).

Alan H. Crede of the Boston Personal Injury Lawyer blog, “My Cousin Vinny‘s Version of the Criminal Justice System,” (3/12/12). In his post, Alan raises an interesting point, and one we hadn’t considered before.  Marisa Tomei plays a character who ultimately testifies as an expert in general automotive knowledge. Note: she did so a year before the U.S. Supreme  Court handed down Daubert. Alan also has an interesting take on the Brady v. Maryland implications of the film, in particular, the interaction between Vinny ant the prosecutor and their exchange of information during the proceedings.

Steve McConnell of the Drug and Device Law blog, “An Appreciation of My Cousin Vinny – Twenty Years Later,” (3/12/12). In addition to blogging about medical drugs and devices, McConnell, who hails from Philadelphia, is a pop culture whiz. After comprehensively surveying the 1992 pop culture landscape which produced Vinny (as well as Tomei’s Oscar win for her role a year later), McConnell explains several object lessons trial lawyers from the film.

Kendall Gray of the Appellate Record blog, “My Mentor, Vinny,” (3/12/12). Gray, a lawyer in Houston, uses a series of YouTube clips from the film and notes the “many invaluable life lessons and practice pointers during the film.” Because of those great lessons of import, Gray thanks Vinny for his status as his mentor. These lessons include courtroom decorum, punctuality, the value of directness (and the risks of being too direct), the proper approach to questioning an expert witness, and the importance of home/work balance.

James Daily of The Law and the Multiverse blog, “My Cousin Vinny: The Perils of Joint Representation,” (3/13/12).  We love the guys at The Law and the Multiverse.  In fact, you may remember that we interviewed them just over a year ago. They apply legal analysis to superhero comic books and films. In his Vinny piece, Daily explores an interesting issue: “Simultaneous representation of clients whose interests may conflict.”  Recall that Vinny represents his cousin, played by Ralph Macchio, and another defendant, played by Mitchell Whitfield, both of whom are accusing of murder. Daily explores whether this is, in fact, permissible under the circumstances.

Professor Alberto Bernabe of the Torts blog, “My Cousin Vinny: A Story About Legal Education,” (3/12/12). Discussing the film from a legal education perspective, Professor Bernabe makes an interesting point about the film: “Vinny is terrible at the things we do teach in law school, but very good at the things we don’t.” He may not know the complexities of contract law or legal ethics, but as Bernabe notes, “law students could learn from him as to how to use legal thinking in the complexity of actual law practice.” (By the way, we interviewed Professor Bernabe back in November of 2010).

Max Kennerly of the Litigation & Trial blog, “Every Young Trial Lawyer Needs To Watch My Cousin Vinny,” (3/14/12). Kennerly is a maverick legal blogger, so he was a natural writer to approach about this project. He notes that one reason why the film continues to resonate with lawyers is because “everything that happens in the movie could happen — and often does happen — at trial.” Offering an anecdote from a recent deposition in federal court, Max also observes that the film confirms a legal practice truism: “Lawyers don’t prevail by coming up with great ideas; they prevail by coming up with ideas that convince others.”

Erik Mazzone of the Law Practice Matters blog, “My Cousin Vinny and Resilience in Law Practice,” (3/15/12). A friend of the blog and the Director of the Center for Practice Management at the North Carolina Bar Association, Erik (note the proper spelling of his first name) focuses on the power of resilience.  He writes: ” Throughout the first three-quarters of My Cousin Vinny, Joe Pesci’s Vinny suffers setback after setback. Yet each night he works hard and each morning he comes back to the courthouse to do battle for another day.” It is only through resilience that he finds success as a lawyer.

Kevin Underill of the Lowering The  Bar legal humor blog, “Everything That Guy Just Said Is Bullsh*t: A Review of My Cousin Vinny,” (3/16/12).  Underhill is one of the blogosphere’s funniest legal writers, and so he applies his talents to a new review of the film.  It is not to be missed.

It wasn’t just law bloggers who participated. Our friend Ryan Steans, an old pal and non-lawyer pop culture blogger at The Signal Watch blog, jumped the gun big time and published his review of the film over a month ago. His take is very interesting because he had never seen My Cousin Vinny until 2012, and as a non-lawyer, he did have a very different view than the rest of the project participants.  To him, the film was just a forgettable 1990s comedy that he saw for the first time twenty years after its original release. Concludes he: “[T]he movie sort of fails in part because Joe Pesci isn’t actually funny.  He seems sort of confused and dumb, and emotionally detached from Tomei who is carrying all the weight plotwise and from a comedic standpoint.  It’s satisfying to a certain audience in its utter predictability, but its not much . . . fun.  Still, people refer to this movie all the time, so I am likely missing something.”

Don’t forget that we here at Abnormal Use offered our own thoughts on the film on Monday before our series of interviews published the remainder of the week.  In case you missed them, you can revisit them here:

Nick Farr, “My Cousin Vinny – More Than A Movie,” (3/12/12). In this piece, writer Nick Farr explains how My Cousin Vinny changed both his life and the outcome of a 7th grade student council election. (Yes, you read that right.).

Rob Green, “Lessons Learned From Vincent L. Gambini,” (3/12/12).  In this piece, our newest contributor, Rob Green, offer six practical lessons that lawyers can glean from watching the film. If you think about it, the film is its own continuing education course with many practice tips contained therein.  In fact, we should probably all get CLE credit for watching it again, don’t you think?

Rob Green, “Review: Vincent LaGuardia Gambini Sings Just For You,” (3/12/12)  Did you know that years after the film’s release, Joe Pesci released an album in character as Vinny? Rob Green somehow found a copy of this long forgotten album and drafted a review.  Spoiler alert: the album is not for the faint of heart.  Or the faint of ears, for that matter.

That, dear reader, brings our week long anniversary coverage to a close. We’ll be back for the 50th anniversary celebration!

(Editor’s note: The ABA Journal excerpted our interview with director Jonathan Lynn here and our Q&A with screenwriter/co-producer Dale Launer here. Thanks also to these bloggers for their support: Boing Boing, Widener Law Blog, Above The Law, God/Politics/Rock ‘n’ Roll, Lowering The Bar, Nuts & Boalts, The Volokh Conspiracy, and the Northern Law Blog. To see a full index of our My Cousin Vinny twentieth anniversary coverage, please see here.).