Harvey Dent, also known as Two Face, is a Batman villain but also Gotham City’s district attorney. Wrap your head around that. You may recall that the character was played by Billy Dee Williams in 1989’s Batman, Tommy Lee Jones in the 1995’s lesser sequel Batman Forever, and more recently, Aaron Eckhart in 2008’s excellent The Dark Knight. Above you can see him through in his office on the cover of Two-Face: Year One, published not so long ago in 2008. What does it say about Gotham City that one of Batman’s fiercest foes is also the city’s chief prosecutor? You’d think the Gotham City Bar Association would have taken some sort of action against Mr. Dent by now, no?

Michael Wells, Jr. of the NC Law Blog advises us of the “10 Things You Should Know About The Law and Social Media.”  No mention of Friendster, though. Now, compare that list to “The Seven Sins of Social Media” by Josh Camson over at Lawyerist. There sure are a lot of lists out there about lawyers using social media.  Our thoughts? Be yourself to keep things interesting and follow our profession’s ethical rules just like you would in any other endeavor.  The rest should come naturally.  But maybe someday we’ll make a list, too.

If you have friends or children starting college this month, you might direct them to the rather amusing blog post, “The League’s Guide for Incoming Freshman,” written by friend of the blog Ryan Steans of The Signal Watch.

Yes, in case you’re wondering, we here at Abnormal Use did feel the earthquake at our home office here in Greenville, South Carolina.  Apparently, at least some folks in our Columbia and Charlotte offices also felt some type of minor tremor. It’s a bit disconcerting to feel one’s building vibrating, even slightly, when one finds him or herself on the 14th floor of that building. Yikes.

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 to associate dean of faculty development and law professor Tamara Piety of the University of Tulsa in Tulsa, Oklahoma.  She teaches courses in Corporate Law, Civil Procedure, Evidence, and Scientific Evidence. Dean Piety also knows a thing or two about corporate speech.  Her new book, Brandishing The First Amendment, argues that commercial interests should not have free speech rights. It will be published this fall by the University of Michigan Press. The interview is as follows:

1.  You’ve written and taught a great deal about commercial speech (including a book to be published on the subject later this year). Although this is primarily a constitutional topic, what aspect of this issue do you believe that civil litigators should be aware of in their daily practice of representing corporate defendants?

In Brandishing the First Amendment, which is forthcoming from the University of Michigan Press, I discuss the rise of an aggressive use of the First Amendment to fend of regulation of various sorts, as well as its use as a defense to fraud claims like that in Kasky v. Nike. Obviously, in the wake of Citizens United and perhaps more significantly still for business, Sorrell v. IMS, commercial and corporate speech and the First Amendment will continue to be a hot topic at the level of strategic corporate policy. Raising the First Amendment has become a sort of portmanteau, all purpose, weapon against regulation. That said, I am not sure there is much that will touch civil litigators in their daily practice of representing corporate defendants. Although presumably there will be cases in which a First Amendment defense could be raised to some sort of mislabeling or false advertising claim, the ordinary product liability case will probably not be affected.

2.  You teach a course called “Scientific Evidence.” What is the most significant evidence opinion to come out in the last year? Why is it significant?

The most significant case to come out of the Supreme Court last year for purposes of my scientific evidence course (which will be renamed “Expert Evidence” for Spring 2012) is the Bullcoming v. New Mexico case involving the application of the Confrontation Clause to the admission of lab reports. A lab technician will no longer be able to testify to the results of an analysis from a report where he or she did not actually observe the test. Many believe this is likely to have very significant consequences for prosecutors and forensic testimony involving DNA, drug residue and other chemical analysis and similar lab tests or expert assessments. However, this case won’t have much significance for civil practitioners since the Confrontation Clause is only of interest in criminal cases.

3.  Some states, including South Carolina, have not adopted the federal Daubert standard. What challenges, if any, do such states face in light of their decision not to follow the federal approach?

I think there are always challenges when it seems that you are failing to follow “industry standard.” And to the extent many view Daubert that way I suppose those states (or their legislators) which have not adopted the Daubert test  may face some pressure to adopt the federal standard. But it is not universally popular. And so I think that pressure is misplaced. Daubert is no magic bullet for determining how to sort good expert evidence from bad. As Ramirez v. State from Florida illustrated a few years back, it is possible for a court which is supposedly following a Frye standard to apply the Daubert standard in everything but name. So what standard nominally controls isn’t as important as it may seem at first blush. In Ramirez, the Florida Supreme Court reversed for (I think for maybe the 4th time) a conviction involving expert testimony from a tool marks expert that linked marks in a homicide victim’s body to a particular serrated knife found in the defendant’s possession. The witness claimed his method led to a 100 percent level of confidence in the identification and that he could identify the defendant’s knife  to the exclusion of all other such knives in the world. This claim was probably not well founded from a scientific standpoint and he may have fared better if he had simply said he was “very sure” or “reasonably certain” or words to that effect instead of reaching for an improbably high number. The Florida Supreme Court essentially used a Daubert type analysis to hold that this sort of claim was scientifically suspect and thus ought to be have been excluded as unfairly prejudicial. The decision in this case illustrates why you need to be familiar with the basic framework of Daubert even if your jurisdiction uses a different test. Judges may want the questions the Daubert Court asked– was the finding published in a peer reviewed journal? Is there a known error rate?, etc. – to be answered regardless of the phrasing of the local rule. So I am inclined to think that decisions like Ramirez illustrate that it doesn’t matter so much which standard a state adopts. If the court you are facing is inclined to find the evidence you want to submit unusual and bizarre versus conventional and routine it will probably exclude it because a court can usually find a means of doing so. The doctrinal test has more influence on the form the argument takes than the substantive outcome. That is why I don’t think Daubert necessarily represents the best test or the “industry standard” with respect to expert testimony. I’m not sure there is a good way of solving this problem since the problem arises because lawyers are trained in every field that they need to evaluate and there is no way that they could be. It is a problem that defies a completely satisfactory solution. South Carolina’s may be as good as the federal approach.

4.  What do you think is the most misunderstood issue in the scientific evidence arena?  Why is it misunderstood?

This is a tough question because there is so much that is misunderstood! I guess if I had to pick one thing it is the feeling that there is a really clear division between “science” and other kinds of expertise. And this goes back to my answer to the last question. Lawyers are scientists but scientists also aren’t infallible and the line between “science” and other types of knowledge is not always clear-cut. There are a variety of ways to try to “prove” something. Some are more reliable than others. For example randomized, double blind trials produce more reliable results for the types of studies for which they are appropriate than many other types of research. But this sort of test is not available or appropriate for every question. Furthermore, probabilities and regression analysis tell you a great deal and will help clinicians make diagnoses, ones we want, for example, our doctors to rely on in many cases. However they cannot say for certain that any one instance of a particular substance caused a particular condition. Yet the courts often seem to require that degree of precision from experts. If they don’t get it they will exclude the testimony. I think that is a mistake, particularly since we routinely and unquestioningly admit testimony that has lower levels of reliability than many regression analyses (and a lot lower than we imagine!), such as eye witness testimony.  I think we ask scientific evidence to do more than it can in some circumstances when much of what we want to prove in a court of law–the facts about the occurrence or non-occurrence of some acts, or a particular state of mind– are often probably out of the reach of not just the legal system, but of human capacity.  I think maybe we seek this sort of certainty from the legal system because too much uncertainty is paralyzing. So having a basis for making a decision, even if it is not always accurate, is sometimes preferred to saying “I don’t know” or “we can’t decide.”  There isn’t much room for compromise verdicts in courts of law, even though jurors try to enter them all the time.  I think this impossibility of knowing all the facts is one of the attractions of strict liability – it allocates fault without having to delve into one of the most difficult areas to prove – intent. Yet, of course, if you are the defendant who feels wrongly burdened because you feel like you were doing the right thing and taking all reasonable precautions, it is probably not satisfactory to say to that defendant, “Well, society is better off if we don’t try to figure out your state of mind so be comforted that you are contributing to social stability.” You want the system to be fair to you. Everybody does.  Yet that is an elusive goal. And in many cases it may be an open question which system – fault-based or strict liability  –is better for society as a whole. Neither approach is going to be satisfactory in every case.

5.  Why do you believe there was a popular misunderstanding of the facts of the Stella Liebeck McDonald’s hot coffee case? In a comment to one of our earlier blog pieces, you noted that McDonald’s “escaped appropriate censure because of the campaign to lampoon the case.” What censure do you believe McDonald’s should have received, and why?

On the first part of your question, I think the opening interviews with people on the street in the movie Hot Coffee, as well as some of the materials on the web suggesting that the McDonald’s case was a paradigmatic “frivolous” lawsuit, combined with the reaction the film makers got when they told people the facts of the case, combine to suggest that; (a) most people, when they know the facts, don’t think it was a frivolous case and (b) that the perception that it was frivolous was nevertheless widespread.  To me that indicates there was a popular misunderstanding. The  movie reflects that McDonald’s employees and management were aware that the holding temperature wasn’t fit for human consumption and that there had been a number of incidents in which people had been injured. When you combine these facts with a refusal to pay Ms. Liebeck what appeared to be a relatively modest initial request, McDonald’s actions seems worthy of censure. In terms of what censure it deserves, I guess the movie itself constitutes the deserved criticism I had in mind, particularly if it is widely viewed. On a side note, the movie illustrates that sometimes it is better to advise the client to settle even a case the company thinks it can or should win rather than face this sort of bad publicity.  Of course, it is also the right thing to do if you are at fault. Another aside, it is unfortunate that sometimes the consequences of appropriate apologies overwhelm the ordinary human instinct to apologize in appropriate circumstances and sometimes discourage settlements.  On the other hand, the problem I referred to in your earlier questions about scientific evidence and our ability to figure out what the facts are, make it difficult for management to sort out the deserving from the undeserving plaintiffs. And I think defendants are often fearful of the specter of an endless parade of plaintiffs, or of setting themselves up as a deep pocket.  All I can say to that is that defendants (and their attorneys) just have to do the best they can in trying to sort those cases out. Attorneys (as you undoubtedly know) need to look at these cases from the perspective of plaintiffs and of prospective jurors and be able to anticipate how those jurors, or the public, will view these facts and advise their clients accordingly. And clients need to understand that attorneys who advice them that way are doing their job and trying to prevent disasters down the road by offering reliable advice about how to sort out the cases that ought to be settled from those that ought to be contested, not just refusing to take their “side.” Clients should not want a “yes man” who is afraid to tell them which strategies will likely work and which won’t. I don’t know if McDonald’s got good advice in the Liebeck case, but it did it appears that it didn’t or it wasn’t followed. Of course, my observation on that point may be simply a result of hindsight bias – everything looks more obvious in retrospect!

BONUS QUESTION: What do you think is the best depiction in popular culture of corporate speech or scientific evidence issues?

On evidence generally it is (no kidding) My Cousin Vinny, although that now qualifies as an “old movie” and maybe not part of “popular” culture any more. A more recent one that touches on the difficulties of proving something is Doubt with Meryl Streep and Phillip Seymour Hoffman.  On corporate speech, I think the best is a documentary called The Corporation.  But I haven’t seen everything that is out there, so there may be better examples. I would be interested in hearing from others what they think are the best examples.

BIOGRAPHY: Tamara Piety is the Associate Dean for Faculty Development and Associate Professor of Law at the University of Tulsa College of Law. She is a nationally recognized legal scholar writing about the legal treatment of commercial and corporate speech. Dean Piety’s book, Brandishing the First Amendment, is forthcoming this fall from University of Michigan Press.  Dean Piety is an experienced former litigator who practiced law in South Florida for several years focusing on complex commercial fraud and criminal defense. She teaches a range of litigation-related subjects including, Evidence, Scientific Evidence and Law and Mind Sciences. Piety earned her bachelor’s degree in economics from Florida International University in 1985; her J.D., magna cum laude, from the University of Miami School of Law in 1991 where she was an Article and Comments Editor for the University of Miami Law Review and Order of the Coif; and her LL.M. from Harvard Law School in 2000 where she was the Executive Editor of the Harvard Women’s Law Journal. She served as judicial clerk for the Honorable Peter T. Fay on the United States Court of Appeals for the Eleventh Circuit and as an interim clerk for the Honorable Irving L. Goldberg on the United States Court of Appeals for the Fifth Circuit.

We’ve been doing this blogging thing for about twenty months now, and we’ve enjoyed bringing you legal news and irreverent commentary on products liability issues. One of our proudest moments here at Abnormal Use was when we were included on the ABA Journal‘s annual list of the 100 best legal blogs last year. We very much appreciated the support of our readers who nominated us for inclusion on that list. Guess what?  The ABA Journal is now seeking nominations for this year’s list.  We humbly request that you, our dear readers, nominate us for the honor again this year.

You can do so by clicking here and briefly completing the very short nomination form. It should take only a few short moments to complete.

Be sure to tell them what you’ve liked about Abnormal Use this year (as the folks at the ABA Journal are looking for specifics). So far, we’ve had a pretty good year, if we do say so ourselves. We’ve continued to bring you the latest state and federal legal news and case commentaries in the products liability field.  We have interviewed a number of intriguing law professors, practitioners, and Hollywood celebrities (including the writers and producer of the 1991 film Class Action and even Mark-Paul Gosselaar and Breckin Meyer of TNT’s “Franklin & Bash” TV show). We offered some critical commentary on Hot Coffee, the would-be documentary film by plaintiffs attorney Susan Saladoff, which earned us shout-outs from both The New York Times and National Public Radio.  In March, Scientific American picked up a story we did on a series of predictions made in 1931 about the year 2011. We even came up with a comprehensive list of songs about attorneys and judges and authored what we thought was a pretty darn funny April Fool’s Day joke on the Star Wars prequels.  And, of course, each Friday, we have brought you a different legal themed comic book cover (which, you might not realize, is actually pretty difficult, as finding all of those legal comic book covers is sometimes like finding a needle in a haystack). We’ve even set up a page on Facebook. All of this we have enjoyed doing immensely.  Throughout this enterprise, we have also made a number of good friends in the legal blogosphere.

Which brings us back to our humble request for a nomination. Take a look at the nominating form and the ABA Journal‘s brief guidelines for submission.  If you enjoy the commentary we offer here and would like to support us in this endeavor, we would very much appreciate it. Nominations will be accepted until September 9.

Above is the cover of The Perry Mason Mystery Magazine #2, published way back in 1964. We’re not entirely certain what is occurring on the cover of this issue, but we suspect there might be some questionable “lawyer as witness” issues presented to the court. In fact, if that’s Perry Mason kneeling over the body before the police arrive, then might Mason himself be a suspect? Wouldn’t that be the perfect crime? No one would suspect him, primarily because he’s Perry Mason! We’re just supposed to take his word that he’s an innocent passer-by? (See our previous mentions of Perry Mason here and here).

University of St. Thomas law professor Mark Osler of the Osler’s Razor blog digresses from the discussion of law to talk about something far more important: Bruce Springsteen and Patti Smith and their “Because The Night” collaboration. (In other Springsteen news, a fan recently paid $611 for the first issue of the Springsteen fanzine Backstreets, first published in 1980. Finally, in yet another Springsteen news story this week, it appears that Springsteen and Billy Joel may be able to reclaim ownership of some of their songs from the 1970s.).

Back in July of 2010, we remarked upon the Vampire Weekend lawsuit. Remember that? The band’s second album, Contra,  featured a 1983 photograph of a very preppie model on its cover, but apparently, there was an issue of whether the model ever signed a release for that photograph. Litigation ensued.  Well, according to reports, the band settled out of the case, although the band still maintains a claim against the photographer in the suit. We bet they won’t be using a cover model on their third LP.

In case you were in doubt,  you cannot win punitive damages against a dead person in Iowa.

If you like old photographs of forgotten places and times, you’ll love the Shorpy photoblog, which posts high resolution photographs, usually 100 years old or older. Most of the time, there are lots of photographs of New York City and Washington, D.C. and place like that. However, this past week, the site posted a photograph taken in February 1913 in Bluffton, South Carolina, just a few hours from our Columbia office. Take a look here to see what it was like to toil in the oyster business in South Carolina 98 years ago.

The bloggers at The Pop Tort are taking a vacation for the remainder of the summer. Alas.

Kudos to our own Luanne Runge, who was recently elected as the 2012 Chair-elect of the Greenville Chamber of Commerce. She will serve as Chair in 2013. Congratulations also to our own John T. Lay, Jr. (of our new Columbia office, in fact), who was recently appointed Chair of the Business Litigation Committee for the International Association of Defense Counsel. For more information, please see here.

Don’t forget! You can now access Abnormal Use on Facebook.  To do so, click here.

Attorneys, save for a small cadre of early adopters, are typically slow to adapt to new technology and social medial utilities.  Accordingly, it may be some time before many practicing attorneys make their way to – or even hear of – Google+ (although invites are already being called “the hottest ticket in law firm marketing”).  You may have seen some of the buzz regarding Google+, and perhaps you were initially dismissive in light of the complexities and/or confusing qualities of Google’s other recent social media platforms, such as Google Wave or Google Buzz (which turned out to be quite a dud).  However, Google+ is the search engine giant’s attempt to compete directly with Facebook by establishing its own social network, but it’s also more than that.  Already, a number of attorneys – mainly those interested in legal technology, social media, or the next big thing – have migrated to Google+, turning it into both an interesting place for the discussion of legal technology and an echo chamber of sorts. In fact, the biggest challenge at this point seems to be convincing potential users to migrate to yet another social media platform.

If you use Facebook, Google+ will seem familiar to you, although it appears to be a bit less aesthetically busy.  The chief difference between Facebook and Google+ is that Google+ starts with the assumption that users have different sets of friends with whom the user will want to share different pieces of information.  In essence, it acknowledges that most true of truisms:  we all live in many separate worlds, and we don’t like for those worlds to collide.  From the very moment you join, you can separate your work friends from your college buddies and so forth.

Google+ does this by establishing what it calls “circles,” user groups to which you must assign those with whom you wish to connect using the site.  For example, you can establish a circle called “family” and assign relatives to that circle.  Similarly, you can create circles centered around interests groups such as law, technology, or even music or sports.  (You can even create a circle for those that you wish to mainly ignore.). When you elect to post something to Google+, you must decide which circle to which you will send the post.  Accordingly, a post sent to one’s sports or family circle will not be published to any other circles.  Users can of course send a single post to multiple circles, one circle in particular, or even one user in particular.  How does this affect attorneys?  Well, for one, it allows us to more easily discuss the law and legal issues on their social networking profile without pestering those who are not interested in that subject matter.  Those of us who use social media realize that there are many different “friends” with whom we have connected who may not wish to learn about the latest legal issue.  One can create a circle called “law” and share legal issues only with that circle and spare one’s remaining friends from any such discussion. This may be easier than maintaining separate personal and professional profiles.

How does this differ from Facebook (which, as you know, we here at Abnormal Use recently joined ourselves)?  Well, Facebook allows one to create different groups and control the level of information that is shared with those particular groups.  However, Facebook did not start with that ability as a core function.  When one becomes friends with another on Facebook, by default, that friend can see all of your information unless you adjust to private settings or assign that user to a particular group that limits the profile information that can be seen.  Further, if you’ve already accumulated hundreds and hundreds of Facebook friends, you’ll need to create certain privacy settings and add each friend individually to each desired privacy setting. That could become quite a hassle. With Google+, when you confirm a connection with another user, you must assign that user to a particular circle or circles as part of the connection process. It’s easier, in part, simply because Google+ is new.  However, Google+ seems to have been designed to ameliorate the “worlds colliding” dilemma, while Facebook has had to retcon itself to address that concern.

As we noted above, the biggest challenge for Google+ is for people – many of whom use multiple social networking utilities – to bring Google+ into the routine.  We’re currently struggling with that, as we already use Twitter, Facebook, and LinkedIn, but the (relatively) new Google+ iPhone app may make that a far easier task. In sum, Google+ is worth investigating.

Guess what? We here at Abnormal Use have set up a Facebook page for our blog content, which you can find here. Sure, we waited until well after that movie about Facebook was released, but we wouldn’t say we’re tardy in joining everyone’s favorite social network. If anything, we’re fashionably late.

As you might expect, we’ll be posting links to our blog content there, so now, you don’t even have to leave your favorite (or most familiar) social networking platform to learn what we’re up to here at our site.  That just shows you how considerate we are. We’re hopeful that this move will promote additional interaction with you, our dear readers, and allow us to reach you where you already may be.  We’re very accommodating, aren’t we?

So, now, if you like us, if you really, really like us, then you can login to our new Facebook page and hit the like button!

There are some problems with the events depicted on the cover of Justice League of America #69, shown above and published way back in 1969.  Green Arrow is informed simultaneously that he has been both charged and convicted – apparently in absentia – with murder.  There’s nothing really just (or American, for that matter) about conducting a criminal prosecution in that fashion, although that’s apparently the way the Justice League of America rolls.  Shouldn’t Green Arrow have been properly arrested, appointed counsel, indicted, and tried to verdict? Nevertheless, the members of the JLA – even Superman! – add insult to injury by unanimously displaying turned down thumbs to the crestfallen arrow-slinger. You’d also think they would have disarmed Green Arrow before sharing this news.

Brian Comer discovers the Stiletto Heel Warranty in South Carolina. Who knew? It’s apparently in the statutes somewhere.

Congratulations to the Charleston School of Law for receiving full accreditation from the American Bar Association. More details here. (Hat Tip: The Faculty Lounge).

In a post entitled “Golden Retriever Takes Stand in New York Criminal Trial,” Ilya Somin of The Volokh Conspiracy recounts how, well, a dog recently “testified” in court in New York. There’s much that can be said about this development. However, we here at Abnormal Use can say only one thing: there is a precedent for this.

Did we mention that our firm’s new marketing director, Cortney Easterling, has joined Twitter? You can follow her at @CortEasterling.

There’s a bit of a scandal in the legal blogosphere this week.  Apparently, a law professor, sick of the “scam” he has found legal education to be, has started an anonymous law blog to lodge his presumably many complaints.  He goes by the pseudonym LawProf and has named his blog Inside The Law School Scam. Here’s a sample from his first post:

I can no longer ignore that, for a very large proportion of my students, law school has become something very much like a scam. And who is doing the scamming? On the most general level, the American economy in the second decade of the 21st century. On a more specific level, the legal profession as a whole. But on what, for legal academics at least, ought to be the most particular, most important, and most morally and practically compelling level, the scammers are the 200 ABA-accredited law schools.  Yet there is no such thing as a “law school” that scams its students — law schools are abstract social institutions, not concrete moral agents. When people say “law school is a scam,” what that really means, at the level of actual moral responsibility, is that law professors are scamming their students.

We’ll be watching this would be Howard Beale of American legal education, if only to keep abreast of the burgeoning scandal. By the way, we wouldn’t ordinarily link the name Howard Beale to its corresponding Wikipedia entry, but you must understand that most junior associates were born -after- the release of Network. (Hat Tip: PrawfsBlawg and Volokh Conspiracy).

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 to law professor J. Stanley McQuade of the Campbell University School of Law in Raleigh, North Carolina. McQuade, a certified anesthesiologist, teaches courses on law and its interaction with medicine. The interview is as follows:

1.  What rule or concept in modern products liability jurisprudence do you believe is the most outdated, and why?

The two notions that I consider most outdated are strict liability and comparative fault. Taking them in order:

Strict liability is properly defined as liability without proof of a defendant’s fault and that due care by that defendant is irrelevant. This is already part of the law in many areas and [there is] nothing radical about it. What seems to me new is the term “strict liability” taken as a cause of action in itself. I think it is very misleading to jurors, and perhaps even to lawyers, suggesting some kind of liability without fault where they can let their imaginations run ahead of their judgment and find for a badly injured plaintiff willy nilly without locating the liability in any other recognized area of law like negligence or warranty, et cetera. The idea of liability without fault works well enough in manufacturing defect cases where the defect speaks for itself, but it is not needed here and does not apply in design or warnings defect cases which are generally admitted to be essentially based on fault. Throwing in the term strict liability only confuses things. I notice that neither the Model Uniform Product Liability Act (MUPLA) nor the Restatement of the Law (3d) of Torts—Products Liability use the term “strict liability.” I would therefore urge the North Carolina legislature to continue to ban that term.

With regard to comparative fault, I agree with the justice in the California Supreme Court case who commented that asking a jury to assign fault in a degree somewhere between “0” and “100 percent” was asking too much. I also consider modified comparative liability defective since, besides asking juries to assign large degrees of fault, it also asks them to consider the effect of their decision, i.e. that if fault exceeds 50 percent the plaintiff gets nothing (and the jury must be apprised of this rule). Psychologists tell us, and the good justice agrees, that people can only decide between 3-5 alternatives at the most. Applied to comparative fault, this suggests that the jury should first be asked to decide if the plaintiff should get the first alternatives, everything or nothing. If this cannot be done, they should be allowed to determine whether the plaintiff was 25 percent, 50 percent or 75 percent at fault. This they could manage, and split decisions could be rendered unanimous by the usual methods.

2.  You are a certified anesthesiologist.  What medical issues do you believe that lawyers misunderstand the most in their cases, and why?

The standard of care. This is, of course, what a reasonable practitioner in the same specialty and the same circumstances would  consider reasonable to expect of a doctor. What is sometimes overlooked here is that medical diagnosis and treatment have become so sophisticated and complicated that it is difficult for even specialists to keep up with things, and it becomes easier and easier to make a mistake. The standard of care is established by testimony of a physician, and physicians placed in this situation suddenly become very judicial and exacting (to show how professional they are).  I think that the standard of care (and breach of it) might better be established by a small panel consisting of a judge, a defense lawyer and a plaintiff’s lawyer (and no doctor) with the right of the plaintiff or defendant to ask for a second opinion. I realize that this is  a somewhat controversial opinion, but I would rather trust my reputation to informed lay persons such as lawyers than to medical opinion.

3.  What is the most important thing lawyers should keep in mind when reviewing medical records?

Adopt a methodical approach (see my manual on this subject – learn how a medical record is put together and what you expect to learn from each part of it) deciding first 1/ Why was the patient seeing a doctor or entering a hospital? 2/ What went wrong? 3/ What steps were taken when the wrong turn occurred? 4/ What is the resulting damage and disability?

BIOGRAPHY: A certified anesthesiologist, Stanley McQuade lectures on the topics of law and medicine. He received his law degree with top honors from The Queens University of Belfast in 1950. Thereafter he received BD, BA, PhD, and MD degrees from the same university, as well as a Masters degree in Theology from Union Theological Seminary. He has also served for 25 years as a Methodist minister and has published several works in the areas of law and medicine and jurisprudence.. He is also Medical Editor for Westnet’s ten-volume Attorney’s Medical Advisor and Atlas.

Depositions can be funny. One of the joys of being a member of the Texas Bar is receiving the Texas Bar Journal, which always included the famed “Et Cetera” column by the late U.S. District Judge Jerry Buchmeyer, who offered amusing moments and excerpts from litigation.  For years and years and years, Judge Buchmeyer collected funny quips and quotes from deposition transcripts, trial pleadings, and trials and published them in his column.  In fact, his column became so popular, that whenever anyone flubbed a question during a deposition, someone would inevitably remark, “That’s one for Buchmeyer.” Sadly, Judge Buchmeyer passed away in 2009, but the world can enjoy his columns at the Texas Bar Journal’s website here.

We always wanted to submit something to the column but never had the opportunity.  Recently, though, something happened at a deposition that we – and apparently only we – thought was amusing.  Here is an excerpt from a recent toxic tort deposition:

Q     Do you know whether or not the specifications that were discussed were altered at any time after the summer of 1969?

A     No, sir.  I don’t know.

Q     So you have no personal knowledge of any subsequent negotiations which may or may not have occurred after the summer ’69.  Is that correct?

A     Correct.

Q     Summer of ’69. Somebody needs to make a Bryan Adams reference here, I think.

After that remark, though, there were crickets in the room.  Crickets! When we received the transcript, we turned to the relevant page to see if the court reporter had added, “Whereupon, there were the sounds of crickets.” Worse was the deafening nature of the silence! From both those assembled in the room and those attending the deposition by telephone! The attempt at humor fell flat, but it seemed so clever to us in our own minds! How can one discuss the summer of 1969 without referencing the old song by Bryan Adams? Oh, well. Maybe this deposition excerpt would not have been one for Judge Buchmeyer’s column, but how can one resist making a pop culture reference under those circumstances? How could anyone? Oh, bah, humbug.

After last week’s more wholesome legal themed comic book cover, today we return to something a bit more hard-boiled: Justice #6, published way, way back in 1948. Note the actions of the crestfallen mother as she hears the judge sentence her son to the electric chair. The defendant’s sister, however, has little sympathy. A cynical news reporter asks “When will these craven criminals ever learn that at the end of the trail of crime nothing is waiting but heartbreak – and tears!” (Why that newshound is lurking near the judge’s bench rather than the spectator’s gallery is unknown). Curiously, there do not appear to be any actual lawyers in this courtroom, or at least none we can see. One thing is for certain: there is a whole lot dialogue on this cover.

As promised, Steve McConnell of the Drug and Device Law blog has posted his magnus opus on Star Wars. (Don’t expect too much about pharmaceutical litigation in that post.). We encourage you to read it. Of note, Steve properly reserves some disdain for the recent prequels, as any reasonable person should.

Speaking of which, in last week’s edition of “Friday Links,” we directed you to our 2011 April Fool’s Day post, “Star Wars Prequels Unreasonably Dangerous and Defective, South Carolina Federal Court Finds,” suggesting that it was “the one post this site [had] dedicated to that series of films.”  But guess what? That’s not entirely true. Nerds that we are, we’ve referenced Star Wars before! We searched our archive and discovered this June 2010 post in which we quoted a number of courts who referenced the Star Wars trilogy. You know you want to know which judges referenced the trilogy.

Friend of the blog Jay Hornack a/k/a Panic Street Lawyer has an interesting blog post on U2’s recent Pittsburgh concert and the 14th Amendment. Somehow, he manages to connect those seemingly unrelated things together with his mighty prose. Check it out. We have not yet had the opportunity to write about U2, but earlier this year, we did do a pretty thorough post listing songs about lawyers and judges.

The State offers this account of yesterday’s memorial service for U.S. District Court Judge Matthew J. Perry, Jr., who passed away last week at 89.

This week, we welcome two brand new bloggers to Abnormal Use! Starting this week, be on the lookout for posts from our two new associate contributors, Steve Buckingham and Childs Cantey Thrahser. Steve (whose first post ran earlier this week) serves on our Business and Commercial Law Team in our Greenville office, while Childs, also on our B&C team, works out of our brand new Columbia office. We’d also like to take this opportunity to thank retiring blogger Laura Simons, an associate in our Greenville office, for her 18 months of service on the blog. She’s definitely earned a break after being with us since our initial founding in January of 2010, and we wish her a happy retirement from this fateful enterprise.

South Carolina Lawyers Weekly reports on Mills Gallivan, our boss, being appointed to the South Carolina Bar Dispute Resolution Section. Note: You can now follow Mills on Twitter at @MillsGallivan.