Above, you’ll find the cover of Wolff & Byrd, Counselors of the Macabre #4, published sometime in the mid-1990s before the series’ name was changed to Supernatural Law. Note the tagline: “Beware The Creatures of the Night – They Have Lawyers!”  We must confess a general unfamiliarity with this series and the characters who appear therein, though according to Wikipedia, they’ve been around since the 1970s. Who knew?

PHM at The Civil Procedure & Federal Courts Blog feels compelled to “put anything that includes the phrase ‘tort reform’ in quotation marks,” including The American Tort Reform Association. Sure, it’s an advocacy group, but we don’t put the Plaintiffs’ bar group, the “Association for Justice” in quotation marks because that’s what they’re actually called.  It’s like using the phrase “so called” when something is actually called that. Oh, well.

We don’t discuss constitutional law much here at Abnormal Use, but after learning of last week’s ruling in Brown v. Entertainment Merchants Association, in which the Supreme Court struck down a California state law restricting the rental or sale of violent video games to children, we may have at least one comment on the subject. Like most, our first thought was, “How many sitting Supreme Court justices have actually played a video game?” And then we skimmed the opinion. But today, we direct you to this article by friend of the blog and Pennsylvania lawyer Jay Hornack (a/k/a Panic Street Lawyer), who analyzes the ruling in far more detail.

We here at Abnormal Use have been called many things, but it’s been a while since someone said we were silly. Alas, Ronald V. Miller, Jr. at the Drug Recall Lawyer Blog did so last week, chiefly because he didn’t like our recent post calling for Reed Morgan, the Plaintiff’s lawyer in the Stella Liebeck McDonald’s hot coffee case, to release the transcript. Ouch! Oh, well. All we want to do is read the transcript! Is that so wrong? McDonald’s isn’t talking (nor have they done so much on this case since ’94), and the courts sure aren’t likely to have a 17 year old trial transcript. So, that leaves us with the the Plaintiff’s lawyers who represented Liebeck. Considering that many, many Plaintiffs’ lawyers spent much of last week praising Susan Saladoff’s “Hot Coffee” documentary and clamoring for the real “truth” behind the Liebeck case, we thought Liebeck’s lawyer might naturally want to serve that interest and release the transcript for posterity. What better way to expose the truth? But I guess that’s just silly. (In other news, the ABA Journal referenced some of our work on the hot coffee case, as well. You can see that piece here.).

By now, you have all seen the infamous motion for summary judgment filed by Mark Cuban in the law suit brought by a company alleging that Cuban had mismanaged the Dallas Maverick basketball franchise.  The four page motion – which can be found here – is brief and amusing, as it uses imagery in the body of the motion to suggest that the claims against Cuban are baseless. (Apparently, because of its novelty, some law professors are already teaching the motion in class.). On its second page, the motion includes a large photograph – which takes up nearly half the page – of Cuban and the Mavericks celebrating their recent national championship win.

Cuban’s motion reminds us of a post we did late last year encouraging the use of such tactics.

Back then, in a post on modernization of judicial opinions, we noted that attorneys haven’t traditionally included images in motions and wrote as follows:

[T]his is a product of tradition, and attorneys – as authors of briefs which are predominantly prose – are equally at fault. While it is customary to attach photographs as exhibits to memorandum in support of motions, rarely does the attorney actually embed the photograph into the image itself. (This is changing for the better, though.). Thus, the Court, or the reader of the brief, is required to flip from the particular page being read back to the exhibit index and then back to the argument again. It seems that in 2010 this is unnecessary in both written submissions to the Court as well as in the resulting opinions themselves.

These days, with so much information on the Internet, with so many visual learners, with so many maps, photographs, schematics, images, and so many other types of non-prose information, we believe that embedding images into one’s motions is a growing trend and may in fact help and simplify issues.  In a products case in which the product at issue is relatively obscure, a photograph accompanied by a brief description can speak volumes more than a lengthy technical treatise.  If location is an issue in the case, then a photograph of a scene might be appropriate, provided that the photograph is, of course, favorable to your argument.  If the distance between two sites is at issue, then a Google map screen capture can be input into the motion itself to showcase the distance at issue. There are many, many options.

We as lawyers use words by trade, but often we use far too many of them.  The readers of our motions and briefs have much to do and many other items to review.  We suspect that they, most of all, would appreciate efforts to simplify the briefing process.  After all, a picture is worth a thousand words.

Just ask Mark Cuban.

What better way to celebrate the Fourth of July than the patriotic cover to Superman #53, depicted above and published way back in 1991? (It’s a good one, although it’s emotive impact is lessened a bit by Superman’s recent renunciation of his U.S. citizenship!) Whatever the case, we here at Abnormal Use and Gallivan, White & Boyd, P.A. wish you a fun and safe holiday. Let’s all pause a moment today and reflect upon those Founding Fathers – many of them lawyers themselves – who signed the Declaration of Independence way, way back in 1776.  Then we can grill out some burgers and have a beer.

And be certain to check out this far more substantive post on July 4th over at the Constitutional Law Prof Blog.

(Last but not least, click here to see last year’s Fourth of July post, complete with Greenville, South Carolina fireworks).

We’re not entirely certain why Captain America was on trial, or whether this was the same Captain America from the good old days of comics. Nevertheless, depicted above is the cover of Captain America #613, published only a few months ago in February of 2011.  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’ve received a number of responses regarding last week’s tribute to the late sax player Clarence Clemons of Bruce Springsteen’s famed E Street Band.  Friend of the blog Steve McConnell of the Drug & Device Law Blog emailed us: “You guys did a great post on the passing of Clarence Clemons. For a guy like me who grew up in Jersey in the ’70’s, the Big Man’s death is traumatic. It really feels like a body blow and is, of course, yet another grim reminder of mortality. I’m a neolithic fan of the Boss. For me, it never got better than Born to Run. That album reached operatic heights, and Clarence was a big reason why.”

The Ernie the Attorney blog has an interesting post about the mobile practice of law and the perils of simplicity and security. Says he: “I wouldn’t use free WiFi at a coffee shop to do anything related to client matters. Maybe I shouldn’t have back then, but in 2005 we didn’t have as many hacking incidents as we do now. When you see hackers attacking major companies like Sony and Sega, and even major governmental agencies like the Department of Defense, then you become aware that it’s a little dangerous to be cavalier about how you use the Internet. What’s a mobile simplicity-seeking lawyer to do?”

Congratulations to our own Stuart Mauney, who was recently designated the state chair of the Council on Litigation Management. You can see the news coverage here, and you can follow Stuart on Twitter at @stuartmauney.

Today, we here at Abnormal Use continue our series, “Abnormal Interviews,” in which we conduct brief interviews with law professors, practitioners and other commentators in the field. For this latest installment, we turn to attorney and social media guru Megan Erickson of Dickinson, Mackaman Tyler & Hagen, P.C. in Des Moines, Iowa. Erickson runs the popular Social Networking Law Blog and practices in the areas of commercial litigation, appellate practice and business law. The interview is as follows:

1.  As the general public increasingly uses the Internet and social media to communicate, how do you predict that state bars will react to the popularity of this new technology among attorneys?

I’m not sure anyone can predict how state bars will respond, but I do think one of the biggest challenges will be in the area of professional regulation/ethics.  In particular, I think we’ve already seen problems arise when the people in charge of regulating others’ online activity are people who are themselves relatively unfamiliar with the technology they want to regulate.  Although people are increasingly accepting of Facebook and online networking, there are still plenty of people out there whose attitudes range from “I’m reluctant to use Facebook” to “Facebook is Satan.”  As we get more and more interactive online tools and Web 2.0 becomes more pervasive, the division between the tech savvy and the tech not-so-savvy becomes more pronounced.   Folks who use these tools find themselves increasingly engaged online and dependent on the technology; folks who inherently distrust the online world feel more compelled to restrict it.  Of course, an unrealistically optimistic view of social media is unhealthy, and there should be some rules in place.  I just think state bars should make a more concerted effort to ensure those rules aren’t being articulated by someone who (regardless of how well-intended) is ill-informed on the very technology being regulated.

2. How can, and how should, lawyers manage their time between work, more traditional marketing and business development, and the usage of social media?

It depends.  (How’s that for a “lawyer” answer?!)  I think every attorney approaches client development and marketing initiatives differently, and attorneys also have different demands and priorities at work and at home.  To the extent you find online tools a convenient, effective, and heck – maybe even fun way to market, then by all means, use them!  Some firms may find it beneficial to experiment a bit.  For example, does it make sense to change a quarterly practice group newsletter mailing to a quarterly e-newsletter?  The answer will depend on the audience preferences, the comfort level of the attorneys in making the change, and the practical realities of whether they have an effective way to make that transition.  Does it make sense for a practice group to give up a newsletter altogether and instead focus efforts on a blog?  Again, the answer should come only after thoughtful consideration.  Some groups may welcome such a change:  it may be easier to start writing a piece when you know you can keep it shorter; it may be more useful to an audience to receive a more concise post than lengthy article; it may be more convenient for some attorneys to try this without imposing a particular schedule or deadline – which may elicit more contributions or make it more convenient for the authors.  Of course, it may be a nightmare for others:  if the group doesn’t have anyone familiar with blog platforms, learning the technology may be unduly burdensome; some groups may not be able to make a blog work without a particular schedule or deadlines; some may spend an inordinate amount of time concerned with search engine optimization, and let SEO overshadow the substance.  If you’re running into too many challenges or you feel like a new technology just isn’t your cup of tea, don’t force it!  Some of us are more comfortable with speaking engagements.  Some of us prefer lunches with clients.  Some want to network at the golf course, while others dedicate themselves to community involvement.  Just as we all have different talents and preferences for traditional forms of client development and networking, we’ll all have different approaches to how we implement or supplement our marketing with social media and other relatively new online tools.

3. What advice would you give to lawyers who are consider using blogs and Twitter to market their firms and practices?

Drawing from my prior answer, you may want to experiment, but don’t force something that isn’t working for you.  Twitter may seem like the cool, new “thing” you’re supposed to be doing – but only participate if it makes sense for you.  If you choose to participate, learn the rules of the road.  You wouldn’t take prospective clients to the golf course without understanding the basics:  teeing up, how to use a ball marker, the difference between a wood and a putter, what to do when your ball goes in the water . . .  (I’m very familiar with that last situation, myself.)  Likewise, don’t use Twitter or other online tools without learning basic etiquette and lingo.  You’ll do yourself more harm than good if you skip this step.

4. Do you believe that blogs and Twitter are successful independent means of generating business, or are they now simply a necessary part of larger contemporary marketing efforts?

As my earlier answers suggest, I think the role of social media in a lawyer’s client development efforts has to be an individualized choice.  My personal opinion is that very few lawyers would be able to – or would want to – use only blogs and Twitter to generate business . . . if for no other reason than effectively using blogs and Twitter itself generates other marketing opportunities.  If your blog is popular, you’ll be asked to speak.  If you have interesting posts, you’ll be called for interviews.  And so on.  To the extent lawyers want to use blogs and Twitter, I think most will want to use them to supplement other marketing efforts – not replace them.

BIOGRAPHY: Megan Erickson is an attorney at the Dickinson, Mackaman, Tyler & Hagen law firm in Des Moines, Iowa where she practices primarily in employment law and also maintains a general practice including but not limited to commercial litigation, appellate practice and business law.  Megan is a frequent author and speaker on legal issues related to technology and social media.  She maintains the Social Networking Law Blog, and has been interviewed and quoted on legal implications related to social media in various publications and websites across the country.

The sinister suggestion that major corporations have conspired to use the Stella Liebeck McDonald’s hot coffee case as a tool to promote tort reform is odd, although film maker Susan Saladoff and her pals at the The Pop Tort seem to believe that business interests have spent millions in an effort to make the Plaintiff Stella Liebeck the poster plaintiff for tort reform. That’s one of the themes of Saladoff’s Hot Coffee documentary, which we reviewed yesterday. However, there really isn’t any evidence to prove such a corporate scheme, although as always, the absence of evidence of a conspiracy serves to confirm its success in some eyes.

Sigh.

These allegations of corporate malfeasance prompted some thinking on our part. If the Stella Liebeck case has truly been misrepresented by maleficent corporate interests for the last 17 years, is a documentary by a plaintiff’s attorney like Saladoff the best way to expose it?  Wouldn’t the best way to ensure that the public knew the truth be to place as much information in the public record, thereby permitting the public to decide the issue without spin? Saladoff herself must agree in spirit, as part of her film includes her selectively presenting citizens on the street with trial exhibits from the Liebeck case, including photographs of Liebeck’s injuries.

But why be selective in releasing those original source documents?

As we previously noted, the 1994 Liebeck verdict came at a interesting time; the communications infrastructure we rely upon today was in its most nascent stage. Although colleges and universities (as well as early adopters and huge nerds like we here at Abnormal Use) had Internet access, the general public did not, and newspapers did not publish articles online to be relied upon later by armchair researchers.  Thus, in this age of information, most of the source material we have on the case is second-hand, at best. These days, when a lawsuit makes the news, the pleadings are instantly published on news organizations’ website. Certainly, courts place many documents on-line, whether it be the federal PACER system or state court docketing systems. But not then. We were years from court records and pleadings being placed on line. In sum, the Liebeck case, filed in New Mexico state court in 1993 and tried in 1994 happened before anyone digitally preserved such things for posterity.

Where does that leave us?

The only parties with access to all relevant information are the McDonald’s corporation and Liebeck’s estate. Despite the protestations of the plaintiff’s bar and Saladoff, the McDonald’s corporation has remained curiously tight-lipped about the case over the past 17 years. There’s no evidence that this major company has engaged in any public relations campaign; and if they had, it has not been very successful, as many people are unaware of the basic facts of the case.

If the plaintiff’s bar truly wishes to expose the “truth” behind the case, then they should look to one of their own: S. Reed Morgan of S. Reed Morgan & Associates (now of the Law Offices of S. Reed Morgan, P.C.) of Comfort, Texas, the lead plaintiff’s attorney who represented Liebeck during the original trial. Presumably, Morgan has a whole host of original material which could shed additional light on the case but which are not currently in the public record. By this, of course, we refer to deposition transcripts, discovery responses, and the trial transcript, none of which is readily available in any form. Allowing the general public, as well as legal scholars and researchers, to review this material would shed much light on the case and allow partisans of any persuasion to use the actual evidence from the actual trial to advance their agendas. (Saladoff had access to at least some of this material, although it’s unclear from whom she obtained it; she told IndieWire that she “was able to secure the transcript of the trial, and then went to Albuquerque where the case was tried, located the family, the lawyers, jurors, the doctor, and started talking to as many people as possible who would talk to me.”)

Some privacy concerns might exist. However, the heirs of Ms. Liebeck could easily address those hurdles and permit the release of any sensitive material. (They were apparently comfortable with Saladoff using photographs of Ms. Liebeck’s injuries.). If her relatives are willing to be interviewed by friendly documentarians about the case, we suspect they would have no problem with releasing these materials for the general public as a whole. If, after all, the goal is for the truth to be revealed, the release of as much information as possible would certainly serve that goal, would it not?

Sure, you ask, wasn’t there a confidential settlement in the case which occurred in December of 1994 which might prohibit the release of such material? We here at Abnormal Use have not seen the language of that agreement (why would we have?). Certainly, it has not kept Ms. Liebeck’s local counsel, New Mexico attorney Kenneth R. Wagner, from being interviewed by Ms. Saladoff in her documentary about the case. Further, the trial transcript is a public document, likely outside the scope of any confidentiality clause. It should be released to the general public, just as it was released to Saladoff for her purposes (but again, by whom, we know not).

Accordingly, we here at Abnormal Use officially challenge Morgan to release these materials to the extent he is permitted to do so under the settlement agreement. Further, we challenge Morgan to consult with Ms. Liebeck’s heirs to secure their permission to release any additional information (particularly Ms. Liebeck’s deposition transcript), to the extent that their permission is needed under relevant law. (Further, we recall something from law school about deceased persons no longer having any right to privacy, anyway.) Certainly, if a fair reading of these materials will result in one agreeing with Morgan and Saladoff, than there is no reason to conceal these materials any longer. However, if they are reluctant to release these materials, what’s all this talk about “truth” then, really?

With all the talk about Plaintiff’s attorney Susan Saladoff’s new documentary, “Hot Coffee” and the Stella Liebeck McDonald’s hot coffee case, we here at Abnormal Use are also making the media rounds.  Today, a New York Times write-up on Saladoff’s documentary – which premieres on HBO tomorrow  – quotes one of our earlier posts noting would be documentarian Saladoff’s decades-long background as a prominent Plaintiff’s attorney.  Here’s the excerpt in question from the piece by Times legal correspondent John Schwartz:

With a subject this fought-over it’s not surprising that the documentary itself has been controversial. A legal affairs blog that covers product liability law, Abnormal Use, criticized the film for having come from the hands of a trial lawyer, stating, “We’re thinking that this might not be the most objective documentary on the subject.”

Of course that wasn’t really the filmmaker’s goal. Ms. Saladoff is, as a lawyer and now a director, an advocate. One of several strands in the film, Ms. Liebeck’s story shows how tort reformers deftly spun her case and others to nudge public opinion and argue for the need to shut down what industry advocates called “jackpot justice.” The film also lays out facts of the case that are rarely heard.

Schwartz quotes directly from this prior blog post of ours, which we ran back in January. Of course, The Times, being The Times, attempts to cover for the anti-tort reform filmmaker against our charges of potential bias. (Maybe The Times is still miffed at us for scooping them on our “Views of 2011 from 1931” story last December.).  As always, if you’re looking for more information on the Liebeck case, please see our comprehensive FAQ.

We here at Abnormal Use are huge fans of Bruce Springsteen and the E Street Band, so of course, we were saddened to learn of the death last weekend of Springsteen’s long time friend and saxophone player, Clarence Clemons.  Our firm boasts many Springsteen fans, from newly minted admirers to some who saw the Boss and Clemons back in the 1970s.  Whenever Springsteen and the E Street Band play the Southeast, our firm sends a contingent of folks to bear witness. In light of our great fondness for Springsteen and Clemons, we thought we would share a few memories of Clemons.

Shareholder and Blog Author Phil Reeves:  “My second concert with Bruce was in Atlanta in 1978 at the Fox Theatre in Atlanta. I had tickets on the fifth row, and he had rescheduled because he was sick, and it was broadcast on the radio. He played four hours, and he and Clarence did the best version of “Backstreets/ Sad Eyes” ever.  He has never repeated it.  I remember being blown away and understanding that this was music at its most powerful level. I have never forgotten a single note and can not imagine a better show ever. Clarence was amazing. This was he and Bruce at their best, and it was obvious that they were not only fellow musicians, they were also best friends. It was quite a show.  When it was over, we just sat there in awe. I still have the tapes and they are among my most precious possessions.”

Thanks to the power of the Internet, we were able to locate the setlist to that September 30, 1978 show.

Paralegal Stephanie Ayers:  “My memory would be the concert in Greenville in September ’09 when Phil Reeves’ daughter, Michelle, made the huge poster which said ‘Welcome to Greensteen.’  We were only a couple of rows from Clarence and when he spotted the poster, he smiled his big smile and pointed it out to Bruce. They both keep pointing to the poster and smiling our way and then they motioned for Little Stevie to get the poster and bring it to them. Then they held it up and it was on the big screen behind the band for their last song.  What a great moment.”

If we here at Abnormal Use are anything, we are quick with our iPhones, and we caught a quick picture of the very moment Stephanie is describing, with Little Stevie holding the sign in question while Clarence sits in the foreground. See below for that photo.  The set list for that September 16, 2009 show at Greenville’s Bilo Center can be found here.

Did you know that in one of the character’s earliest incarnations, Captain America was a district attorney by day? That’s right. In the 1944 Republic film serial Captain America (a promotional poster for which appears above), actor Dick Purcell played Cap, whose secret identity was prosecutor Grant Gardner. (This is a bit different than the modern version of Captain America, whose alter ego is non-lawyer Steve Rogers.).  Cap and Gardner primarily battled the nefarious villain known as The Scarab. The serial, which was apparently popular, was the first and only time Purcell would play the character, as Wikipedia tells us that he died before its official release. This information is relevant, of course, is relevant as this July will see the release of a new Captain America film with actor Chris Evans as Cap.

Headline of the week: “Studying for the Bar Exam? Despair May Stalk You.” Thanks for that, Lawyerist.

We here at Abnormal Use sometimes kind of dig the archaic complexities of the Blue Book book, but we are certainly agree with David S. Cohen of The Faculty Lounge, and his post “Complete Nonsense: The Blue Book’s Requirement for The Year of a Statute.” That particular rule we’ve never really understood (or followed much, for that matter).

After our own Nick Farr’s piece earlier this week on the new Dunkin’ Donuts sweet coffee lawsuit, how could we not link this story from Findlaw’s Legal Grounds blog about a group of Massachusetts robbers who inadvertently stole a bag of donuts instead of a bag of cash? Please submit your own donut or coffee related robbery puns for our review.

Big news today from GWB headquarters. We have opened an office in Columbia, South Carolina, bringing our total number of offices to three in two states. Here’s the text of our recent e-blast newsletter on the new enterprise:

Gallivan, White & Boyd, P.A., has established a Columbia law office which opened this week in the Capitol Center, staffed by a team of skilled litigators. We are happy to welcome to the GWB family John T. Lay Jr., Johnston Cox, John Hudson and Shelley Montague, who will be partners in the Columbia office, and James Brogdon, Childs Thrasher and Breon Walker, who will serve as associates.<

Our firm is known for having a deep bench of experienced litigators who can try complex cases. This group is cut from the same cloth. They have tried numerous cases and they are leaders in their profession and in the community, which is something we at GWB value greatly.The Columbia team has 77 years of combined legal experience and is led by Lay. They will continue to serve clients with whom they have established relationships over the years while also assisting current GWB clients and working to grow the firm as a whole.

With the opening of an office in Charlotte earlier this year led by Chris Kelly, we now have three offices in two states. Our goal is to be the best business and complex litigation firm in the Southeast, and this takes us another step toward achieving our goal. It also allows us to serve you more efficiently and effectively throughout the Carolinas.

For those of you visiting or doing business in the Midlands, our Columbia office can be reached as follows:

P.O. Box 7368
Columbia, SC 29202

Capitol Center, Suite 1110
1201 Main Street
Columbia, SC 29201

(803) 779-1833 (effective Friday, June 17)

Click here to see our earlier post on the opening of our Charlotte, North Carolina office earlier this year.