You know a lawyer is in trouble when he’s had sex with a client and gets called before the state bar’s disciplinary committee.  You know he’s in really big trouble when the sex isn’t even the biggest ethical issue that the disciplinary committee is investigating.  That’s where a Minnesota attorney found himself after allegedly having an affair with the woman he represented in a divorce proceeding.   As if the affair wasn’t enough, he reportedly billed the women for legal services for the time spent during their sexual encounters. Yikes.

Last month, the Minnesota Supreme Court suspended attorney Thomas Lowe indefinitely for his conduct relating to an affair with a client.   In August of 2011, Lowe began representing  a woman in divorce proceedings against her husband.  Lowe himself was married at the time.   In short order, the two began a sexual affair that lasted nearly six months.  The real kicker is that Lowe was apparently billing his client for the time spent during the affair.  Lowe reportedly billed the women for legal service on the dates of their alleged sexual encounters.  The billing entries were coded as meetings or drafting memoranda.

In fairness, there’s no ABA billing code to properly cover this kind of thing.

Things took a serious turn after he terminated the affair and withdrew as her attorney.   Lowe’s client, who had a history of mental health issues, attempted to take her own life when he ended the affair.   She was then hospitalized, at which she disclosed the affair.

Eventually, the information found its way to the Office of Lawyers Professional Responsibility  Of course, Lowe initially denied much of the allegations.   He later changed his stance to “unconditionally” admit the allegations.   The indefinite suspension by the Minnesota Supreme Court was accompanied by an order that he would not have a chance for reinstatement for at least 15 months.

Lowe’s disciplinary records reveal that in 1997 he was reportedly placed on probation for an offense involving cocaine.   But wasn’t just that he used or possessed cocaine.  He allegedly bought the cocaine from a client.  All we can say is, wow!

These days, guns and school safety are the biggest hot button topics around.   No one wants innocent children being harmed, whether it be by a crazed gunman or some other student who decided to bring a parent”s pistol to school.  But, at some point, we must remember that we can’t abandon common sense in the name of safety.  That advice goes particularly to a Colorado elementary school that suspended a second grader who was exercising his imagination during recess by pretending to stop imaginary bad guys with an imaginary weapon.

The seven year-old boy was playing a game he made up called “rescue the world” at Loveland, Colorado’s Mary Blair Elementary.  During the course of this game, the boy threw an imaginary grenade into a box where his imaginary evil forces were hiding.   There were no threats to other students.  There was no real weapon or dangerous object involved.  Just a boy pretending to be a hero.

So, why exactly, was the boy suspended?  Apparently, the school has a list of “absolute” safety rules that result in automatic suspension if broken.  The list proscribes fighting and weapons, which makes perfect sense.  The list also bans “imaginary” fighting or weapons.  So we’ve got a school that can suspend kids for the strict liability crime of using their imagination.

It might be time for everyone to step back and take a deep breath.

As we’ve noted in the past (see, e.g., the Fruit Rollups Lawsuit), there’s seems to be a whole niche of the law now devoted to lawsuits over false claims and advertising relating to food.  Well add a couple more lawsuits to the list.  Lawsuits in New Jersey and Illinois are now challenging Subway’s “footlong” sandwich claims.   Plaintiffs have alleged that the Subway “footlong” sandwiches they purchased really measured in at just under 12 inches, and for that egregious injury, they have chosen to go to court.  Oh, the humanity!

Nguyen Buren, the Plaintiff in the Illinois lawsuit, alleges that he visited a Subway location in mid-January of this year and purchased a “footlong” sub sandwich that measured only 11 inches.  Notably, Mr. Buren’s complaint (which is on available on PACER – Buren v. Doctor’s Assocs., Inc., No. 13-498 (U.S. Dist. Ct., N.D. Ill., filed January 22, 2013)) alleges that he was deceived on that single occasion in January.  He filed the suit against Subway’s parent company, claiming a “pattern of fraudulent, deceptive and otherwise improper advertising, sales and marketing practices.”

Mr. Buren’s attorney equated the injury to buying a dozen donuts and finding only 11.  But that’s not quite the case.  The number of donuts is different from the size of the donuts.   As a recent Forbes article noted, baking bread is not an exact science.  As bread is baked, it rises and grows, but the growth is not  the same on every occasion.  The way bread dough grows depends on a number of factors, such as temperature, humidity, and cooking time.  Remember that we are talking about bread, not airplane parts.

You know what I’d do if I ordered a dozen donuts and got 11 donuts, or ordered a footlong sandwich and got 11 inches ?  I would go back and ask for a refund or a remedy of the situation.  Alternatively, I might stop eating at that establishment.   You’re buying a meal, not a compact car.  There’s no indication that Mr. Buren ever asked Subway to remedy his sandwich or asked for a refund.  But why go to such extremes when you can simply file a lawsuit over a sandwich short by one inch?

Given the obesity problem in this country, Subway would probably be doing us all a favor by giving us a little less sandwich.  I mean, who really needs a to be eating a foot long sandwich?   Nevertheless, Subway has pledged to remedy the situation.   According to a spokesperson, Subway will “redouble [its] effort to ensure consistency and correct length in every sandwich [it] serves.”  Next time you go to Subway, just remember to take your tape measure to be sure.  Good grief.

An attorney for a California amusement park company has called the company’s recent win in a bumper car lawsuit a “victory for anyone who likes fun and risk activities.”  The case involved a head on collision in bumper cars between two amusement park patrons – one of the patrons ended up with a broken wrist.  Of course, low speed collisions are the whole point of the ride.

The California Supreme Court says riders can’t sue over injuries stemming from the inherent nature of the attraction.

The lawsuit was filed by a San Jose, California doctor, Smriti Nalwa, who fractured her wrist while riding in a bumper car with her 9-year-old son. The injury occurred when she braced herself for a head-on collision with another car by placing her arm on the dashboard. Dr. Nalwa alleged that amusement park, Great America, failed to direct its employees to ask patrons to avoid head on collisions. To the joy of kids and kids at heart throughout the state, the court was not buying what the good doctor was selling. The court found that Dr Nalwa’s injury was caused by a collision that was a normal part of the ride and that she had assumed the risk by participating in the ride. Justice Kathryn Mickle Werdegar held:

A small degree of risk inevitably accompanies the thrill of speeding through curves and loops, defying gravity or, in bumper cars, engaging in the mock violence of low-speed collisions. Those who voluntarily join in these activities also voluntarily take on their minor inherent risks.

Perhaps California gets an unfair legal rap?  But then you consider the fact that there actually was a dissenting opinion. Justice Joyce L. Kennard’s dissent complains that the decision makes poor trial judges face “the unenviable task of determining the risks of harm that are inherent in a particular recreational activity.”  I think we could give that task to any 7 year-old and they could handle it.

Recently, the Commonwealth of Pennsylvania brought suit against the NCAA, alleging that the NCAA violated antitrust laws in levying severe sanctions against Penn State’s football program.  Notably, the University is not a party to the suit.  We have seen a few of the media’s “legal experts,” such as Andrew Napolitano (here) and Lester Munson (here), argue that the Commonwealth has no legal standing.  They believe Penn State or its student athletes are the only ones with standing to sue.  So if these brilliant legal minds have spoken, there’s nothing to see here.  Or is there?  Well, upon reading the complaint and doing about ten minutes of legal research, it’s clear that there’s actually a solid basis for the Commonwealth to assert standing to sue.

By way of background, in 2011 Penn State’s president, vice-president, and athletic director were accused of failing to report a 2001 allegation sexual abuse of a minor by a retired assistant football coach.  All three have been criminally charged and are no longer actively employed with the school, but the trials are still pending.   There were no allegations that any student athletes were involved in this matter and the head football coach followed university procedures in passing the allegations to his superiors.  Nevertheless, in July, the NCAA bypassed its normal enforcement procedures and levied massive penalties against the football team, including drastic scholarship reductions, a four year bowl ban, and a $60 million fine.  Some have declared the sanctions to be worse than the “death penalty.” The NCAA did not cite a specific NCAA rule violation as basis for the punishment, but instead simply cited general ethics standards.

Penn State receives state funding but is not considered a “state school,” in spite of its name.  So how exactly does the Commonwealth have grounds to assert standing to challenge these sanctions levied against the Penn State?  It comes from a relatively obscure doctrine called Parens Patriae.  As noted in the first paragraph of the complaint, the Commonwealth of Pennsylvania brought this suit Parens Patriae seeking an injunction under Section 16 of the Clayton Act (15 U.S.C. § 26).  Under the doctrine of Parens Patriae, a state can bring a legal action to protect its citizens from harm. The Parens Patriae doctrine is indeed applicable in antitrust actions.  An American Law Reports article (23 A.L.R. Fed. 878) on Parens Patriae and Antitrust states:

…. a parens patriae action under § 16 of the Clayton Act (15 U.S.C.A. § 26), which provides for injunctive relief against antitrust violations, can be maintained by a state on the basis of injury to the state’s general economy.

This is what the District Court held in Com. of Pa. v. Russell Stover Candies, Inc., CIV. A. 93-1972, 1993 WL 145264 (E.D. Pa. May 6, 1993) (citing State of Ga. v. Penn R. Co., 324 U.S. 439 (U.S. 1945)).

The Commonwealth’s complaint lays out the case for how its economy was injured.  In short, the complaint alleges that the Penn State football program generates hundreds of millions of dollars for the economy in central Pennsylvania.  The complaint further alleges the sanctions levied by the NCAA, which are allegedly in violation of Section 1 of the Sherman Act, will cripple the viability of the football program and will in turn impact the state’s economy through lost travel, hotels, ticket sales, dining, et cetera.

It would seem that the Commonwealth has a pretty strong basis for standing.  It shouldn’t be hard for it to secure expert affidavits to show economic harm in order to get it past a motion to dismiss for lack of standing.  Heck, the NCAA’s President, Dr. Mark Emmert, has essentially admitted that the Penn State football program is a major economic engine whose demise will have far reaching impact.  As noted in the complaint, in discussing why the NCAA imposed sanctions rather than completely shutting down the football program, Dr. Emmert stated:

The collateral damage imposed in this case would have been on people who were essentially innocent bystanders … This case had nothing to do with the marching band or the mom-and-pop hotel in State College or the guy who sells hot dogs, all of whom would have been profoundly affected by a multiyear football ban.

Of course, the sanctions imposed by the NCAA will still have the same collateral economic effects as those discussed by Dr. Emmert, but on a smaller scale.

Notably, the Commonwealth did not request monetary damages.  Courts are generally more relaxed in allowing standing for states in antitrust cases requesting injunctive relief under § 16 of the Clayton Act rather than treble damages under § 4.   Under § 4, courts are reluctant to allow standing for a general state economic injury because such indirect damages are difficult to measure.

If the Commonwealth can survive a motion to dismiss for lack of standing, this case could be very interesting.  Then again, I doubt either party wants to see this make the inside of a courtroom.   I wouldn’t be surprised to see some sort of settlement for reduced sanctions if the Commonwealth can get past motions to dismiss.   Some have already speculated that settlement is the real end game.

Boxer Juan Manual Marquez knocked out Manny Pacquiao stone cold in their recent fight.  However, even before the fight, Pacquiao’s trainer, Freddie Roach, was convinced that Marquez was on performance enhancing drugs (PEDs).  In fact, nearly two weeks before the fight, Roach allegedly said, “If [Marques’s body] is natural, I will kiss his ass.”  After the fight, Marquez tested clean. He is now reportedly considering a defamation suit against Roach.  But it is not the defamation suit that has our attention.

It is the fact that Marquez appears to want specific performance on Roach’s offer.

Marquez recently stated,”Roach told me that if I would come out clean in the anti-doping tests, he would kiss my ass. The Nevada Commission has announced that [I was] negative for doping.  That means Roach has to kiss my ass and then some.”  The question: Can he get the specific performance he wants?  Of course not.

But, just for fun, let’s run through this fact pattern as if it were a law school exam question.

First, a contract is any transaction in which one or both parties make a legally enforceable promise.  The question is whether Roach’s promise to kiss Marquez’s ass is legal enforceable.  A promise is legally enforceable when it was made as part of a bargain for valid consideration or it reasonably induced the promisee to rely on the promise to his detriment. Marquez could certainly argue that he would have taken PEDs but for the offer made by Roach.  It is certainly a stretch. Moreover, Marquez already had a pre-existing duty not to use PEDs under the rules set forth by the Nevada Boxing Commission. Under the pre-existing duty rule, a promise regarding a pre-existing obligation to the other party does not constitute a legal detriment.

Second, if there was no contract, Marquez might attempt to assert promissory estoppel.  When a promisee foreseeably relies to his detriment on the promisor’s promise, even in the absence of an enforceable contract, the doctrine of promissory estoppel may be invoked to make such promise binding in order to prevent injustice.  The arguments for “detrimental reliance” would be intriguing in this case, but for the purposes of this brief analysis, we aren’t going there.

Finally, even if there were success on the aforementioned theory of recovery, would a judge really order the specific performance that Marquez appears to desire?  Specific enforcement is a remedy in the form of a court order that the breaching party render performance of the contract.  Specific performance is not available if money damages are adequate to put the aggrieved party in as good a position as he would have been had the contract been fully performed. Expectation damages are deemed to be an inadequate remedy where the subject matter is unique.  I suppose Marquez could argue that the subject matter is unique, but the judge would likely interpret Roach’s promise as being symbolic.  The embarrassment could arguably be replicated by awarding money damages.

Now, these certainly aren’t all the issues you could bring up on a word vomit law school exam.

You’d want to discuss things like unilateral contracts, acceptance by performance, inapplicability of the UCC, et cetera.  But you get the idea.

Today, we here at Abnormal Use continue our week-long tribute to A Few Good Men with an interview with James Marshall, who was kind enough to agree to an interview with our own Rob Green earlier this year. In the film, Marshall’s character, Pfc. Louden Downey, was one of the accused Marines defended by Lt. Daniel Kaffee, played by Tom Cruise. Marshall’s credits include roles in David Lynch’s “Twin Peaks,” Gladiator, and “China Beach.” Our interview with Marshall, which features his memories of the filming and set and observations on his acting career, is as follows:

ABNORMAL USE:  It’s kind of hard to believe it’s been 20 years since that movie came out.  It kind of seems like it was almost just yesterday.  How has it been for you, I mean, does it feel like it’s been 20 years?

JAMES MARSHALL:  No.  Not at all.  One of the funny things about it is A Few Good Men seems to be playing almost every night, it’s not like weekly, like every other day, it was on some channel. To me, it was such a unique part of my life.  That’s why when I look at some of the guys, everybody is starting to look a little older, and I think, wait a minute, that can’t be happening, we just did that.  It was such a great opportunity to be a part of something that cool and that big.

AU:  That was such a big name cast that you guys had in that movie.  How was it filming a movie with all those big names, Jack Nicholson, Tom Cruise, Demi Moore, Kevin Bacon?

JM:  It was literally – at first that kind of feeling like maybe skydiving feeling.  At first, I was really, really scared. Even going to the set for the first time for the first rehearsal.  I genuinely had a feeling of like, “Whoa.”  Every day, it was like very surrealistic, very dreamlike in a really good way.  It was just so cool.  There were so many people walking around, and you’ve got to understand, these people who are that big have friends.  So, they had their big movie star friends visiting the set.  There were some I didn’t get to know, but the ones that I dealt with mainly were Demi Moore and Kevin Pollak.  I only spoke to Jack a couple of times, but I just watched how he dealt with peopl,e and he was a very good person to look at for that kind of thing.  As big of a star as he is, from the extras to just anybody, if somebody asked him a question, he just was right there looking them in the eyes and answering.  It was very cool.

AU:  Your role in the movie, you played Pfc. Louden Downey, who was a young Marine wrongfully accused of murder, what sort of background research or what did you do to prepare for that particular role of playing a Marine?

JM:  Well, the Marine stuff, that initially I had worked on a military movie called Cadence that was directed by Martin Sheen that  starred Martin Sheen, Charlie Sheen, and Larry Fishburne.  It was shot in Canada, and we actually had to shoot it twice.  So, I actually went through real two boot camps to prepare for that movie, which was pretty much the kind of thing that you don’t forget.  Yeah, I had had it pounded in for many months before the shoot of Cadence.   I was a little rusty by the time A Few Good Men came around, but it came back pretty quickly. Somebody on the set actually came up to me, I think it was the first day, and said, “You’ve got to get these guys, they’re marching’s horrible. ” And I go, “You guys need to do this and that to march properly.”

RG:  Anything else?

JM:  I also got to see A Few Good Men on Broadway when I was in New York doing promotions for “Twin Peaks.”  This was way before A Few Good Men was thought of as a movie, they were probably just talking about it.  And I got to see the Broadway show, they took me to the show and stuff.  So, seeing the other guys’ performance, what he did with Downey and stuff, really helped me to, because on stage it’s much bigger, broader, so it helped me to understand how his character was.  Because on film, you tend to downplay things.  And had I not seen what they did on stage, I may have downplayed it too much.  It gave me a good background emotionally where the characters were.

RG:  Now, you had so many big names in the film, but the actor you shot the majority of your scenes with, Wolfgang Bodison, that was his first role wasn’t it?

JM:  Yeah.  He’d never – he wasn’t an actor.  He was Rob Reiner’s assistant, actually, and I think Rob just started looking around because he was having trouble finding the right person for the part, and Rob thought Wolfgang just looked perfect for the part. So, I think Rob just read him and made sure he could do it, and yeah, that was that.  He was a good guy, too.

RG:  A Few Good Men is considered to be one of the best legal movies and, in fact, the American Bar Association named it number 14 on the list of 25 greatest legal movies of all time.  What do you think makes the movie resonate so well with so many people, whether lawyers or not, after all these years?

JM:  There’s all-star casts with many movies, and they just come and go sometimes. I mean, the script is phenomenal, and there was a certain something in that script that was very special. Even when I saw it on stage, that time in New York, there was something about it that vibrated.  . . . [S]omething about it had a life of its own.  I’ve gotta hand it to Rob Reiner. When you have Rob Reiner come on, who dealt with everything so responsibly, he had the emotion in everything he did.  He is also able to humanize all of the characters. He dimensionally showed you through his direction of each character, what they’re doing when they’re not in uniform, and what they’re doing off the job.  Then, he was willing to go to a place that was really, really almost emotionally invested in the character by giving a sense of vulnerability of each character.  Like Nicholson’s character’s vulnerability was his arrogance, you know what I mean?  I mean, the movie’s just so dynamic, and it moves so well, without being self-conscious and artificial, has this great old school Hollywood movie feel to it, which makes you feel good about.  There’s something so redeeming, and it’s the fact that they – it just feels good to be human for a minute, and that’s really what, that’s really to me what theater and Hollywood is about ultimately.  It makes you interested in life, inspired about life, and to feel good about being human.  And most movies don’t do that. It’s either a thrill ride, or whatever, or an attempt at something like A Few Good Men, and usually it falls short.  No, you know what it was, it was a compilation of incredibly talented people coming together with a really, really good story.

AU:  Do you have a particular scene or a particular moment from the movie that kinda stands out to you that you particularly look back on with and go “Wow, that was just amazing”?

JM:   There’s probably a couple of parts.  There’s the final scene with the classic build-up of Jack Nicholson’s character [“You can’t handle the truth!”] and the fireworks . . . between Cruise and Kevin Bacon with Demi Moore and Nicholson, and you just feel their – it’s like where it’s going to go, how is this going to happen and it’s happening so effortlessly and quickly, and then – that’s something that everybody remembers. But as far as other stuff, for me, when I see some of the scenes, some of the scenes make me remember what we were doing at the time, that kind of thing.  And it’s like when I look at scenes at the table in the courtroom, sometimes with Demi, Tom, and Wolfgang, we’d be sitting there for hours because of other thingsoff camera.  And then we’d also have Kevin Pollak there.  He’s a comedian.  Between takes, Kevin would be making jokes, and it was just tremendously funny stuff coming from him. Then, Demi would stick something in, and Kevin would crack up. And Rob Reiner would come over and hear it and start laughing.  It’s little moments like that stand out.  But yeah, I don’t remember a lot of things from most movie shoots, but A Few Good Men, I remember nearly every day.  It was so dynamic.  It was just . . .  it was overwhelming.

AU:  One of the interesting aspects of the movie that I found as a former JAG officer was the interplay or tension for most of the movie between Kaffee and Dawson and Downey with, you have Kaffee’s kind of laid back lawyerly personality and then you have the very militaristic Dawson and Downey – do you know how that aspect of the movie came to be?  Was it just something that Aaron Sorkin wrote in, was it something that Rob Reiner developed?  Do you know where that came from?

JM:  Actually I think those were the dynamics of the play, so I think a lot of that was Aaron’s stuff that was in there already.  I’m pretty sure, yeah.  It was, everybody was pretty well defined from the play and from the initial script.

AU:  Do you think you get recognized most for your role in “Twin Peaks” or A Few Good Men?

JM:  A Few Good Men.

RG:  Definitely?

JM:  Yeah, because “Twin Peaks,” although it had a bit of a cult following, I think everybody has seen A Few Good Men. And like I said, A Few Good Men is on television a lot.  I also tend to look more like the A Few Good Men character.  On “Twin Peaks,” I had dark black hair, blah, blah, blah.  And the role was an ensemble cast.  It was a whole different thing.  But yeah, I’d say definitely A Few Good Men.

I spent over four years as an Active Duty Judge Advocate with the United States Air Force prior to transitioning into civil practice.  As with most JAGs, A Few Good Men holds a special place in my heart.  On the whole, the movie is fairly accurate  from a JAG perspective but it does go astray on a couple big-ticket items.

Let’s start with the accuracies.  I suspect that they hired a former JAG as a consultant to assist them in the script.  They get a lot of the little things right.  For instance:

—     Demi Moore’s character calls for an “802 conference” after she strenuously objects to admission of expert testimony (for a second time).  That’s military lawyer speak for a conference with the judge outside the presence of the jurors.

—     They get the two accused Marines to trial very quickly.  Although I don’t think the movie ever gives an actual time line, it seems like just a few months from the crime to the trial.  That type of speed is actually something upon which the Military Justice Systems places a premium.  In fact, when a Military Member is placed in pre-trial confinement, Rule 707 of the Rules for Courts Martial requires that person be brought to trial within 120 days.

—     The tension between Cruise’s laid-back character, Lt. Kaffee, and the two Marines on trial.  JAGs are military officers and expected to act that way, if for no other reason than to retain the respect of other military members.  In real life, if a JAG acted as aloof as Lt Kaffee, he’d get an earful from many different angles.

—     The Marine Military judge is not wearing a traditional robe during the trial. That’s actually correct for a Marine.  Marine and Navy judges don’t don the robe (although Air Force and Army judges do).

So what did they get wrong? First, you know how Tom Cruise’s character, Lt. Kaffee, is portrayed as a wet behind the ears defense attorney who’s never seen the inside of a courtroom? Well, in real life, the military would never appoint a person with no trial experience to be a defense counsel.  Nearly all defense counsel in the Military start out in the prosecutor’s office for a couple of years where they earn plenty of trial experience.  A JAG usually is only considered for a defense counsel position after he has gotten a number of trials under his or her belt.  The rationale is that the military wants to make sure that if any mistakes are being made (and hopefully they aren’t), those mistakes don’t end up putting an innocent person in jail.  Moreover, Lt. Kaffee certainly wouldn’t have been lead counsel.  In the serious criminal cases, there is a Senior Defense Counsel appointed to take the lead, and the younger defense counsel sits second chair.

Second, speaking of inexperience, do you remember when Lt. Kaffee alludes to his suspicion that his superiors put him on the case because military higher-ups didn’t want the case going to trial?  Well, in real life, defense counsel fall under a separate chain of command that runs straight up to the 3-Star General in charge of the JAG Corps.  Non-JAG military officers have no authority to directly influence defense counsel.  The Military recognizes that defense counsel need to be free from undue influence and the perception of undue influence.

Finally, although the two accused Marines have the main charges against them dismissed, they are still found guilty of “Conduct Unbecoming A Marine” and are discharged from the military.  The only problem? No such crime exists under the Uniform Code of Military Justice (UCMJ).  Article 133 of the UCMJ makes “conduct unbecoming an officer” a crime.  But the two accused Marines were enlisted, rather than officers, and couldn’t have been convicted under Article 133.  Whoops.

In spite of these few in accuracies, the movie is still near and dear to me.   Who doesn’t appreciate a movie that makes a mostly boring career exciting?  I’m sure mall cops feel the same way about Paul Blart: Mall Cop.

As a part of our coverage of the twentieth anniversary of the release of A Few Good Men, we must dedicate one post to the film’s classic, and most memorable, scene. As you no doubt recall, Jack Nicholson’s character, Col. Nathan Jessup, furiously shouts, “You can’t handle the truth!”  It’s the film’s most famous line from its most famous scene.  Nearly everyone, lawyers and non-lawyers alike, know the line.  Tom Cruise’s character, Lt. Daniel Kaffee, masterfully extracts that statement and subsequent admission of guilt from Col. Jessup.  Or did he?  Actually, from a trial advocacy perspective, Kaffee’s gambit is a terrible bit of strategic lawyering.

By way of refresher, the scene arrives during the end of the trial.  Kaffee’s two Marine defendants are on trial for the death of a fellow Marine, who died after they stuffed a rag down his throat as a part of a “code red” hazing.  However, the Marine defendants claim that they were just following orders from their superiors.  As the trial progresses, things are not looking good for Kaffee and his clients.  So Kaffee decides to go for the home run and calls Col Jessup to the stand.  The goal: goad Jessup into admitting that he ordered the code red.

When Kaffee calls Jessup to the stand, he’s armed with little ammunition.  It’s a hail mary gambit.  The witness is full bird colonel, a position which is as credible as they come to a court-martial jury.  There are no prior statements of Jessup that he ordered a “code red,” s no potential impeachment material.  There’s little, if any, extrinsic evidence casting doubt on Jessup’s testimony.  So, what was Kaffee’s brilliant plan?  To call him a liar and scream “I want the truth?”

Seriously, that was his plan.

Would such an approach ever work in an actual courtroom? Imagine this:

Defendant’s Attorney: Ms. Smith, isn’t it true that my client was traveling only 1 mile per hour when his vehicle struck you, you told him afterwards that you were fine, you had no injuries, and your new complaints of injury are completely fabricated?

Witness:  No, that’s not true.

Defendant’s Attorney:  I want the truth!

Witness:  I’ve already told the truth.  Your client slammed into me, and I’ve had serious back pain ever since.

Defendant’s Attorney:  I want the truth!

Plaintiff’s Attorney: Objection asked and answered.

Judge:  Sustained. Move along, counselor.

If it wouldn’t work on your classic fender bender Plaintiff, we doubt it would work on an experienced field grade military officer.  Quite frankly, Kaffee’s strategy is pretty dumb.  But hey, it’s Hollywood, and it made for some great cinematic drama.

Pro athletes seem to be awfully litigious these days.  We recently discussed the exercise ball products liability lawsuit filed by Francisco Garcia of the Sacramento Kings.  Well, as we mentioned last week, former Houston Texans’ punter Brett Hartmann has filed a lawsuit over a 2011 knee injury that he blames on the turf grass of Houston’s Reliant Stadium.

We have a few more thoughts on this lawsuit that we could not resist sharing.  We can’t seem to leave these professional sports cases alone, can we?

Hartmann sued venue-management company SMG and the Harris County Convention and Sports Corporation. Notably, the suit doesn’t name the Texans as defendants.  Hartmann claims poor field conditions at Reliant Stadium caused a leg injury last year that could end his career.  Hartmann allegedly caught his foot between two pallets of grass on the field and tore his anterior cruciate ligament (ACL) as a result.  The lawsuit says several doctors have told Hartmann that his knee remains “unstable” and that he needs “additional surgery, possibly quite extensive.”

The lawsuit alleges the natural grass surface in Reliant Stadium is transported into the stadium in 8-by-8-foot trays for games, which allegedly creates “innumerable seams and uneven partition” in which an athlete can step and become injured.  Most other stadiums with natural grass surfaces have a single uninform surface that permanently remains in the stadium.

Typically, sports injury cases are tough to win because a player is said to have assumed the risk of injury by participating in the sporting contest.  For instance, if you step out onto an NFL field with Ray Lewis, and he decapitates you with a violent hit, that’s just an occupational hazard.  However, this case is somewhat different than your typical sports injury case because it is alleged that a defective or unsafe playing surface caused the injury.  It is difficult to say that player assumes the risk of a defective playing surface. Think about that for a moment.

We’d love to see the trial.  The potential witnesses include Bill Belichick and Tony Dungy.   The lawsuit claims Belichick has called Reliant Stadium’s turf “terrible” and “inconsistent” following an injury to Wes Welker in 2009.  Dungy is quoted as stating that the Indianapolis Colts were “definitely concerned about the injury factor” when playing at Reliant Stadium.

We’ll keep you posted on this one.