Once again, McDonald’s finds itself drug into the court system.  But this time, the lawsuit has nothing to do with piping hot coffee.  According to reports, Shelley Lynn has filed suit in a California federal court blaming the fast food chain and her ex-husband, Keith Handley, for turning her into a prostitute.  This is not the type of success story McDonald’s typically promotes on its employment applications.

Before we jump to conclusions, there does not appear to be any evidence McDonald’s required the former store clerk to add new meaning to the term “Happy Meal.”  Rather, Lynn claims McDonald’s negligently supervised and retained Handley, who owned a franchise 20 years ago.  According to the complaint, Handley hired Lynn in 1982 as a counter person.  The two started dating in 1985.  Thereafter, Lynn revealed her dream of becoming a Vegas showgirl.  To help her achieve that ambition, Handley reportedly bought Lynn a house in Vegas.  Handley then allegedly pressured Lynn to find a job in a Vegas brothel to help pay for the home.  Succumbing to pressure, Lynn claims she found a job in 1986 at the Chicken Ranch where she became a “top booker.”  She married Handley in 1988, but the two later divorced.  There are no indications from the reports as to how long Lynn claims she remained a prostitute.

We must question how McDonald’s became a player in this lawsuit.  First, we are aware of no evidence at this time that McDonald’s knew or should have known that Handley was a potential sex trafficker.  Lynn alleges in her complaint that McDonald’s did not have a proper procedure for reporting grievances.  However, the only grievance she mentions is an incident where she was allegedly fired for insubordination.  There were no indications that the insubordination arose out of her apparent hesitancy to become a prostitute.  In fact, it appears, at least from the complaint, that Handley allegedly pressured her to enter the business only after she moved to Vegas – when she was no longer a McDonald’s employee.

Second, Lynn will have difficulty showing that it was reasonably foreseeable McKinney would hire an employee, start dating her, move her to Vegas, and force her to become a prostitute.  There’s probably a law school examination question in these facts somewhere. Sure, McDonald’s probably doesn’t want to start a pattern of franchise owners engaging in intimate relationships with employees.  But a relationship by itself is not a grounds for liability in this case.  The issue is whether it was foreseeable McKinney would allegedly force Lynn into prostitution.  There are no allegations of this conduct with any other employees.  The conduct occurred after the period in which Lynn was employed by McDonald’s.  The conduct did not take place on McDonald’s property.  While we here at Abnormal Use are not judges, this doesn’t exactly sound like a case of negligent supervision/retention.

We here at Abnormal Use and Gallivan, White, & Boyd, P.A. began this blogging thing in January 2010 as a law firm with one office in Upstate South Carolina.  Now, more than two years later, we have three offices in two states.  As you know, we recently celebrated the first anniversary of our Charlotte office. Our editor, Jim Dedman, just moved from our Greenville, South Carolina  home office to our Charlotte office.  And there is more news from Charlotte. After a number of months of occupying what was called the “temporary permanent space,” a smaller, nondescript series of offices in which we worked while waiting for our “permanent permanent space” to be renovated and completed, we have finally arrived in the permanent permanent space.

We are mighty pleased with our new digs.  We even have a private terrace:

How about that? So, update your address books and note the change in suite numbers in the left hand sidebar on our site.

And if you ever find yourself in the SouthPark area of Charlotte, North Carolina, let us know.

Above, behold the cover of Mr. District Attorney #63, published way, way back in 1958.  Note that the cover story is entitled “The Man in the Martian Suit,” which suggests something about the events depicted upon the cover.  Our hero, the district attorney, presents himself and the presumably costumed crook to the police fingerprint desk.  Says the DA: “Check those fingerprints, sergeant! We’ll find out who this masquerading criminal is!”  Replies the sergeant: “But, Mr. D.A. . . . These prints are like nothing on this Earth!” You would think that the district attorney, in apprehending the “man in the Martian suit,” would have removed the Martian suit from the suspect before presenting him to the police sergeant for print.  Or, if the suit was, in fact, not a suit, but the exterior of an extra-terrestrial, you’d think the D.A. would have figured it out before this point in the criminal process, too.  Sigh.

Friend of the blog Max Kennerly, of the Litigation & Trial law blog has an interesting post: “How To Excel At The Basics As A Young Litigator.” Complete with Robert Caro references! You can follow Max on Twitter here.

We are disappointed to report that friend of the bog Stephen J. McConnell has announced his retirement – temporary, hopefully – from the famed Drug and Device Law blog.  You can read his last post – published past Monday – here.  Through our blogs, we’ve become pals with Steve, and he very recently participated in our collection of “My Cousin Vinny” reviews. Although our two blogs have previously quibbled on musical issues, we once joined forces to compile a huge list of songs about lawyers, judges, and attorneys, which was an immense amount of fun. We even quoted Steve in a prior edition of Friday Links on the occasion of the death of Clarence Clemons. In the mean time, Jim Beck and company will continue to provide sharp commentary on the drug and device beat.  We’ll miss you, Steve.

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

Virbram, the maker of those funny looking “toe shoes” called FiveFingers, has been sued over claims made in its advertising relating to the purported health benefits of its products.  The FiveFingers shoes are meant to mimic barefoot running, which Vibram claims is actually healthier than running in a traditional shoes.  The class action lawsuit filed in federal court in Massachusetts alleges that Vibram made deceptive statements about the benefits of running barefoot.

According to the complaint:

“Defendants have claimed that running in FiveFingers, inter alia, improves posture and foot health, reduces risk of injury, strengthens muscles in feet and lower legs, and promotes spine alignment. Defendants have used these claims to charge a premium for FiveFingers that consumers readily paid, believing FiveFingers would confer upon them significant health benefits. Unbeknownst to consumers, Defendants’ health benefit claims are deceptive because FiveFingers are not proven to provide any of the health benefits beyond what conventional running shoes provide.”

Interestingly, the plaintiffs’ lengthy complaint repeatedly claims that the FiveFingers product causes injury, yet presents no scientific evidence to support this claim.  Basically, the plaintiffs argue that there are no studies to support Vibram’s claims.  The plaintiffs then turn around and present no science to dispute Vibram’s claim.  Plaintiffs don’t rely on any type of scientific and controlled testing that they expect of Vibram.  Instead, they offer on the same anecdotal “evidence” that they criticize Vibram for using.  They quote a story in which a podiatrist says that 85 percent of her patients sustained injuries trying to transition to minimalist shoes.  They, of course, fail to note that a podiatrist is unlikely to be examining runners who have not sustained some sort of injury.  They also fail to mention whether that podiatrist’s patients followed Vibram’s warnings against over training.

Where this suit goes from here could have wide reaching impact on the footwear industry.  Many other shoe companies have been jumping on the barefoot running bandwagon, including New Balance, Merrill, and Adidas.  These companies use technology similar to that of the Vibram FiveFingers.   Merrill seems to have  aggressive advertising materials similar to that of  Vibram.  However, New Balance and Adidas tend to make far less claims as to the benefits of barefoot running.

In the interest of full disclosure, I actually own a pair of FiveFingers and a pair of the New Balance Minimus.  I’m happy to report that haven’t sustained any running injuries while using theses shoes.  Then again, I don’t think anyone would accuse me over training.

Some years ago, I represented a family-owned trucking company, whose dump truck driver tried to pass a car on a narrow two-lane road in rural South Carolina.  The driver was speeding and not paying attention.  He ran the car off the road, injuring the car’s driver, “Jane,” and her passenger, “Jill.” We’re all about the pseudonyms here at Abnormal Use. Both Jane and Jill hired a local lawyer and then sued the trucking company.

Jane was more seriously injured, and we ended up settling her case at mediation.  As I recall, we paid her a significant sum of money.  Despite that fact, when the mediator came to our conference room, he said he had “good news and bad news.”  The good news was that the case was settled.  The bad news?  He said we needed to leave the office through the back door!  This is the first, and last, time in my legal career that has happened.

To this day, I do not know how or why we may have offended Jane.  Perhaps she doubted the sincerity of our apology on behalf of the trucking company.  Perhaps she was tired and irritated after a long day of intense negotiations.  Resolution often comes only when both parties have been pushed beyond their comfort level.  Patience and perseverance are often the keys to a successful mediation.

Then, there was Jill.  She was not hurt as seriously as Jane, had fewer medical bills, and was able to return to work.  Yet, as some Plaintiffs somehow do, she testified about a number of physical limitations which were inconsistent with her medical condition.  She did have a diagnosis of meralgia paresthetica, an unusual neurological condition with which I was previously unfamiliar.

We also mediated Jill’s case.  We were making little progress in settlement negotiations when the mediator asked me, “Mauney, why are you being so cheap?  This lady is hurt!”  I told him that we had recently conducted surveillance, which had not yet been disclosed to Jill or her lawyer.  The surveillance – as it sometimes does – showed Jill doing some things which were inconsistent with her deposition testimony, including walking around a flea market for four hours without sitting down or resting and hopping up her apartment steps two at a time without holding onto the railing.  The mediator suggested we hold off on disclosing this information until later in the mediation.  Yet another key to a successful mediation is being able to trust the mediator with this type of information.  In this instance, I trusted the mediator’s judgment on when we should disclose the surveillance during mediation.

When we appeared to reach an impasse, the mediator asked for the surveillance tape to show Jill and her lawyer.  Shortly thereafter, we began to make more progress, as Jill and her lawyer became more reasonable.  My client and I were pleased that we were making real progress toward settlement.

Then, that progress came to a quick halt.  We hit the wall.  The mediator told us that we were not going to be able to settle the case.  Why?  Jill, a grown woman, in her mid 30’s, called her mother from the mediation and told her about the surveillance.  The mother was not amused.  In fact, she accused the big, bad trucking company and its evil insurance company of spying on her daughter.  Jill’s mother was furious; she told her daughter that she had better not come home that day if she accepted the offer that was on the table at that time.

It is always interesting to learn who you need to persuade to get a case resolved.  We had no idea that Jill’s mother was someone of such great influence.

And now for the rest of the story.  Fast forward a few months later to the jury trial of Jill v. Big Bad Trucking Company.  (Yes, that was the actual case caption!) We expected the jury to return a verdict for Jill.  This suspicion was influenced, in part, by the fact that our driver smelled of alcohol when he showed up for his deposition.  He was nowhere near the courtroom when we tried the case.  We offered testimony from a medical expert to refute Jill’s injury claims and also called the private investigator as a witness to show the surveillance tape. Just as expected, the jury returned a verdict for Jill.  But Jill and her mother must have been disappointed, as the verdict was a full 25 percent less than we had offered at mediation.  I always suspected that Jill’s lawyer knew we were offering a settlement that was fair and reasonable.  He probably also thought that Jill’s mother should have stayed out of it!

[Editor’s Note: Click here for Stuart Mauney’s previous story of how he got burned at mediation by his own Facebook post.]

Recently, U.S. New & World Report released its annual law school rankings.  After finding your alma mater on the list, we are sure you were left with a plethora of questions.  As a public service, we here at Abnormal Use are here to answer some of your most pressing questions.

Question 1: What do these annual rankings mean, anyway? Not nearly as much as U.S. News wants you to believe.  The publication ranks each of the 195 fully-accredited law schools based on a number of factors, including peer and judicial assessments, LSAT scores, bar passage rates, faculty resources, and employment rates for graduates.  Unfortunately for our own Nick Farr (UNC-Chapel Hill), success of each school’s basketball team is not among the criteria.

Most proponents of the rankings do not question the criteria itself, but rather, the weight each factor is assigned in the formula.  If the weight is manipulated, the rankings could easily be different.  For example, the peer assessment among law school deans accounts for 25 percent of the overall score, while the assessments of judges and legal professionals only account for 15 percent.  Apparently, the opinions of law school deans with a vested interest in the rankings are more valuable than the opinions of judges and lawyers who encounter alumni on a daily basis.  The employment rate of alumni is weighted a whopping 20 percent of the rankings.  Obviously, this is an important factor, but the rankings do not account for the numerous external variables affecting the employment rate.  By way of illustration, some states contain a disproportionate amount of law schools compared to their population.  While legal jobs are scarce, the overabundance of new lawyers in these states makes finding a job even more difficult.  When employment rates account for 20 percent of the criteria, law schools in these states surely took a hit in the rankings.

Question 2:  Oh, no!  My law school can’t possibly be ranked that low! Whatever will I do? First, don’t sweat it.  Most of you reading this blog are probably already gainfully employed attorneys.  Aside from the prestige of graduating from a top-tier law school, these rankings probably have little to no bearing on your legal career.  No deposition has ever been cancelled or trial continued upon the discovery that counsel’s law school slipped 8 places in the U.S. News rankings.  You have the same degree as your colleagues, and we are sure that you are just as competent.  If opposing counsel champions his or her law school’s U.S. News ranking, just smile and do on what the rest of us do – be a lawyer.

Second, if you are a recent law school grad looking for a job, take the rankings with a grain of salt.  Chances are most firms in your state are more interested in hiring from in-state law schools than they are those graduating from the U.S. News top ten schools. Sure, you don’t want to go head-to-head with a summa cum laude Yale graduate, but those are few and far between, especially if find yourself far from New Haven  Your difficulty finding a job has much more to do with the poor legal market than your school’s ranking.  Keep your head up.  Your time will come. This too will pass. You know the drill.

Question 3:  In light of these rankings, will I ever become a Supreme Court justice? Probably not, but to our knowledge, the President of the United States rarely consults with U.S. News before making appointments.  Unless you went to Harvard or Yale, you probably never stood a chance anyway.  Of the nine current justices, six graduated from Harvard and three from Yale.  Thirty-seven out of the 83 justices who actually attended law school graduated from schools ranked in the top-4 of U.S. News‘ rankings (Harvard-18; Yale-10; Columbia-7; Stanford-2).  Didn’t graduate from one of these schools?  Don’t fret.  The William Mitchell School of Law (No. 127 in the U.S. News rankings) produced the fifteenth Chief Justice, Warren Burger.

Bottom Line.  Take these rankings with a grain of salt.  If your school ranked highly, take pride in the fact that someone, albeit the U.S. News, acknowledged what you already knew – that you received a quality education.  If your school didn’t fare as well, who cares?  You have the same degree as each of our Supreme Court justices.

Recently, our home state of South Carolina hosted the Family Circle Cup, a WTA tennis tournament.  The Charleston, South Carolina event featured 80 of the top female tennis players in the world competing for the title.  We here at Abnormal Use were on hand to report on the tournament.  You must be thinking what place a torts blog has at a professional tennis tournament.  Admittedly, in the beginning, we were wondering the same thing ourselves.  Shortly into the event, however, we realized the event was full of product liability news – only this time we were the unreasonably dangerous product, metaphorically speaking.

The Cup taught us that we can be unreasonably dangerous.  Our presence at the event was harmful to a number of the world’s top tennis players, and we have the following evidence to prove it:

• Exhibit 1: Friday morning, we were greeted by (or shared a hotel elevator with) World No. 9 ranked player Vera Zvonerava.  Several hours later she was upset in straight sets, 6-3, 6-3.
• Exhibit 2: Saturday morning, we had breakfast with (or sat in the same room as) surprise semi-finalist, Polona Hercog.  Later that day, she was double-bageled, 6-0, 6-0.
• Exhibit 3: Saturday night, we ran into Lucie Safarova in the hotel lobby.  The next day, she was destroyed in the final by Serena Williams, 6-0, 6-1.

We have always believed that we were bad luck charms for our favorite teams.  Our attendance at sporting events always seems to result in losses for whoever we throw our support.  At the Family Circle Cup, we didn’t have a dog in the fight, so we thought all players were safe.  Looking at the evidence, however, can lead to only one reasonable conclusion – our bad luck is far-reaching.

Some may argue that losses are due to our teams’ lack of talent and not the result of our presence.  While that may be the case with the Charlotte Bobcats, how else can we explain the upset loss of a Top-10 player after sharing an elevator with us?  If we aren’t “defective,” why would players who have been playing tremendous tennis get shut out in the rounds that followed our encounters?  Shutouts rarely happen in professional tennis even in some of the largest mismatches.

Under a res ipsa theory, we may be in trouble.  Our unreasonably dangerous presence is the only way to explain these players’ losses.  Combine that with the admissions made in this blog and Zvonerava, Hercog, and Safarova have a good prima facie case against us.  So, do us a favor.  Don’t alert these players to their potential claims.  While you’re at it, you may want to take some steps to keep us away from your favorite players as well.

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

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

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

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

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

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

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

There’s a better way.

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

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

Recently, MSNBC’s Tucson, Arizona affiliate offered some tips on protecting one’s assets from “crazy lawsuits.”  While the tips are nothing revolutionary, they are helpful.  Obtaining insurance and converting a business into a limited liability company can protect protect personal assets in the event of litigation.  However, there is much more to say on this issue.  Accordingly, we here at Abnormal Use must step in at this point and offer these additional tips to those unfortunate souls facing a “crazy lawsuit.”

First, prepare yourself.  While at first glance you may think a lawsuit is “crazy,” it may have more validity that you realized once you understand the applicable law.  Even those with the best of intentions can find themselves facing a damaging lawsuit.  It’s important to identify the strengths and weaknesses of your case from the outset.  Find a good lawyer and allow him or her to prepare a good defense.

Second, don’t think of the lawsuit as “crazy.”  The lexicon is, after all, everything. Rather, start thinking like a lawyer. It’s not a crazy case, but one in which you have no liability.  Calling the plaintiff’s case “crazy” is no way to get a lawsuit thrown out on summary judgment.  (Would that it were so.). By taking even the most marginal suits seriously, you can concentrate on forming the proper defense and addressing each element of the tort.  Remember, even “crazy lawsuits” are very real in the eyes of the court and must be handled appropriately.

Finally, trust the court system.  Our system is not perfect, but it’s the best thing going.  If a lawsuit is truly “crazy,” have faith that a jury of your peers will see it the same way.  If you and those on your behalf have prepared and handled the case properly, it will be evident at trial.  While a jury is always a wild card, you have to trust them – it’s your only choice.

Thousands of lawsuits flow through our courts every year – some frivolous, some valid.  In this day and age, most lawsuits settle before trial.  But of those that do not, very few make national news due to an outrageous verdict.  If you find yourself facing a potentially “crazy lawsuit,” don’t fret.

After all, only the craziest of the crazy lawsuits become the subject of award-winning HBO documentaries.