As you know, we here at Abnormal Use often pause to reflect upon sentimental anniversaries.  We can’t help it.

Today, we offer this piece on the tenth anniversary of my graduation from Baylor Law School.

It was February 9, 2002, in Waco, Texas, when I graduated from law school, ten years ago today.

First things first, yes, I graduated from law school in February.  This is due to the fact that Baylor Law School, which runs on quarters rather than semesters, occasionally prompts an odd graduation date.  So, there I was, in February of 2002, preparing to graduate and take the February bar exam later that month.  That’s just the way we roll at Baylor University.

I had always enjoyed my time at Baylor Law.  A relatively small institution, it boasted a total of 450 enrolled students at the time of my graduation a decade ago.  When I started at Baylor Law in May of 1999 (another unusual start date, due to the quarter system), I had only 30 or so students in my starting quarter.  You always hear the stories of cutthroat classmates at larger schools; but this was not the case at Baylor, as the school was simply too small for anyone to get away with such antics.  Really, there was an unusual esprit de corps in the student body, brought about both by the size of the institution but also the shared looming dread of Baylor’s very difficult third year curriculum (a mandatory year long advocacy and civil procedure program known as Practice Court).

For the occasion of my graduation, my parents, my brother, and even some friends, trekked to Waco.  Few of them had previously visited my fair city. Most only knew the town because of its relatively recent notoriety from the Branch Davidian standoff just a decade before.  But we all met at the brand new Sheila and Walter Umphrey Law Center, which had just opened a few months before in the fall of 2001.  (In the late 1990s, Baylor Law alum Walter Umphrey, a famous Plaintiff’s attorney from Beaumont, Texas, gave a $10 million gift to Baylor to fund most of the new building. There is a dash of historical irony in the funding source, as Baylor has traditionally been defense oriented in its legal philosophy but its palatial new building was funded mostly by a trial lawyer’s mighty gift.). However, in 1999, I began my legal education in the old Morrison Hall.  At that time, the administrators of the law school knew that they would soon be building a brand new law center, and so, most funds were earmarked for that purpose and general upkeep of  old Morrison Hall was – shall we say – not the highest priority.  It wasn’t until August of 2001 that the new building would be completed and opened.

In the autumn of 2001, the new law center was immense, immaculate, and quite simply, amazing.  So new was the building, in fact, that there were no televisions in the public areas of the building on September 11, 2001.  Many students sat in the student lounge by the radio, of all things, listening to the news in the same way people must have on December 7, 1941.

So it was, in February 2002, that we congregated at nearby Miller Chapel on the main campus for the graduation ceremony. Twenty six of us graduated that day, and the commencement speaker was Professor Gerald Powell, who taught me both Evidence and Advanced Evidence.  Just a few months before, in November, at the new law center’s first graduation ceremony, Umphrey himself was the commencement speaker. But Powell was someone all the graduating students knew well, as he had taught them all.  I had been his research assistant and in 2001 wrote a paper for him on the admissibility of email and Internet evidence, new topics back then.

Powell’s speech was weighty and very well received. It was just a few months after 9/11, and that tragedy was on every0ne’s mind.

That day, he said:

You can no longer focus on just yourself, on your career, or even on just your own family.  More will be asked of you.  As Americans, and especially as lawyers, you will carry with you great responsibilities.  After September 11, each of you must be willing to stand guard over our liberty, to serve your country selflessly, and, if the need arises, be a hero.

…

Each of us must take our turn as sentinels.  And as lawyers we have our own post to man.  Our watch is over the Constitution.  Our perimeter is the outposts of liberty.  Our weapon is the law.  Our mission is to see that justice is done.

…

[W]e also hope that each of you will have inside of you that seed of heroism perhaps dormant until a moment of truth, when it will spring forth in the energizing light of adversity to give us the hero we need.  And until that time comes, or whether it ever comes, we hope and pray that you will act heroically in the conduct of your everyday lives, professional, public and personal.

The speech was later circulated by email to those in attendance, likely by Baylor Law’s unofficial historian, Eric Nordstrom, who would graduate later that year.

After a reception at the law school, but before that evening’s festivities, I had a bit of free time, so my younger brother, Bert, and my old pal, Alistair Isaac, and I decided to do the one thing that I had never done in Waco but had always wondered about doing: visiting the remains of the infamous Branch Davidian compound.  In the late 1990’s and early 2000’s, and probably today, one cannot attend school in Waco and not be asked constantly by friends from other cities if you have visited “the compound.”  Prior to my graduation, I never got around to doing so, but it seemed like an appropriate final quest on the day of my graduation, my last official day as a student in the city.  So, we found a set of directions on the Internet (which are still online today!) and ventured out to find the compound.  I drove my 2000 Honda Civic with Bert and Alistair as passengers, and we followed the directions, but somehow, along the way, we found ourselves lost.  This was rural Central Texas.  We were in an area of large fields, farms, and farm houses.  There were not many commercial establishments at which to stop and ask directions.  In fact, as we slowed the car to look for places to ask for assistance, we saw one house with a large sign on it which exclaimed simply “Don’t ask!”  We took that advice.  A few minutes later, we drove past a field in which a farmer was plowing or riding a horse or doing something along those lines.  My brother hopped out of the vehicle and walked toward the man.  Before my brother could utter a word, the man said simply, “You’ve already passed it.  Go back a mile or two and take the left that you missed.”

How about that?

Even in February of 2002, the compound was no longer the structure you might recognize from the 1993 media coverage. There was a tree orchard planted to commemorate those who had not survived the standoff.  There was some minor portion of the housing structure still in place, but not really enough to recognize it for what it was.  On some level, the visit was anticlimactic; after being asked about the compound for all the years that I lived in Waco, it was just a field of sorts with a handful of derelict structures.  We saw a burned out passenger bus at the scene, which we later learned was the result of vandalism years afterward and not the standoff itself. (Alistair and I thought the old bus had something very cinematic about it, but that’s a different story for a different day). And that was basically it for the compound.  We returned back to the city and readied ourselves for the evening to come.

Later that night, we congregated at George’s Restaurant, a local watering hole that has been memorialized in Texas country songs in part for its Big O’s, large, very large glasses of beer.  The whole graduating class was there, as were many other friends and students, and I suppose that was the last time we were all together in the same room before scattering off to different corners of the world.

And that was ten years ago today.  At that time, I was 26 years old, having just reached that age a month before in late 2001.  My concept of being a lawyer was not completely uninformed, as Baylor focuses on the practical components of legal education (a topic we’ve discussed here on occasion).  Although I am confident that on that day I never paused to reflect upon what my career would be like ten years later, I certainly would not have predicted that I would be 1,000 miles away from Texas in North Carolina. But here I am.

It’s funny where life takes you.

So, what does it all mean? Like all the others who graduated that day, I’ve been a law school graduate for a decade.  For those of us who began and developed our careers during that time period, almost everything has always been online – whether it be treatises, the laws and statutes themselves, cases and orders, law review articles or other such things.  And, of course, as time has progressed, they have only become more accessible, with the advent of laptops, wifi, and of course, iPad apps.  However, unless graduates have been particularly lucky, trials have not been in abundance.  The older lawyers talk about the days in the 1970s when you could get called to court on a moment’s notice to try a case unexpectedly.  But those pesky discovery rules we learned in law school arm clients and advocates with enough information to accurately gauge exposure, and thus, trials can be (and are regularly) avoided.  There are fewer surprises, and the days of trial  by ambush are long in the past.   It’s a different world than the one our professors and bosses knew when they graduated.

The legal blogosphere came along just about ten years ago and facilitated great discussion about the (major and incredibly minor) issues of the day – which is a great boon to the profession.  But, really, when I look back at the last ten years, I don’t face some existential dilemma as to what might have been had I not become a lawyer.  Rather, I am reminded of the fun moments that the career has afforded me.  There are silly moments, and there are meaningful ones.  Most enjoyable are those moments, at a deposition, hearing, or trial, when you realize that your preparation and hard work are about to pay off and that no one else in the room has realized it yet.  That feeling, that sense of accomplishment and victory, moments before you officially prevail – is what makes being a lawyer fun and interesting.

This is not to say that every day offer such moments.  There are those weeks that we spend in faraway places reviewing documents in old warehouses without air conditioning.  There are long drives and long waits in airports and courthouse hallways.

But in the end, we realize that one appeal of this profession is that it is different every day.  There are new challenges to face with every case and every hearing and deposition.  Although fewer and fewer cases go to trial these days, we must remain vigilant and prepare in case the one we are working on at present does go that route. And that’s something I learned way back in Practice Court at Baylor Law.

(Special thanks to Jerri Cunningham, the Baylor Law School registrar, for confirming some details for me and forwarding me a copy of Professor Powell’s speech).

The day after we run a post about one being impeached by one’s own social media, I, as a guest author here,  had to step in and offer up my own thoughts on that very subject. I use Twitter and LinkedIn for business purposes. If you ever want to know how I use them, I would be pleased to share that with you.  I can share some success stories, and perhaps some helpful hints, if you are so inclined. I do believe some form of social media should be in every lawyer’s marketing toolbox. But it is just that: one tool among many.

I am also on Facebook. I have some 400+ “friends.” I rarely turn down a friend request. I enjoy it. I have fun posting things and engaging in online conversations about the issues of the day. I typically do not post work related material – I only do so when the firm or one of our lawyers receives an award or honor.

But there are dangers to this type of interaction, and I was burned recently by a Facebook “friend.”

I recently mediated a case with a familiar Plaintiff’s attorney. The case had been around for a year or so. A month before the mediation, the Plaintiff’s lawyer sent me a request to be his friend on Facebook. As I  am often inclined to do ,  I accepted it. I have many lawyer Facebook friends – even some plaintiff lawyers.   I learned that the Plaintiff’s lawyer in my case had posted several items about our case – not naming the lawyers or clients – but just random things. The morning of the mediation, he posted that he was mediating a case in which the “powerful corporate defendant” had “mocked and disrespected” his “disabled”  client.

Sigh.

During the mediation, the Plaintiff’s lawyer opened by saying that he did not think we were taking his client’s case “seriously.” In apparent support for that position, he actually projected onto the screen one of my very recent Facebook posts about my plans to celebrate my fiftieth birthday. (Yes, I recently turned 50.) The Plaintiff’s lawyer said, “Maybe he was ready for this mediation last Wednesday before he started celebrating his weekend birthday, but . . . .” His sentence trailed off as if to suggest his doubt. He also commented that I had not been to any of the depositions in the case, as if sending my  experienced senior associate to the depositions was in poor from.   The associate was handling it under my close supervision.  (By the way, we had sent the mediator a statement ahead of time and had prepared a booklet of material to share with the other side and the mediator to be used in the mediation.). The mediation ended unsuccessfully.

So there you have it – my personal Facebook post used against me in my own mediation. I have now defriended this Plaintiff’s lawyer.

Perhaps I will defriend other lawyers in the future – I don’t yet know. But it’s now a dilemma. Some of you will take great pleasure in pointing out how this is why one shouldn’t have a Facebook account. I don’t see it that way, of course, but it is certainly a reminder of the perils of social media.

As we’ve previously mentioned, our editor Jim Dedman is now contributing one monthly post to the North Carolina Law Blog.  Last week, his fourth submission was published at that site.  The topic: “Will My Advocate Opponent Impeach Me With My Own Legal Social Media?”  Do we bloggers and Twitter users face risks in engaging in Internet commentary?  Might some of our opinions or blog posts come back to haunt us?  Might an Internet savvy advocate quote our own posts against us in some future case?

Well, let’s not get too worried about that.  Here’s how his post begins:

At a recent conference at the North Carolina Bar Association headquarters in Cary, I heard a new and much more interesting critique of legal blogging.  A seasoned litigator panelist suggested that whenever she is to appear in court against another lawyer, she always investigates whether that opponent maintains a law blog.  If so, she will scour and scrutinize those posts to see if her opponent has ever taken a position opposite to the one advanced against her in the case at hand.  If she finds evidence of such, she can alert the tribunal that her opponent has taken a contradictory position on the relevant law in the past when writing, presumably objectively, on a legal blog. This is, for lack of a better term, impeachment in court by one’s own law blog.  Ouch.

But this does not seem to be a risk of legal blogging specifically but rather communicating one’s ideas and views generally.  For decades and decades and decades before the advent of legal blogs, lawyers delivered speeches, made presentations to trade and legal groups, and authored law review articles.  Sure, that may have been before everything was neatly placed online, easily searchable, and simple to locate in seconds, but there have always been ways in which one lawyer can find the writings of another if that lawyer knows where to look. Like most things, though, that task has been made far, far easier in the digital age, though it could be done before.

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

In the end, Jim concludes there’s probably not an increased risk simply because one is blogging.  But, in all such things, beware nonetheless.

On February 1, Pfizer — the world’s largest pharmaceutical manufacturer — announced a recall involving a million packages of birth control pills. According to the company, some pills were packaged improperly in terms of the sequence they should be taken in; some pills contained excessive amounts of the active ingredients; and in some cases, some pills did not contain enough active ingredients. Statistically, few, if any, unplanned pregnancies will occur because of these circumstances.

However, we here at Abnormal Use expect that this announcement may cause some readers to experience anxiety. A lot of anxiety. Some folks may even be tempted to freak out. Well, don’t. You can spend your time and energy worrying about hypotheticals, sure; or you can refer to our handy flowchart — which we made just for you — to help you evaluate your risk and work through your anxiety. Why would we do this for you, you ask? It’s because we love you, our faithful readers. So, without further ado, let’s move to the chart:

Step 1: Determine if this is your pill. The pills in question are: (1) Lo/Orval-28 tablets; and (2) its generic equivalent, Norgestrel and Ehtinyl Estradiol tablets. The affected packages have expiration dates between July 31, 2013 and March 31, 2014.

Is this your pill?

A. If No, great. Go on about your life.

B. If Yes, proceed to Step 2.

Step 2: In the past month, have you actually relied on your pill for contraceptive purposes?

A. If No, immediately stop reading this blog. Go to www.match.com. Create a profile and shamelessly lie about yourself. Hurry now! Time’s a-wastin’.

B. If Yes, are you being honest?

1. If No, please refer back to Step 2A. And stop lying. It’s not helping your game.

2. If Yes, proceed to Step 3.

Step 3: In theory, are you at least comfortable with the thought of being pregnant?

A. If Yes, proceed to Step 5B & C.

B. If No, proceed to Step 4.

Step 4: Freak out. Seriously, freak out. I mean, you’re in no position right now to be a parent. You’ve got stuff you want to do. You’re not responsible enough for a kid. You can barely take care of yourself! How are you going to take care of a kid? Oh man, oh man, oh man. What are you going to do? Unghhh gahhh!

[Continue to work yourself up until you’re making a scene, then proceed to Step 5.]

Step 5: Alright, shut up. Shut. Up. Pull yourself together. You’re embarrassing yourself. Geez. Ok? Ok? Alright. Everything’s going to be fine. Ok? Here’s what you do:

A. Start trying to make a deal with God. It can’t hurt.

B. Go see your doctor and get an exam.

C. If you can’t get in to see your doctor, take an at-home pregnancy test.

Step 6: If you get an exam or pregnancy test, and—

A. You’re pregnant, and—

1. You’re comfortable with being pregnant, CONGRATULATIONS!!! We’re so happy for you!

[Provided you were not knowingly committing pill fraud against your significant other. That is no laughing matter. Shame on you.]

2. You’re not comfortable with being pregnant, freak out again. Seriously, it’s ok. This is a big life change. But once you’ve freaked out for a little while, collect yourself and make the best of the situation. There’s a great deal of support and assistance out there for folks just like you. You’re not alone.

B. You’re not pregnant, and—

1. You were comfortable with the idea of being pregnant, maybe it’s time to go off contraceptives . . . ?

[Provided you do not commit pill fraud against your significant other. Seriously. No laughing matter.]

2. You did not want to be pregnant, CONGRATULATIONS!!! Now, go celebrate. Responsibly. We’re going to be really disappointed if you’re back looking at this flowchart come Monday morning.

If you’re reading this site, you already know that we here at Abnormal Use are huge Internet nerds, and of course, that love of such things extends to Twitter. (An aside: Don’t forget, you can follow up on Twitter at @gwblawfirm). Well, our editor had his 15 minutes of Twitter fame this week when one of his tweets was read on national television on ABC’s “This Week with George Stephanopoulos.” You see, at some point last week, the online team for “This Week” asked the show’s viewers to submit questions for the show to be read by Mr. Stephanopoulos (who was vacationing last week and replaced for the day by ABC’s Jake Tapper). Viewers were encouraged to ask questions relating to the issues of the day and use the hashtag #askgeorge. Well, our editor couldn’t resist, and the most important question he could muster was the one you see above: “Why isn’t George F. Will on Twitter?” And as you see above, this past Sunday, “This Week” broadcast that tweet on national television!  Not only did they do that, they took the question to George Will, whose reply is below:

Said he: “I don’t think in 140 characters, but in 751 word chunks.”

He’s, of course, referring to newspaper column link, but interestingly, as some observed, his reply was less than 140 characters.

You may not think this is as cool as we do, but if you do, you can watch the episode in question on the ABC News website. Click here for the online version of the 1/29 episode and fast forward to 46:45 in the video. You’ll then see the tweet itself and the discussion thereof.

And, alas, if you’re bored with today’s discussion of Twitter and political talk shows, don’t worry, we’ll return to legal themed comic book covers next week.

Well, it’s Groundhog Day, again. We here at Abnormal Use are immense fans of the Bill Murray film by that name (and in fact, our editor even saw it at the theatre as part of a pre-release sneak preview!).  One thing we litigators can enjoy is the fact that each day presents a new challenge.  On Tuesday, it’s the deposition of a Plaintiff in a products case. On Wednesday, it’s a hearing on this, that, or the other. On Thursday, it’s a mediation.  On Friday, it’s something entirely different, maybe trial.  So, unlike Phil Connors in Groundhog Day, we can usually avoid the quotidian monotony depicted in the film and be thankful that every day is, usually, quite different from the one before.

Happy Groundhog Day from Abnormal Use.

My two-year-old son had an ear infection last week and, like a good mother, I took him to the pediatrician, who prescribed a liquid antibiotic with a name that, despite my seven years of higher education, I cannot pronounce.  Waiting for him to finish his supper that night, I began to read the fine print.  Apparently, in addition to ear infections, the antibiotic can be used to help treat an STD that I also cannot pronounce, and had to look up on Google.  What can I say? You learn something new every day.  I learned that I might never again read the insert on a prescription drug.

What does this have to do with products liability?  Warnings, people.  Warnings.  I just admitted to the blogosphere to never having read the fine print on a drug before, and I have vowed to never do so again.  Products liability law, however, knows this and has adapted – as illustrated by the case of Rice v. Genentech, Inc., No. 1:10-CV-3631-TWT, 2012 WL 205886 (N.D. Ga. Jan. 24, 2012).

This case is nothing special: an extremely short decision outlining the reasons that the defendant, drug maker Genentech, was granted summary judgment against a pro se plaintiff who alleged that Genentech’s eye drug, Lucentis, exacerbated the plaintiff’s glaucoma and sight loss.  Basically, the plaintiff failed to name an expert, despite several deadline extensions to do so.

In this unremarkable decision, however, is a reminder about the law regarding warnings and prescription drugs:  “Prescription drug manufacturers have a duty to warn the patient’s doctor of the dangers involved with their product rather than warn the patient directly.” (emphasis added).  The decision also cites the rule of thumb regarding experts in drug cases like this one – “in cases of pharmaceuticals, since the warning is directed to physicians, only they or someone with similar expertise concerning pharmaceuticals would be qualified to determine whether or not the warning was adequate” (internal quotations and citations omitted).

Well, there you go.

Over the last year, we have written ad nauseum about hot coffee-related litigation.  Time and time again, consumers of the brewed beverage have sued fast food chains after suffering burns from what Plaintiff’s lawyers insist is an “unreasonably dangerous product.”  Apparently, one consumer has turned coffee into something other than a litigation golden ticket – a weapon.

According to Cincinnati.com, 50-year old Lamar Bond was dining at a McDonald’s restaurant in Cincinnatti, Ohio.  Following an argument, Bond threw a cup of hot coffee and a biscuit at a female McDonald’s employee, striking her in the face.  Thereafter, Bond fled.  Police records did not disclose whether the employee suffered any injuries.

We don’t know the source of the argument, but we will be keeping tabs on this case. In light of all of the hot coffee litigation over the past two decades, we wonder what positions will be taken by the parties in any criminal proceeding arising from this assault and/or any workers compensation hearings prompted by this on the job injury.

But something strange is going on in Ohio. Two weeks ago, according to CBS News, Cincinatti police responded to a separate incident at an IHOP in which a woman was hit in the head with a coffee pot.  At this time, we here at Abnormal Use do not know whether these should be considered incidents isolated to the Cincinnatti area or the beginning of a nationwide movement.  Maybe we should have seen this coming. If courts keep throwing out hot coffee suits, something needs to be done right? Alas, let the people rise up against coffee served hot!

SmartLid Systems recently unveiled a new disposable coffee cup lid which changes from a dark color to a light color when introduced to heat. The lid is supposed to make it easier on consumers to know when their coffee is hot without the hassle of reading warning labels. A novel idea, to be sure.

While we all like to rely on color changing plastic, we here at Abnormal Use question whether the lid is superior to those pesky warning labels they are designed to replace. According to the company’s website, the “color changing lid works in a universal languge, COLOR!” SmartLid may want to rethink this “unversal” strategy. First, not all people distinguish between the full rainbow of colors we have come to know. For example, how can the lid account for colorblindness? After all, a common symptom of colorblindness is the inability to distinguish between different shades of the same color. Maybe these people don’t fit within SmartLid’s definition of universal.

Second, SmartLid does not even succumb to its own “universal” business model. If heat has a universal color, we imagine it would be “red.” Water faucets differentiate between hot and cold with the colors red and blue, respectively, almost anywhere you go. SmartLid, however, has not adhered solely to the “red is hot” philosophy. SmartLid advertises that it can create the lid in a variety of color options to incorporate a company’s existing brand colors so long as the hot color is lighter than the cold color. How is the customer to know which color means hot?

To alleviate this problem, the rim of the SmartLid remains its cold-state color even after the lid transitions. If customers are not fully informed about the functioning of the SmartLid, we doubt they would be able to recognize this distinction. Of course, SmartLid can always place a label on the lid to explain the transitions. And we thought these lids were supposed us to keep us from having to read.

As is the case with many gimmicks, the producers haven’t thought through all the perils of real life. According to SmartLid, coffee is to be brewed at 190 degrees, but shouldn’t be consumed until the temperature decreases. We assume the lids will change color at this temperature. As the coffee cools, the lid color transitions back to its original state – room temperature – without stopping to tell us when coffee is “safe” to drink. And how could it? Personal preference will always dictate what temperature you want to drink your coffee. Despite the lid, people will still test coffee the old-fashioned way – by sipping it.

There is nothing necessarily “wrong” with the SmartLid. Rather, the lid does little, if anything, to protect from the hazards allegedly associated with drinking a hot beverage. Whether it is a color changing lid or a warning label, the determination of whether to consume hot coffee rests with the consumer.

So, we thought we would escape from the world a bit this past weekend and revisit Superman Returns, the 2006 reboot of the Man of Steel film franchise directed by Bryan Singer and starring Brandon Routh as Supes.  Well, before we even reached the halfway point of the film, we bristled at a very basic legal mistake.  Villian Lex Luthor is a free man because Superman “missed a court date.”  Well, that’s an interesting procedurla twist.  Specifically, though, a character remarks that “the appellate court” called Superman as a witness, and Superman – whose extended absence from the Earth is a key plot point of the film – didn’t appear when summoned.  Thus, Luthor goes free.  But appellate courts don’t call witnesses!  (Note: We’re obviously not the first ones to point this out, but we are the most recent bloggers to be irked by it.).  By the way, that’s the cover of the DC Comics Superman Returns comic adaptation depicted above.

The wonderful, wonderful Etta James will be missed by us.  May she rest in peace.

Katherine Frye of the North Carolina Law Blog asks: “Should I Delete My Facebook Account?”  She’s not asking whether she, the lawyer, should delete her own Facebook account, but how she, as an advocate, should address her clients concerns about their own social media profiles.

If you follow Zoey Deschanel’s litigation choices, then you must see here.

Read this 1985 letter from Roger Enrico, the chief executive officer of PepsiCo, on the release of New Coke. (Hat Tip: Letters of Note).