Dude. The cover of Young Romance #196, depicted above and published way, way back in the early 1970s, has got to be the most depressing legal themed comic book cover we have ever seen.  Usually, we profile silly comic book covers featuring superheroes in court or other such nonsense.  But look at this!  “Father has a new family now, Mother, but you won’t be alone! I’ll always be with you . . . I promise!” says the daughter.  Look at how sad her mom looks! In the background, we see the father embracing his new paramour, while a young man – with a very 1970s haircut – asks “But, Debbie, what about us?” We’re not sure who that guy is, but if that’s Debbie’s boyfriend, then he’s got some bad timing. What’s he even doing in the courtroom, anyway? What was DC Comics thinking? This is sad stuff!

Recommended reading for the day: “My iPhone foreclosure.”

If you like our posts on the Stella Liebeck McDonald’s Hot Coffee case, you’ll love Ted Frank’s “Questions for Susan Saladoff about ‘Hot Coffee’“, which ran Monday on his Point of Law blog.

Friend of the blog Alan Crede of the Boston Personal Injury Lawyer Blog had some kind words for us this week regarding the occasion of our 500th post. Thanks, pal.

The Lexis Nexis Litigation Resource Community is soliciting nominations for the Top 25 Tort Blogs. If you enjoy our work here, we would humbly request that you head to their site and nominate us.  Apparently, all you have to do is briefly register for their site and then post a comment here nominating us. We would greatly appreciate your support!

Don’t forget! This month is National Novel Writing Month! There’s still time to pry yourself away from those discovery responses and pour your soul into a manuscript. (Hat Tip: The Faculty Lounge).

A reflection on this past Halloween night, brought to you by Abnormal Use:

It was Monday night. All Hallows’ Eve. I was nestled in my chair, in front of the TV, finding myself disappointed for yet another year. Why, you ask? Because there it was, Halloween night, and I was struggling to find a good Halloween movie on anywhere in the 2 million or so channels I apparently get now.

No, FX, Ghost Rider, starring Nicholas Cage, doesn’t count, if for no other reason than mere principle.

No, Biography, Halloween: The Inside Story is a poor substitute for what is otherwise an excellent holiday choice. At least you get the right idea.

No, VH1, The Rocky Horror Picture Show is . . . in a class by itself. Not that there’s anything wrong with that.

No, Ion, despite the name of the movie, Bloodsport is about Jean Claude van Damme kickboxing his way through Thailand. I’m sorry you’ve been misled. PS: what does your channel even do? I’ve never really been clear about that, and I’m not even sure why it’s on my channel list.

No, National Geographic, Bigfoot: The Definitive Guide is not even close to being relevant. If you went with “The Ghost of Bigfoot” or “Bigfoot: Man or Demon?,” I could give you credit. And let’s be honest, Nat Geo, if you’re going to compromise your credibility enough to show a documentary on the definitive guide to bigfoot, there’s no further compromise necessary on your end to re-imagine bigfoot as a ghost or demon.

No, Documentary, showing Ghost Bird, the true-life search for “the elusive ivory-billed woodpecker,” is outright fraud.  In a just world, the fact that you would try to pass this off as appropriate Halloween programming would be actionable.

No, FX — what, we’re back to you again? No! Twilight is an abomination! Under no circumstances should you be showing this. “But it has vampires and werewolves,” you say, “What’s more Halloweenie than that?” Give me a [RADIO EDIT] break. If your programming director were here, I would hold my hand out and demand that he choke himself. If he had any decency, he would.

On the flip side, Turner Classic Movies, where were you? I thought out of everyone, I could count on you that night. Turns out, not so much.

So this had me all worked up. In a world where Christmas decorations start coming out the day after Labor Day, all I ask for is one night when the storytelling of true masters of suspense can be showcased. What about Nosferatu? Where’s Vincent Price? How about the original Friday the 13th?, House on Haunted Hill, or Amityville Horror? I remember when I was younger, every Saturday night TNT would broadcast “MonsterVision,” which consisted solely and exclusively of the worst B-movies from the 1950s. And it was excellent.

These old Halloween classics had something for everyone.  Suspense, cheap scares, horror.  There’s even a tie-in with products liability. Macabre was directed by William Castle, who was arguably a better marketer than movie-maker. For the release of Macabre, Castle offered a $1000 Lloyd’s of London life insurance policy to each person who purchased a ticket, just in case they died of fright during the film. He also paid nurses to staff the lobbies of each theater showing his movie and had hearses parked outside. Normally when we talk about products liability, we think of products which are not intended to cause harm to their user. Castle embraced the idea that his movie would frighten the audience to death and carried it to the bank.

The bottom line is that with so many suspenseful classics to choose from, it defies credulity that every network would choose to show exactly none of them on the one day that’s most deserving.  Thanks, TV, for letting us down again.

Can you believe it?  This post – this very post that you are reading right now – is our 500th blog entry here at Abnormal Use.  We are just as stunned as you are, but we have had such a good time engaging in this blogging business that we nearly lost track.  But here we are, at 500 posts, armed with plans to continue this site well into the future.

As you know, we pause occasionally to reflect upon our milestones at this site.  Earlier this year, in January, we reflected upon our first birthday and shared the (little) wisdom we had learned at that point.

Way back in May of 2010, we commemorated the occasion of our 100th post, an celebration which now seems almost quaint.  At that time, we noted:

It has been just four short months since we unveiled this products liability blog with a formal mission statement. Whereas we feel certain that blogging may come naturally to some, our first foray into the blogosphere was not without some trepidation. Naturally, we asked ourselves: Will there be sufficient source material? But we quickly learned that this was the least of our concerns. Fortunately for products liability bloggers, in the rapid, ever-changing world of litigation, there is rarely a day that passes without something newsworthy, whether it be a new court decision, an interesting verdict, a product recall (an augury of imminent litigation), or a story on a future Plaintiff’s new and “inventive” use of a product that, predictably, went awry. Needless to say, we have found plenty of cases and news items about which to post. We are also proud to have presented several original interviews with law professors in our series which we affectionately call Abnormal Interviews (more of which are to come in the future).

Aw, weren’t we cute at that age? As we write today, we are just two months away from our second birthday (and we’re sure we will pause again that day to reminisce even further on our blogging history). Nostalgia aside, we are encouraged by our progress at this site.  In January of 2010, we were a brand new blog, entirely unknown, and with few friends in the legal blogosphere.  Now, in November of 2011, we have built up a solid archive of posts and have made a number of friends and contacts in this enterprise.  It’s been rewarding to write about the law, as well as other off topic items, and see the responses of you, our dear readers. Certainly, this endeavor would not have been possible without the support of our writers: authors (Phil Reeves, Stephanie Flynn), regular contributors (Nick Farr, Frances Zacher, Steve Buckingham), guest authors (Mary Giorgi, Laura Simons, Mills Gallivan, Childs Cantey Thrasher), and other alumni.  Without their support and hard work, we would have few, if any, posts at this site.

So, on this fateful occasion, we will share with you three things we have learned about the advantages of legal blogging.  A legal blog is often a Herculean task; it requires time, diligence, and patience.  Some firms are dissuaded from the enterprise due to the time commitment, while others throw themselves into the task and quickly burn out.  But, for those who persevere, there are rewards.

So here’s our purported wisdom:

1.  A legal blog raises your firm’s profile.  This is something that Mark Hermann, formerly of the Drug & Device Law blog, noted in his “Memoirs of a Blogger.”  It is certainly true, as we here at Abnormal Use have been cited by a number of legal publications that have taken notice of this site, including The New York Times, NPR,  Scientific American, and a whole host of regional newspapers, law blogs, and other publications.  (We were even invited to host a webinar!) It is unlikely these sources would have mentioned or contacted our firm under those circumstances absent our blogging effort.

2.  It’s an entirely new way to network with other attorneys across the nation.  Really, blogging is a hobby as much as it is a business development mechanism.  Legal bloggers tend to have similar interests, and the shared interest in blogging is often a great way to break the ice, either online or in real life.  Accordingly, as we have noted before, this site has enabled us to network with and meet lawyers across the country that we would not have met otherwise.  That’s a good thing, for networking purposes, but also because it allows us to meet interesting people with similar interests irrespective of potential business development efforts. That’s not so bad, right?

3. As we work to bring you new legal content at this site, we are also learning new things ourselves, allowing us to keep informed of the latest products liability developments across the land.

Plus, it’s loads of fun. We here at Abnormal Use enjoy bringing you legal commentary and fun links on Fridays.  We hope you will continue to stay with us as we continue this enterprise, and we thank all of you, our dear readers, for your support over these last nearly two years.

Legal research can be our bread and butter.  Often, we scour the reported opinions, sometimes chancing across decades old opinions chronicling long ago cases argued by long dead attorneys.  It’s interesting, sometimes, to think that those lawyers from days gone by were just as invested in and frustrated by their cases as we are here today, although it’s difficult to feel a connection to the ancient facts and archaic language.  Too much time has passed. However, I recently re-visited a 1927 case with an intriguing family connection:  Dedman v. Dedman, 155 Tenn. 241, 291 S.W. 449 (Tenn. 1927). Yep, I’m a Dedman, too, and the parties to that 80 year old case are my relatives.

The suit was brought by Plaintiff Mrs. Elizabeth Fariss Dedman (my grandfather’s mother) against Defendant Mrs. Joseph M. Dedman (the mother in law of Elizabeth Fariss Dedman). Like so many cases since, the facts centered around an automobile accident.  The plaintiff was injured in an auto accident while riding in a car owned by the defendant and driven by her chauffeur.  Apparently, the the trial court entered a judgment for the plaintiff, which was affirmed by both the court of appeals and the supreme court.

As recited by the Court, the facts were these:

The parties lived in Columbia, Tenn., about 40 miles from Nashville. The plaintiff is the wife of defendant’s son. The defendant had a daughter, Mrs. Henry Moore, also living in Columbia. Shortly before Christmas, 1924, Mrs. Moore had arranged to make a shopping trip to Nashville with some lady friends. It was Mrs. Moore’s intention to go to Nashville on the bus and spend the day. The defendant had been ill, and before leaving for Nashville Mrs. Moore called to find out what her mother’s condition was, and informed her father who answered the telephone that it was her intention to go to Nashville that day if her mother was well enough for her to leave. Mr. Dedman communicated this information to his wife, the defendant, and the latter at once objected to Mrs. Moore and her friends making the trip on the bus. About this time the plaintiff dropped in to ask about defendant, her mother-in-law, and defendant told plaintiff to call up Mrs. Moore and say that defendant desired that Mrs. Moore make the trip to Nashville in Mrs. Dedman’s automobile. Defendant also suggested that it would be a good opportunity for plaintiff to go to Nashville and do Christmas shopping, and suggested that plaintiff join the party. All the ladies agreed to this arrangement, and the defendant directed her chauffeur to get out her car and take the party to Nashville.

Mrs. Moore asked two other ladies in Columbia to make the trip, and they accepted the invitation. The party then started out in defendant’s large closed car. The chauffeur and the plaintiff sat on the front seat. The other three ladies sat on the rear seat. They proceeded about 18 miles along the highway toward Nashville, when in passing through the village of Thompson Station the Dedman car collided with another car at a road crossing and plaintiff received the injuries for which she sues.

The parties lived in Columbia, Tennessee, where both my father and I were born.  It’s strange to read about a family outing in the factual background section of a Tennessee Supreme Court opinion; stranger still to see that one relative was suing another for injuries.

The plaintiff attempted to prove at the trial that the defendant’s chauffeur was negligent and speeding during the outing. The jury apparently agreed, and the brand new Tennessee Court of Appeals – created in 1925 and after the accident at issue – affirmed the verdict. On appeal to the supreme court, there was an issue relating to the defendant’s responsibility for the chauffeur and the extent to which the guest is responsible for her own safety in the automobile. In dealing with the rights and responsibilities of an automobile guest and passenger, the case is not unlike many that we encounter today in transportation litigation. Interestingly enough, the opinion was authored by Chief Justice Grafton Green, currently the record holder for the longest term of service on the Tennessee Supreme Court. In this case, Green wrote that “the question of the guest’s contributory negligence has been held to be one for the jury” and reaffirmed that principle. Wrote he: “Comparing the respective contentions of the parties thus outlined, we are satisfied that reasonable men might differ as to whether the plaintiff acted with ordinary care under the circumstances disclosed–as to whether she conducted herself as a prudent person ordinarily would do. In this plight of the case, the question of her contributory negligence was one for the jury.”

It’s been cited nearly 40 times since 1927, most recently in 1986 (and now by one blog in 2011).

It’s funny to think how many moments of history are captured in our case law.  Of course, I’m not just referring to legal history; rather, I also reference the basic facts of every day life which are recited in court opinions.  Often litigants are arguing about what might be one of the worst or most difficult days of their lives, and if their case reaches the appellate level, then those facts are chronicled for posterity.  How else would I know about an automobile accident in the 1920’s involving my forebears from that era?

We here at Abnormal Use wish you a safe and eventful Halloween. As lawyers, we are many years from the halcyon days of our youth, but we fondly remember Halloween. It’s unfortunate that Halloween falls on a Monday this year, and we suspect some of you may have already celebrated this holiday of holidays this past weekend. But, we hope you saved some candy and scary stories (and perhaps even a pumpkin beer or two) for today. If not, we hope you at least have plans to do something fright inducing to celebrate the day – like answering written discovery. Last year, to celebrate the occasion, we shared with you our favorite scary movies. This year, we are a bit more low key. But yes, that that’s the cover of Bugs Bunny’s Trick ‘N’ Treat Halloween Fun #4, published by the Dell Giant Comics Series way, way back in the mid-1950s.

Happy Halloween!

“Robin and Batgirl, I pronounce you man and wife — til death do you part!,” exclaims a thug on the cover of Batman Family #11, published way back in 1977. Note that multiple armed villains are coercing the two heroes into this wedding (although they didn’t bother to remove the heroes’ masks). This is not a family law blog, but we do seem to remember something from bar review about weddings and duress.  We’re thinking that Batgirl and Robin – in his bizarre tuxedo get-up – will be able to dissolve this marriage on those grounds. (We note that technically, though, this is not a shotgun wedding, since the assailants are all armed with pistols, although we doubt that affects the legal analysis of the duress issue).

Our own writer Frances Zacher got a shout out this week from Brian Comer at the South Carolina Products Liability Law Blog. See here.

Here’s a civil procedure exam question for you: can whales be Plaintiffs?

Congratulations to Brad Gower and Rocky Rogers, our two GWB associates who passed the bar examination last week. It’s been a while since we here at Abnormal Use endured the slings and arrows of the bar examination, but we sure do remember that immense sense of relief that accompanies notice of passage.  Ah, the good old days.

Oh, no, he didn’t! Colin Miller of the EvidenceProf Blog went there.  Yes, he made a Jerry Maguire reference in the headline to his recent post about a new Hawaii Court of Appeals case on the rule of completeness. See here.

Believe it or not, this edition of Friday Links is actually our third post today.  Earlier this morning, we ran a post wishing the bloggers at the Drug and Device Law blog a happy fifth birthday.  (Although they recognize their birthday as October 30, their first post actually went live five years ago today).  Also, we published an entry this morning directing your attention to our editor Jim Dedman’s first contribution to the North Carolina Law Blog, a group blog sponsored by the North Carolina Bar Association. From now on, he’ll be submitting one post per month to that site.

As you know, we here at Abnormal Use love blogging, so much so that our editor Jim Dedman is now contributing one monthly post to the North Carolina Law Blog.  Earlier today, his first submission was published at that site.  The topic: To Text, Or Not To Text – The Lawyers Dilemma. Jim’s post is a response to an earlier blog entry by Carolyn Elefant at the Small Firm Innovation blog.

With so many people texting one another, lawyers should pause to reflect upon whether it is an appropriate manner to communicate with clients. To whet your appetite, here’s an excerpt of Jim’s post:

[T]he medium of texting – its immediacy, its brevity, and its simplicity – suggests that it may be an inappropriate medium for any communication that is remotely substantive.  Texts, by their nature, are ephemeral.  They are not filed, they are not saved, they are generally not kept in any meaningful fashion.  However, communications with one’s clients – particularly communications which offer or purport to offer any type of legal advice – should probably be kept in one’s file.  Thus, lawyers who text may face the hassle of having to download, maintain, or otherwise track their texts and preserve them for their files.  This seems like an unnecessary task, particularly when users of smart phones can simply use an email rather than a text from the same device and avoid any issues on that front.

The North Carolina Law Blog is sponsored by the North Carolina Bar Association Center for Practice Management.  A relatively new member of the legal blogosphere, it officially began in May of this year.  A group blog, it currently has 13 writers.  Jim plans to submit one post per month to the North Carolina Law Blog, and we’ll certainly direct you to any content of his at that site upon its publication.

Last year, on October 28, 2010, we wished our friends at the Drug and Device Law blog a happy fourth birthday. Since they are some of the writers that inspired us to begin blogging, we do so again today and wish them a happy fifth birthday today.

We anticipate our friends at Drug and Device Law will engage in some introspective blogging today, just as they have done in years past on this special occasion.  After all, the anniversary of a blog’s birth is a significant opportunity to reflect upon the advantages and disadvantages of the blogging enterprise.  It provides the blogger a day to reminisce upon his or her favorite posts of the past year.  In the end, it is a great chance to analyze whether the blog itself has been successful in promoting one’s firm and business. It seems to have been for those guys.

We ourselves are certainly not immune to this sort of blogging, as we did so on our first birthday in January of 2011.  Indeed, we here at Abnormal Use have been known to go so far as to blog about the merits of legal blogging.  You can expect some more of that as we approach our second birthday – which occurs the first week of January.  (Get us a present!) At the end of the day, most bloggers write because they enjoy doing so, and it is very apparent that the guys at the Drug and Device Law blog have a good time offering their commentary to the world.  (Who else would turn a post about a recent pain pump case into a treatise on George Harrison?)

So, today, we wish them a happy fifth birthday and look forward to many more years of output from them.

As lawyers, and more importantly, as bloggers, we here at Abnormal Use are huge nerds.  Accordingly, we sometimes lose sight of the forest for the trees and develop silly idiosyncrasies based on our interpretation of legal minutiae.  Today, we write of one such quirk: objections to the form of questions at depositions.

This writer attended Baylor Law School, an institution which focuses on practical education and teaches discovery and deposition techniques in a mandatory third year series of courses.  It was then that this writer learned of Texas Rule of Civil Procedure 199.5(e), which provides that objections to the form of a question must be made at depositions. All other objections are reserved. Form objections shall be made using the following statements:  “Objection, leading” and “Objection, form.”  Note that the terms contemplated by the rules are in quotation marks.  In its own words, the rule itself provides:

Objections to questions during the oral deposition are limited to “Objection,leading” and “Objection, form.” Objections to testimony during the oral deposition are limited to “Objection, non-responsive.” These objections are waived if not stated as phrased during the oral deposition. All other objections need not be made or recorded during the oral deposition to be later raised with the court.

Practicing several years in Texas, this writer always made the objections as stated in the rule.  It would have been splendidly nerdy to argue to a trial court that an opposing party had waived an objection by not stating it as it was quoted directly in the rule (which the rule itself states expressly).  What hypertechnical procedural fun that would have produced! After all, the use of quotation marks suggests that the objection itself must be verbatim and not a paraphrase, and the rule provides that “objections are waived if not stated as phrased.”  However, the judicial scorn likely to be prompted by that argument always deterred this writer.

But here is the aforementioned  nerdy pet peeve.  Throughout our career, in whatever state, and in whatever jurisdiction, this writer has always said “Objection, form.”  Call it habit, call it nostalgia, call it blind adherence to an old rule, call it what you will.  Inevitably, though, when the transcript arrives back from the court reporting service, our objection is almost always transcribed as “Object to the form” which, of course, would have been (presumably) waived under the Texas rule.  Perhaps the court reporters simply have some type of button or macro on their systems which inserts a form objection on to the record irrespective of the precise manner in which the attorney articulated it.  That obviously would not work for longer detailed objections, but for basic form objections, maybe that is the reason.  However, we have always wondered why it is that our “Objection, form” never seems to survive the day of the deposition.

Hey, we told you it was a nerdy pet peeve.  You were warned.

Last night, plaintiff’s attorney and “Hot Coffee” documentary filmmaker Susan Saladoff appeared as the guest on “The Colbert Report” on Comedy Central.  You might recall that Saladoff’s Hot Coffee documentary debuted at the Sundance Film Festival back in January.  Thereafter, it premiered on HBO in June.  Why the media blitz in late October? Well, Saladoff is now promoting the November 1 DVD release of her documentary.  This is big news.  For just $29.95, you can own a copy of the film complete with extra footage. Just in time for the holidays!

You can find the clip of her appearance on the Colbert Nation website here.

The majority of the interview was a simple rehashing of Saladoff’s standard mantra – tort reform is bad, frivolous lawsuits are uncommon, and corporations are brainwashing us to think otherwise. Obviously, we don’t share Saladoff’s point of view, but her message is one she is free to make. She certainly didn’t dedicate much time to discussing the Liebeck case itself – the litigation from which her film takes its name.  When asked by host Stephen Colbert about the frivolous nature of Liebeck’s lawsuit, Saladoff responded with her all too familiar talking points:  1)  Liebeck’s injuries were real; 2) McDonald’s only offered $800 to settle the case; and 3) McDonald’s knew its coffee was capable of causing burns and continued to serve it nonetheless.  That’s all true, of course.  Liebeck did sustain third-degree burns.  McDonald’s did initially offer $800 to settle the case, presumably believing it could not be held liable for damages caused by an individual drinking a hot beverage.  The testimony in the case indicates that McDonald’s did know that hot coffee could cause burns. But even if we take those three points as a given, so what?

As we’ve often asked on this site, why should McDonald’s be held liable for damages caused by a beverage which by its nature is meant to be served hot?  When presented with that question, Saladoff claimed that McDonald’s knew its coffee could not be consumed at the temperature at which it was served.  Seriously?  It seems absurd to think that a business would serve a product it knew no one could consume.  We suppose someone forgot to tell the billion customers who purchased – and presumably drank – McDonald’s coffee in the decade prior to Liebeck’s accident.  Further, Saladoff alleged that McDonald’s coffee was capable of causing third-degree burns in as little as three seconds.  Three seconds?  Really?  If true, one would expect far more burn complaints considering the billions of cups of coffee sold.  Why not mention the fact that Liebeck sat in the coffee for 90 seconds?  Why not mention that Liebeck’s clothing actually held the coffee closer to her skin?  Why not mention that Liebeck could have suffered the same extent of burns had the coffee been served at a temperature as low as 130 degrees?  Apparently, these facts aren’t necessary components of the “real story.”

Saladoff also mentioned that Liebeck’s settlement agreement with McDonald’s included a gag order.  As we’ve noted before, Saladoff was a plaintiff’s personal injury attorney for 20 years prior to her turn as a filmmaker.  We suspect she’s previously encountered confidentiality provisions in settlement agreements, which are included for all sorts of legitimate reasons.

We here at Abnormal Use continue to question Saladoff’s inclusion of the Liebeck case in her anti-tort reform documentary.  We also wonder if the DVD “extras” she mentioned actually contain new information about the Liebeck case or if they are comprised of more out of context anti-tort reform talking points. If you pick up a copy on November 1, be certain to let us know.