I have often heard clients say “We do not hire law firms; we hire lawyers!”  So, who do they hire?  They tend to hire someone they like and trust, and who knows their business like the back of their hand.  But beyond that, what makes a “good lawyer?”

I recently attended a meeting with an insurer with whom our firm has a relationship.   A number of areas were covered, including the relationship between the insurer, outside counsel and insureds; the importance of compliance with litigation guidelines; the company’s claims handling philosophy; and the importance of timely communication with both the insurer and insured. Then, we heard from a claims officer who had recently read some wisdom on what makes a “good DUI Lawyer”  She shared the article with us; it provided some useful reminders (although the original author and publication are unknown). If you know who first penned these words, let us know!

The Good Lawyer

1. Is always honest and truthful.
2. Listens to the client.
3. Knows who the client is, remembers who the client is, only represents the client, and does not surprise the client.
4. Communicates with the client.
5. Is the messenger, not the message.
6. Is willing to tell the client or prospective client that the law sometimes does not offer a remedy to every particular problem.
7. Explains everything to the client in terms that the client can understand.
8. Has a positive attitude, but does not promise success.
9. Always honors the attorney-client privilege.
10. Is always alert for potential conflicts of interest and investigates and resolves all potential conflicts before undertaking any representation.
11. Becomes knowledgeable about the applicable law and facts with regard to the client’s case.
12. Maintains their objectivity about their client’s case.
13. Never underestimates an opponent and never embarrasses anyone.
14. Treats everyone with the respect and dignity that the lawyer expects to be treated like Roanoke DUI attorneys.
15. Strives for excellence. Excellence with humility in the representation of the client.
16. Is diligent, persistent and relentless in the pursuit of representing their client.
17. Adheres to the highest professional and ethical standards.
18. Is proud of being a good lawyer and how they serve each of their clients.

In response, please share your own thoughts on what makes a good lawyer.

Rest in Peace, Prince. What a sad time, and what a terrible year it has been for the world of music with the loss of Bowie and Prince. We don’t know what to say. So, this weekend, find a moment during which you can pause, reflect, and listen to Purple Rain, Sign O’ The Times, Diamonds and Pearls. or the  album.

That’s certainly what we here at Abnormal Use are going to do.

Above, you’ll find the cover of Rock N Roll Comics #21, published way, way back in 1991. We knew there had to be a comic book cover honoring Prince.

Oh, and our tweet of the week must address this same sorrowful topic.

“This is what it sounds like when doves cry.”

— Jim Dedman (@JimDedman) April 21, 2016

I have been following The Masters since I was a kid. The first time I attended in person was in 1973 when Georgia native Tommy Aaron won. Over the years since then, there have been many Sunday back nine collapses. This year, Jordan Spieth hit two balls in the water on #12, ending with a quadruple bogey. While he made a rally with two birdies, he ended up losing to Danny Willett. The difference between Spieth’s defeat and the other recent collapses is that Spieth already owns the Green Jacket that goes to the winner.

In 1979, journeyman pro, Ed Sneed, had a 5-shot lead to start the day and a three-stroke lead with three holes to play. He bogied all three, landing in a playoff with Tom Watson and Fuzzy Zoeller, who ended up winning. In 1985, Curtis Strange had a three-shot lead when he came to the 13^th hole. His aggressive approach ended up in Rae’s Creek.  He then dumped his approach into the water on #15 and lost by two strokes to Bernard Langer.

Then you have Greg Norman. In 1986, Norman came to the last hole needing only a par to tie Jack Nicklaus. He flared his approach shot wide right, bogeying the hole and losing by one. The very next year, he was in a sudden death payoff with Augusta native Larry Mize, safely on the 11^th green with his second shot. Mize hit his approach shot wide right, missing the green, and leaving a treacherous downhill 140 foot chip.  You know the rest of the story; he holed the impossible shot and broke Norman’s heart.  Fast forward to 1996. Norman held a commanding 6-shot lead going into the final round, only to shoot 78 and lose to Nick Faldo, who shot a closing 67. Then in 2011, Rory McIlroy had a 4-shot lead entering the final round before a triple bogey on #10. He then four-putted #12, shooting a final round 80 to lose to Charl Schwartzel, who birdied four straight holes to win.

All of these gentlemen showed grace and dignity in losing what many golfers consider the Holy Grail. This year, as the defending champion, Spieth had the duty of placing the Green Jacket on the winner – twice. They did it once in Butler Cabin for the TV audience, and then again in an outdoor ceremony. Spieth was bitterly disappointed, obviously hurting, but he showed uncommon maturity in both instances and especially in answering every last question from the reporters after his round. He was both honest and forthcoming in his answers. He should be remembered for the way he handled defeat – with grace and dignity.

The Southeastern Symposium on Mental Health will be held in Greenville, South Carolina on May 5-7, 2016. GWB shareholder Stuart Mauney will be presenting at the Symposium on “Occupational Hazard:  When Doctors or Lawyers Get Depressed.” Stuart is a long time mental health advocate and frequent speaker on mental health issues in the legal profession. He presented at the Mid-Year Meeting of the International Association of Defense Counsel (IADC) in Pebble Beach, California, on February 22, 2016. He was also featured on a panel for a nationwide ABA suicide prevention webinar on March 21, 2016.

The goal of the Symposium is to promote awareness about mental health issues, reduce stigma and discrimination, and inform public policy. Keynote speakers include actress and mental health advocate Mariel Hemingway at a dinner on May 6, and former Congressman Patrick Kennedy at a luncheon on May 7.  Kennedy is the author of a recent book, A Common Struggle: A Personal Journey Through the Past and Future of Mental Illness and Addiction.

You can find out more information about the Symposium, and for registration at www.sesmh.org

Given the attention it has been getting on the presidential campaign trail, we here at Abnormal Use recently discussed the Protection of Lawful Commerce in Arms Act (“PLCAA”) and the issue of gun manufacturer liability. The PLCAA, signed into law back in 2005, affords gun manufacturers and sellers immunity in state and federal lawsuits except in situations where the seller knew the gun would be used in a crime, the gun buyer was obviously unfit to own a gun, the sale violated the law or the injury resulted from a manufacturing defect. The law has found itself in the crosshairs of certain presidential candidates in recent weeks on account of the press coverage surrounding a lawsuit filed against Remington by the families of Sandy Hook victims in which the plaintiffs seek to hold Remington liable for manufacturing and marketing the AR-15 semi-automatic rifle used by the shooter. The now politicized debate centers on the legitimacy of the PLCAA and whether a gun manufacturer should be held accountable to the families of the Sandy Hook victims.

Remiss in the political arena is the actual happenings in the Remington litigation. Back in December, the Remington defendants moved to dismiss the plaintiffs’ complaint for lack of subject matter jurisdiction on the grounds that they are immune from suit by virtue of the protections afforded by the PLCAA. Last week, Judge Barbara Bellis issued an order denying the motion to dismiss. Before opponents of the PLCAA champion the order as a great victory or proponents chastise Judge Bellis for ignoring the law, a closer examination needs to be made into the basis of the decision.

Under Connecticut law, a motion to dismiss is an attack on the court’s jurisdiction. A motion to strike challenges the legal sufficiency of the complaint. The grounds for the defendants’ motion to dismiss focused solely on the argument that the PLCAA deprives the court of subject matter jurisdiction. When asked by Judge Bellis whether the motion should be treated as a motion to strike, the defendants reaffirmed their motion and stated that they were not challenging the legal sufficiency of the complaint. As such, the motion was treated as a motion to dismiss and the decision confined to whether the court had subject matter jurisdiction over the matter. The decision does not touch on the legal sufficiency of the plaintiffs’ claims.

Framing the issue in this manner, Judge Bellis found that the court has subject matter jurisdiction over the plaintiffs’ claims. In reaching her decision, Judge Bellis relied on a decision from the Second Circuit in New York v. Mickalis Pawn Shop, 645 F.3d 114 (2d Cir. 2011) which previously held that the “PLCAA’s bar on ‘qualified liability action[s]’ . . . does not deprive the court of subject-matter jurisdiction.” Moreover, Judge Bellis found it significant that other courts that have considered the PLCAA as a defense have done so in the context of a motion to dismiss under Rule 12(b)(6), which is the equivalent of a motion to strike under the laws of Connecticut rather than a motion to dismiss.  As such, Judge Bellis concluded that “any immunity that PLCAA may provide does not implicate the court’s subject matter jurisdiction,” and, thus, the motion to dismiss was denied.

We here at Abnormal Use won’t speculate as to whether the political debate over the PLCAA had any bearing on Judge Bellis’ decision. Right or wrong, the penultimate issue – whether Remington is afforded liability under the PLCAA – remains on the table. We assume that Remington is busy drafting that motion to strike as we speak.

When was the last time someone cut you off with a quick lane change on the Interstate? Did you curse them or give them the “finger”? Maybe someone dashed into that prime parking spot just ahead of you. Or, that sports car was tailing you just a little too closely, so you tap on your brakes? Chances are none of these incidents resulted in death or even physical violence. However, recent events remind us that road rage remains a serious problem on our highways. The criminal defense lawyers in Woburn can help in case of accidents.

Former NFL Football player, Will Smith, who won a Super Bowl with the New Orleans Saints, was recently shot and killed in an apparent road rage incident in New Orleans. In its article on Smith, USA Today reported that this was our country’s third high profile road rage incident in less than a week. National Highway Traffic Safety Administration data tells us that road rage or aggressive driving were reported as a factor in 375 fatal crashes that resulted in 418 deaths in 2014.  A recent survey by the AAA “found 87% of respondents said they believed aggressive drivers were a ‘somewhat’ or ‘very serious’ threat to their personal safety.”

It sounds like we all need to refer back to our basic driver training courses. However, some have suggested that solving the road rage problem has more to do with psychology than driving skills. Jeff Asher, a crime data consultant, was quoted in the USA Today article as saying, “It’s about conflict resolution. It starts in childhood, with education. Teaching people to resolve their conflicts peacefully.”

Asher makes a good point. Perhaps our schools could do a better job of educating our kids about conflict resolution. Perhaps our churches could do a better job of reminding us that “blessed are the peacemakers.” Perhaps each of us could individually do a better job of keeping the peace, both in our personal lives and while driving on our highways. The next time you get cut off in traffic, perhaps the best advice is to count to ten and move along.

Friend of the blog Ryan Steans celebrated his birthday this week. In light of that, we thought we would direct your attention to our 2013 post in which we congratulated Ryan on a decade of blogging. That’s no small feat! He’s run a few blogs over the years, and all of them are quite good. To read our congratulatory post, please click here.

Many thanks to Aaron S. Kirschenfeld of the UNC Law Library blog for his kind words about Abnormal Use. You can read them here.

Our tweet of the week comes from our editor, Jim Dedman, who had an eventful week on social media.

I texted a lawyer friend, a millennial, to tell him I’d been retweeted by Morgan Fairchild. He asked, “Who’s that?” pic.twitter.com/gEryw0CCbv

— Jim Dedman (@JimDedman) April 14, 2016

Prior to March 17, 2016, there was a Florida appellate court split as to whether Engle progeny plaintiffs may seek punitive damages in negligence and strict liability claims. The Florida Supreme Court has reportedly now settled the controversy, concluding “that the widow of a smoker who died of lung cancer can seek punitive damages against R.J. Reynolds Tobacco Co. on strict liability and negligence claims, resolving an appellate split on the issue and marking a big win for Engle progeny plaintiffs.”

For those unfamiliar with “Engle progeny” litigation, the following is an extremely condensed overview.

In 1994, a class action lawsuit was filed against several tobacco companies in Dade County, Florida on behalf of all smokers nationwide. Class representative, Howard Engle, “claimed that he smoked multiple packs of cigarettes daily since he was in college and was unable to quit despite multiple attempts even after contracting emphysema, continuing to smoke until his death.” The class action was originally certified, but was subsequently limited to only Florida residents. The case was then tried in three phases. The first phase, the liability phase, resulted in eight findings, referred to as the “Engle findings,” which include:

1) that smoking cigarettes  causes aortic aneurysm, bladder cancer, cerebrovascular disease, cervical cancer, chronic obstructive pulmonary disease, coronary heart disease, esophageal cancer, kidney cancer, laryngeal cancer, lung cancer (specifically, adenocarinoma, large cell carcinoma, small cell carcinoma, and squamous cell carcinoma), complications of pregnancy, oral cavity/tongue cancer, pancreatic cancer, peripheral vascular disease, pharyngeal cancer, and stomach cancer);

2) that nicotine in cigarettes is addictive;

3) that the defendants placed cigarettes on the market that were defective and unreasonably dangerous;

4) that the defendants concealed or omitted material information not otherwise known or available knowing that the material was false or misleading or failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes or both;

5) that the defendants agreed to conceal or omit information regarding the health effects of cigarettes or their addictive nature with the intention that smokers and the public would rely on this information to their detriment;

6) that all of the defendants sold or supplied cigarettes that were defective

7) that all of the defendants sold or supplied cigarettes that, at the time of sale or supply, did not conform to representations of fact made by said defendants; and

8) that all of the defendants were negligent.

Engle v. Liggett Grp., Inc., 945 So. 2d 1246, 1276-77 (Fla. 2006).

In the second phase, the Miami jury awarded “a record $144 billion in punitive damages” broken down by company as follows: “$73.9 billion by Philip Morris, Inc., $36.2 billion by R.J. Reynolds Tobacco Co., $17.5 billion by Brown & Williamson Tobacco Co., $16.2 billion by Lorillard Tobacco Co., and $790 million by Liggett Group.” 4-42 Products Liability Practice Guide § 42.05.  The appellate court then reversed the award with instructions to decertify the class. However, smokers were allowed to pursue individual smoking related claims if they filed suit by January 10, 2008, and thousands of plaintiffs did just that. Numerous issues subsequently arose out of ensuing federal and state court actions, which we will not get into here, including the preclusive effect of the Engle findings, the application of federal preemption, and various other issues.  One of these issues was whether plaintiffs in Engle progeny suits could seek punitive damages, and a split among Florida appellate courts developed.

The recent Florida Supreme Court opinion, authored by Justice Barbara J. Pariente, settled the appellate court divide, holding that “there is no legal or principled basis for denying Engle progeny plaintiffs the right to pursue punitive damages on all properly pled counts.” Soffer v. R.J. Reynolds Tobacco Co., 41 Fla. L. Weekly 101 (Mar. 17, 2016).

According to reports, a new class action lawsuit has been filed against Proctor & Gamble alleging that the company’s Old Spice deodorants have caused armpit burns and rashes on “hundreds, if not thousands” of customers. According to the complaint filed in the United States District Court for the Southern District of Ohio, lead Plaintiff Rodney Colley, a 23-year old college student from Virginia, used Old Spice deodorant on several occasions and suffered burns as depicted below:

(Yes, the photograph is included within the pleadings). In addition to Colley, the pleading quotes complaints from Consumer Affairs from seven other customers who allegedly experienced similar injuries. The plaintiffs contend that Old Spice is defective and lacks appropriate warnings about the risks of burning, rashes, and irritation.

In response to the suit, Proctor & Gamble issued the following statement:

We go to great lengths to ensure our products are safe to use, and tens of millions of men use this product with confidence and without incident every year. A small number of men may experience irritation due to alcohol sensitivity, a common ingredient across virtually all deodorant products. For men who have experienced a reaction to a deodorant, an antiperspirant may be a better option because they have a different formulation.

If you are thinking you have heard this before, you have. Earlier this year, we reported on a class action suit filed against EOS alleging that the company’s lip balm causes lips to crack, bleed, and blister. Similar to the statement made by Proctor & Gamble, several doctors opined when the EOS case was filed that consumers were having allergic reactions to natural oils contained in the product. The EOS suit settled just a few weeks after it began with EOS agreeing to provide more details on its packaging about the ingredients and instructions on how to use the product safely.

While it might be overly ambitious to expect the Old Spice suit to settle as quickly as that of EOS, we wouldn’t be shocked if the result is the same. It makes good business sense for Proctor & Gamble to seek a quick resolution with a statement to customers that the product ingredients will remain the same. If not, let’s just hope Old Spice doesn’t have to go back to being associated with sailors and nursing homes.

Not too long ago, we wrote about a lawsuit filed against Porsche arising out of the accident that resulted in the death of Fast and the Furious star Paul Walker. The suit, filed by Kristine Rodas, the widow of the driver of the 2005 Porsche Carrera GT in which Walker was riding, alleged that the car crashed and caught fire as a result of a failure in its suspension system and a lack of proper safety features. Rodas also alleged that Porsche “designed and manufactured the Carrera GT defectively, causing it to fail to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner” and lacked a properly functioning crash cage and a proper racing fuel cell.

When discussing the potential outcome of the case, we had this to say about the merits:

While it is too early to determine whether it is Rodas or the L.A. County investigators who are correct, several aspects of this case are intriguing. First, Roger Rodas was an experienced race car driver. On the one hand, his experience could be a sign that the vehicle would not have crashed but for some defective condition. On the other, it could also explain why he felt he could drive the vehicle in a manner far too aggressively for normal road conditions. Second, the suit alleges that the vehicle was originally designed to be a Le Mans race car before being turned into an ultra-high performance super-sports car. We have to wonder whether these were post-manufacture modifications which could effect this product liability suit. Interestingly, this suit focuses on alleged deficiencies with parts fit for a race car, rather than recreational vehicle. Had this accident happened during Le Mans, then maybe we could more easily understand the alleged problems with the racing fuel cell or crash cage. We question whether those parts would have come into play if the vehicle had been traveling the posted speed limit.

As it turns out, the Court shared many of our same thoughts and granted Porsche’s motion for summary judgment. The Court found no merit to the allegations regarding the lack of a “properly functioning crash cage” because Rodas’ fatal injuries occurred when he and Walker collided together during the crash and, thus, would not have been prevented by a crash cage.  The Court also shut down allegations regarding the racing fuel cell causing a fire after the crash because the “undisputed evidence shows Rodas did not die from fire or sustain any injuries from fire prior to his death.”  The Court also found that there was insufficient evidence that the car’s suspension was defective.  We do not know what effect, if any, Rodas’ racing experience had on the Court’s decision; however, as we expected, Porsche previously argued:

The mere fact that Mr Rodas had driven with some skill in race does not mean that he always drove with skill on the street and was incapable of losing control of a car. . . One does not need to be a NASCAR or Formula One fan to know that expert drivers lose control and crash with great frequency.

While this suit did not turn out well for Rodas, Walker’s father and daughter have similar appeals still pending. The lawyer for Walker’s daughter does not appear to be concerned as he released the following statement to E! News:

The issues in the cases are very different. The federal case was filed on behalf of Roger Rodas, who was the driver of the Porsche Carrera GT and was killed instantly upon impact. Meadow’s father, Paul Walker, was a passenger in the car. He survived the crash but was trapped and burned to death because of the vehicle’s defects.

Meadow will continue the fight to hold Porsche accountable for selling a defective product that kills.

Again, we will continue to follow this one closely.