So Bob Dylan won the Nobel Prize for Literature? How about that? Unlike many, we will resist the urge to offer a pun using his lyrics. (We will note that his non-album single, “Positively Fourth Street,” remains conspicuously absent from Spotify).

Don’t forget that this weekend marks the 950th anniversary of the Battle of Hastings!

When is the last time you said hello to us on Twitter? Follow and interact with us at @GWBLawfirm!

Our editor, Jim Dedman, has once again planned this year’s Mecklenburg County Bar Halloween CLE. Titled “Ghosts, Graves, and The Occasional Murder House: A Halloween CLE,” the event will be held this coming Wednesday, October 19, 2016 at The Rabbit Hole in Charlotte, North Carolina. Topics include cemetery law, “statutory horrors,” and the law of haunted houses. Attendees can earn up to 1.5 hours of CLE credit, although lawyers and non-lawyers alike can attend at a lower rate if no credit is sought. For more information on this program, please click here.

Step 7 – Care About Character and Conduct Yourself Accordingly

We are reviewing Judge Carl Horn’s 12 Steps. This week, we explore Judge Horn’s encouragement to establish a solid ethical and moral foundation, to care about character and conduct ourselves accordingly. Much has been written about the erosion of professional courtesy and the refusal to extend common courtesies in our profession. This has led to a less pleasant and more stressed work environment. In the past, lawyers from various professional backgrounds would meet in more relaxed settings like bar meetings or a lounge at the courthouse, where they could get to know one another on a more personal basis. It was in this setting that codes of behavior were established and conveyed to younger lawyers. While a sense of community still exists, it now occurs more often at the specialty level. Lawyers now think of themselves as trial lawyers, or defense lawyers, beholden only to the rules of their specific community. Younger lawyers who have never been taught by mentors or the community at large about the professional codes of behavior may confuse advocacy with aggression. All of this leads to a pervasive distrust by lawyers of other lawyers.

Judge Horn says we should vow to do what most of us already know is right: strive to conduct ourselves honorably. We should treat others, including opposing counsel, as we ourselves would like to be treated. We should refuse to lie, cheat, or steal, however much pressure we are under, or however profitable the wrong choices may appear to be at that moment. Judge Horn also talks about the “slippery slope of ethical compromise” from which it is “awfully difficult to prevent a full slide into shameless dishonesty.” We become more cynical about the whole idea of right and wrong. An overall sense of fulfillment, difficult to achieve at best, will become more elusive still.

What are we to do? Do not pad your time sheets. Do not tell lies to partners, clients, or opposing counsel. Do not misrepresent legal authority to judges. Do not break your promises. Do not do anything else that is contrary to the values that you now hold. Promptly return phone calls and correspondence. Cooperate during discovery.

If we care about character and conduct ourselves accordingly, we will be able to sleep well at night. And, we will have taken one more important step toward finding satisfaction in the practice of law.

Next week, we will talk about Step 8 – “Just Say No” to Some Clients.

In South Carolina, when the plaintiff brings a negligence-based product liability claim, he or she brings comparative negligence into the picture because South Carolina is a modified comparative negligence state. For any negligence based claims, the jury will be required to apportion fault between the plaintiffs and any defendants in the case. If a Plaintiff is found to be more than 50 percent at fault, he or she will be barred from recovery. If a Plaintiff is found to be 50 percent or less at fault, then the Plaintiff’’s recovery will be reduced in proportion to his percentage of fault. If the jury hypothetically awards a Plaintiff $100,000.00 on a negligence based claim, and the Plaintiff is found to be 30 percent at fault, then the Plaintiff’s recovery will be reduced by 30 percent, resulting in a verdict for $70,000.00. At the same time, it should be noted that under current law in South Carolina, comparative negligence is probably not a defense to strict liability or breach of warranty claims.

Finally, any potential liability on the part of the product liability defendant may be reduced/apportioned pursuant to the South Carolina Contribution Among Tortfeasors Act (S.C. Code Ann. § 15-38-10, et. seq.). As a result of revisions to the Act in 2005, South Carolina is now a modified joint and several liability state. In South Carolina, if a defendant’s conduct is determined to constitute 50 percent or more of the total fault for the Plaintiff’s damages, then the defendant is jointly and severally liable for the full verdict returned in the case. When the defendant’s conduct constitutes 50 percent or more of the total fault, the defendant is not entitled to have its liability reduced or apportioned under the Act. However, if a defendant’s conduct is determined to be less than 50 percent of the total fault, then the defendant may only be liable for its proportionate share of any verdict that is returned. In the hypothetical provided above, in which the jury awards $100,000.00 and finds that the Plaintiff is 30 percent at fault, if the defendant is found to be 10 percent at fault, the defendant may only be responsible for paying $7,000.00. Significantly, the defendant’s ability to potentially have its liability, if any, “apportioned” or reduced pursuant to the Act clearly would exist as to any negligence based claims asserted by the Plaintiffs. South Carolina courts have not yet decided whether the theory of modified joint and several liability (i.e. apportionment of fault) will apply to strict liability and breach of warranty based claims. Other states that have considered this issue are split, with some states concluding that liability should be apportioned for strict liability and breach of warranty claims and other states concluding that pure joint and several liability (with no apportionment or reduction) should apply to those claims.

Some years ago, while I was in Nashville, Tennessee, I attended a show at the Grand Ole Opry. I remember Little Jimmy Dickens saying, “If you see a turtle on a fence post, it had help getting up there.” I wrote it down; saved it for later reference. While the quote has its roots in politics, it is a constant reminder to me that whatever I have done or will do, there are others there to help along the way.

As a young lawyer, our law firm had a policy that a partner would accompany any new lawyer on his or her first jury trial. My partner, Phil Reeves, watched me try a case for an armored car service. Another partner was with me when I defended a trucking company in an accident case. Howard Boyd was there when I did my best to defend a garbage truck driver who ran another truck off the road. Howard was also seated beside me when I took one of my first depositions. After each of these events, my colleague patiently debriefed me on my performance, including the good, the bad, and the ugly. (Have you ever watched someone else try a case? It is not easy to stay seated and refrain from yelling out, “Objection!”)

Howard Boyd has also been a mentor to lawyers outside our firm.  In fact, I was recently talking to another Greenville lawyer who told me how much he appreciated how helpful Howard had been to him when he was a young lawyer with little experience.

I am grateful for the support that I received as a young lawyer, even now, as an older, more experienced lawyer. It is one of the advantages of being in a law firm with a diverse group of lawyers, all with different styles and perspectives.

Who helped you along the way? Did you have a special mentor? We would all do well to remember what it was like to be a young, inexperienced lawyer. You were a turtle on a fence post, and you had help getting up there!

Take note, lawyers of South Carolina! Mandatory e-filing in the Court of Common Pleas will expand to include yet another county, this time Anderson County, on October 18.

One of our favorite podcasts, “Mystery Show,” now faces an uncertain future. If you’re note familiar with it, we’d highly encourage you to visit its archives (especially the compelling and emotionally affecting third episode).

Don’t forget that the Mecklenburg County Bar’s Small Firm Soiree is tomorrow night! Click here for details.

Our tweet of the week addresses music, not the law, but it is just as important (as it seeks to correct one of the day’s most pernicious malapropisms). Please, dear readers, take heed.

Don’t make me say it again: an anthology consisting of CDs or LPs placed in a cardboard enclosure is a boxed set, not a “box set.”

— Andy Zax (@andyzax) September 28, 2016

Step 6 – Don’t Let Technology Control Your Life   

This week, we review Judge Carl Horn’s Step 6, Don’t Let Technology Control Your Life.  This follows the 12 steps that Judge Horn has set forth to help individual lawyers achieve balance and professional fulfillment.  Step 6 reminds us of the additional pressure caused by technology. Judge Horn encourages us to refuse to let technology invade and control every inch of our lives.

Our growing dependence on technology has led to lawyers feeling compelled to stay up on technology but yet they do not know where to turn.  Lawyers find it increasingly difficult to mentally disengage or escape from work when at home or on vacation.   The less personalized communication both diminishes lawyers’ ability to develop relationships with clients and can lead to miscommunication. Work itself has become more rushed and less considered. Our instantaneous access to information pushes performance standards higher. Our clients expect faster turnaround on research and documents. The courts and our clients expect legal work to reflect the most up to date decisions posted on the Internet.

Judge Horn also notes the negative impact technology-related pressures have had on professional satisfaction. For example, practicing law is often less personal and more mechanized. Younger lawyers often spend the bulk of their time in front of a computer screen, which is less stimulating and intrinsically satisfying. Finally, lawyers find it increasingly difficult to put their stamp of professionalism on their work.

So what do we do about it? Judge Horn suggests that we start with drawing a line. We must each decide how much of us is “for sale.” Once we have the courage to draw the line, two basic things can happen. Those who have been applying this kind of pervasive pressure might realize we can perform adequately without being at their “beck and call” 100 percent of the time. The other thing that can happen is that we might lose clients or even lose our jobs. However, Judge Horn is not advocating being lazy or shirking our duty. He is talking about working long and hard, but at some point realizing that we share every human being’s need for private space.

The boundaries are something each individual must work out. Perhaps you block off times during the day in which you need to focus on a particular task, and make sure the phone or email does not interrupt. Some of you may limit your email access when you are away from the office. Whatever your strategy, Judge Horn reminds us that the core objective is the same: To establish boundaries that prevent technology from controlling our lives.

Let us know how you have established boundaries in this area.

Next week, we will review Step 7 – Care about Character and Conduct Yourself Accordingly.

According to reports, a New York woman has been awarded $52,500 through arbitration after being burned by a cup of coffee purchased from a Wendy’s in Staten Island. The incident occurred in 2012 when the woman and her daughter went to the Wendy’s drive-thru to purchase some food and a cup of coffee. The daughter, who was driving the car, was handed the cup of coffee from the Wendy’s employee. While the testimony on the exact manner was apparently inconsistent, the daughter then passed the cup to her mother who was sitting in the passenger’s seat. It appears the lid from the coffee cup may have not been properly secured during the pass. As such, coffee spilled from the cup onto the woman’s left hand and left knee. Thereafter, the woman filed suit Rawson Food Services, a New Jersey based Wendy’s franchisee, Princeton Food Services, and Wendy’s International alleging that she was burned because the coffee was both “excessively hot” and “unsafely or improperly packaged.”

Over the years, we here at Abnormal Use have taken interest in hot coffee litigation. Most often, hot coffee cases can be divided into two classes, those that allege burns as a result of the excessive temperature of the coffee and those that allege injuries as a result of some conduct of the restaurant’s employees. Aside from the infamous Stella Liebeck case, the former often face the most scrutiny in the courts and among the public. The latter are often easier to digest as they don’t premise liability on serving a product on the way it is meant to be served. Rather, the latter allege the restaurant was liable because its employees did not act in the way a reasonable attorney should under the circumstances (i.e. the employee spilled coffee on a customer in the course of handing him the cup or the employee did not properly not secure the lid to the coffee cup). This particular case is interesting (but not unique) in that it alleges that the coffee was both excessively hot and that it was not properly packaged. The reports do not mention the alleged temperature of the Wendy’s coffee, nor do they state the theory on which the award was based. For the sake of hot coffee lovers around the world, let’s hope it was more so the latter than the former.

We should also note that the arbitrator assessed the damages as $75,000, but found the woman to be 30 percent at-fault. We presume that the comparative fault must have been the result of the manner in which the woman handled the coffee.

Step 5 – Live Beneath Your Means

We are currently reviewing Judge Carl Horn’s 12 Steps Toward Fulfillment in the Practice of Law, outlined in his book, Lawyer Life – Finding a Life and a Higher Calling in the Practice of Law.  Horn sets forth his twelve steps which are based on choices that an individual lawyer can make to enhance professional fulfillment.

Step 5 is to Live Beneath Your Means. The essence of this step is that unless we actively struggle against it, we will find ourselves engaging in consumer spending that severely limits our ability to choose a healthier, more balanced life. How can we say “no” to more fee-generating work when we have all those bills to pay? Horn suggests that if we are to live a balanced life, we must learn to say “no” not only to more work, but also to the consumer spending that seems to make imbalance a necessity. By controlling our spending, we can significantly reduce the financial pressures that stress us out and push an increasing number of us over the edge.

Join us next week for Step 6 – Don’t Let Technology Control Your Life.

As lawyers, we here at Abnormal Use can identify many things that have shaped our careers. Whether it be a law professor, a client, or a trial, the way we practice law is a product of our past experiences. While many of those past events are legal in nature, life experiences also play a critical role. Contrary to the punchlines of many legal jokes, we are humans first and foremost, and we were molded as individuals long before we embarked on our legal odyssey.

Looking back at my formative years, September 24, 1991 may be the date that shaped me as a person more so than any other (apart from my marriage and the birth of my children, of course). On that date, 25 years ago this past Saturday, Nirvana released its second studio album, Nevermind. The album rescued rock music from its most mundane slump in its history and brought alternative rock to the mainstream. Aside from its revolutionary effect on music, the album’s ramifications on a generation of youth is its greatest achievement.

Personally, I was a mere 10 years old when Nevermind was released; I was just beginning to develop my own music preferences. I had just acquired DJ Jazzy Jeff and the Fresh Prince’s Homebase, thinking it would go perfectly with the only other album in my collection, MC Hammer’s Please Hammer, Don’t Hurt ‘Em. While my choice in music may seem laughable today, at the time, it was not. All the “cool” kids were listening to terrible rap music, so I would, too. I was the well-behaved quiet kid who did well in school and desperately aimed to fit in.  So I bought those albums and listened to them alone in my room after school, memorizing the lyrics so I could be in the conversation with the cool kids.

The release of Nevermind, however, brought an end to that vicious cycle.

One afternoon, I was flipping through the channels on the television and came across the music video for “Smells Like Teen Spirit,” Nirvana’s first single from Nevermind. Admittedly, I could not understand a single lyric from the song, but somehow, it spoke to me. Kurt Cobain’s muffled screaming over the sounds of the guitar and drums quenched my musical thirst far more than the beats of ’90’s rap ever had before. I heard this enchanting sound and learned that it was coming from guys who clearly weren’t trying to “fit in” with the times. There was no glam. Just guys wearing ratty clothes with unkempt hair playing music in a dusty old gymnasium. For me, that redefined what I thought was cool.

Shortly thereafter, I got my hands on Nevermind and listened to it on a continuous loop. While I didn’t grasp the full meaning of many of the lyrics at the age of 10, it didn’t matter. Nirvana was my music. My sound. My way of looking at the world. For whatever reason, listening to Nirvana and watching the video for “Smells Like Teen Spirit” was the affirmation I needed that I didn’t have to follow suit with the other kids (however, they, too, eventually ditched “U Can’t Touch This” in favor of the Seattle grunge scene). I didn’t try to emulate Nirvana. I didn’t have to wear ratty clothes and not comb my hair. I was still the well-behaved kid who got good grades, but I was me – not somebody else. Nirvana taught me that is okay.

Twenty-five years later, I still take with me those life lessons I derived from my first exposure to that “Smells Like Teen Spirit” music video. I have my own style. My own way of doing things. My own way of practicing law. And, I am happy with that.

Thanks, Nirvana.

Don’t forget that tomorrow is the 25th anniversary of Nirvana’s Nevermind album, which was originally released on September 24, 1991! What existential musings that anniversary prompts! On Monday, our own Nick Farr will be providing his detailed thoughts on the anniversary and its meaning to him all of these years later. Don’t miss it!

Bruce Springsteen’s new memoirs, Born To Run, arrives in stores this week! We’re on it!

Why aren’t you following us on Twitter? Click here and join the conversation with us!

We here at Abnormal Use and Gallivan, White, & Boyd, P.A. is pleased to announce that Greenville attorney Duffie Powers and Columbia attorneys Grayson Smith and Breon Walker have been chosen as “Rising Stars Under 40” by Benchmark Litigation.