Not too long ago, on August 21, 2013, the South Carolina Court of Appeals released its opinion in Lawing v. Trinity Manufacturing, Inc., No. 5166 (S.C. Ct. App. Aug. 21, 2013).  Implicating the “sophisticated user” doctrine, it is a products case with which any products liability lawyer should be familiar. However, because our firm was involved in the litigation of that matter, we will simply direct your attention to the opinion and leave the commentary to other bloggers.

“Beware of the creatures of the night – They have lawyers!” Above you’ll find the cover of Supernatural Law #45, published just this year. In that issue, The Toxic Avenger somehow finds himself as a defendant. Here’s a description of the issue straight from the publisher’s website:

Wolff and Byrd have a change of venue when they travel to Tromaville to defend none other than the Toxic Avenger! But can they prevail in a courtroom presided over by Judge Lloyd Kaufman?

You might remember way back in July of 2011 when we first referenced the Supernatural Law comic book series.  If not, please revisit this prior edition of Friday Links.

Well, federal courts are still commenting upon – and defining! – MySpace.  According to a brand new Ninth Circuit opinion, “MySpace is a social networking website that allows its members to set up online ‘profiles’ and communicate via email, instant messages, and blogs.” See Wynar v. Douglas County School Dist., — F.3d —-, No. 11–17127 (9th Cir. Aug. 29, 2013) (citing Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 208 & n.2 (3d Cir. 2011) (en banc)).  Our favorite part is that the court saw fit to provide a citation to a Third Circuit en banc case, which itself was citing a 2007 Western District of Texas case in its explanation of MySpace, which by now, really, is or was prevalent enough to no longer need citational support.

By the way, if you can believe it, this is our 991st post here at Abnormal Use.

Stephanie Kimbro of the North Carolina Law Blog (as well as the Virtual Law Practice blog) offers her thoughts on the issues of the duration of law school and practical training.  This is an issue we’ve written about before here, here, and here.  With the president himself weighing in on these issues of late, we feel we must stray into this debate once again.  Not today, mind you, but soon. Soon indeed.

FYI: The U.S. District Court for the District of South Carolina is inviting public comment on its proposed new and revised local rules. For more information, see here. The deadline for submitting comments is September 30.

Well, once again, we advise our lawyers friends to be careful what they post on Facebook. A new federal court case presents both social media and Blue Book citation issues.

On that note, we must direct your attention to Havard v. Epps, No. 5:08CV275KS (S.D. Miss. Aug. 30, 2013).  It’s a habeas corpus proceeding, not something we write about often here at Abnormal Use.  But because of its connection to social media, we feel compelled to offer an observation or two on this very new – and very brief – district court opinion. The Respondents in that case – various governmental officials including the  Mississippi Department of Corrections – filed a motion for clarification and motion to seal. Just so we can put it in proper context, here’s how the court described the procedural issue at hand:

This matter came before the Court on Respondents’ Motion for Clarification and their Motion to Seal. The Court earlier allowed Petitioner to amend his Petition for Writ of Habeas Corpus to reflect state court proceedings that have occurred since the original Petition was filed. The basis for Respondents’ Motion for Clarification is their contention that the Memorandum that Petitioner submitted in support of his Amended Petition may contain new claims that may go outside the scope of the amendment allowed by the Court. According to Respondents, “the State cannot determine whether (and where) Petitioner made substantive changes to arguments which Petitioner did not move to amend. Therefore, the State cannot identify which issues need responsive pleadings.” Respondents did file an Answer to the Amended Petition without objection; it appears that the issue lies with the Memorandum.

(Docket entry citations omitted).

The court denied the motion for clarification, but it is the motion to seal which interests us.  Apparently, the Respondents sought to ” prohibit any non-party from accessing documents filed in this case.”  That does not sound unusual, right? That, after all, is the purpose of a motion to seal.  Well, here’s the social media money paragraph:

Here, Respondents’ concern was apparently triggered by a Facebook post of one of Petitioner’s counsel about the Motion for Clarification discussed above. In particular, counsel wrote, “After responding to an asinine motion filed by the State, which not only wants to kill my client but doesn’t want to be bothered by actually responding to his claims of innocence, I am heartened by the following words penned by Kris Kristofferson.” However ill-advised this post may have been, in terms of the standards of professionalism by which lawyers are encouraged to govern themselves, this statement does not give rise, in the Court’s opinion, to a need to seal this record, for three reasons. First, there is no indication that the record of these proceedings in state court is unavailable to the public; second, the state court record was conventionally filed in this Court and is not available for electronic access; and, finally, information about this case is so widely available through Internet sources that closure of this record will not prevent dissemination of the details of the charges or the identification of the infant victim in this case. For these reasons, the Motion to Seal will also be denied.

(Emphasis added).

The State attached a grainy, black and white copy of the Facebook profile and wall of the attorney who made the post as an exhibit to the motion.  That attorney, in conjunction with the post, also embedded this YouTube post featuring the song. The motion to seal does not recite how the attorneys for The State came across the Facebook post in question, nor does it disclose the user who logged in to Facebook to print the profile.

Posting about one’s cases on Facebook is always a perilous enterprise, even if one’s Facebook profile is set to private, as any friend (or sometimes, friend of a friend) can access and capture the photograph.  Having one’s Facebook profile attached to a federal motion is not something one would expect, but as can be seen, it is a now possible consequence. Be careful out there, folks.

Our biggest disappointment, of course, is that the federal court did not see fit to quote – or cite to – the Kris Kristofferson.  If we were forced to guess, we would have assumed that the lawyer was quoting “Me and Bobby McGee,” written by Kristofferson (and Fred Foster) and made famous by Janis Joplin. “Freedom is just another word for nothing left to lose,” right?

But we would have guessed wrong.  We located the motion to seal in question, which was filed on August 26, 2013 (just four days before the order), and here is the Facebook post in full:

After responding to an asinine motion filed by the State, which not only wants to  kill my client but doesn’t want to be bothered by actually responding to his claims of innocence, I am heartened by the following words penned by Kris  Kristofferson. There are some similarities between prophetic songwriters and lawyers:

And you still can hear me singin’ to the people who don’t listen, To the things that I am sayin’, prayin’ someone’s gonna hear. And I guess I’ll die explaining how the things that they complain about, Are things they could be changin’, hopin’ someone’s gonna care. I was born a lonely singer, and I’m bound to die the same, But I’ve got to feed the hunger in my soul. And if I never have a nickle [sic] I won’t ever die ashamed. ‘Cause I don’t believe that no one wants to know.

How about that? That, by the way, is from Kristofferson’s “To Beat The Devil,” from his debut album Kristofferson, released way, way back in 1970.

On a final note, we do think the federal court in question missed an opportunity to cite to Kristofferson’s album using proper Blue Book formatting.  According to Blue Book Rule 18.6.1, “[i]f a particular song or musical work is referred to, cite it by analogy to shorter works in a collection according to rule 15.5.1”  That would be as follows: Kris Kristoferrson, To Beat The Devil, on KRISTOFFERSON (Monument Records 1970).

Just one week after we wrote about the impact of the NFL concussion/brain injury litigation, news broke that the parties reached a settlement. According to an AP report, the NFL has agreed to pay $765 million over the next 20 years to former players who developed dementia or other concussion related symptoms allegedly caused by football. The settlement applies to all past NFL players and spouses of those who are deceased — a group that could total more than 20,000. The vast majority of the settlement goes to compensating retirees with certain neurological ailments. In addition, it sets aside $75 million for medical exams and $10 million for medical research. The settlement now awaits court approval.

A three quarters of a billion dollar settlement sounds like a lot of money to most. To the NFL, however, it is less than one-tenth of its gross profit margin for the 2012 season. Couple that with the fact that the players sought $2 billion and the settlement might appear to be a sour deal for the plaintiffs.

According to a report out of Sports Illustrated, the deal may not be as bad as it appears. Apparently, U.S. District Judge Anita Brody informed the two sides that she was ready to side with the NFL and find that many who played during the former collective bargaining agreement (1994-2010) should be excluded. This ruling would have cut a large number of plaintiffs out of the class. SI notes that Judge Brody also indicated that since the league’s concussion committee wasn’t formed until 1994, those remaining in the suit would have a tough time proving any fraud allegations. And so it appears the players had some reason to negotiate. While the NFL had indicated it was willing to take the case to trial, it, too, had every incentive to reach a settlement. If the plaintiffs’ allegations are true, the NFL knew far more than it let on about the long term risks of concussions than it claims. By settling now, what it did and did not know won’t come out through the discovery process. Accordingly, the NFL can avoid the public relations nightmare of having to explain away any cover-up.

So, maybe this is one of those cases where just about everyone comes out a winner. Former players get a financial settlement. The NFL avoids a PR disaster. Current and future players benefit from additional research and a heightened awareness for safety. Fans get a new season without the hassles of litigation. Now, if we could just do something about those rule changes, everyone can move on enjoying the sport we all love.

In an interesting ruling earlier this week, a New Jersey appellate court held that you don’t have to be driving to get in trouble for sending a text message.   You can potentially be held legally liable for sending a text message to someone who is behind the wheel and causes an accident.  This ruling seems to open a whole new battlefield in the war on texting and driving. The Appeals Court agreed with the argument made by two Plaintiffs that were seriously injured in a crash with a teenager whose truck swerved across the center line and hit them riding on their motorcycle. The Plaintiffs settled with the driver, but they also sued his girlfriend for their injuries.  She allegedly texted him just moments before the crash. The court didn’t find the girlfriend liable because she didn’t appear to know her boyfriend was driving at the time.  Nevertheless, the judges accepted the general argument that a text sender may bear some legal liability if they know the relieving party is driving.  The opinion stated:

We conclude that a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving.

This is certainly an interesting new duty placed on non-driving texters.  Even if there is such a duty, one must wonder whether the sending of the text would be considered the proximate cause of any accident.  After all, wouldn’t the driver’s act of accessing and reading the text be the proximate cause of the accident, not necessarily the person sending the text? And how would the non-driving texter’s purported knowledge of the recipient’s driving be litigated under the circumstances? This opinion should make for some interesting future litigation.

The opinion is Kubert v. Best, — A.3d —-, No. A-1128-12T4, (N.J. Ct. App. Aug. 27, 2013).

Happy Labor Day! Above, you’ll find the cover of Legionnaires #21, published not so long ago in the halcyon days of 1995.  Here’s the summary of the issue from Comicvine:

Live Wire joins the Workforce, a team created by Leland McCauley to compete with R.J. Brande’s Legion of Super-Heroes, after he quits due to legality issues. Meanwhile, the Legionnaires answer a plea for help from a prison located in a sun. Things seem to be going well until they are attacked by a spacecraft, causing the power to die in the prison eventually, letting loose all the criminals.

The Legionnaires – also known as The Legion of Superheroes – is a team of super powered heroes operating in the far, far future in the DC Comics Universe.  The Workforce is a rival team of The Legion, and with a name like that, how could we not spotlight them on Labor Day itself? Here’s what Wikipedia has to say about this “semi-heroic” team from the future:

The Workforce was founded by the corrupt industrialist Leland McCauley as a response to the Legion of Super-Heroes, founded by his rival R.J. Brande. When Live Wire was replaced in the Legion by his sister Spark, he joined the Workforce with the belief that McCauley could help him find his brother Mekt. While the team often appeared to be performing heroic deeds, everything they did was designed for McCauley’s profit. Karate Kid commented that the only reasons for being in the Workforce were selfish ones.

That is troubling indeed. Whatever the case, we hope that you had an eventful and safe Labor Day weekend.  Now, of course, it is Monday, the last day of the three day weekend, and the inevitable dread of the coming working week will soon arrive. What to do? You can check out our past Labor Posts (which also feature some labor themed comic book covers): here, here, and here.

In honor of Labor Day, above, we showcase the cover of JLA: Welcome To The Working Week #1.  (JLA, of course, stands for the Justice League of America, whose members include Batman, Superman, and the rest.). Here’s how Comicvine describes the plot:

How does the JLA act behind closed doors? You’re about to find out! When Marlus Randone stows away on the JLA Watchtower, he relies on his notebook and disposable camera to document the petty squabbles and inside decisions made by the members of the JLA.

Now, we expect that a day at the office of the JLA Watchtower – which Wikipedia tells us is either “a building on Earth’s moon [or] a space-station in orbit in the Justice League Unlimited cartoon – is no typical day at the office.  Whatever the case, we suspect that JLA was forced to remove its daily operations to the moon or to outer space because their unique issues simply aren’t contemplated by modern employment law. Perhaps this issue would shed some light on that predicament.

If you’re into writing tips, here are “Elmore Leonard’s 10 Simple Rules For Writing.”

“Protect Our Super-Rights!” A few years back, we shared some labor themed comic book covers.  Do you remember? If not, you can revisit those here.

Okay, you’ve had a long week. So have we.  But as you prepare for this holiday weekend, there is something in your future that will bring you much joy.  Yes, that’s right, all five monster cereals are returning! Even Fruit Brute and Yummy Mummy!

Speaking of odd food products, are you ready for Pepsi-flavored Cheetos?  PepsiCo doesn’t think so, according to this article.

Well, the wait is over. As of today, college football has returned. We here at Abnormal Use couldn’t be more excited. So, to prepare for this momentous occasion, we have prepared a list of links to our prior football related posts.  Mind you, some of these posts concern professional football (which seems to result in more litigation). However, we won’t let that get in the way of assembling the list below, which includes posts from each year our little blog has been in existence.  So, we hope you enjoy revisiting our past. Oh, and let us know which Carolina you’ll be rooting for tonight in the big game! (Since we have offices in both North and South Carolina and lawyers with alma maters in both states, it may be a tense day.).

“NFL Litigation May Forever Change Football” (August 19, 2013).

“PA vs. NCAA: Does the Commonwealth Have Standing?” (January 16, 2013).

“NFL Punter Claims Turf Unreasonably Dangerous” (November 29, 2012).

“Former NFL Players Allege NFL Concealed Risks of Injury” (September 14, 2011).

“The Return of College Football (And Some Law Stuff)” (September 1, 2011).

“South Carolina’s College Football Stadium Parking Jurisprudence” (July 12, 2011).

Oh, and here’s one that sounds like it’s about college football, but it’s really not:

“Georgia vs. Texas” (March 25, 2010).

In the course of following the George Zimmerman/Trayvon Martin case, the entire country learned about Florida’s so-called “Stand Your Ground” law.  In case you’ve been under a rock for the better part of a year and a half, Zimmerman was a neighborhood watch volunteer who encountered 17-year-old Trayvon Martin one night in his gated community.  After calling the police, Zimmerman and Martin got into an altercation that resulted in Zimmerman fatally shooting Martin. While the defense team for Zimmerman did not actually use Florida’s Stand Your Ground law as a defense at trial, the case itself brought that law and others like it from other jurisdictions under intense scrutiny.  Protests such as this sit-in reported by The New York Times sprung up around the nation against these types of laws, passed in the name of self defense.

Zimmerman’s recent acquittal has brought another Florida law into the limelight.  As reported by NBC News, Zimmerman’s attorneys are preparing a motion that would ask the State of Florida – i.e. the Florida taxpayers – to pick up part of the tab for his defense, to the tune of almost $300,000.  The motion would be based on a Florida law that “says a defendant who’s acquitted isn’t liable for costs associated with his or her case,” according to NBC.

Like good little lawyers, we looked up the statute.  It states as follows:

It will be interesting to see if this law receives the same kind of attention and criticism as Stand Your Ground.  The Zimmerman case continues to make news and provide a microscope with which to view the rule of law and other issues of socio-economics and race in America.  Fascinating stuff.

In case you missed it, here are the factual findings in the recent reprimand of a former state court magistrate judge, who was recently disciplined by the South Carolina Supreme Court for the following: