It’s that moment every lawyer dreads.  It’s a quiet court room, a lawyer is examining a witness, and then you hear it.  A rogue cell phone.  Someone forgot to turn off the ringer.  As if the situation itself was not embarrassing enough.  You know the judge is one of those that treats a cell phone in his courtroom as the equivalent of a dirty bomb.  You hold your breath for a moment, wondering if you are guilty party.  Luckily it’s not your phone, but the judge does let lose on the perpetrator and holds him in contempt. And so it goes.

Well, it happened recently in a Michigan courtroom, except it was the judge himself who was the offender.  To the judge’s credit, he held himself in contempt.

According to an account at MLive, Judge Raymond Voet had recently purchased a new phone, and apparently, he didn’t lock it properly before court.  He surmises that he bumped the screen, and it began asking him who he wanted to call.  You know, the old “please say a command” prompt.  This was, of course, in the middle of the prosecution’s closing argument.

To make matters worse, Judge Voet reportedly had trouble turning it off.

The judge is apparently known for being a real stickler about cellphones.  In fact, he has signs posted outside his courtroom warning cellphone users that they face  a $25 fine and could lose their electronic device if it does off during a hearing.  He is even said to have taken phones from police officers and personal friends.

So what did the judge do about his own indiscretion?  Apologize and move on?  Consider becoming a little less strict on others?  Nope.  Judge Voet held himself in contempt and walked downstairs during a court recess to pay the same $25 fine he imposes on other offenders.

Above, you’ll find the cover of Captain Marvel #39, published way, way back in 1975.  It’s a part of the storyline “The Trial of The Watcher,” which the website Comicvine tells us involved “Uatu the Watcher [being] put on trial among his race for his interference in several Earth affairs.” The cover proclaims that the issue will offer “The Fate of the Watcher . . . and the Deadly Verdict!”  That does not sound promising for Uatu, does it?

Mental Floss offers us “11 of the Most-Watched Television Trials.”  You can probably guess most of them.

This review of My Cousin Vinny by AtomicSam links our prior coverage of the 20th anniversary of the film.

Well, Trevor Fehrman at Film Racket is arguing that “Attack of the Clones is a Film of Incalculable Historical Significance.”  Oh, my.

Finally, comedian Ricky Gervais offers his thoughts on product warning labels. Not a fan of them, we think, based on his comment.  For good measure, be certain to read some of the comments to his tweet to get an idea of the public perception of certain warning labels.

Sometimes, Plaintiffs’ attorneys complain about the amount of time defense counsel spend deposing their retained liability expert. Of course they do.

Accordingly, we here at Abnormal Use offer these suggestions on how they can ensure that the depositions do not require so much time to conduct.

Produce a report. Obviously, in federal court, expert reports are required.  However, in some state courts, reports are not mandated.  Accordingly, defense counsel may appear at the deposition without a detailed knowledge of the nature and basis of the expert’s opinion.  If defense counsel must spend the first portion of the deposition ascertaining the expert’s opinions, and then later exploring them in detail, then the process is slowed.  If the defense lawyer knows beforehand what the opinions are or may be, then he or she can better prepare and conduct the exam more efficiently.  However, without a report, the defense counsel must both identify and confirm the expert’s opinion before establishing the basis for said opinions.

Produce the expert’s file material well in advance of the deposition.  If the expert appears at the deposition with a host of unproduced file materials, then a portion of the exam must be dedicated to identifying and explaining the purpose of those materials.  Even production of the expert’s file before the deposition may not save time.  For example, if the Plaintiffs’ attorney emails file materials to defense counsel at 5:00 PM the day before the deposition, then one cannot expect that much time will be saved at the deposition itself.

Show up on time to the deposition. Sure, we as lawyers are sometimes informal at depositions, and most of the time, a collegiality permeates the deposition room despite the antagonistic nature of the litigation process.  However, if the Plaintiffs’ lawyer appears 15 minutes late for the deposition, it makes complaints about the length of the deposition somewhat disingenuous.

Determine how to address the lunch break. If time is a concern, then perhaps a brief lunch period can be scheduled or food can be ordered out and eaten as the deposition progresses.  Obviously, there must be sufficient time for the court reporter to take a break and eat his or her own lunch, but if a 30 minute lunch break is suggested, and Plaintiffs’ counsel requests an hour instead, then complaints of the length of the deposition may be inappropriate.

Finally, prepare the expert for the deposition process. A number of experts are in the business of being experts, and they enjoy sparring with attorneys and avoiding answering even the most direct questions.  Most defense counsel will be undeterred by such tactics and continue to ask questions to confirm and secure the full basis of the stated opinions.  However, the types of games that some experts play in attempting to avoid questions can only prolong the process.  Defense counsel is entitled to know both the opinion and their basis, and if the testifying expert wishes to delay offering that information at the deposition, then it will only take longer to procure that information from the expert during the exam.

Make certain that the expert has a mastery of his or her own file. If an expert is only prepared to spout off his or her own opinions, but cannot point to the specific documents or evidence supporting that opinion, then the deposition will last longer than expected.  The expert has known for days, possibly weeks, that he or she is to be deposed, and answering straightforward questions such as “what is the basis of that opinion?” with something along the lines of “I read that in some other depositions” or “that is in one of the books upon which I relied” are not sufficient answers.

Soccer fans are loud.  Really loud.  A rowdy bunch in general, fanatics of teams all over the world have been known to engage in all sorts of bad-boy behavior.  They throw things from the stands, things like flares and burning mopeds that could seriously hurt someone on the field or down below.  They murder fans of other teams, just because.  And they engage in riots that end up with people dead, and others sentenced to die.  Heck, there’s even a Wikipedia page devoted to “football hooliganism.”

My point is, soccer fans are not, as a rule, shrinking violets.

And yet, there was one thing that caused soccer fans all over the world to beg for mercy.  To lunge for their remotes in a frantic search for the mute button or, for those [un]lucky enough to be at games during the South Africa World Cup in 2010 in person, to wish for earmuffs.

The Vuvuzela.

Looks harmless enough, but these things are brutal.  They’re loud.  They make your ears bleed.  And, thank the heavens, they were eventually banned by UEFA, the Union of European Football Associations.

Not to be outdone, Brazil has apparently come up with its answer to the Vuvuzela, another [slightly less] annoying noisemaker which Brazil claims to be part of its cultural heritage.  They are called Caxirolas.  Please don’t ask me to pronounce it.  Time Magazine recently published an article about them, which is how we learned about them.  This guy was nice enough to model them:

Designed to sound like rain, we think that the sound, once magnified by all of the fans, will be more like the sound of millions of cicadas swarming the stadium than a calm afternoon shower.

But then, we’re talking about soccer fans.  They never opt for “calm.”

Recently, in Quinton v. Toyota Motor Corp. et al., No. 1:10-cv-02187 (D.S.C. April 17, 2013), the U.S. District Court for the District of South Carolina opined on some motions for summary judgment in another Toyota product liability suit. The matter arose out of a single vehicle accident that occurred in 2009 in Aiken, South Carolina. April Quinton, driving a rented 2009 Toyota Camry, lost control of the vehicle when entering a left-hand turn. The Camry exited the road, rolled over several times, and came to a rest. Quinton sustained a head injury in the accident and died nine days later. Quinton’s estate filed a wrongful death action against Toyota, alleging that Quinton’s death was caused by defects in the vehicle’s seat belt restraint system, roof structure, and supplemental restraint system.

On Toyota’s motion for summary judgment, the Plaintiff did not contest the lack of evidence regarding the seat belt restraint system and roof structure and, thus, the motion was granted. The Court held, however, that there was at least some issue of fact concerning the defective design of the supplemental restraint system. The vehicle’s supplemental restraint system consisted of frontal airbags, side torso airbags and curtain shield airbags mounted along the roof. However, the 2009 Camry lacked rollover-activated curtain shield airbags (“RCSA”). Toyota argued that it was entitled to summary judgment because the Plaintiff’s expert did not opine that the failure to include the RCSA made the system defective or unreasonably dangerous. Nonetheless, the Court held that the Plaintiff had met her burden to demonstrate that the lack of a RCSA was a design flaw and that the RCSA was a feasible alternative design. Toyota’ Accident Data Analysis Report revealed that RCSA’s could lead to a 50 percent reduction in fatalities. Toyota’s expert also indicated the installation of RCSAs was possible from a technological and economic standpoint. Given this evidence, the Court found there to be a genuine issue of material fact and denied Toyota’s motion.

Apparently, billionaire William Koch picked the wrong hobby when he started collecting wine.  He’s seems to buy a lot of expensive fake wine.  Last year, we told you about a suit by Mr. Koch over fake wine that allegedly belonged to Thomas Jefferson.  That suit was ultimately dismissed on the statute of limitations.  Well, he clearly wasn’t deterred from pressing forward with other similar lawsuits.

Earlier this month, according to the New York Daily News, he went to trial claiming that a wine dealer sold him 24 bottles of a bogus vintage bordeaux.  A New York jury found his claim to be true and felt that this dastardly deed warranted $12 million dollars in punitive damages. Mr. Koch originally spent $300,000 on the 24 bottles of “vintage” bordeaux, which he bought from Eric Greenberg.  The wine turned out to not be the real deal.  Koch blamed Greenberg for intentionally selling him the bogus wine and perpetuating a “code of silence in the [vintage wine] industry.”   Mr. Greenberg claimed that he offered to refund Mr. Koch his money when he learned that the bottles of wine were fake.  But that was not good enough for the billionaire.  Only a lawsuit and millions of dollars in punitive damages could right this wrong.  The jury awarded him $380,000 in actual damages and $12 million in punitive damages.

Lest you think Mr. Koch is just some out of touch billionaire that likes to spend more on wine than you spent on your home, we note that he plans to put $12 million verdict to good use.  Koch said he would use the money to “set up a fund to go after wine fraud and auction fraud.”  He’s bound and determined to put an end to the travesty of really rich people buying expensive fake booze.

It isn’t helping starving kids in Africa, but its something.

Above, you’ll find the cover of Police Line-Up #1, published way, way back in 1951.  “Crime Can’t Win,” proclaims the issue. Check out the armed guy on the cover raiding the police files. Note that this comic book is so old, and presumably rare, that the only version of its cover we could find is one defaced with ancient scribbles and doodles. We wonder if the scribbler – whose identity is inevitably lost to history – became a lawyer. Sadly, we’ll never know.

This, by the way, will be our 896th post. Can you believe that? That is a great many blog posts. We too are stunned. Have you read them all? When is the last time you read the Abnormal Use mission statement, published on January 4, 2010? In fact, when is the last time we read it?

Friend of the blog Tamara Tabo published her first column at legal mega-blog this week.  You can find it here.

Don’t forget! You can follow Abnormal Use on Twitter here and on Facebook here! Drop us a line!

Here at Abnormal Use, we’ve been involved in many cases in which the plaintiff alleges intentional or negligent infliction of emotional distress as a cause of action.  Cynical defense attorneys that we are, we are often skeptical–or even dismissive–of these damages, because they are so subjective and easily exaggerated.  Recently, we came across some stories about a lawsuit in which a fan sued Derrick Rose for emotional distress.  Yes, you read right.  A fan is suing a player on a pro sports team because he doesn’t like what was going on with the team and one player in particular.

Some background.  Derrick Rose is one of the stars–or the star–of the NBA’s Chicago Bulls.  Last year, during the 2012 playoffs, Rose blew out the ACL in his knee, requiring surgery and some time off from playing to heal, rehab, and recover.  There has been some scuttlebutt recently about the fact that Rose, who has been cleared by doctors to return to the Bulls since March 9, hasn’t taken the floor.  Moreover, it doesn’t look like he’s going to play for the remainder of the season, even though the Bulls could definitely use him.

All of this must be a little upsetting to Bulls fans.  Fans are probably frustrated, maybe even a tad bit angry at Rose.  But only one has decided that Rose’s failure to return has caused him such distress and emotional turmoil that he wants Rose to be held–yep, you guessed it–legally liable for that distress.

Meet Matthew Thompson, a 25-year-old Bulls fan from Peoria, Illinois.  He’s apparently been so upset by Rose’s absence that he’s put on a little weight.  So, as reported by the Houston Chronicle (along with several other news outlets), he’s suing Derrick Rose.  Because that’s what we do in America!

Common sense, if not legal training, shows that this lawsuit is just ludicrous.  But it’s also a good time to review the law of negligently inflicted emotional distress claims (since, we assume, Rose did not intentionally blow out his own knee just to hurt Thompson’s feelings).  Let’s assume the suit was brought in South Carolina.  The South Carolina Supreme Court considered the limits of recovery for bystander emotional distress in Kinard v. Augusta Sash & Door Co., 286 S.C 579, 336 S.E.2d 465 (1985).  The Kinard Court held that a bystander may recover for his or her emotional injuries under the following conditions:

(a) the negligence of the defendant must cause death or serious physical injury to another;
(b) the plaintiff bystander must be in close proximity to the accident;
(c) the plaintiff and the victim must be closely related;
(d) the plaintiff must contemporaneously perceive the accident; and
(e) the emotional distress must both manifest itself by physical symptoms capable of objective diagnosis and be established by expert testimony.

Id. at 582-583.  Of course, we don’t know all the facts.  Thompson may have been sitting in the front row when Rose blew out his knee.  Thompson and Rose may be closely related.  We seriously doubt, however, that either of these conditions would be met by Thompson’s case.  We are confident, however, that Thompson could find some doctor somewhere to attribute the cause of his weight gain to the disappointment Thompson feels at the Bulls’ predicament.  In any case, we are curious to see how this case proceeds, if it proceeds at all.

All we know is that if this case survives, or if Thompson is paid one penny by Rose to settle the lawsuit, it could potentially open the floodgates.  This will be especially true in Chicago, where long-suffering Cubs fans will retain counsel faster than their team can race to the bottom of the NL Central.

“If this was another country, we’d have to tell you that this coffee may be hot.  Good thing this is Canada!”

We couldn’t resist sharing this photograph above of a Canadian take-out coffee cup, which, not unexpectedly, is making the rounds on the Internet this week.  Twenty three years after Stella Liebeck spilled coffee on herself in the parking lot of a New Mexico McDonald’s, the culture still turns to her lawsuit for commentary and, as the image above indicates, legal humor.

So, today, we direct you back to our helpful Stella Liebeck McDonald’s Hot Coffee Case FAQ, in which we attempted to offer an objective accounting of the case using only the pleadings and contemporary media coverage.  Sure, such an objective, facts-only FAQ won’t earn us a spot on HBO’s documentary line-up, but we are still pretty proud of it.

(Hat tip: Overlawyered).

We hate the ellipsis.  There, we said it.  We can’t stand the ellipsis. Recently, we received a complaint containing not one, but seven, instances of our most despised punctuation device. Sure, we admit that the ellipsis has its proper place, but when used improperly, an otherwise formal pleading just looks foolish. Oh, my.

The Oxford American Dictionary defines ellipsis as “the omission from speech or writing of a word or words that are superfluous or able to be understood from contextual clues.” If one is inserting a quotation into a brief, and some of the words contained therein are insignificant, then the ellipsis has a home. If citing the first half of a quotation, but not the second half, then the ellipsis knows its place. If, however, you are making an allegation and are not satisfied with a single period to end your sentence, then we here at Abnormal Use have some problems. Oh, the humanity!

If we had to create an exception to the OAD definition, we would consider allowing the “yet to come” ellipsis usage to be acceptable. For instance, if we were to say, “If only we knew what would happen Friday night . . . ,” then by indicating that there is some form of unknown, the ellipsis has a point. In trying to keep with the definition of ellipsis, the “we don’t know what is to come” can be inferred from the contextual clues in the sentence. While not strictly within the plain meaning of the definition, we can at least understand why the ellipsis is being used.

We know our punctuation is not always perfect. In fact, we are certain that one could read over this blog and point to several instances of punctuation error. However, you won’t catch us ending pleading allegations with ellipses. There comes a point when enough is enough . . . .