We here at Abnormal Use are taking a break from our traditional witty commentary on product liability news to bring you this important announcement.

BIGFOOT IS ON THE LOOSE IN OUR HOME STATE OF NORTH CAROLINA!

And, apparently, he has beautiful hair.

According to a report from Greensboro, North Carolina’s Fox 8, a Cleveland County man, Tim Peeler, came into contact with a 10 foot tall Bigfoot with “beautiful hair” while he was calling for coyotes on his property. Thankfully, Peeler was able to scare Sasquatch away by “rough talking” him. Peeler was able to provide authorities with a sketch of the creature (pictured in the linked video above), observing that Bigfoot has six fingers on each hand. Law enforcement has filed a suspicious person report. The creature remains at large. So, beware.

Peeler is not the first to encounter the creature. Tales of Sasquatch date back to the indigenous population of the Pacific Northwest. Nonetheless, this report has a more meaning to us as it is in our own backyard.

Indeed, we are concerned about the ramifications that a population of sasquatch creatures may have on the legal system of the Carolinas.

Many bigfoot encounters take place when the creature is caught stealing chickens from a chicken coop or messing with other small animals. Had this conduct been that of a coyote or other wild animal, the property owner may have no legal recourse. But, what if the tortfeasor is a large, hairy, bipedal humanoid? The creature may be too human-like to be considered an animal, but is it also too non-human to be subject to suit in a Carolina court? Questions like these must quickly be addressed by the North Carolina legislature.

Even if Sasquatch could be sued, he is likely uninsured and judgment proof. Nonetheless, assuming suit is inevitable, he will need legal counsel. We will look forward to that opportunity. After all, Sasquatch has to make for a great witness with that beautiful hair and all.

One of the great things about our firm is the flood of sports related emails which deluge our email inboxes on the eve of any big contest. This is a big part of our firm culture, in fact. March Madness is no exception.  Inevitably, Howard Boyd, senior name partner of the firm, shares his wisdom with the recipients of such emails. Today, we couldn’t resist sharing the email he sent at 8:41 PM this past Friday night:

Some of you are aware that Florida is playing a directional school tonight – Northwestern Louisiana State University in Natchitoches, Louisiana. I am confident I am probably the only one in the firm who has actually been to Natchitoches and watched the Purple Demons play. While stationed at Fort Polk in the Army in 1973, I went up there to watch Robert Parish, then a freshman at Centenary, play against NSU. He was as good as advertised, and he went on to a great college and pro career. I and a few hundred fans rattled around a high school like gym to watch that game that night. Glad to see the Demons in the Big Dance. They have come a long way. Not to be confused with the infamous USL (University of Southwestern Louisiana),  which was an outlaw program which received the death penalty after Dwight “Bo” Lamar led them to a near NCAA title before they were caught for 125 major recruiting violations in 1973. Centenary also got probation for recruiting Parrish – the nation’s best big guy who inexplicably signed with little Centenary.

Northwestern State ultimately fell to Florida.

Behold, the cover of Daredevil By Ed Brubaker & Michael Lark Ultimate Collection – Book 1, published not so long ago in the late 1990’s. As you can see, Daredevil finds himself in jail, although once again, for some reason, the prison warden has permitted a superhero to remain in costume while incarcerated.  Here’s how Amazon describes the narrative:

For the past few years, Matt Murdock’s life has been teetering on the edge of destruction. Now, pushed beyond the limit, Matt finds himself behind the eight ball with no clear way out, the people he calls friends slowly deserting him, and Hell’s Kitchen gradually slipping out of control. The question is, when his back is against the wall. just how far will Daredevil go to get back what is his? Plus: a special episode focusing on Daredevil’s best friend, Foggy Nelson. Spinning out of the stunning finale of Brian Michael Bendis and Alex Maleev’s ground-breaking run, Brubaker and Lark pick up the billy club and run as hard and as fast as they can to leave their own mark on one of comics’ most enduring legends.

Um, that doesn’t really tell us why he’s in jail.  Or what charges he faces. Maybe we’ll just go back and read our September 2011 interview with Daredevil writer Mark Waid.

Uh-oh.  Bob Dylan is touring again, and he’s playing right here in our backyard in Charlotte, North Carolina. What to do? For our previous thoughts on him, please see here, a brief reference  here, here, and here).

Have you ever thought to yourself, “Gee, I really dig Abnormal Use and would like to know more about its writers!”  If so, you’re in luck.  Today, we’d like to introduce you to Nick Farr, so please read his official attorney biography here.

Many years ago, during my first quarter of law school in Waco, Texas, the legal writing professor warned the students that a legal education would forever transform the way we think.  We were, of course, skeptical.  But as the weeks and months passed, we realized that he was correct.  Previously innocuous advertising and billboards prompted warranty analysis.  Coupons and advertisements in the newspaper – yes, there were newspapers, then – became subject to contractual analysis.  Suddenly, our relationships with our landlords became much more formal, as we, the new law students, actually read the provisions of our leases and discussed them in detail with leasing office employees when problems arose. Armed with just a little knowledge, we were likely annoying.

As most of you lawyer readers know, this reshuffling of the mind continues throughout the rest of our lives.  Once one matriculates through law school, you view everything with lawyers’ eyes.

Recently, I was traveling western North Carolina, and I found myself at the registration desk of my hotel.  The attendant assigned me a room; it was room 403.  Lawyer that I am, I couldn’t help but conjure up the rules of evidence in my mind. Federal Rule of Evidence 403, of course, is the federal rule of evidence governing the admissibility of relevant, though unfairly prejudicial, evidence.  You’ll recall that one proper objection, when invoking Rule 403, is that any probative value of the proffered evidence is outweighed by the potential for unfair prejudice.

Now, as I recite that rule, I remember the refrain of my evidence professor, who noted that it was always “unfair” prejudice that the rule excludes because any evidence that one seeks to introduce against one’s opponent is always, by its very nature, prejudicial.  It’s only unfair prejudice that the rule is barred against.

And so, whereas a carefree non-lawyer might have simply trekked to his room and began to enjoy his day off, I immersed myself in the rules.

Oh, well.

As if being a Supreme Court Justice wasn’t reason enough, Justices Ginsburg and Kagan have just given us a new reason to admire them.  In a Wall Street Journal article published on March 19, 2013, these two judicial heavy-hitters show that they can bring it in the gym as well.

The article focuses primarily on personal trainer Bryant Johnson, who counts not only Justices Ginsburg and Kagan as clients, but U.S. District Judges Thomas F. Hogan, Ellen S. Huvelle, Emmet G. Sullivan and Gladys Kessler.  His is a great story of American entrepreneurship.  By day, Johnson is a records manager in federal court’s clerk’s office.  A veteran and fitness guru, he began training a friend from the clerk’s office and built his resume of VIPs from there.  In the evening, he drives over to SCOTUS and works out with some of the greatest legal minds of the day.

Justice Kagan boxes with Johnson for her workouts.  Justice Ginsburg likes to work on her pushups:

“When I started, I looked like a survivor of Auschwitz,” Ginsburg said in an interview. “Now I’m up to 20 push-ups.”

This is a fun article, and it makes an important point about judges being real people who, like us, get haircuts, go to the grocery store, and gain weight if they sit behind their desks too long with no exercise.  As they move through their own lives, they interact with “ordinary” people.  I have actually lived this story on a much smaller scale–during my first year in practice, I was introduced by a colleague to a state circuit judge as we sweated side-by-side on Stairmasters.  I knew who he was, of course, but he didn’t know me.  We decided not to shake hands that day.  I have also run into another judge in a local CVS, who gave me a wink after checking out my holey jeans and arms full of baby diapers and a pint of ice cream.

Even though these moments are awkward, they have the wonderful and important effect of bringing the Bar closer. They make my city and state an even better place to practice law.  These moments also illustrate to all that the judges are part of the community.  These are important messages in today’s society when our profession doesn’t always conujure up the Atticus Finch vision of lawyers.

The late paleontologist Stepehen Jay Gould once said, “Facts do not ‘speak for themselves.’ They are read in the light of theory.” We here at Abnormal Use never really understood what Gould meant until we read this editorial by Daniel Leddy at silive.com. The piece, entitled, “Advance legal columnist: Look at all the facts behind outlandish jury awards,” suggests that there is normally a rational explanation found in either the law or the facts when a lawsuit produces a seemingly absurd result. While not all results are warranted, we agree that people should gather all the necessary facts before forming any opinions.That said , Leddy’s opinions on the legitimacy of jury verdicts is not what caught our eye. Rather, it is his one and only case sample – the famed Stella Liebeck McDonald’s Hot Coffee Case.

To demonstrate that not all jury awards are as bad as they seem, Leddy proposed to reveal the “actual facts” of the case. For the most part, the facts Leddy outlines are consistent with those found in our comprehensive FAQ file. While we have both attempted to provide an objective account of the infamous hot coffee case, we ultimately reach different conclusions about the case. So, how can this be?

Stephen Jay Gould was a wise man.

Facts are facts. But, their meaning is all in how you read (or present) them. For example, Leddy indicates that McDonalds served coffee at temperatures close to 190 degrees and that, according to the plaintiff’s expert, liquids at 180 degrees could inflict burns in just a few seconds. All true. However, he omits evidence that Liebeck would have suffered the same burns had the coffee been served at 130 degrees – well below the optimal temperature range (155-160) recommended by the plaintiff’s expert. More actual facts, but these paint a much different picture.

The difference is in theory and what one wants to prove. The facts can’t be changed. They are what they are. Nonetheless, both sides have a job to do. Whether it is the lawyers at trial or legal bloggers some 20 years later, the facts have to be presented in a manner that supports your theory.

Again, we agree with Leddy’s premise that people should learn the facts before forming any rash opinions. However, it is not always that easy. As is the situation with the Liebeck case, the notion that one is going to present you with the “actual facts” so that you can see the truth is misleading. More often than not, those facts are being filtered through a theory and may not be telling the complete story.

We don’t mean to discourage anyone from gathering information. Rather, our purpose is quite the opposite. Just pay attention to your source – whether it is Abnormal Use, Leddy, or anyone else – and form your own theory.

P.S. In light of this fact/theory distinction, we must continue to refer readers interested in the hot coffee case to our FAQ file. The FAQ is a comprehensive, source-based account of any and all information readily available to the public.

Above, you’ll find the cover of Simpsons Comics #108, published not so long ago in 2005.   This is yet another comic book cover where a line-up is not exactly constitutional, as the defendants all look so very different.  Sigh.  We would have identified Homer (who predictably, but suspiciously in this context, holding a doughnut).  We’re sure it was him, whatever the offense may have been.

In last week’s edition of Friday Links, we featured the cover of Real Fact Comics #19, which featured a a self styled “Camera Cop” taking photographs of a crime as it happened. One reader emailed to note: “Since the camera sees exactly what the police officer sees, it appears that the photos would be classic illustrative testimony dependent on the testimony of the officer for foundation.”

The other day, when attempting to visit our own website, we accidentally entered the URL address AbnormalSue.com.  We guess that works, too, to describe commentary on unusual lawsuits.

Oh, and beware The Ides of March today.

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For those of you thinking about attending a town meeting in Riverhead, New York anytime in the near future, you may want to think twice about voicing your displeasure with any of the town’s policies.  As reported by the Huffington Post, by a 4-1 vote, Riverhead has banned booing at town board meetings.  But, don’t fret.  Applause is still permitted.  The Board only wants to outlaw behavior it considers “disruptive.”

We do not have access to the legislative history behind the new rules.  But even Justice Scalia should have no problem recognizing the legislative intent without it.  According to the new rules, people are permitted to speak during a public comment period, but they may not “engage in any demonstration, booing or otherwise disrupt the formality of a town board meeting.”  Disruptions are bad.  We understand that.  But if the Board was really trying to assure the healthy flow of board meetings, would it really permit applause?  Anybody whose ever watched a Presidential State of the Union address knows how disruptive – and annoying – applause can be in a formal setting.

Call us crazy, but it appears the Board is more interested in muffling the sound of dissention than honoring the formality of the proceedings.  As originally drafted, the rules recognized that applause can be just as disruptive as booing.  However, as the Riverdale Patch reported, the Board may have only been concerned about limiting some free speech:

The board voted to approve new legislation that prohibits any demonstration that lawmakers would consider disruptive to meetings, specifically booing, but agreed clapping would still be permitted.

The first draft of the legislation banned both booing and clapping.

But, after Dominque Mendez, president of the Riverhead Neighborhood Preservation Coalition, protested that the proposed law “goes far to restrict what’s free expression and free speech,” the board agreed to ban only booing, not clapping.

Hand clapping, Mendez said, has been heard at town board meetings during instances including the preservation of the North Fork Preserve. “People clapped and no one minded,” she said.

Of course, no one minds hearing the sounds of affirmation.  Disagreements, however, should be kept to oneself.  After all, free speech only applies to the kind we like, right?

We here at Abnormal Use do not consider ourselves among the handful of constitutional lawyers out there.  As such, we have no intentions on debating the First Amendment.  Nonetheless, we do know that booing is of the most universal expressions.  Everyone recognizes booing as the collective sound of disagreement.  Honestly, what is more disruptive – listening to one collective boo or having to endure through person after person take the floor to individually voice his or her displeasure?  Let’s just get in one good boo and go on about our business.

Yours truly just returned from a nice, albeit short, ski vacation in Park City, Utah.  Of course, I couldn’t make it through the whole trip without coming across some blog material.  Anyone who has ever been skiing out west knows that it’s big business (both literally and figuratively). The ski resorts invest millions upon millions of dollars in chair lifts, grooming equipment, dinning facilities, et cetera, all in an effort to attract thousands of skiers at daily prices of around $100 per person.  As such, it was a little surprising to learn that Park City Mountain Resort (PCMR), one of most popular ski resorts in the United States, doesn’t even own the land that its uber expensive equipment sits upon.  It was even more surprising to discover who actually owns the land.  The land is owned by Talisker Land Holdings (Talisker).  Talisker is the company that runs The Canyons, which is PCMR’s next door neighbor and one of its biggest competitors.  So, it was not surprising to then find out that they two were in a battle royal lease dispute.