Although the complained of diaper rash is probably more serious than other famous rashes, there are a couple of things (at least) that are concerning to me about this litigation. First, it centers on diaper rash. Is this really what the founding fathers had in mind when they signed the Declaration of Independence, preserving the right to sue over diaper rash? As noted by the National Library of Medicine, “[m]ost babies who wear diapers will have some type of diaper rash.” (To its credit, the NLM also notes that diaper rash is “rash in the diaper area,” lest one think that the diaper itself can experience rash.)

Yet another case illustrates why defense counsel, including products liability litigators, should be mindful of the ever changing landscape of social media and its potential for impeachment of Plaintiffs in litigation. That case is the recently issued Sedie v. United States, No. C-08-04417, 2010 WL 1644252 (N.D. Cal. April 21, 2010). In that case, the Plaintiff sued the federal government under the Federal Tort Claims Act after a 2006 automobile accident during which he, riding a bicycle, was struck by a postal vehicle. Both parties consented to a bench trial before U.S. Magistrate Judge Elizabeth D. LaPorte, which took place this past February. In her “Findings of Fact and Conclusions of Law Following Court Trial,” Judge LaPorte ultimately found that the Plaintiff had established the government’s liability and awarded damages in the amount of $297,624.66.

Even though the magistrate ultimately found for the Plaintiff, in reviewing some of the submitted damages evidence, the magistrate noted the contradictions between Plaintiff’s purported damages and Internet evidence uncovered by defense counsel:

Other evidence also undermines the extent of Plaintiff’s general damages. Plaintiff testified that he spends much of his time lying down, and there are times that he does not leave his room because he is depressed about his overall situation. However, the Court finds this testimony is only partially accurate, and is exaggerated given the other evidence of his actual activities and his pattern of exaggeration. For example, Plaintiff’s online writings show that his life was not constantly “hell on earth” as he claimed. Plaintiff maintained his pages on MySpace and Facebook since the accident, and as of January 12, 2010, his MySpace page listed various activities and hobbies, and friends of Plaintiff. Plaintiff wrote entries on his MySpace page, including one on June 3, 2007, in which he described painting as a frustrating activity when his arm hairs would get caught in paint. Yet painting was on the list of activities that Plaintiff claims were adversely affected by the accident. Plaintiff also testified that he had not done any painting since the accident, but the MySpace entry was written in the present tense at a time just prior to his microdiscectomy. Plaintiff testified that the MySpace entry was a joke, but the Court did not find the testimony credible.

Id. at *23 (emphasis added; citations omitted).

Plaintiff’s attorneys continue to warn their current and potential clients of the potential adverse impact of Facebook and MySpace profiles. For the most part, these clients do not appear to be heeding that advice. That is why the diligent practitioner will always survey the Internet to determine whether a given Plaintiff has established profiles on such sites.

Certainly, in our time, we have seen some trial witnesses fare worse than Shep the Wonder Dog, the canine eyewitness depicted above on the cover of the comic book, Mr. District Attorney #53, published way back in 1956. (Click to enlarge the cover and see it in all its glory!). Shep’s tale must be damaging to the defendant, as the bailiff seems posed to pounce upon the accused, who appears to be rising in response to Shep’s expected testimony. You’d think they would at least wait to see how Shep fared on cross before beginning to worry. Is there an optional completeness objection based upon the fact that Shep’s board does not include all 26 letters, thereby limiting his testimony? Rumor has it that Shep was prepared to give an impermissible lay opinion: Evolution provided the defendant with opposable thumbs but not sufficient wits to outsmart a dog. (For a full summary of this issue, see here.).

The Virginian Pilot in Norfolk, Virginia offers this interesting account of how that state’s courts have dealt with one vexatious litigant (who happens to share the name of the main character on a popular NBC sitcom). Says one jurist: “Within the memory of the incumbent judges of this court, the court has so designated only four people over the past fifteen years [as vexatious litigants]. The petitioner is the most persistent and vexatious of the four.”

Just think. This is what they were saying about law school 72 years ago: “American legal education is blind, inept, factory-ridden, wasteful, defective, and empty . . . [I]t blinds, it stumbles, it conveyor belts, it wastes, it mutilates, and it empties.” Karl Llewellyn, On What Is Wrong With So-Called Legal Education, 35 Colum. L. Rev. 651, 653 (1938). Wow.

The South Carolina Bar has joined Facebook.

Only in a nineteenth century marital property case involving the enhancement value of mules would you find a gem like this: “[T]he erratic mule standeth apart, like patience on a monument, smiling at grief.” Stringfellow v. Sorrells, 18 S.W. 689, 689 (Tex. 1891) (quotations omitted). Back then, we suppose everyone knew without being told that the author of the opinion was referencing Shakespeare’s Twelfth Night.

Speaking of Texas, its state bar is sponsoring a contest of interest. Several writers here at Abnormal Use plan to someday write the great American novel, but we fear that such an enterprise might detract from our billable hours. Perhaps the State Bar of Texas has a solution, though, as it has announced what is surely the first 140 Character Novel Writing contest. Inspired by the popularity of Twitter, the competition is open to all lawyers licensed in any state in the United States. (That’s a lot of lawyers.). Check it out:

Ernest Hemingway reportedly considered his best work to be his most succinct — a six-word novel he came up with to settle a bar bet: “For sale: baby shoes, never worn.”

Our contest challenges lawyers to write a short form novel, Twitter-style, in 140 characters or less. All U.S.-licensed attorneys are encouraged to enter.

One grand prize winner will receive an Apple iPad. The grand prize winner and runners-up will receive special recognition at the State Bar of Texas Annual Meeting on June 10, 2010, at a breakfast presentation featuring LexBlog, Inc. CEO and Twitter expert Kevin O’Keefe (@kevinokeefe).

For details, see here. The contest is open until May 1.

• Intellectual Property Examination Question: Suppose the students at Ole Miss are successful in changing their school mascot to Admiral Ackbar from Return of the Jedi. (See here for the full story, or if you’d like to see the websites of the students behind the effort, see here and here). What causes of action might George Lucas have against the school, and if he could make money selling Ole Miss toys, would he bother to assert them? Better yet: What claims would the government Mon Calamari, Admiral Ackbar’s home world, have against Ole Miss under the circumstances? The potential for speculation is endless. (We here at Abnormal Use are still contemplating our suit against Mr. Lucas for his perpetration of the alleged Star Wars prequels, which we believe were, as a matter of law, unreasonably dangerous and defective.).
• Bruce is in legal news again. Decided: The Findlaw Noteworthy Decisions and Settlements Blog reports on the Ticketmaster settlement with the Federal Trade Commission on behalf of Bruce Springsteen concert ticket holders. The post also includes links to the FTC complaint, warning letter, and news release regarding the settlement. Can you count all the references to Springsteen songs in the piece? Surely, though, a reference to “The Price You Pay” would have been appropriate?
• If you’re a South Carolina lawyer, and you’re a member of a rock band (or, presumably, any other type of band), here’s a unique networking opportunity for you. From this week’s South Carolina YLD Email Newsletter: “The Young Lawyers Division is calling upon talented lawyer-musicians to participate in this year’s Justice Jam, scheduled for April 30 at the Elbow Room in Columbia. Proceeds will benefit Sexual Trauma Services of the Midlands. Bands of all flavors are encouraged to submit a demo for consideration. The only qualification is that bands have at least one attorney member. Please send MP3s to Travis Olmert at travis.olmert@carterlawpa.com or CD demos to Travis at Carter, Smith, Merriam, Rogers & Traxler, PA, P.O. Box 10828, Greenville, SC 29603. All demos should be submitted on or before March 22. Remember, only send a MP3 or demo if your band is willing to play. The lineup will be chosen and announced by April 2.”
• “[T]his court recognizes the ubiquity of computers today in the workplace, in schools, public institutions, and in government, and the prevalence of agreements and policies governing such use. Many of these impose unrealistic rules honored in the breach. It takes no imagination to conjure up a multitude of trivial and not so trivial violations that take place every day in the workplace. Workers use workplace computers for personal use in violation of requirements that they use their computers for business only. Workers violate policies prohibiting access to social networking sites. Reportedly, fifty-four percent of companies ban workers from accessing social networking sites like Twitter, MySpace and Facebook, yet seventy-seven percent of workers with a Facebook account use it during work hours. S. Gaudin, Study: 54% of companies ban Facebook, Twitter at work, Computerworld (Oct. 6, 2009).” State v. Riley, — A.2d —-, 2009 WL 5879349, at *13 (N.J. Super. Ct. Oct 30, 2009) (but apparently released to Westlaw only this week).
• This past Wednesday, South Carolina Supreme Court Chief Justice Jean H. Toal delivered the State of the Judiciary Address. An archived video of the speech can be seen here, along with a PDF version of her PowerPoint presentation slides. News coverage of the speech focused upon Justice Toal’s statement that the South Carolina courts were running on fumes financially and that tough decisions lay ahead. (For additional news coverage of her speech, see here and here). (Hat tip: South Carolina Access to Justice Commission).

Today, Abnormal Use continues its new series, “Abnormal Interviews,” in which this site will conduct brief interviews with law professors, practitioners and other commentators in the field. For the second installment, we turn to law professor Michael J. Virzi of the University of South Carolina School of Law. Virzi, a former prosecutor with the South Carolina Office of Disciplinary counsel, now teaches legal writing and chairs the South Carolina Bar’s Ethics Advisory Committee. He also practices in the areas of ethics and malpractice defense. The interview is as follows:

1. What recent developments in ethics law would you recommend that litigators be aware of in 2010?

Subpoena practice. Abuse of subpoena rules has been rampant for decades and, although there have been no rule changes, there has been increased awareness by the bench and attention to the limitations. The problem stems from the jurisdictional limits on a court’s subpoena power. A subpoena is essentially a court order. It is issued by the court; lawyers are merely granted the privilege of issuing them on behalf of the court. The abuse has been in issuing subpoenas outside the court’s jurisdiction. A lawyer cannot issue a subpoena that the court itself would have no jurisdiction to issue. The jurisdictional limit of the Circuit Courts is the State of South Carolina. Nevertheless, many lawyers will subpoena an out-of-state non-party entity (e.g., a bank) rather than an in-state representative. For Magistrate’s Court, the jurisdictional limit is the county in which the court sits. Nevertheless, lawyers often improperly subpoena out-of-county witnesses in Magistrate’s Court cases. The problem is particularly pronounced in City Courts—like Columbia, West Columbia, and Cayce—that neighbor county lines, but it has been reported in remote, rural areas as well. Finally, both Magistrate’s Courts and Family Courts have more limited subpoena power than Circuit Courts, as both courts lack extensive discovery procedures.

Specific Magistrate’s Court procedures were recently promulgated to clarify the appropriate way to reach out-of-county parties. Significantly, however, the rules and limitations did not change; they were merely clarified. A Magistrate’s Court’s jurisdiction—and therefore its subpoena power—has always been limited to the county in which the court sits. The disciplinary authorities have been aware of this for years, and the bar is starting to catch on.

2. What is the most significant ethics opinion to come out in the last year? Why is it significant?

The December 21, 2009, In the Matter of an Anonymous Member of the South Carolina Bar opinion by the South Carolina Supreme Court involved a lawyer issuing discount coupons through the lenders and real estate agents who referred business to him. The agents were soliciting clients in-person for the lawyer, something the lawyer himself is prohibited from doing under Rule 7.3(a). In 2007, Ethics Advisory Opinion 07-09 had advised that such conduct would be impermissible under 7.3(a), even though the lawyer personally does not conduct the in-person solicitation, because Rule 8.4(a) prohibits a lawyer from violating any of the Rules of Professional conduct “through the acts of another” and from “assisting or inducing another to do so.” The Ethics Advisory Committee believed that 8.4(a) prohibited a lawyer from having a surrogate solicit clients in person where the lawyer may not do so according to Rule 7.3(a).

The Court in In the Matter of an Anonymous Member of the South Carolina Bar expressly overruled 07-09, stating that the policies underlying the in-person solicitation prohibition are not compromised where the lawyer is not personally present. Because there is no “insistence upon immediate retention or importuning of the trained advocate,” in-person solicitation through a surrogate is not prohibited. The reasoning is simple, but the consequences are profound. The court essentially held that the “vicarious misconduct” prohibition of 8.4(a) does not apply to 7.3(a). The court has never previously held any of the Rules exempt from 8.4(a), nor am I aware of any other jurisdiction having done so. The court’s reasoning applies equally to ambulance drivers, triage nurses, police officers, jailers, and any other party a lawyer might use to personally solicit clients by handing out business cards or coupons in the lawyer’s stead. The court held that whether the recipient is in need of legal services is irrelevant. Because the practice is “similar in fashion to the common practice of leaving business cards for distribution” and the agents are not under the lawyer’s control (they “could have thrown away the coupons”), the court found the agent-solicitations permissible.

3. What do you think is the most overlooked ethical rule? Why is it overlooked?

Probably 7.2(b), or at least its applicability to electronic media. 7.2(b) includes the filing and record-keeping requirements for all lawyer advertising. Too many lawyers fail to realize that their web sites constitute advertising under the Rules and therefore fail to conform their sites to the specific prohibitions regarding advertising. Even when the content of online information is in conformity with the remainder of Rule 7.2, too many lawyers fail to file the materials with the Commission on Lawyer Conduct and keep copies for two years “along with a record of where and when it was disseminated” as required by 7.2(b).

4. As the general public increasingly uses the Internet and social media to communicate, how do you predict that state bars will react to the popularity of this new technology among attorneys?

Despite all the hype about how the Rules of Professional Conduct need to “catch up” with technology, I think the rules are adequate and state disciplinary authorities will simply apply them as written to online communication. I think lawyers, one by one, will continue to be shocked and amazed that their online conduct is measured against Rules 7.1 (communication), 7.2 (advertising), and 7.3 (solicitation), but regardless of the forum or medium, communicating is communicating, advertising is advertising, and soliciting is soliciting. The rules make no distinctions between print, radio, or television, and they need no special provisions for the Internet or other media. The rules distinguish only between that which is “disseminated via public media” and that which is not. If your use of Facebook is kept private among your friends, it’s not publicly disseminated. If you allow it to be viewed publicly, then it’s disseminated. Anything searchable by public search engines like Google and Yahoo! is disseminated under the rules. Linked-In and Twitter are likewise publicly disseminated. That doesn’t mean lawyers can’t use these services; it just means they are regulated when used in relation to the lawyer’s practice, as opposed to being used solely in a lawyer’s personal life.

5. If you could offer young lawyers beginning their careers one piece of advice, what would it be?

To paraphrase Polonius (Hamlet, Act I, Scene III), “Above all else, to thine own self be true.” Never let any partner, associate, client, opposing counsel, judge, or anyone else talk you into doing something you think is wrong. Never be afraid to walk away. Your fears and your needs can quickly and easily become someone else’s power over you, and those who would wield that kind of power would never wield it in your best interest.

BONUS QUESTION: What do you think is the best depiction in popular culture of an attorney facing an ethical issue?

I really enjoyed Jim Carrey’s performance as Fletcher Reede in Liar Liar. Fletcher’s son cast a spell on him, prohibiting him from lying just before Fletcher was to represent a client in her divorce hearing. He knew his client was having an affair, which would trigger a clause in her prenuptial agreement prohibiting her from receiving any of her husband’s multi-million-dollar estate. The spell prevented Fletcher from examining her or the paramour without disclosing the affair. (Ignore for a moment that he was perfectly willing to allow his client to lie on the stand — arguably, he never “faced” that issue). At one point he objected to certain testimony, the judge asked why, and Fletcher responded, “Because it’s devastating to my case!” But his best effort was at getting a continuance until after the spell was broken, which he could not truthfully tell the judge he needed. To get the continuance without lying, he went into the bathroom and beat himself up. When the judge asked who had done it, Fletcher replied, “A madman, your honor, a desperate fool at the end of his rope.” Nevertheless, the ploy failed. The best part was watching Fletcher struggle to find an honest, truthful path to victory in the case. Ultimately, he discovered that his client had lied about her age in order to get married early, a revelation that also voided her prenuptial agreement for incapacity and entitled her to half of her husband’s estate despite the infidelity.

BIOGRAPHY: Mr. Virzi teaches Legal Writing at the University of South Carolina School of Law and practices in Columbia in the areas of ethics and malpractice defense. He formerly worked as Assistant Disciplinary Counsel for the Supreme Court of South Carolina. He graduated cum laude from the University of South Carolina School of Law in 2000. He is a member of the North and South Carolina Bars and is currently the Chairman of the South Carolina Bar’s Ethics Advisory Committee. In 2009, he served on the South Carolina Bar Young Lawyers Division Social Media Task Force.