Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct brief interviews with law professors, practitioners and other commentators in the field. For the latest installment, we turn to Jeff Richardson, author of the superb legal tech blog, iPhone J.D., and a partner at the firm of Adams & Reese, L.L.P. in New Orleans, Louisiana. The interview, which mostly concerns iPhones and legal uses of smartphone technology, is as follows:

1. Generally, how has the practice of law changed with the advent of smartphones?

When the BlackBerry and similar devices started to become popular almost ten years ago, the practice of law began to change dramatically. Tech savvy lawyers could impress clients by always being available to receive and respond to an e-mail. This then led to clients expecting that they could contact their lawyers 24/7. Around the time that the Palm Treo 650 started to become popular, attorneys were able to do more than just read and respond to e-mail; they also had tools to find information on the Internet, edit documents, et cetera. We saw the possibility of being a mobile attorney without having to carry around a laptop. When the iPhone debuted in 2007, it forever changed what consumers expected from a smartphone interface, but it didn’t have much of an effect on the practice of law at first. But, in 2008, when the iPhone 3G came out, and the iPhone was suddenly able to work with Microsoft Exchange, the e-mail used by many lawyers and law firms, and at the same time the App Store opened, the iPhone started to become an extremely powerful device for lawyers. The tools that made mobile lawyering a possibility on the Treo 650 started to become available for the iPhone, but this time, the software was much more powerful and polished. We are now at a stage where clients are very used to expecting 24/7/365 availability for their lawyers, and with the iPhone, lawyers really can do quite a bit to meet those needs even when they don’t have a laptop computer nearby.

2. What ethical issues surround the use of a smartphone, and of them, what is the most overlooked? Are there any that are iPhone specific?

Preserving confidentiality is always a concern for lawyers, but not only is this not unique to the iPhone, it isn’t even unique to technology. If you leave a legal pad — or even worse, a briefcase — in an airport, restaurant, courtroom, et cetera, you risk possible exposure of lots of confidential attorney-client information and attorney work product. A smartphone can potentially hold much more confidential information than a briefcase, but at the same time, there are tools to help keep data private (such as password locks) and to locate a missing iPhone or remotely erase the iPhone if it is lost (such as the fantastic Find My iPhone app that Apple recently made free for the owners of all new iPhones).

Another concern that I see is that e-mail on a smartphone tends to be much more casual than e-mail on a computer, which is more casual than a letter drafted on the computer. And yet, the consequences of the written word can be the same, regardless of whether it is in the form of a text or an iPhone e-mail or a formal letter. Clients need to be aware of the potential for liability that results from sending a message without really thinking about it, but attorneys need to follow that advice, as well. Moreover, risks such as accidentally using REPLY ALL or FORWARD exist on the computer and the smartphone, but can be easier to make on a smartphone when people are trying to dash off messages in a matter of seconds.

3. Not too long ago, there were some concerns expressed on some blogs about the security of the iPhone and its appropriateness in legal practice. Have those concerns been put to rest?

You still see a few people issuing dire warnings about security on smartphones such as the iPhone, but often, these people are security professionals looking to sell their services. In the real world, I am not aware of any instance in which an attorney’s iPhone or other smartphone has been obtained by a hacker who knows how to use sophisticated tools to access data notwithstanding the use of passwords, et cetera. I know that these tools are out there, and I know that many police forces are learning how to use the tools (with court approval) to obtain information from a suspect’s iPhone or other smartphone. But the fact that a trained professional can hack into an iPhone or a laptop computer doesn’t lead me to believe that attorneys shouldn’t use an iPhone or a laptop computer. Instead, I urge common sense. If you use your iPhone in your law practice, activate the passcode lock feature so that a stranger cannot simply pick up your iPhone and start to read your e-mail, and be aware that there is some information that is so confidential that it should receive extra protection.

4. What are the three most essential apps for the practicing attorney?

In the spring of 2010, I did a “60 Apps in 60 Minutes” presentation at ABA TECHSHOW 2010 that sought to answer that question. You can still see that list here; I’m working on a new list for ABA TECHSHOW 2011 in April. But if I had to pick just three, I would probably pick Dragon Dictation (so that an attorney can quickly dictate an e-mail), DataViz Documents to Go (so that an attorney can edit MS Word documents and more easily view Word documents) and LogMeIn Ignition (so that an attorney can access his or her desktop computer even when out of the office). Having said that, I really hate to pick just three because there are so many great apps with so many new great apps coming out every day. After a hard day of work, sometimes I consider it “essential” to play a quick game of Angry Birds.

5. If you could will into being one legal app that does not yet exist, what would be its function?

The best feature of the iPhone for attorneys is having information at your fingertips. The information that I want to access is usually available somewhere, but sometimes, can be a little difficult to access. My dream app would be able to sort through information from all of my data sources — my document management system, my e-mail, the documents on my work and home computers, court dockets for my cases, such as the PACER system for federal courts, my notes, et cetera — and allow me to find information from any of those sources with the speed of a Google search.

BONUS QUESTION: What do you think is the best depiction in popular culture of legal technology?

For lawyers and non-lawyers, I think that the technology goal is the same; we want powerful technology without the human interface barriers. As a child, watching Luke Skywalker, Michael Knight, and Dave carry on conversations with C-3PO, KITT, and HAL 9000 made me long for the day when I would be able to access vast amounts of information just by asking questions to a computer or robot. Speech is making great advances, not only on the computer, but also in cars and on small devices like the iPhone, but the reality is that whether I am walking down the street or trying to work in my office, I don’t want to be surrounded by lots of people talking to their computers, their watches, the water cooler, et cetera But the new touch interfaces — which amazed all of us when we saw Tom Cruise in Minority Report, and which we are now seeing in real life on the iPhone and iPad and with the Xbox Kinnect — seem to have the advantage of removing barriers without the noise. I am excited to see these technologies continue to improve in the future.

BIOGRAPHY: Jeff Richardson is the publisher of iPhone J.D., the only website devoted to the use of iPhones by attorneys. iPhone J.D. was voted by readers of the ABA Journal as the best legal technology blawg in 2010. Mr. Richardson is a New Orleans native and a partner in the New Orleans office of Adams and Reese L.L.P., where his practice primarily involves representing defendants in class action and complex litigation, appellate litigation, products liability litigation, constitutional litigation and legal ethics. He has served as court-appointed liaison counsel for defendants in numerous complex cases. Mr. Richardson graduated from Emory University in 1991, summa cum laude, and Georgetown University Law Center in 1994, magna cum laude.

As readers of this site are aware, we here at Abnormal Use occasionally publish interviews with law professors and practitioners on products liability and litigation. In 2010, we published a total of eleven such interviews. Today, we list them all and provide links back to them:

• Rory Ryan, Baylor University (February 4, 2010)
• Michael J. Virzi, University of South Carolina (February 24, 2010)
• Mary J. Davis, University of Kentucky (April 27, 2010)
• Susan Rowe, Charlotte School of Law (October 4, 2010)
• Mark Osler, St. Thomas Law School (October 11, 2010)
• Mark Zaid, The Law Office of Mark S. Zaid, P.C. (October 18, 2010)
• David G. Owen, University of South Carolina (October 26, 2010)
• Alberto Bernabe, The John Marshall Law School (November 3, 2010)
• Stephen Spitz, Charleston School of Law (November 15, 2010)
• Phil Morris a/k/a Jackie Chiles (December 6, 2010)
• Jill Wieber Lens, Baylor University (December 13, 2010)

As 2010 draws to a close, we’d like to take this opportunity to thank the individuals listed above for being kind enough to grant the interviews. We think our site is all the better for it.

Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct brief interviews with law professors, practitioners and other commentators in the field. For the latest installment, we turn to torts professor Jill Wieber Lens of the Baylor Law School in Waco, Texas. The interview, which mostly concerns punitive damages, is as follows:

1. What do you think is the most significant new development in torts or products liability of the last year?

I think one of the most significant developments of the last year was the government’s involvement in creating an alternative to tort law – the BP Oil Spill Fund. The Fund is advertised as a superior alternative — no attorneys taking a portion of the compensation received and the compensation should be paid out faster than in a lawsuit. The Fund may also allow claimants to avoid otherwise troublesome legal arguments like the economic loss doctrine, which if applicable, would preclude BP’s liability in negligence for causing pure economic losses.

At the same time, the BP Fund is very different than the 9/11 Fund. BP is funding it and compensating Kenneth Feinberg for his work. BP benefits directly if claimants apply to the Fund instead of heading to the courtroom. At a minimum, BP saves in legal fees and BP won’t pay any punitive damages within the Fund disbursements. I don’t mean to imply that any of this is necessarily inappropriate, but these are issues that were not present with the 9/11 Fund.

2. What component of punitive damages law do you believe is the least understood by civil litigators? Why?

Between the Supreme Court’s recent decisions in Philip Morris USA v. Williams, 549 U.S. 346 (2007) and Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008), there’s a lot about punitive damages to misunderstand. And it’s not just that litigators are confused; it’s the lower courts, too.

In Exxon, the Court expressed its concern that punitive damages are unpredictable. Numerous lower courts are now integrating the concern for predictability into their constitutional analyses. This is understandable because if the Supreme Court is concerned about predictability, then the lower courts should be concerned also. But Exxon was a common law-based challenge to a punitive damage award. Predictability does not appear to be a constitutional issue. Otherwise, an excessive award would be permissible as long as it was predictably excessive. At the same time, the Supreme Court relied very heavily on its constitutional guideposts — mostly the reprehensibility and ratio between compensatory and punitive damage guideposts — in Exxon, so the guideposts and predictability analyses may not differ all that much. The constitutional relevance of predictability is unknown at this point.

3. Generally, how would you characterize the media coverage of punitive damages issues?

The media coverage of punitive damage issues focuses on the outliers — only the excessive punitive damage awards garner attention. This media coverage, of course, fuels tort reform advocates and has likely contributed to states’ adoption of punitive damage caps or statutes requiring payment of a portion of the award to the state.

It’s also interesting to watch whether the media coverage has influenced the Court. In Exxon, the Court noted that studies undercut the thought of mass runaway awards and show that most punitive damage awards do not greatly exceed the accompanying compensatory damage award. Thus, maybe the Court isn’t so influenced. But after discussing these studies, the Court still suggested reform — pegging punitive damages to the amount of compensatory damages.

4. What do you believe is a defense attorney’s best constitutional argument against the imposition of punitive damages?

The best argument will always depend on the circumstances of the case. If the defendant’s conduct is not that bad, then the degree of reprehensibility guidepost probably provides a strong argument. Still though, the argument is a bit abstract because courts have never really been able to explain the “degree” part of this guidepost. How much more should an award be if the conduct is more reprehensible?

From a litigator’s perspective, the best argument is likely based on the ratio guidepost. It’s relatively easy to compare the amount of compensatory damages to the amount of punitive damages. This is also the same reason that courts have latched onto this guidepost and may explain why the Supreme Court’s ultimate suggestion for reform of punitive damages in Exxon was to peg them to the amount of compensatory damages.

5. What federal or state court opinion has been the biggest surprise for you of late, and why?

I don’t know if I’m surprised by the result of the opinion, but an opinion that interested me lately was an Oregon Supreme Court decision entitled Patton v. Target Corporation, — P.3d —-, 2010 WL 4539445 (Or. Nov. 12, 2010) It limited the effect of Oregon’s statute mandating that 60 percent of any punitive damage award be paid to the State.

After trial, the jury awarded the plaintiff $900,000 in punitive damages. Before judgment was entered, the parties settled for an unknown amount and jointly requested dismissal. The State intervened, claiming it was entitled to 60 percent of the punitive damage verdict. Based on the language of the statute, making the state a “judgment creditor,” the Oregon Supreme Court determined that the State is not entitled to anything until the judgment was actually entered. And the parties settled before the court entered judgment.

Unless the legislature changes the language of the statute, this decision creates a huge incentive for parties to settle before judgment is entered. And even if the legislature changes the language of the statute enabling the State to recover, this will present interesting questions regarding whether the parties are limited in their ability to settle late in the proceedings if punitive damages are sought.

BONUS QUESTION: What do you think is the most interesting depiction of tort litigation in popular culture, and why?

Honestly, I try to avoid any depictions of the law in popular culture. I have difficulty enjoying them while knowing that they’re unrealistic. But honest depictions of tort litigation would not be too interesting. Can you imagine a show about document review? It wasn’t pure tort litigation, but “The Deposition” episode of “The Office” is one of my favorites. When the attorney asks to ask Michael [Scott] another question, and Michael responds, “I’ll allow it,” as if he’s the judge – that was a great episode.

BIOGRAPHY: Jill Wieber Lens joined the Baylor University School of Law faculty in 2010 as Assistant Professor. In 2009, Professor Lens was a Visiting Assistant Professor at the University of Louisville School of Law. Before entering academia, Professor Lens practiced commercial and appellate litigation in St. Louis, Missouri. She teaches Torts and Appellate Procedure. Her current research interests include tort reform generally and punitive damages.

We can hardly believe it ourselves. But we here at Abnormal Use scored an interview with the actor, Phil Morris, who most know as Jackie Chiles, the bombastic, flamboyant, and opportunistic trial lawyer from “Seinfeld.” So, today, Abnormal Use continues its series, “Abnormal Interviews,” which now includes actors, as well as law professors, practitioners, and other commentators in the field. Though the character only appeared in six episodes of the series (including the 1998 finale), Chiles resonated with viewers. Recently, Morris reprised the role for a series of videos posted on the Funny or Die website (two of which have been posted already with three more on the way in the coming weeks). Less than a week ago, Morris was kind enough to submit to a telephone interview with our own Kevin Couch. In the interview, Morris discusses not just his role as Chiles, but also his upcoming projects, his love of superhero comic books, and his past work and influences. Although you may be able to quote many lines of Jackie Chiles “Seinfeld” dialogue, you probably didn’t know that Morris has studied kung fu, collected 20,000 comic books in his life time, and expressed an interest in one day playing the Silver Surfer on screen. His new sitcom, “Love That Girl!,” premieres in January. Our favorite part: Though his signature character is associated with litigiousness, Morris himself is actually skeptical of the modern litigation culture, going so far as to call it “beyond the pale.”

The interview transcript is as follows:

ON THE RETURN OF JACKIE CHILES

KEVIN COUCH: [I]t’s been 12 years since the finale of “Seinfeld,” and you have revived the Jackie Chiles character recently. Can you tell me about that?

PHIL MORRIS: Well, you know, Jackie had a life of his own even during the run of “Seinfeld.” You know, I had done a couple of commercials for Honda and Diet Dr. Pepper. He was one of the few characters, actually maybe the only character, that Larry [David] and Jerry [Seinfeld] would allow to do his own thing outside of the “Seinfeld” universe. So, you know, I mean, I just never really tired of him. I don’t think the public did, and we never got a chance to do a show that was – we had in development, and it was always just kind of percolating beneath my skin, and when the “Curb Your Enthusiasm” shows came out last season with the “Seinfeld” reunion kind of run, or arc, everybody was asking me about Jackie. I mean, you know, it was like Jackie had come back, and Jackie wasn’t even in it. So, I sat down with a friend of mine who’s a pretty high powered agent here in town, and he was asking me about Jackie. You know, we loved this reunion stuff, and we finally had something to talk about at the water cooler again, and you know, the only thing missing is Jackie. Where’s Jackie? I was like, “You know, man, Jackie, that ship has sailed, and blah, blah, blah.” He goes, “Oh, no, it has not sailed. We want that guy back.” And he gave me the idea to kind of put it on the web and, you know, test the waters, see if people were interested. You know, Kevin, I work a lot. I do a lot of shows. I do a lot of stuff. I’m on “Smallville” on the occasion. I’m doing a new show called “Love That Girl!” for TV One. So, it’s not like I was sitting around waiting on stuff to do.

COUCH: Right.

MORRIS: It’s like, this came to me, and as an actor, rarely do you get a character that you feel so committed to and it speaks to you so fully as a Jackie Chiles. So I was like, “Why not?” Let me give it a shot. You know, so, I wrote a couple of these interstitial commercial kind of things. You know, Jackie’s back, and he’s wanting new clients kind of deal. And, a buddy of mine and I who are writing it, he told Funny or Die that we were doing this. And we hadn’t even started. And they came right at us. They were like, “We’ll produce it, we’ll distribute them, we love this guy, he’s perfect for us!” So I wrote these five with Whit’s help, Whit Hertford’s help, and went to Castle Rock and cleared their legal. It took about two months. And the result is kind of, you know, what you see. They’re parceling out one episode or one segment every few weeks and judging the public’s interest. And so far, the public is very interested.

…

COUCH: [W]ould you be interested in pursuing the Jackie Chiles character further? I mean, it sounds like you’ve got some good feedback from Funny or Die, and from the public on Funny or Die, would that be something you’re interested in pursuing in the future?

MORRIS: Of course, of course. Like I said, it’s rare for an actor to have characters that you so firmly connect to. Now, I don’t really relate to Jackie personally, but as an actor, I get it completely. So, I find that it’s refreshing for me to try to fit into that skin all the time, and like I said, I have barely scratched the surface of Jackie Chiles, so it’d be great to be able to pursue this path, you know, the computer screen and maybe into a television series, or I don’t even know what’s next for him, but I really don’t think there’s a limit.

COUCH: [H]ow much of you is in Jackie? Is he a completely foreign character, or is there some part of you that can identify with who Jackie is?

MORRIS: Well, I’m sure you have people in your family or people that you know that you can imitate or you can represent because they’re such great characters, but they’re not – it’s not really you, but you know them so well, you know, and I think Jackie is a combination of many men that I have grown up with and seen, from my father to my great uncle, Uncle Phil, my namesake, that just remind me of this kind of force of nature that is Jackie Chiles. You know, of course, Johnnie Cochran is in there as well. He was the template. For my purposes as an actor, Jackie is a hustler, he’s a pimp, he’s a preacher, and he’s an attorney. So, do I relate to all those things? I relate to them. Are they Phil Morris? No, not all of them.

COUCH: Did you have a chance to meet Johnnie Cochran?

MORRIS: I did, actually. Interestingly enough, we went to the same barber shop for years and years and years here in Los Angeles. So, I would see him as a kid come in and pontificate on everything from the Raiders moving to L.A. to any of the number of egregious acts of civil unrest. So I think I was doing some subconscious study on him for a long, long time.

COUCH: [B]ut you never had a chance to discuss the Chiles character with him?

MORRIS: Yeah, I did. And he loved it. I mean, I think he thought it was very flattering – at first.

COUCH: At first. Understood. Of course, one of the story lines from “Seinfeld” was, I guess, Kramer’s burns from the hot coffee. Do you have any feeling about that? What about people filing these lawsuits for burning themselves on hot coffee?

MORRIS: Well, we’re so litigious in this society, too much. It’s way beyond the pale. So that’s where I kinda jump off from Jackie. I certainly wouldn’t put stock in a lot of that stuff. I think, it’s just, we’ve gotten away with way too much here in the United States in terms of the legal ramifications of everything. I think, again like I said, beyond the pale. Jackie is an opportunist. So anything like that is manna for him. But personally, I think we’re really hurting ourselves and shooting ourselves in the foot. Not only are we giving our legal system a bad name, but we’re abusing it! We’re misusing those bits of legal power that we have – we’re fortunate enough to have in this country. It kind of drives me crazy.

…

COUCH: Have you ever had any lawyers come up to you and talk about Jackie Chiles?

MORRIS: All the time.

COUCH: What’s common in what they talk to you about?

MORRIS: Most of them – all of them, to me, are very positive. In fact, there is a Jackie Chiles Law Society at the University of Utah. I bet you didn’t know that!

COUCH: I did not go to the University of Utah, or I assure you, I would have been a member.

MORRIS: Is that crazy? So, anyway, their club, their society is about the public’s perception of law as the media represents it. And it’s very interesting, a very interesting phenomenon. But, yeah, most of the lawyers that come up to me are very supportive. They get the joke! You know what I’m saying? And I think people need to know that. As crazy as we think lawyers are and as crazy as the lawyers might actually be – on a whole, especially when it comes to Jackie – they get it! They’re like – man, this man is a lightning rod for all that’s good and all that’s bad.

COUCH: Anybody talk to you about not getting the joke?

MORRIS: No. Not one lawyer has gone – you know, “What the heck are you doing, I can’t understand why people even like this character!” Not one. Not one has come up to me with any sort of negative spin on this [character].

…

COUCH: It’s not the first time you’ve played a lawyer. I’ve got to ask you about Tyrone Jackson. I don’t know if anybody else will know who Tyrone Jackson is. But you played a character on “The Young and the Restless,” right?

MORRIS: You’re good, Kevin, you are good!

COUCH: Well, you know, I have the Internet to thank for that. . . . Is [there] anything from Tyrone that’s in the Jackie Chiles character?

MORRIS: Only his determination. That’s it. Tyrone actually was a very good natured, “Johnny Be Goode” kind of character, and Jackie certainly isn’t that. But what they have in common is their dogged determination to make sure the truth – as far as they see it – will out. That’s pretty much the only connection there.

COMIC BOOK SUPERHEROES

COUCH: Like you mentioned earlier, you’ve done a lot of different work – voice work and animated features, Doc Saturday, Jonah Hex, work in the “Justice League.” . . . I guess you’re a fan of this genre of entertainment?

MORRIS: Yep, oh, yeah.

COUCH: What motivated that? . . . From what I can tell your sister [actress Iona Morris] has done some voice work and animation, as well.

MORRIS: She actually turned me on to voice over work early on. I was so busy with the on camera stuff. Voice over is not easy. It’s a very clique-ish insider type of circle that you get into. But, hey, I’m a comic book fan, man. I’m sitting here right now in my bedroom, and I’m looking at the 20,000 comic books I have in my library. 20,000!

COUCH: Wow. That is impressive.

MORRIS: I’ve collected since I was a child. So, all of that helps me as an actor. It helps my imagination. It helps my fantasy life. All that stuff. So, it’s a natural to kind of transition into voice-overs. I’m just a child. Man, I haven’t grown up.

COUCH: Are you a fan of anything in particular in the comic book genre?

MORRIS: Now, I’m a big fan of the writers. Before, I used to be a Marvel guy. When you’re a kid you kinda take allegiances with either Marvel or DC – those are the two big dogs. But there’s a lot of independent books out there, and a lot of writers and artists that – now that I’m in that world – that I’ve known and been fortunate enough to become friends with. I really like the writing. Obviously, it’s not kid stuff anymore. They’re dealing with some interesting themes in the comic book world.

COUCH: Well, you mentioned earlier you played a super hero on “Smallville.” Do you have a favorite superhero? If you could play one, who would it be?

MORRIS: It would be the Silver Surfer, actually, from the Fantastic Four comics. He was a very existential, philosophical being who kind of belonged to no world and no universe, and sometimes, I feel like that. [Laughs.]

COUCH: Well, I’m sure it wasn’t hard to play a super hero right after playing a lawyer, right?

MORRIS: [Laughs.] You know, perfect study. I’ll have to be honest with you.

COUCH: You would agree that lawyers are pretty much like super heroes?

MORRIS: No doubt, no doubt. You’ll get no argument from me, Kevin.

ROLE AS PRODUCER

COUCH: You ever think about doing anything other than being an actor? Like, being something like a lawyer?

MORRIS: I was very interested in automotive design for a long, long time. When it got a bit too math intensive, I bounced out of that. You know, I think I sort of expanded my ability to create and express within this particular career choice. You know, Jackie, I wrote and produced, and obviously, am Jackie. Since then, I’ve produced something else that we want to turn into a feature film. So, I went from producing nothing in 30 years of acting to the last couple of months producing two very diverse and very extravagant products. I would really like to pursue that more – to produce and to write and use all of my skills as opposed to just the acting part of my tool kit.

COUCH: Is there anything you’re working on now as far as production or writing?

MORRIS: There’s a movie that we’re trying to put together called Surf Men, which is a historical piece about the turn of the century, actually 1880’s, Reconstruction lifesaving service back in the East Coast which is a precursor of the Coast Guard and the African American lifesaving crew that was a part of that service. It’s an incredible story, so my buddy Dennis Haysbert from “The Unit” and “24” and the Allstate commercials – he and I are producers on this project. And we’re very excited to get it out there and have people see what we’re really all about beyond our acting skills.

KUNG FU HOBBY

COUCH: Now, you’re a kung fu guy.

MORRIS: I am.

COUCH: How’d you get into that?

MORRIS: Well, my dad [Greg Morris] did the original “Mission Impossible” . . . years ago, back in the sixties. At first, they started to take karate lessons because they were doing some exotic hand-to-hand combat then – it really wasn’t seen. So, when my dad started, I started. In ’66, I was seven. So, I’ve been involved with the martial arts since I was seven years old. This particular master that I study with now, Hawkins Cheung, I’ve been with for a little over 20 years. I started with him here in Los Angeles, and he was Bruce Lee’s best friend back in Hong Kong. So, there was no better teacher I could find than him. And I was a huge Bruce Lee fan, so it just fell right in my lap. I’ve been with him for over 20 years.

COUCH: So if I were to anger you in some way during this interview, would you be more likely to file a lawsuit Jackie Chiles style or just put me in some kind of kung fu grip?

MORRIS: I think I’d just file a lawsuit. Jackie would come after me if I put hands on you. He would say, “You should know better.” And I should. I need to walk away. I’d rather come after you with humor. [Laughs.]

COUCH: Now, you talked about your dad, Greg Morris. You grew up in a household where he was an actor. Did you ever think to yourself, “He’s got a much cooler job than being a lawyer?”

MORRIS: Yeah, I think so. Yeah.

HIS INFLUENCES

COUCH: . . . [W]ho else helped shape your career – who have you wanted to be as far as an actor and now maybe this production and writing?

MORRIS: A big influence – not as much personally, although I do know him personally, professionally, in terms of his legacy is Sidney Poitier. I remember when my father came up, he was one of the first African Americans to present an image on television that was palpable, acceptable, mainstream, strong, intelligent. It was a huge deal in the country, period, but especially in my community. And certainly one of the great idols and icons in my community, Sidney Poitier. And I had the fortune to meet him as a child and to see him come to our house, hear him speak, he was a good friend of my father’s. And every time I run into Sidney, he has great words of wisdom and is always checking on my well-being and my understanding of this business beyond just being an actor. So, he’s been a huge influence. The way he carries himself, his intelligence, his bearing. So two of the greatest – Sidney in film and my father in television – were two of the greatest influences a young African American actor could have. Those two. Bill Cosby, ironically enough. Another very good friend of my father’s who is such a solid individual. He’s a professor. He’s very much a family man. A staple of entertainment, black, white, indifferent, for years and years and years. In fact, decades. So he’s been a very close friend. Not so much personally [that] I call him up on the phone and say, “Hey, Bill, what do you think about this?” Just that when you grow up the way I grew up, the influences are everywhere. You’re fortunate, and you’re smart, if you take a page out of the people’s books who’ve been there before you. I’m hoping to find that and further that in my own creative career.

HIS NEW SITCOM, “LOVE THAT GIRL!”

COUCH: . . . You have got a new sitcom coming. Tell me about that.

MORRIS: Yeah. Martin Lawrence is one of our producers, and Bentley Kyle Evans, who produced the “Martin” show and “The Jamie Foxx Show,” created a show called “Love That Girl!” starring Tatyana Ali from the “Fresh Prince.” It’s basically – Tatyana plays this young divorcee’ who moves back to Los Angeles and deals with her father. I play her dad. And deals with her brother, played by Alphonso McAuley and her crazy neighbors. It’s really a traditional four camera sitcom that is just funny and has great value and is not just good for my community but good for television overall, and TV One is a brand new network that has been out maybe five or six years and is being run by some of the most forward thinking African American executives I’ve ever worked with. We air in January. We have a 26 show initial order. So, I think the public will like that, as well.

FAVORITE ROLES

COUCH: Do you have a favorite project that you’ve done? You’ve done a multitude, you know, “Star Trek” and all the other stuff that you’ve done. Can you point to a favorite? Is that hard to do?

MORRIS: It’s kind of hard to do because I’ve done so much and so different. I loved “The Young and The Restless.” I really did. We started talking about that a little bit. That was a great initial offering for, again, a young actor.

COUCH: I tried to look that up on YouTube. I did not find any Tyrone Jackson videos. I don’t know if there’s some legal reason for that. But if we can dig one of those up, we’ll put that up.

MORRIS: I don’t know where that would exist either. “The Young and The Restless” has been on forever. They’re a daily show, so the archives have got to be very convoluted, but “The Young and The Restless” was great. Certainly, “Seinfeld” was phenomenal. I did a television movie for Disney called “Tracks of Glory” about Marshall “Major” Taylor who was a world champion cyclist. That’s a project that not a lot of people saw, but again, very close to my heart and helped me a lot as a creative person. I did the new “Love Boat.” This was a weird one to pick up and talk about. The new “Love Boat” I did with Robert Urich and Joan Severance, and it was one of the most incredible times I’ve ever had. First of all, Robert Urich was a fabulous guy. He had had – he was post-operative cancer, he’s since passed away from cancer. But to know him was just a joy, and he just was a brilliant guy, and I got a chance to work with him. I worked with Peter Graves on the new “Mission Impossible,” which was phenomenal. Here, he was my Uncle Peter, I grew up with him and his kids, now we’re working together! It was just – I’ve had a great life, a great creative life, Kevin.

FURTHER READING ON PHIL AND GREG MORRIS

• “Mission: Impossible’s Greg Morris / He keeps his cool despite grueling competition both on and off the screen,” Ebony, December 1967.
• “Mission: Possible: Greg Morris Family / Beats old show business ‘jinx,” Ebony, May 1981.
• “Mission: Possible / Phil Morris takes over dad’s role in suspense TV series,” Ebony, June 1989.
• “New Faces on TV and in Films,” Ebony, March 1985.
• “Phil Morris Stars in ‘Tracks of Glory,‘” Jet, July 20, 1992.
• “Second Generation: Children Tell Why They Follow in Their Parents’ Footsteps,” Jet, Jun 19, 1989.
• “TV’s Greg Morris Talks About His Family and Future,” Jet, January 12, 1978.
• Waldron Clarence. “‘Young and The Restless’ Celebrates 35 Years of Drama, Success,” Jet, April 7, 2008.

Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct brief interviews with law professors, practitioners, and other commentators in the field. For the latest installment, we turn to law professor Stephen A. Spitz of the Charleston School of Law in Charleston, South Carolina. The interview is as follows:

1. In your article, “SUEM, Spitz’s Ultimate Equitable Maxim: In Equity, Good Guys Should Win and Bad Guys Should Lose,” you identify nine equitable principles utilized by South Carolina courts. Which of those maxims stand out in your mind as an especially important consideration for courts?

Maxims can be divided into two broad categories. The first category are those maxims that suggest guidance for courts in the absence of a clear legal answer. (For example, the maxim that equity will not suffer a wrong to be without some remedy, suggests to a Court that any real wrong should be addressed). A second category of maxims directs the Court to look closely at the litigant’s conduct. (For example, equitable relief is denied to those with “unclean hands.”) Together, these two general categories suggest that equitable principles and equitable conduct are relevant to judgments in many types of cases.

2. What is the most significant opinion (South Carolina or otherwise) to come out in the past several years that called for equitable intervention? Why?

Although I can’t necessarily reduce an answer to a single opinion, I have briefly discussed three recent cases that suggest that sometimes equity can play a meaningful role in many different areas of the law.

(1) In Matrix Fin. Servs. Corp. v. Frazer, — S.C. —, –S.E.2d–, 2010 WL 3219472 (2010), the South Carolina Supreme Court wrote a very important decision about a mortgagee’s unclean hands, concerning its engaging in the unauthorized practice of law, that has been widely discussed around the State. There was a dissenting opinion and another opinion concurring in result.

(2) Hooper v. Ebenezer Senior Servs. & Rehabilitation Ctr., 386 S.C. 108, 687 S.E.2d 29 (2009) is a decision where the South Carolina Supreme Court used the doctrine of equitable tolling to expand a statute of limitations in light of a corporation’s failure to properly list its registered agent for service with the Secretary of State. In this opinion, the Court discussed the equitable powers of a court to do fairness and to avoid grossly unfair results.

(3) A final illustration of an equity case is Horry County v. Ray, 382 S.C. 76, 674 S.E.2d 519 (Ct. App. 2009) where that Court of Appeals found the following equitable principle to be useful, “when one of two innocent parties must suffer a loss, it must fall on the party who, by incautious and misplaced confidence, has occasioned it or placed it in the power of a third party to perpetrate the fraud by which the loss has happened.”

3. What is the role of equity today in American courts?

Long ago, Aristotle defined equity as a correction of law where it is defective owing to its universality. Even today, I think that is a good definition as it highlights both the current and historical role of equity in modern American and English Courts.

4. What made you interested in starting your own blog, Equity is Swell?

It just hit me one day that I had all these student papers in my office from my equity class at the Charleston School of Law, and some of them were really excellent, truly creative papers on topics of genuine interest to South Carolina lawyers and judges. I decided if I put them on a blog that perhaps I could do a service to the students who wrote the papers as well as the bench and bar. Hence, the blog was started. Every time I teach Equity, I plan to add more student papers, power point presentations, and my syllabus in the hope that these materials may benefit judges, lawyers, and others.

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

This sounds really silly and trite, but I keep a poem in my office that I often re-read. It contains, I personally believe, some real wisdom – for all lawyers and others, both young and old. It is only three paragraphs long, and I repeat it here:

“It Couldn’t Be Done”

By: Edgar A. Guest
Copyrighted 1921
By George Sully & Company

Somebody said that it couldn’t be done,
But he with a chuckle replied
That “maybe it couldn’t” but he would be one
Who wouldn’t say so till he’d tried.
So he buckled right in with the trace of a grin
On his face. If he worried, he hid it.
He started to sing as he tackled the thing
that couldn’t be done and he did it.

Somebody scoffed: “Oh, you’ll never do that”;
At least no one ever has done it;
But he took off his coat and he took off his hat,
And the first thing we knew he’d begun it.
With a lift of his chin and a bit of a grin,
Without any doubting or quiddit,
He starting to sign as he tackled the thing
That couldn’t be done, and he did it.

There are thousands to tell you it cannot be done,
There are thousands to prophesy failure;
There are thousands to point out to you one by one,
The dangers that wait to assail you.
But just buckle in with a bit of a grin,
Just take off your coat and go to it;
Just start to sign as you tackle the thing
That “cannot be done” and you’ll do it.

BIOGRAPHY: Stephen A. Spitz joined the Charleston School of Law faculty in 2004 as full professor. Prior to his time at the Charleston School of Law, Professor Spitz served on the faculty at the University of South Carolina School of Law for 26 years. Professor Spitz teaches courses in remedies, property, real estate transactions and environmental law, including a seminar on the federal Superfund law. Among his publications are a case book, Real Estate Transactions: Cases and Materials (written with previous Abnormal Use interviewee Michael J. Virzi), a practice pamphlet, “Searching Land Titles in South Carolina,” and an article in The South Carolina Law Review, “SUEM, Spitz’s Ultimate Equitable Maxim: In Equity, Good Guys Should Win and Bad Guys Should Lose.” He also has written chapters in books on South Carolina water and environmental laws. Professor Spitz recently launched his own blog, Equity is Swell, in which he publishes student papers and presentations in the hopes that they may benefit South Carolina judges and lawyers.

Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct brief interviews with law professors, practitioners and other commentators in the field. For the latest installment, we turn to law professor Alberto Bernabe of The John Marshall Law School in Chicago. The interview is as follows:

1. What do you think is the most significant new development in products liability litigation of the last year?

I think that preemption will continue to dominate the discussion for a while. Last year’s Supreme Court opinion in Wyeth v Levine was the most important decision of the year and the Court has two very important preemption cases before it right now. The first one is Bruesewitz v. Wyeth, in which the Court will determine whether the National Childhood Vaccine Injury Act preempts vaccine design defect claims. The second one is Williamson v. Mazda Motor Corp., in which the Court will consider whether federal regulations preempt a claim in state court for damages caused by a car manufacturer’s failure to install a three point seat belt. This case is particularly interesting because it will allow the Court to reconsider its decision in Geier v Honda (decided in 2000) in which the Court found that a state claim was impliedly preempted by the federal regulations that gave automobile manufacturers the choice to use either seat belts or air bags. It will be very interesting to see if, in the wake of Wyeth v. Levine, the Court changes its view. It will also be interesting to see how it contributes to the legacy of retiring Justice Stevens, who wrote the dissenting opinion in Geier and the majority in Levine.

2. What rule or concept in modern products liability jurisprudence do you believe is the most outdated? How would you change it, and why?

There are a few good candidates. One answer is contributory negligence as a complete defense, but this is available in only a few jurisdictions. A more interesting – and perhaps controversial – answer would be that we need to take a careful look at the concept of the so-called “learned intermediary doctrine” in prescription drug cases. I think the policy behind the doctrine made sense when it was developed originally, but it is not frivolous to argue that both the practice of medicine and the marketing of prescription drugs have changed so substantially that we need to re-think the application of the doctrine.

3. Generally, how would you characterize the media coverage of products liability lawsuits and issues?

Inconsistent or incomplete. The typical media coverage tends to focus on generalities rather than the details and it is the details that matter most. Also, in many instances the media is interested in the extreme cases to exploit the “shock value” of the stories. My impression is that the coverage of those types of stories is almost always incomplete. There is little attention given to the argument that litigation can have a positive role to play that often results in more safety for consumers.

4. You also teach ethics. 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?

I am glad to hear you refer to the use of the Internet “to communicate” because my impression is that a lot of people still think that lawyering over the Internet only relates to “advertising,” which is a mistake. The fact of the matter is that there are a lot more issues that lawyers need to be aware of when it comes to the Internet. Participating in social media, for example, can lead to problems related to the inadvertent establishment of an attorney-client relationship, to the disclosure of confidential information and to duties to prospective clients, all of which can also result in conflicts of interests, disqualification and discipline. State bars will have to find better ways to inform attorneys of the risks they take when using modern technology and of the skills they need to do so safely. Earlier this year, the ABA took a good first step in this direction by issuing a new Ethics Opinion (No. 10-457) that summarizes the state of the law as it relates to the use of websites, but more needs to be done. In particular, state bars need to address the issues that arise when lawyers send metadata within electronic files. A number of jurisdictions have addressed the question, but the opinions are not in agreement. As more and more lawyers exchange documents by e-mail and other electronic means this is going to become a major issue. Many lawyers do not know the kinds of “hidden information” they are sending out in their electronic documents that someone with computer skills can access relatively easily.

5. You maintain a law blog. What is the biggest challenge for you in that enterprise, and how do you confront that challenge?

The biggest challenge is finding the time to do it well. I run two separate blogs – one on Torts and one on Professional Responsibility. It takes a lot of time because I am almost constantly checking other sources for the latest news and information. But it is very rewarding when I get encouraging messages from students, lawyers or other bloggers and when I see other bloggers mentioning my stuff in their blogs.

BONUS QUESTION: What do you think is the most interesting depiction of a products liability lawsuit in popular culture, and why?

In contrast to what I said about media coverage, which often tends to favor defendants, my impression is that movies with product liability themes tend to go the other way. Many portray defendants as villains who don’t care about the risks they create. Two movies come to mind quickly: Class Action (with Gene Hackman) and Thank You For Smoking. Class Action, which is very loosely based on the Ford Pinto case, provides a lot of material for discussion both in terms of products liability and professional ethics. It is also one of the few movies I have seen that illustrates that the most important part of litigation is the process of discovery rather than the trial itself. Thank You for Smoking is a very sarcastic look at the tobacco industry.

BIOGRAPHY: Alberto Bernabe is a Professor of Law at The John Marshall Law School where he teaches Torts and Professional Responsibility. After graduating from law school, Professor Bernabe clerked at the Supreme Court of Puerto Rico and later entered private practice, specializing in personal injury, mass disaster litigation, and media law. Before joining The John Marshall Law School, Professor Bernabe was a teaching fellow at Temple University, where he collaborated in teaching Torts, Products Liability and Legal Ethics. He has also taught Torts, Products Liability, Professional Responsibility and Media Law as a visiting professor at the University of Puerto Rico Law School.

Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct brief interviews with law professors, practitioners and other commentators in the field. For our latest installment, we turn to lawyer and comic book collector Mark Zaid of The Law Office of Mark S. Zaid, P.C. in Washington, D.C. If you frequent this site on Fridays, you know that we occasionally – okay, perhaps more than occasionally – feature old comic book covers with legal themes accompanied by our commentary. In one such post, we mentioned Mr. Zaid when discussing a recent Yale Law School exhibit featuring comic books with courtroom covers. That exhibit, “Superheroes in Court! Lawyers, Law and Comic Books,” runs until December 16, 2010 and features much of Mr. Zaid’s collection. In fact, Mr. Zaid contributed so many comic books to the exhibit that he was asked to serve as its curator. Our interview with him is as follows:

1. How did you first become interested in collecting comic books with legal themed or courtroom covers? Do you remember the first one you saw or bought?

It was not too difficult or a stretch of any imagination to start collecting legal related comic books. I actually first started collecting comics with espionage titles or covers as my legal practice area is tied to the Intelligence Community. In essence, I represent spies, i.e., federal employees who work at agencies such as the CIA. At first I was seeking out comics that had legal connections to them such as ashcans (trademark submissions), Library of Congress deposit copies or books that had served as trial exhibits in litigation. As I simply perused through collections I had bought I started to see courtroom covers or titles involving attorneys and a light bulb appeared above my head and I realized that it was impossible for me not to collect this genre as well!

2. How did your interest in these types of comic books lead to the “Superheroes in Court! Lawyers, Law and Comic Books” exhibit at the Yale Law School Library?

Michael Widener, the Rare Book Librarian of Yale Law School, contacted me and invited me to serve as the curator of the exhibit. Apparently he had been asking around the community and one name continually cropped up as the person he should speak with: me. Of course, I jumped at the invitation. How could I resist the opportunity to combine my two passions: the law and comic books!

3. Do you see any consistent themes in the comic books’ portrayal of the legal system? If so, what have you noticed?

As far as character development goes, lawyers for the most part have been favorably portrayed over the decades. There are fortunately more super-heroes who have been lawyers than villains, although there have been our share of those as well. Comic books primarily, at least historically, reflect what is culturally popular in society at the time. Thus, at a time when Perry Mason dominated the television and radio airwaves it should not surprise anyone to see more legal scenes or characters emerge in comic books. But what I am particularly interested in is the impact lawyers have actually had on the comic book industry. Comic book characters, titles and even companies have been born or died because of the role that lawyers have played throughout the last century. It is incredible to truly evaluate the significance of lawyers in helping build the industry that exists today.

4. In our own blog posts featuring legal themed comic book covers, we’ve been surprised at the frequency of comic books artists’ usage of courtroom imagery. Why do you think they continue to return to those types of covers?

Again, I think the answer can be found in what is culturally popular in society at the time. Mr. District Attorney hit the radio airwaves in 1939. Comic books picked up on the character right afterwards. Just think of all the popular hit television/radio shows in every decade since then that have featured lawyers as the primary character if not served as the raison d’etre of the entire program. Comic books are simply following in those footsteps.

5. Of all the legal themed comic books you have collected, what is your favorite cover?

I don’t believe I really have a particular favorite, but I am certainly very partial to Detective Comics #240. It combines both a trial scene of Batman and the use of a polygraph machine. I sued the FBI, Secret Service and DEA over their use of pre-employment polygraph examinations and often handle polygraph challenges throughout the Intelligence, Law Enforcement and Military Communities. What makes the device so special is that the “father” of the modern day polygraph is William Marston. Under the pseudonym Charles Moulton, he created “Wonder Woman” whose magic lasso requires those bound by it to tell the truth. When I testified before the Senate Judiciary Committee in 2001 on the use of polygraphs, I noted how the device and Wonder Woman’s magic lasso shared one thing in common: they were both based on science fiction!

[Editor’s Note: We here at Abnormal Use previously discussed Detective Comics #240, the image of which can be found above, here.]

6. How do you find legal themed comic books covers?

I find the books through a variety of means, but primarily at comic book conventions and through auctions. My search for these books is fairly widely-known within corners of the community so many times other collectors/dealers point them out to me.

BIOGRAPHY: Mark S. Zaid practices in the areas of litigation and lobbying on matters relating to international transactions, torts and crimes, national security, foreign sovereign and diplomatic immunity, defamation and the Freedom of Information/Privacy Acts.

[Editor’s Note: The comic book cover at the top of this blog entry is that of Crime Detective Comics #8, published way back in 1948.]

Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct brief interviews with law professors, practitioners and other commentators in the field. For the latest installment, we turn to criminal law professor Mark Osler of the University of St. Thomas Law School in Minneapolis, Minnesota. The interview is as follows:

1. What recent developments in criminal law and procedure would you recommend that civil litigators be aware of?

With the Supreme Court reconsidering the rights of corporations, it will be interesting to see how that affects an important criminal law rule—that the 5th Amendment right against self-incrimination does not apply to companies. If organizations have a general right to free speech, they may also be the beneficiaries of such rights, which could strongly affect the prosecution of white collar crime.

2. In your experience, what is the biggest misconception that civil litigators have of the criminal process?

In civil law, the defendant often is advantaged by an arduous and lengthy discovery process, which wears down the plaintiff. In criminal law, this simply does not apply. Discovery in the criminal case is a different beast, and much less important—for the government, the investigation is the discovery, and in many jurisdictions defense attorneys are then given open access to the government files. I went from corporate civil litigation to federal prosecution, and I remember being shocked to find that instead of waves of interrogatories and depositions, a simple search warrant executed by the FBI did the trick. It is brutally efficient.

3. What is your opinion of the expanding usage of the RICO statute as a theory of recovery in civil actions? What, if anything, do you foresee on this front?

The pairing of civil and criminal RICO was one of the worst ideas a law professor ever had (yes, one of us dreamed that one up). The extensive rule-making by courts in civil RICO cases has made interpretation and use of the statute so confusing and inefficient that prosecutors avoid it if they can, preferring to charge money laundering or something under the fraud statutes. Given the current state of the law, in which civil RICO is used to tie people up in endless litigation, we would be better off without RICO in the federal code.

4. What is the most significant federal appellate court opinion to come out in the last year?

Few would argue that the Citizens United case, through which the Supreme Court allowed free speech rights to organizations in the context of political campaigns, was anything less than a blockbuster. As I mentioned above, the expanding idea of corporations and other organizations as individuals could alter many current doctrines.

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

Pick the right mentor. Find someone with enthusiasm for what they do, who views his or her work as a calling of some kind. Do not accept a jaded mentor, or cynicism about the practice of law. If there is no one like that in your firm, you are not in a good place. If that’s where you are, well, we have room for you in criminal law, where there are plenty of true believers on both sides of the bar.

BONUS QUESTION: What do you think is the best depiction of a criminal trial in popular culture? The worst?

Best: American Violet, because the filmmakers stayed true to the story and resolved the case without a trial—a very realistic outcome these days.

Worst: My Cousin Vinny. Ugh. If someone quotes that movie to me again, I may have a seizure.

BIOGRAPHY: A former federal prosecutor, Professor Osler teaches criminal law and sentencing at the University of St. Thomas School of Law, the faculty of which he joined in 2010. For the past ten years, he was a professor at the Baylor University School of Law in Waco, Texas. He is the author of Jesus on Death Row: The Trial of Jesus and American Capital Punishment, which was published in 2009. His blog, Osler’s Razor, can be found here.

Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct brief interviews with law professors, practitioners and other commentators in the field. For the latest installment, we turn to law professor Susan Rowe of the Charlotte School of Law in Charlotte, North Carolina. The interview is as follows:

1. What do you think is the most interesting development in products liability or torts litigation of the last year?

The obvious one is the Toyota gas-pedal acceleration issue. Very recently, Toyota settled the Saylor lawsuit in California where a California Highway Patrol officer and three of his family members were killed in August 2009 when driving a Lexus ES 350 that crashed going about 100 mph. Also, last week, a California judge set a deadline of October 12 for parties to identify claims that are not currently part of the complaint in the multi-district litigation or those claims will be dismissed from the multi-district litigation. There are about 186 class action cases for economic damages based upon unintended acceleration in 39 states, including D.C. and Puerto Rico. Some claims allege a defect in the electronic engine control system, while others allege defects related to floor mat placement. Toyota says its investigations have never found any problems with the electronic engine control system. It will be very interesting to see how these cases are ultimately resolved and whether it will be proven that there was an electronic problem.

2. What rule or concept in modern products liability jurisprudence do you believe is the most outdated? How would you change it, and why?

Contributory negligence and assumption of the risk being complete bars to recovery in products cases are probably the most outdated rules since most jurisdictions have moved to comparative fault, which reduces a plaintiff’s ability to recover but is not a complete bar to recovery. I think comparative fault is more fair. For the few jurisdictions that retain contributory negligence and are concerned about moving away from it, I would probably change the rule to a modified comparative fault regime that requires that a plaintiff be less than or equal to 50 percent at fault in order to recover.

3. North Carolina retains the concept of pure contributory negligence. How does this affect products liability and torts suits filed in that state?

Yes, North Carolina does retain contributory negligence, which remains a complete bar to a plaintiff’s recovery in any tort suit in North Carolina. The doctrine of last clear chance also applies in North Carolina, but it is unlikely to help a plaintiff in a products suit because a manufacturer will rarely have a chance to avoid the injury to a plaintiff before she is injured. A North Carolina bill to change to comparative negligence recently failed to make it through the Senate.

Chapter 99B of the North Carolina General Statutes contains North Carolina’s Products Liability Act. This statute explicitly provides that contributory negligence applies in products liability actions and that there is no strict liability in products liability cases. Instead, plaintiffs must rely upon other causes of action such as negligence, unfair trade practices, misrepresentation, or warranty. The North Carolina Supreme Court has held that the defenses under 99B, including contributory negligence, apply to breaches of the implied warranty of merchantability regardless of whether negligence is also alleged, which is a bit unnatural that contributory negligence may bar recovery to a suit brought under the UCC where negligence is never alleged.

4. What advice would you give to lawyers practicing the field of products liability litigation?

I would say that lawyers should watch how jurisdictions approach the Restatement (Third) of Torts. Jurisdictions are beginning to use this Restatement some when deciding products cases. The Restatement (Third) retains strict liability for manufacturing defect cases, but tends to move toward negligence when deciding design defect and failure to warn cases. Under the Third Restatement, a design defect occurs “when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design.” A failure to warn defect occurs “when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings.” Thus, the use of the terms “foreseeable” and “reasonable” lean more toward a negligence standard.

5. What federal or state court opinion has been the biggest surprise for you of late, and why?

I think the New Jersey Superior Court, Appellate Division decision in Kendall v. Hoffman-La Roche, Inc., No. A-2633-08T3, 2010 WL 3034453 (N.J. Super. A.D. Aug. 5, 2010) is interesting. In that case, the Appellate Division overturned a $10.5 million verdict for a plaintiff who developed ulcerative colitis after taking Accutane and remanded for a new trial. The trial judge initially prohibited Roche (the manufacturer) from using any numbers related to the number of incidences of IBD that developed in the general population as a way to show when Roche should have had signals that it needed to change its warnings. On the eighth day of trial near the conclusion of plaintiff’s case, the trial judge changed her mind and allowed the numbers to be used but issued a cautionary instruction to the jury, in part, that stated “[t]he comparison of a background incidence of . . . IBD, in the general population, to the reported incidence of IBD in patients taking Accutane, is not a scientifically accepted method of proving whether a particular product … acts as a trigger for, and, therefore, is a cause of a particular side effect.” She also sustained an objection by plaintiff’s counsel during defense counsel’s closing argument when defense counsel was going through Accutane usage numbers.

The Kendall court ruled that Roche had been prejudiced by the delay in allowing it to use the numbers and by the jury instruction and objection during defense counsel’s closing. The court also held that Roche could use the numbers not only to try and prove it acted reasonably in modifying its warnings, but also to disprove causation. The court based its reasoning on a similar decision by the same court that came out after the Kendall trial and before the appeal. In the prior case of McCarrell, Roche was never allowed to use the numbers. When McCarrell was retried, the jury returned a bigger verdict, so defendant’s use of the numbers may not be as helpful as one might think.

BONUS QUESTION: What do you think is the most humorous depiction of a torts lawsuit in popular culture, and why?