• Check out the comic book cover above for Superman #176 (published way back in 1965). Superman has apparently just been sworn in as a witness, presumably at a criminal trial, and has been asked to state his name for the record. Why he decided to answer via chalk on a chalkboard seems peculiar, despite the dilemma he faces in revealing his identity in open court. Surely, the prosecution previously addressed this matter via motion in limine to thwart any attempt to place the Man of Steel in this tough spot. In fact, considering Superman’s role as a crimefighter, it is very likely that it would be the prosecution calling him as a witness to testify against the defendant, which begs the question: Why would the prosecution place Superman in this terrible, terrible position? Of course, the best bet may be for Superman to reply that his name is Kal-El, the moniker given to him by his Kryptonian parents. How could the defense attorney object to that?
• “[W]e face a media landscape that would have been almost unrecognizable in 1978. Cable television was still in its infancy. The Internet was a project run out of the Department of Defense with several hundred users. Not only did Youtube, Facebook, and Twitter not exist, but their founders were either still in diapers or not yet conceived.” Fox Television Stations, Inc. v. Federal Commc’ns Comm’n, — F.3d —-, 2010 WL 2736937, at *7 (2d Cir. July 13, 2010) [PDF]. It was in that opinion that the Second Circuit struck down the FCC’s so-called “fleeting expletives” policy. We here at Abnormal Use are not certain why the court felt it necessary to reference the conception of social media company founders (and we wonder if some federal law clerk had to do that math). For more on that opinion, see this post by Christine A. Corcos at the Media Law Prof Blog.
• A lesson from the Third Circuit: If you a a corporate officer that is a party to litigation, and your Chief Financial Officer is on the stand at trial testifying, don’t send him text messages about his testimony while the judge is conducting a sidebar with counsel. It’s generally bad form, and the judge will declare a mistrial. For more, see this post by Jeffrey Kuntz at The Florida Legal Blog.
• J. Benjamin Stevens at the South Carolina Family Law Blog offers this post about the perils of litigants posting about themselves on Facebook.
• Speaking of which, the South Carolina Court of Appeals this very week released Jennings v. Jennings, an opinion in which the issue was a husband’s claim that his wife had improperly logged into his Yahoo account, printed emails about his purported girlfriend, and provided said emails to her attorney and an investigator.

• If there is one thing we here at Abnormal Use love more than wings, it’s liability releases arising from the consumption of wings. We recently learned that Grille 33 at the Channel, a burger joint that just opened up a block from our offices here in Greenville, has officially issued its “Tito’s Wing Challenge” (pictured above, click to enlarge). Note the stern pronouncement written in red chalk: “Must Sign Waiver.” Now, we here were too chicken to accept the challenge (as we have a very delicate palate), but we did manage to review the waiver in question (pictured below, click to enlarge). Someday, though, we will muster up the courage to take the challenge, but it shall not be today. No, not today.

• The Texas Lawyer‘s Tex Parte Blog reports on a new iPhone 4 products liability suit recently filed in the U.S. District Court of the Southern District of Texas. Meanwhile, Randall Ryder at Lawyerist claims that “lawyers are wasting their money if they think [the iPhone 4] will add a new dimension to their practice.” Well, to that, we can only say, that but for our handy iPhone 4, we would not have been able to take those crisp pictures depicting the Tito’s Wing Challenge and the required liability waiver.
• The Litigation and Trial Blog speculates that Facebook founder Mark Zuckerberg will not bring a defamation suit as a result of the upcoming film, The Social Network, which details the founding of Facebook. He might do some defriending, though, we suspect.
• Jeffrey V. Mehalic of the West Virginia Business Litigation Blog spends some time talking about Barbour v. International Union, in which the Fourth Circuit adopted the last-served defendant rule for removal purposes. A good post, that. (We previously mentioned the Barbour opinion briefly here).

We here at Abnormal Use long for the days depicted in the above comic book cover when district attorneys and prosecutors faced their most serious duties at the local carnival. Yes, that is the title character, Mr. District Attorney, on the cover of Mr. District Attorney #45, challenging a carnival game. (We think perhaps the D.A. may be making himself a witness, and thereby precluding his role as advocate in the subsequent prosecution, by throwing himself into the field and attempting to thwart the scam as it is being perpetrated.).

Walter Olson reports at Overlawyered that France is outlawing “psychological violence.” We here are not fans of that, but we wonder, in the wake of such a law, how will partners at French law firms attempt to motivate associates?

According to the New York Times ArtsBeat blog, the classic rock band Led Zeppelin is being sued for copyright infringement over its 40 year old song, “Dazed and Confused.” We hope defense counsel in that suit, in pleading its statute of limitations defense, quotes the song itself: “Defendant notes that Plaintiff has “[b]een dazed and confused for so long it’s not true.”

John A Day of the Day on Torts blog reports that the Tennessee Court of Appeals has printed photographs in one of its recent opinions. (Incidentally, just yesterday, Mr. Day remarked upon the suit against Google – brought by a woman who claimed that she walked blindly into traffic after following Google Maps – that we had previously analyzed here.).

Over at the Workplace Prof Blog, Charles A. Sullivan, who apparently represents disgruntled employees, analyzes the source of the term “disgruntled employee” and its usage by defense attorneys. The question: Will defense attorneys become disgruntled upon reading that post?

To all our readers, we wish a safe and fun-filled holiday weekend.

We’d like to comment upon this post at The Florida Legal Blog, but unfortunately, we are too scared, as it profiles Internet Solutions Corp. v. Marshall, — So.3d —-, No. SC09-272, 2010 WL 2400390 (Fla. June 17, 2010), in which the Florida Supreme Court found that posting comments on a website subjects the commenter to jurisdiction in Florida.

Two months ago, we referenced the “Last Lecture” of Baylor University Law School Professor Mark Osler, who was leaving that institution for another this year. A video of the lecture, in its entirety, has now been posted online. (Hat Tip: Osler’s Razor.).

One of us here at Abnormal Use now has a new iPhone. We couldn’t resist bragging, as the primary purpose of the purchase of the new iPhone is to be able to brag about the purchase of the new iPhone. Did we mention that?

Coolest law review article extract, ever? Here you go: “Cyber warfare is increasingly listed alongside nuclear, chemical and biological weapons as a potential weapon of mass destruction. Interest in and concerns for cyber warfare have also been prevalent for decades. War-oriented writers usually exploited such serious and expensive terms as cyber war, information war and electronic war to spread their impetuous and cheap ideas. This paper by no means devaluates serious designs and plans, studies and research, ideas and claims revolving around cyber warfare. Rather, the purpose of this paper is to analyze existing jokes, hoaxes and hypes on the so-called cyber warfare, so as to distance serious research from misleading information.” That’s from “Cyber Warfare: Jokes, Hoaxes, or Hypes” by Xingan Li of the University of Turku, at 9 The IUP Journal of Cyber Law 7-16 (February/May 2010). (Hat Tip: Media Law Prof Blog).

We had previously mentioned the Twitter Novel Contest by the State Bar of Texas, which was open to lawyers from any state and called for 140 character entries. The winning entry was from Casey Burgess of Dallas, whose 140 character novel was as follows: “Swirling death, the dark cloud descends. As he runs for his cellar, the farmer learns that sometimes pigs can fly.” For more information and results, see this post on the Texas Bar Blog.

After last week’s comic book case law, here’s some Star Wars jurisprudence:

• “Darth Vader is a huge, malevolent figure dressed entirely in flowing black robes, including a black cape which reaches to the floor. His face is masked by a grotesque breath screen with sharp angles and menacing protrusions. He wears a black helmet of flared design and is armed both with a light saber and his command of The Force, a cosmic power tapped by the Jedi Knights, a vanishing breed of crusaders for good from whose ranks Darth Vader has defected. Darth Vader has significant confrontations in the movie with his former teacher, Ben (Obi-Wan) Kenobi, who is now the Jedi Knight mentor of the young and heroic Luke Skywalker, and with Luke himself; the first battle is fought with light sabers and the second with spaceships.” Ideal Toy Corp. v. Kenner Prods. Div. of General Mills Fun Group, Inc., 443 F.Supp. 291, 297-98 (D.C.N.Y. 1977) (quotations and citations omitted).
• “Citizens’ political speech would be unacceptably regulated if they had to fear that their efforts in support of a political candidate, even for judicial office, would remove that candidate from his or her official duties if elected. The portrayal of some candidates as ‘good’ and others as ‘bad,’ even in the graphic, pointed analogy of Luke Skywalker versus Darth Vader, is merely the rough and tumble of the democratic process. Regrettably the rough and tumble includes judicial elections.” Rogers v. Bradley, 909 S.W.2d 872, 882 (Tex. 1995). (Enoch, Justice, responding to declaration of recusal) (citations omitted).
• “You can’t have a mock Star Wars without a mock Luke Skywalker, Han Solo and Princess Leia, which in turn means a mock Mark Hamill, Harrison Ford and Carrie Fisher. You can’t have a mock Batman commercial without a mock Batman, which means someone emulating the mannerisms of Adam West or Michael Keaton.” White v. Samsung Electronics Am., Inc., 989 F.2d 1512, 1518 (9th Cir. 1993) (Kozinski, J., dissenting from the order rejecting the suggestion for rehearing en banc).

• “One example is the nurturing of the gifted Luke Skywalker by Obi-Wan (‘Ben’) Kenobi in Star Wars, of which the Court takes judicial notice.” Twentieth Century Fox Film Corp. v. Marvel Enters., Inc., 155 F.Supp.2d 1, 41 and n.71 (S.D.N.Y. 2001) (noting also that”Star Wars is one of the most well-known and widely viewed science fiction films.”).

For this week’s edition of Friday Links, we present comic book case law:

• “Captain America, a.k.a. Steve Rogers, was an army-reject turned superhero who was charged with protecting America from all enemies, especially Nazi spies.” Marvel Characters, Inc. v. Simon, 310 F.3d 280, 282 (2d Cir. 2002).
• “Too often we are prone to forget the admonition so ably expressed by Judge Batman. We feel that after forty years it is well to again call it to the attention of the bench and bar.” Todd v. Ehresman, 175 N.E.2d 425, 431 (Ind. Ct. App. 1961). We wouldn’t want to be held in contempt by this jurist.
• It’s not really a surprising why the following defendant wasn’t acquitted by the jury:
  

  At trial defendant admitted the robbery but explained that he had committed the crime to convince the owner of the 7-11 store of the need for additional security and specifically to induce the owner to resubscribe to the security service offered by defendant’s employer, a service which the owner had recently terminated. Defendant testified that he thought the gun he had used was inoperable and that he had specifically chosen to commit the robbery when the particular clerk in question was on duty because that clerk had been robbed on previous occasions and would not be unduly frightened. Defendant maintained that at all times he intended to return the stolen money to the store owner, but that he was apprehended before he could do so. Finally, in response to his counsel’s questioning, defendant related his participation in mock crime detection dramas in the past, describing how 10 years earlier, when he and his brother were in their late teens, they had dressed up as Batman and Robin and had roamed the streets “climbing on rooftops, swinging over . . . doing somersaults off of roofs (and) (t)hings like that.”

  Despite defendant’s testimony, the jury returned a verdict finding defendant guilty of first degree robbery and also finding that he had used a firearm in the commission of the offense.

  People v. Tanner, 151 Cal. Rptr. 299, 302 (Cal. 1978) (emphasis added).

• “The Punisher is an ‘antihero,’ created by Marvel Comics in 1974 as an antagonist to Spider-Man. The Punisher ‘is a vigilante who considers killing, kidnapping, extortion, coercion, threats of violence, and torture to be acceptable crime fighting tactics.'” Sitzes v. City of West Memphis, — F.3d —-, 2010 WL 2219034, at *8 n.8 (8th Cir. June 4, 2010) (citing http:// en.wikipedia.org/wiki/Punisher).
• “The attributes and antics of Superman and Wonderman are closely similar. Each at times conceals his strength beneath ordinary clothing but after removing his cloak stand revealed in full panoply in a skintight acrobatic costume. The only real difference between them is that Superman wears a blue uniform and Wonderman a red one. Each is termed the champion of the oppressed. Each is shown running toward a full moon off into the night, and each is shown crushing a gun in his powerful hands. Superman is pictured as stopping a bullet with his person and Wonderman as arresting and throwing back shells. Each is depicted as shot at by three men, yet as wholly impervious to the missiles that strike him. Superman is shown as leaping over a twenty story building, and Wonderman as leaping from building to building. Superman and Wonderman are each endowed with sufficient strength to rip open a steel door. Each is described as being the strongest man in the world and each as battling against evil and injustice.” Detective Comics v. Bruns Publications, 111 F.2d 432, 433 (2d. Cir. 1940) (quotations omitted).

The California Commission on Judicial Performance suspended a judge for two years for using his office computer to look at dirty pictures and then lying about it later during television interviews. For more, see this story at the Legal Profession Blog.

Lawyerist has this post entitled “Top 5 Social Media Ethics Concerns for Lawyers.”

The South Carolina Business Law Blog summarizes the recent South Carolina Supreme Court case of Blackburn v. TKT & Assocs., in which that court addressed the appropriate application of the “income approach” valuation in an action of dissolution.

The Legal Ethics Forum reminds us that next month sees the fiftieth anniversary of the publication of Harper Lee’s “To Kill a Mockingbird.” We expect to see a lot of coverage in the legal blogosphere commemorating that occasion.

Words of Wisdom: “As the ‘Star Trek’ era is ushered into our lives, this Court must be prepared to keep its perspectives progressive and its definitions flexible, or else this Commonwealth will fail to acquire modern, technological manufacturing operations.” Golden Triangle Broadcasting, Inc. v. City of Pittsburgh, 397 A.2d 1147, 1153 (Pa. 1979) (Manderino, J., dissenting).

Words of Wisdom II: “We are unable to find where the defendant-appellant could have been prejudiced by remarks about Superman and Batman.” Palmer v. State, 288 N.E.2d 739, 754 (Ind. Ct. App. 1972).

We think that there may be some junk science in the courtroom in the comic book cover depicted above, but unfortunately, Detective Comics #281 was published 33 years before Daubert. We’re not sure why Batman’s death is being litigated or why Robin is in the courtroom, but we would have advised some simple discovery requests on the Batman-as-robot issue, perhaps a request for admission along the lines of “Please admit whether you are a robot.” At least then a denial would have entitled the opponent to fees and costs.

South Carolina attorney J. Benjamin Stevens at The Mac Lawyer has this post, entitled “Top 10 Resources for Mac Junkies.” On a related note, the partners at our firm have still not supplied we few, we happy few, we band of bloggers with our own iPads.

Begins this New York Times article: “The singer and former Talking Heads frontman David Byrne has sued Gov. Charlie Crist of Florida, saying he used the Talking Heads’ song “Road to Nowhere” in a Senate campaign ad without permission.” We have nothing else to add to the news of this litigation, although it does provide us yet another opportunity to link to the fabled and extraordinary Fifth Circuit Talking Heads opinion.

James Parton has a post entitled “Obtaining Records from Facebook, LinkedIn, Google and Other Social Networking Websites and Internet Service Providers” at the DRI For the Defense blog. It’s worth a read, especially considering how challenging it is to actually obtain information from those types of entities in civil litigation.

Although it’s a bit out of our subject matter, we here at Abnormal Use are closely following the case of Justin Kurtz v. T&J Towing. Read more about it here. Based on the accounts of that dispute, how can you not be on Team Kurtz?

Jeffrey V. Mehalic at the West Virginia Business Litigation blog has this in-depth post on the recent Fourth Circuit opinion, In re: Abrams & Abrams, P.A., about which we blogged very briefly in last week’s edition of Friday Links.

As seen in the ABA Journal, a “new study finds that less attractive defendants fare worse in criminal cases when the jurors have an ‘experiential’ style of judging.” The author of the article, Debra Cassens Weiss, finds a nice way to say that “experiential” means not listening to the evidence and judging on legally irrelevant information. We would like to go on record that not all persons sporting a unibrow and English-style overbite are criminals. We would also like to see a study on how attractive lawyers fare versus less physically appealing advocates. Would you find for the ugly defendant represented by an objectively attractive counsel?

We are disappointed to learn that W. Lawrence Wescott of the Electronic Discovery Blog decided this week to end his blog. We enjoyed reading it.

The new South Carolina Business Law Blog celebrates its first two months of existence next week. Congratulations to them on that milestone, which is no small feat in the legal blogging world.

• We are quite saddened to report that the very final episode of TV’s “Lost” airs this coming Sunday. We here at Abnormal Use (particularly myself and contributor Mary Giorgi) are big fans of the show. In fact, we simply must mention that we once met the actor who plays Locke immediately after, of all things, a firm function. The picture above was taken by yours truly, just over a year ago, on May 12, 2009, right here in Greenville, South Carolina, at the Lazy Goat restaurant. Terry O’Quinn, who plays John Locke on “Lost,” was at the same restaurant, which was also playing host to a firm recruiting event. The picture, of course, features O’Quinn and Giorgi (who insists that I tell you that she is only wearing a name tag because it was a firm function). O’Quinn said at the time that he was in town to play golf. Here’s the best part: We met him the day before the Season 5 finale, “The Incident,” aired. How about that? Goodbye “Lost.” We will miss you.
• This week, our own Fourth Circuit released In re: Abrams & Abrams, P.A., No. 09-1283 (4th Cir. May 18, 2010), a very interesting opinion in which an individual was severely injured after his drunk friend ran over him in an automobile. Here’s what happened next: the insurance carrier for the friend’s employer denied coverage and refused to defend the friend. Thus, the friend had to defend himself in the ensuing lawsuit pro se, and eventually, he had a $75 million judgment entered against him when he failed to appear for trial. Ultimately, the insurance company was sued for bad faith. The insurance company later settled that matter for $18 million, but the district court would not approve the one-third contingency fee for the lawyers, awarding instead only 3 percent. The Fourth Circuit reversed, finding that the fee award was too low. Yikes. (You can find the official Findlaw.com case brief here.).
• We have often posted legal themed comic book covers on Fridays (although we’re not doing so today just so you’ll have something to look forward to). But get this: Last week, the Wall Street Journal Law Blog reported that DC Comics, which has long been in a dispute with the heirs of the creators of Superman, has now sued the attorney of those heirs, suggesting that he provoked his clients into, er, taking actions with which DC Comics apparently disagreed. Not sure how this one is going to pan out, but DC Comics is playing hardball. Actually, suing the attorney seems like something Lex Luthor might do.

We believe the attorney on the cover of the comic book cover depicted above is making a good objection, although it may be untimely. Surely he was aware that Batman was invisible before he took the stand to testify. (There may also be a confrontation clause objection.). Such was the dilemma in Detective Comics #199 from September 1953. To be honest, we’re not certain Robin is dressed in appropriate courtroom attire.

We are disappointed to learn that Bobby G. Frederick, the author of the South Carolina Criminal Defense Blog, may be taking down his other site, Trial Theory, a blog dedicated to trial practice. (See here for his post on the stressors of the profession.).

If you haven’t read “Trout in the Milk,” last Friday’s post at the Drug and Device Law blog, do yourself a favor and check it out.

In this post, the Legal Ethics Forum directs our attention to this article (registration required) suggesting that male lawyers are overconfident about outcomes. Surely that is not correct, and we know for a fact that we would win an argument on that issue.

Ted Frank at Point of Law points us to some news suggesting that some consumers are drinking their Benadryl Extra-Strength Itch-Stopping Gel. Gross.