A reflection on this past Halloween night, brought to you by Abnormal Use:

It was Monday night. All Hallows’ Eve. I was nestled in my chair, in front of the TV, finding myself disappointed for yet another year. Why, you ask? Because there it was, Halloween night, and I was struggling to find a good Halloween movie on anywhere in the 2 million or so channels I apparently get now.

No, FX, Ghost Rider, starring Nicholas Cage, doesn’t count, if for no other reason than mere principle.

No, Biography, Halloween: The Inside Story is a poor substitute for what is otherwise an excellent holiday choice. At least you get the right idea.

No, VH1, The Rocky Horror Picture Show is . . . in a class by itself. Not that there’s anything wrong with that.

No, Ion, despite the name of the movie, Bloodsport is about Jean Claude van Damme kickboxing his way through Thailand. I’m sorry you’ve been misled. PS: what does your channel even do? I’ve never really been clear about that, and I’m not even sure why it’s on my channel list.

No, National Geographic, Bigfoot: The Definitive Guide is not even close to being relevant. If you went with “The Ghost of Bigfoot” or “Bigfoot: Man or Demon?,” I could give you credit. And let’s be honest, Nat Geo, if you’re going to compromise your credibility enough to show a documentary on the definitive guide to bigfoot, there’s no further compromise necessary on your end to re-imagine bigfoot as a ghost or demon.

No, Documentary, showing Ghost Bird, the true-life search for “the elusive ivory-billed woodpecker,” is outright fraud.  In a just world, the fact that you would try to pass this off as appropriate Halloween programming would be actionable.

No, FX — what, we’re back to you again? No! Twilight is an abomination! Under no circumstances should you be showing this. “But it has vampires and werewolves,” you say, “What’s more Halloweenie than that?” Give me a [RADIO EDIT] break. If your programming director were here, I would hold my hand out and demand that he choke himself. If he had any decency, he would.

On the flip side, Turner Classic Movies, where were you? I thought out of everyone, I could count on you that night. Turns out, not so much.

So this had me all worked up. In a world where Christmas decorations start coming out the day after Labor Day, all I ask for is one night when the storytelling of true masters of suspense can be showcased. What about Nosferatu? Where’s Vincent Price? How about the original Friday the 13th?, House on Haunted Hill, or Amityville Horror? I remember when I was younger, every Saturday night TNT would broadcast “MonsterVision,” which consisted solely and exclusively of the worst B-movies from the 1950s. And it was excellent.

These old Halloween classics had something for everyone.  Suspense, cheap scares, horror.  There’s even a tie-in with products liability. Macabre was directed by William Castle, who was arguably a better marketer than movie-maker. For the release of Macabre, Castle offered a $1000 Lloyd’s of London life insurance policy to each person who purchased a ticket, just in case they died of fright during the film. He also paid nurses to staff the lobbies of each theater showing his movie and had hearses parked outside. Normally when we talk about products liability, we think of products which are not intended to cause harm to their user. Castle embraced the idea that his movie would frighten the audience to death and carried it to the bank.

The bottom line is that with so many suspenseful classics to choose from, it defies credulity that every network would choose to show exactly none of them on the one day that’s most deserving.  Thanks, TV, for letting us down again.

Last night, plaintiff’s attorney and “Hot Coffee” documentary filmmaker Susan Saladoff appeared as the guest on “The Colbert Report” on Comedy Central.  You might recall that Saladoff’s Hot Coffee documentary debuted at the Sundance Film Festival back in January.  Thereafter, it premiered on HBO in June.  Why the media blitz in late October? Well, Saladoff is now promoting the November 1 DVD release of her documentary.  This is big news.  For just $29.95, you can own a copy of the film complete with extra footage. Just in time for the holidays!

You can find the clip of her appearance on the Colbert Nation website here.

The majority of the interview was a simple rehashing of Saladoff’s standard mantra – tort reform is bad, frivolous lawsuits are uncommon, and corporations are brainwashing us to think otherwise. Obviously, we don’t share Saladoff’s point of view, but her message is one she is free to make. She certainly didn’t dedicate much time to discussing the Liebeck case itself – the litigation from which her film takes its name.  When asked by host Stephen Colbert about the frivolous nature of Liebeck’s lawsuit, Saladoff responded with her all too familiar talking points:  1)  Liebeck’s injuries were real; 2) McDonald’s only offered $800 to settle the case; and 3) McDonald’s knew its coffee was capable of causing burns and continued to serve it nonetheless.  That’s all true, of course.  Liebeck did sustain third-degree burns.  McDonald’s did initially offer $800 to settle the case, presumably believing it could not be held liable for damages caused by an individual drinking a hot beverage.  The testimony in the case indicates that McDonald’s did know that hot coffee could cause burns. But even if we take those three points as a given, so what?

As we’ve often asked on this site, why should McDonald’s be held liable for damages caused by a beverage which by its nature is meant to be served hot?  When presented with that question, Saladoff claimed that McDonald’s knew its coffee could not be consumed at the temperature at which it was served.  Seriously?  It seems absurd to think that a business would serve a product it knew no one could consume.  We suppose someone forgot to tell the billion customers who purchased – and presumably drank – McDonald’s coffee in the decade prior to Liebeck’s accident.  Further, Saladoff alleged that McDonald’s coffee was capable of causing third-degree burns in as little as three seconds.  Three seconds?  Really?  If true, one would expect far more burn complaints considering the billions of cups of coffee sold.  Why not mention the fact that Liebeck sat in the coffee for 90 seconds?  Why not mention that Liebeck’s clothing actually held the coffee closer to her skin?  Why not mention that Liebeck could have suffered the same extent of burns had the coffee been served at a temperature as low as 130 degrees?  Apparently, these facts aren’t necessary components of the “real story.”

Saladoff also mentioned that Liebeck’s settlement agreement with McDonald’s included a gag order.  As we’ve noted before, Saladoff was a plaintiff’s personal injury attorney for 20 years prior to her turn as a filmmaker.  We suspect she’s previously encountered confidentiality provisions in settlement agreements, which are included for all sorts of legitimate reasons.

We here at Abnormal Use continue to question Saladoff’s inclusion of the Liebeck case in her anti-tort reform documentary.  We also wonder if the DVD “extras” she mentioned actually contain new information about the Liebeck case or if they are comprised of more out of context anti-tort reform talking points. If you pick up a copy on November 1, be certain to let us know.

Tonight, plaintiff’s attorney and documentary filmmaker Susan Saladoff will appear on “The Colbert Report” on Comedy Central, which airs at 11:30 p.m. Eastern and 10:30 p.m. Central. Presumably, she’ll be promoting the imminent DVD release of her “Hot Coffee” documentary and sharing her objections to tort reform. You might recall – because we mention it quite frequently – that we have more than a passing interest in the Stella Liebeck McDonald’s Hot Coffee Case and Ms. Saladoff’s documentary on same.  Not only did we review Saladoff’s “Hot Coffee” documentary when it aired on HBO this past summer, we also chronicled Ms. Saladoff’s background as a prominent plaintiff’s attorney back in January when the documentary premiered at the Sundance Film Festival.  We look forward to seeing her on “The Colbert Report” tonight and seeing what she has to say about tort reform generally and the Liebeck case specifically.  We are particularly interested to see how the character Stephen Colbert plays on his show will grill Ms. Saladoff on her opinions and litigious background.  Rest assured that our writer Nick Farr is on the case and will be burning the midnight oil tonight to offer his commentary to you first thing tomorrow.  Because Comedy Central typically posts these interviews online shortly after their original air date, we will also try to embed or otherwise link the video so you can watch it yourself. We are looking forward to it and will keep you posted. (Hat Tip: Albuquerque Journal).

Last month, the thriller Drive starring Ryan Gosling opened in theaters nationwide.  From what we can discern from the film’s trailer, its follows a Hollywood stunt driver and his perils following some dirty-handed contract work.  For those who need a touch of romance alongside their action, the driver falls in love with the married woman whose family he entered the contract to protect.  Or something like that.  We here at Abnormal Use have not seen the film, but we think it looks somewhat entertaining.  One litigant, however, wants her money back.

A Michigan woman has filed a lawsuit against the film’s distributor, FilmDistrict, and the Michigan theater in which she saw the film, seeking a refund of her ticket price.  Yes, we know it sounds absurd to accumulate legal fees and court costs over an $8 ticket.  The movie can’t be that bad, right?  After all, it did gross nearly $12 million (with a $15 million budget) during its opening weekend.  If people can sit through three hours of The English Patient without feeling the need to sue its distributor, Drive must be horrible. Oh, and here’s the best part: She wants to certify the suit as a class action!

What could possible make Drive so horrendous that a federal class action lawsuit becomes necessary to save cinema goers from seeing it?  According to the lawsuit, the woman claims that FilmDistrict marketed Drive as being very similar to The Fast and the Furious when, in actuality, the film “bore very little similarity to a chase, or race action film . . . having very little driving in the film.”  Oh, the horror!

After you have regained your composure, let’s take a closer look at these allegations.  First, is the plaintiff really claiming she has been damaged because Drive did not meet the high standards of The Fast and the Furious?  Seriously?  While Fast was the career high point for both Vin Diesel and Paul Walker, it is a movie that can only be enjoyed along side a $3 bottle of gas station wine.  Claiming that a movie is dissimilar to Fast should be considered a compliment.  If the plaintiff claimed she had been duped into watching a pseudonymous Fast sequel, we would feel her pain.  After all, the fact that five Fast films have already been made is a grave injustice to the film industry.  But the fact that the plaintiff is actually complaining that the move is not like Fast is beyond our comprehension.

Second, even if we assume Fast has some cinematic merit, was Drive really trying to market itself as such?  Take a look at the Fast trailer from 2001. To the plaintiff’s credit, there are a lot of similarities between the two trailers.  Both have cars.  Both show people kissing.  Both have dramatic music as a background.  We can see how the plaintiff might see a resemblance.  Despite all these similarities, however, the movies are not marketed as one in the same.  In the Drive trailer, it is apparent that the movie has some story line.  After watching the Fast trailer, all we know about the film is that the actors do something in cars, and they like to do it fast.  Of course, it was probably hard to reveal a plot in the Fast trailer considering the film’s utter lack thereof. Oh, well.

As lawyers, we are prickly curmudgeons with respect to definitions, and all of the talk this year about documentary filmmaking prompted much disdain on our part over the use of the term “documentary.”  That word suggests some type of objectivity; Merriam-Webster’s online dictionary uses words like “factual” and “objective” in its definition.  A documentary filmmaker takes his or her camera to the scene of a series of events or profiles a particular person or persons and provides the most objective view of the subject of the film.   A documentary film is successful, we think, when both the subject of the film and those who are critical of the film’s subject matter agree that it is an accurate representation.  Thus, that factual and objective depiction – complete with the proper context – can prompt serious debate and discussion about the events depicted without falling victim to cries of bias, improper editing, or other editorial tricks of the trade.  But that’s not what documentaries do these days.  Just this year, we’ve written about would-be documentaries by Plaintiff’s lawyers advancing a litigious agenda (that being Susan Saladoff’s Hot Coffee) and disgruntled former litigants making films advocating tort reform (that being Brian J. Kelly’s InJustice.). These are filmmakers with agendas; they seek to convince viewers of a point and call them to action.

These are not documentarians; they are editorialists. There is, of course, a place in film for subjective editorializing, just as there is a place in a newspaper for an editorial and op-ed page. Heck, we here at Abnormal Use engage in editorializing every day and would not purport to be objective reporters of fact (unless we tried really, really hard to do so and specifically made that claim).  However, we do not generally bill ourselves as reporters or documentarians, and thus, we free ourselves of the constraints of journalistic objectivity.

We think that Saladoff, the former trial lawyer and producer of Hot Coffee, and Kelly, the former litigant and maker of InJustice – are editorialists.  They admit that they have an agenda, and they concede that they are trying to change people’s minds by showing them things they may not have seen before.  Their films are the work of advocates.  Thus, the term “documentary” is misleading when applied to their films, especially in light of  Saladoff’s representation that she is offering “the truth behind the McDonald’s case.”  Saladoff is a plaintiff’s lawyer with an agenda who has turned film maker; Kelly is a citizen who had an unpleasant encounter with the legal system who has a Washington PR firm with Bush administration alumni promoting his film effort. There’s nothing wrong with their decisions to make films to express their opinions about the American civil justice system; it’s just wrong to call them documentaries.

We suspect there would be similar charges of bias if we here at Abnormal Use produced a documentary on the merits of tort reform – the first complaint we would expect to hear would be that defense lawyers at a large southeastern civil litigation firm were attempting to change the minds of potential jurors.  (Kelly faced similar criticism with InJustice, and in fact, those charges of “bias” were leveled against us when we criticized Saladoff’s film). Similarly, we pointed out the potential bias of Saladoff, whose Facebook page explicitly requests viewers to “take action” and write letters to the editor to advance the film’s mission. (We’ve included in this post a few screencaps from the Hot Coffee official Facebook page indicating how the documentary’s producers are calling for actions by viewers – not something you typically see from an objective reporter of facts).  Take a look:

We suppose there is some point where the public is aware that what is presented as a “documentary” is not, in fact, an objective narrative.  Michael Moore became know for such films as Roger & Me, Bowling for Columbine, and Fahrenheit 911, all of which were documentaries, in the sense that they were not narrative fiction, although they certainly had an editorial agenda not implied by the use of the term “documentary.”  There’s always a conservative would-be documentary popping up in response to Moore’s films, as well, but again, those too have agendas. Whatever the case, when the public learns of a new Moore film, they are not expecting an objective documentary. But when an unknown filmmaker like Saladoff or Kelly appears on the scene purporting to expose truth, we must be mindful of the term.

Incidentally, and perhaps ironically, we did attempt to make one objective piece of reporting on this very case.  Please direct your browser to our “Stella Liebeck McDonald’s Hot Coffee Case FAQ” for an editorial–free question and answer session about the underlying facts of the infamous hot coffee case, the trial thereof, and the post trial developments.  We thought it might be helpful if there was at least one place on the Internet where there was an objective retelling of that case using only the original documents from the trial and early 1990’s media coverage thereof.  If you want to learn the facts of the case, that is a good place to go.

We here at Abnormal Use typically discuss products liability issues (or even different areas of substantive law), but we feel compelled today to stray off topic and comment upon the passing of one of the greatest bands of the last three decades:  R.E.M.  Last week, the group announced that it had “decided to call it a day as a band,” bringing to a close a 31-year career which entertained not just generations of listeners but also generations of lawyers (thereby making this somewhat appropriate for a law blog). They were pioneers of what was once known as college rock music. They released many fine albums. For years, the band’s lead singer, Michael Stipe, was both literally and figuratively, the dean of alternative rock music. The band was, as some have said, “insanely influential.”

There is no question that the band’s work in the 1980’s and early 1990’s – from Murmur, Reckoning, Life’s Rich Pageant, Document, and Automatic for the People – resonated with listeners in an unparalleled way and provided the soundtrack for many fondly remembered moments. This is the band that wrote such songs as “So. Central Rain,” “These Days,” “The One I Love,” “Fall On Me, “Sweetness Follows,” “Find The River,” and so many more songs that will be admired and listened to for many, many years to come. It may sound silly, but for those of us who truly enjoy music, particularly R.E.M.’s era of music, the group’s passing is not unlike the jarring news of the death of a once close friend (albeit one with whom we lost contact many years ago).  We always figured they would be there, out there somewhere making music, whether or not that music was as good as it once was when we first encountered them so long ago. But now the band belongs to the ages.

In its later years, the band lost much of its edge. Certainly, like so many other groups, the band’s initial drive and ambition was tempered by mega success, and in response, it petered out a bit.  Later albums like Up, Reveal, and even this year’s Collapse Into Now, were remarkable only in that they were released by a band once so adored by so many, not because of their relative individual merits as works of art. But, as we know, acts like R.E.M., U2, The Rolling Stones, and even Bob Dylan, still live and thrive based on the good will engendered by their earlier, far more brilliant work.  Thus, even those later mediocre albums received a benefit of the doubt that a different band releasing a nearly identical album would never receive. Perhaps that kept the band in business longer than was prudent, but there was always the hope, among their fans (and presumably within the band itself), that it would recapture the creative energy it once wielded.

However, it’s interesting to speculate what would have happened if R.E.M. had broken up a decade and a half ago, perhaps after the release of 1992’s Automatic for the People (contended by some, including this writer, to be the band’s finest moment). Would Stipe still have mentored Kurt Cobain, Courtney Love, and Radiohead’s Thom Yorke? Perhaps Stipe might have begun a solo career, reinvigorating his path in a way not unlike Morrissey did after the destruction of The Smiths in the late 1980’s? Maybe Peter Buck would have still found work, if not fame, in obscure musical projects like Tuatara? Surely, Mike Mills, who composed many of R.E.M.’s finest songs, would have discovered suitable musical opportunities.  Whatever the case, had R.E.M. left music on a high note, the band would be remembered like those acts that released several excellent albums and left the stage before their members’ creative impulses soured or atrophied as a result of age.

A personal aside: I can still remember the first time I heard “Drive”, the lead signal off of Automatic for the People.  I was fortunate enough to be able to see R.E.M. play in concert on two occasions.  The first was in Austin, Texas in September of 1995, with Radiohead and Natalie Merchant serving as the opening acts.  (Check out the set list for that show here). At that time, R.E.M. was touring in support of 1995’s Monster, an overdone electrified album which, though inferior to the band’s previous work, still offered some catchy and radio friendly singles (a feat the band was not really able to accomplish again in subsequent years).  I saw them again in 1999 in San Antonio, Texas with Mercury Rev and Wilco as openers.  (That set list is here). Then, the band was beginning its slow decline, and it appeared that its members were more interested in entertaining themselves than the crowd that had assembled that day to see them. But it was still fun. Another fun story: In May of 2010, Steve Wynn, who once fronted the fabled 1980’s college rock band The Dream Syndicate, played two back to back shows at a tiny rock club in Atlanta, and at each, he played a full Dream Syndicate album. While at one of those shows, I turned to my right and saw I was standing right next to Mike Mills, who was clearly enjoying Wynn’s performance.

In the end, the creative slumps of the band’s later years don’’t matter.  The band did something that so few musical acts are able to do: For a period of time, they released a series of fantastic albums which listeners still enjoy and respect decades later. They captured, and in many ways, personified, a moment in music that influenced many to come.  A fine epitaph, that.

(For another lawyer’s take on the demise of the band, see this piece by Pennsylvania’s Jay Hornack a/k/a Panic Street Lawyer).

As we’ve previously noted on this site, Daredevil is a Marvel Comics superhero whose alter ego, Matt Murdock, happens to be a practicing lawyer. Murdock is  blind; his heightened other senses serve him well as a costumed vigilante.  The point: He’s a lawyer, thus, we can write about the character on our law blog! (If it’s been a while since you read comics, you might recall the 2003 film, Daredevil, which starred Ben Affleck in the title role.).

In his private life, Murdock is a partner at the small New York City firm of Murdock & Nelson, which handles, among other things, personal injury and civil rights cases.  Murdock’s partner, Foggy Nelson, is a brilliant attorney  who helps cover for Murdock when he’s out fighting crime.  Just a few months ago, Marvel Comics rebooted the Daredevil comics series and brought Mark Waid on as the writer of the new series. Waid is known for such popular works as Kingdom Come and Superman: Birthright. As Waid takes responsibility for the character, Daredevil finds himself a persona non grata in the eyes of other superheroes. In fact, because of some recent exploits, Daredevil’s secret identity has been compromised, and Murdock is now attempting to rebuild his life and law practice. Waid was kind enough to agree to an interview regarding the challenges of writing a lawyer superhero character. Waid’s latest issue, Daredevil #4, hits the stands tomorrow, and the first three issues can be found at any local comic shop.  Our interview with him (which includes a few minor – though clearly marked – spoilers about tomorrow’s Daredevil #4) is as follows:

JIM DEDMAN: Matt Murdock has two full time jobs:  attorney in private practice and costumed super hero.  You’ve described that as a sort of a “paradox of a vigilante by night, lawyer by day.”  How does he manage doing both those tough jobs?

MARK WAID: Like all good comic book superheroes, he manages to squeeze an awful lot in a 24 hour day.  When I go to the bank and the post office, I’m done, and I have to lie down.  But these guys, in Matt’s case, one of the things that’s enormously helpful to him is that he relies very, very heavily on his partner and best friend, Foggy Nelson. Their dynamic is such that Matt is brilliant in the courtroom.  He is a showman, he is charming, he is well spoken. What Foggy brings to the table is . . .  an eidetic memory for court history and for case history. So he’s the one who was always in law school, nose in the books, 23 hours a day, while Matt was out chasing skirts and stuff.  So, if you will, Matt’s the face, and Foggy’s the brain, and sorry to say, the brains have the harder job.

JD: Nelson & Murdock is a small New York City firm. You’ve mentioned that you’ll be introducing some interns and assistants at the firm in the future, which is foreshadowed at the end of issue three.  How do you go about depicting the day-to-day operations of a law firm in the comic book medium?

MW: With all due respect to the fine lawyers who have represented me in the past and can sue me out of existence today, basic office law work is not the most terribly visual thing in the world for comic books.  So, we don’t spend a whole lot of time in the Nelson & Murdock offices and what time we do there is – to the chagrin of many of my lawyer friends – is sort of the TV and comic version of what a law office looks like, which is not reality.  People having fun all the time.  People are having parties, blah, blah, blah.  Luckily, Marvel has a couple of really good writers who also have legal backgrounds.  Marc Guggenheim is one, and so I’m able to lean on these guys pretty heavily for background and to sort of back stop me to make sure that my rudimentary layman’s knowledge of how a law office works, at least has some grounding in reality.

JD:  We also spend some time in the courtroom.  What efforts do you make to accurately depict that process in that arena?

MW:  Same thing.  I talk to Gugenheim, I talk to a couple of my other lawyer friends.  It’s a fine line.  I mean, it’s fiction, it’s not a documentary, so every once in a while to make it visual or to sort of compress into 20 pages of comics what would, in fact, be an entire day’s worth of law proceedings, we have to cheat a little bit.

…

JD:  At this point, it’s public knowledge that Matt Murdock is Daredevil, at least for the most part, and the new assistant district attorney actually tells him, “Every litigator in the game is going to use your Daredevil identity against you every time you set foot in a courtroom.” You’ve said in a past interview that Murdock is doing his clients “no favors by representing them.”  Why is his identity as Daredevil such a problem in his private practice?

MW: Because every time he steps into the courtroom, a smart lawyer on the other side will invoke – especially in criminal cases, particularly criminal cases – the fact that Daredevil is an unsanctioned vigilante, and therefore, he must have some sort of antagonistic relationship with law enforcement or by nature must have some sort of antagonistic bent against authority, none of which is true, but it doesn’t matter.  . . . [W]hat I’ve been told is that, paradoxically, the courtroom itself is the only place where you don’t have to worry about slander because lawyers can say whatever they need to about each other in order to win the case, essentially.  There’s boundaries to that, but Matt is not in a position to sue an opposing attorney for slander for calling him Daredevil in court.

JD: Does Matt have a dilemma in that in his private practice he appears to be a very idealistic person who believes in due process of law, and presumably the rights of the accused, but he’s also out there at night fighting crime and presumably prompting the arrest of criminals who are going to end up in a courtroom in the future?

MW: Yeah.  That’s part of it.  The real problem for Matt gets back to the idea that a good attorney needs to be fairly invisible when it comes to the facts of the case.  The moment the attorney becomes more of the focus of the trials than the evidence or the clients, you’ve got a problem.  So then, it’s all about personality, and as we saw in issue one, it doesn’t always do the client any favors.  So Matt’s now in a position where he loves trial law.  It’s the thing he’s best at.  He’s really good at it – [but] what can he do to use that knowledge to help others?

…

If you come to Matt with a case that seems unwinnable, if you come to Matt with a case that nobody else will touch, if you come to Matt with a case that you cannot afford to have tried but he believes in you and he knows that you’re right because, again, he’s got the super senses, he can tell whether you’re telling the truth or not, then he’ll be your advocate.  He will work with you to be your own lawyer.

JD: . . . Is that the model that he’s going to adopt, where he is not [creating] the attorney/client relationship but instead assisting people in representing themselves pro se?

MW: That’s exactly it.  Exactly.  It’s a dangerous place for him to be, but frankly, it allows him to use his skills. He’s a very good coach, as it turns out, because again, he can read you like a book when you’re standing in front of him.  So,  he and his guys are not going to win every single case, but this serves two purposes for us.  One is that I kind of like the idea that it gets him back in a courtroom milieu without having to deal with the Daredevil identity.  The other, quite frankly, is that the problem with Daredevil, with Matt Murdock as a lawyer in comics, is that it’s not as interesting as Daredevil swinging across a rooftop, and you don’t want to spend a whole lot of time in a courtroom in comics because it kind of gets dull.  So this gives us a chance to do the courtroom material but not actually have to worry so much about having page after page after page of a guy in a business suit arguing in front of  a jury, which is deadly dull on the page.

JD:  Now, Foggy appears to be in a romantic relationship with the new assistant district attorney.  Is that going to present him any problems, romantic or ethical, in the future?

MW: I think the key word there is “appears,” so I’m afraid I will have to actually stall the question for a couple more issues.

JD: Fair enough.  As Daredevil, Matt has witnessed many crimes and foiled many villains. Now that his identity is out there, might he be subpoenaed to testify himself or even be sued by any of these villains for brutality?

MW: Yeah, absolutely.  It’s a dangerous place that Matt is in where he’s gone public . . . .  Like I described in the first issue, . . .  his identity is sort of out there, but following on Daredevil continuity from a few years ago, when he was originally exposed, he denied all charges.  He sued the newspaper that reported his identity and won the case.  He did everything he could to fight back.  Now, that’s past continuity, and that’s not my story.  I feel kind of squidgy about that, frankly, because as a reader, that bugged me that a superhero and a lawyer would deliberately mount a false case even though it was all for a greater good.  That he would sue the newspaper for telling the truth really bugged me.  But those are the cards I was dealt.  So instead of focusing on the history of that, what I take away from that is that the reality in Manhattan now is that about a third of the people remember that he was accused of being Daredevil and they think it’s probably true.  A third of them think this is crap because he’s a blind man and this is some sort of weird publicity hoax.  And the final third of them just don’t care anymore because it’s like news of Anna Nicole Smith at this point.  It’s old news.

JD: Now, there’s a police brutality civil rights lawsuit that plays a role in the first several issues. . . . [H]ow did you first come up with the idea of using that type of litigation to advance the narrative?

MW: I wanted something visual.  . . . [I]t couldn’t have been a criminal case per se.  People who are accused of crimes and are in prison, basically, they have a right to a lawyer.  You know this better than I do with the speech: “You have a right to an attorney.  If you cannot afford an attorney, one will be appointed to represent you. ” And Matt needs to be dealing with people who can’t get any sort of representation at all.  So, I needed to get away from criminal cases in that case.  But I needed something visual.  I needed something where . . . it was an open and shut case.  Matt has all the evidence, the poor guy is for real.  Matt knows that the guy is completely telling the truth when it comes to police brutality.  And it should have been a cake walk.  It should have been just a complete read through, easiest case Matt ever did, and the reason it backfired is because he wasn’t taking into account his own celebrity.  So, that’s why I wanted something visual – giving the guy a broken arm.  I needed something visceral . . . .  Readers have a very strong response to cases like police brutality and stuff.

JD: Are there other types of cases besides that you’re going to explore in the future?

[NOTE: SPOILERS FOR DAREDEVIL #4  BELOW]

MW: Yeah.  . . . [W]hat I like about setting this world up this way . . . is that all of these cases can lead to bigger things.  Not every case has to, but certainly, the cases we’ll be focusing on in the comic [are] the kind of things that are going to lead to bigger things.  For instance, in issue four, Matt takes the case of a kid who was fired without cause, apparently.  And he’s upset and he’s suing the company.  The problem is that New York is an “at will” state.  So, Matt says, “That’s why no one’s taking his case.  It’s a dog of a case.  He didn’t have a contract, he can’t win.”  And Foggy says, “Yeah, but I thought you may be interested because the kid is blind.”  And so now Matt’s intrigued – does it has something to do with disability?  . . .  And that ends up turning into a case where the kid inadvertently heard something that leads Matt in turn to a criminal conspiracy that in turn leads into something bigger as Daredevil.  So, that’s kind of the structure I see playing with.  You start with a small case.  And the more interesting ones turn into bigger cases that Daredevil needs to be involved with.

JD: I have to ask this. In the first issue, when Matt first enters the courthouse, he’s mobbed by newspaper reporters, including one law blog.  How did that reference come to be?

MW: That you would have to ask my editor, Stephen Wacker, because I believe I left that stuff fairly open, and I said, “Steve, let’s you and I figure out what these people are screaming.”  That’s also why one of the guys in the background is screaming, “Bababooey, bababooey!” because of Howard Stern.

JD:  . . . Have you had any reactions from lawyer readers?

MW: Yeah, a couple.  And luckily, everybody seems to understand that I’m doing my best.  I’m not a lawyer, but I play one in comics, and everybody sort of understands I’m trying to do my level best to keep it as accurate as I can, and at the same time, try and keep it as entertaining as I can, and sometimes, those are not always things that work in concert.  But so far, so good.

JD: Last question.  More generally, you tweeted very recently that “[n]ot all mainstream comics have to be written for the existing fan base.”  What’s your philosophy about that?

MW: My philosophy about it is that it makes me insane that most comics today, most super hero comics, are written specifically for the guys who’ve been reading them all their lives, which is a really inbred way of going about getting new readers.  When I sit down and write a first issue, whether it’s Daredevil or Fantastic Four or anything else I’ve done, but particularly with Daredevil – I bend over backwards to make sure that it’s a comic that you could hand to anyone if they’ve read a thousand comics or they’ve never read comics before – it doesn’t matter.  They understand who the character is, what he wants, and what’s in his way, and why we should care.  Those are the four litmus paper questions that need to be asked about every story.

John Stamos is piloting a new television legal drama.  Get this: According to an August piece over at Deadline Hollywood, it’s called “Dead Lawyers.” (We’re not joking.)  The premise: Recently deceased attorneys try to make amends. (Again, we’re not joking.)  Think “Ghost Whisperer” meets “L.A. Law,” but with living dead lawyers, forced to face the error of their evil, evil ways and right their past wrongs in order to “pass over,” presumably into some generic unexplained legal afterlife.  Apparently, this show was previously pitched and failed to generate interest among the networks (shocking.)[1] However, the previously pitched version was to air on the SyFy network (whose audience is not into lawyers – duh) and didn’t star John Stamos (who everyone loves – duh.)  This time around, Sony TV is backing the show and they’ve got Stamos.  Hello?  Who doesn’t love Uncle Jessie?  And who doesn’t love lawyers?  Especially lawyers having to pay the ultimate price – forced pro bono work with an existential twist?

“Dead Lawyers” may be a new concept, but  legal shows are old hat.  Stamos isn’t the first in a long list of stars vying for television legal roles.  Think James Spader in “Boston Legal.” Think WILLIAM SHATNER in “Boston Legal.”  Think Zack Morris in the new hit (objection, speculative) show “Franklin & Bash.”  “Ally McBeal.”  “Law and Order.”  And the list goes on.

There seem to be a whole bunch of legal dramas these days.  And why not?

1.  It’s really HARD to come up with a new concept these days.  It’s much easier to recycle an old one.  I know.  I know.  This time we’ll make the lawyers dead.

and

2.  Think of the glamour of the legal world.  You live it.  You know it.  Oh, so glamorous.  We here at Abnormal Use, have always said that document review, when done properly, can be quite romantic.

One question: Have you ever seen a lawyer in any television legal drama actually draft anything?  Anything at all?  And I don’t mean a quick screen shot of them sitting at their desk before learning about some new scandal their husband has gotten wrapped up in (a la “The Good Wife.”)  No way.  TV lawyers don’t draft anything.  So, how do they make their billable goals?

These TV lawyers stomp around court rooms, pound their fists on desks, and, my personal favorite, make arguments during witness testimony.  Judges applaud, ladies swoon, and the episode ends with a witty remark by a dashing young lawyer (or fake lawyer per “Suits“) just like me.  I mean, John Stamos.

Who could ask for anything more?

We here at Abnormal Use have blogged a few times now about Google’s attempt at a driverless car and the implications such a development might have on product liability law.  The question we posed to you, dear readers, is this:  when the law has developed around the [perceived] limits of technology, and that technology moves beyond that body of law, what happens?  When the driverless car crashes, who is responsible–can the owner of the car that caused the accident turn around and sue the manufacturer for a manufacturing or design defect? Read our prior posts for our thoughts on those general issues.

News alert: We may soon find out.  As recently reported by Wired, BMW is also testing a so-called “autonomous vehicle” and has outfitted a 5- series sedan with technology that enables the car to navigate heavy traffic, or in an emergency.  As such, the technology may not be intended to totally replace the driver, unlike the Google technology.  The BMW only takes over when driving becomes a chore: in a traffic jam.  The BMW is also not as well traveled as the Google car; BMW has put only 3,100 miles on its sedan’s odometer, while the Google car has more than 140,000.

The auto accident attorney in TX like Eric Ramos Law, PLLC says it’s further evidence that this is one direction in which automobile technology is headed, and product law must be prepared.  And yet, here is a thought: is the current state of product liability law already equipped to handle such a question?  The fundamental question of any products case is always this: what caused the injury or damage?  There are a number of possibilities – the design is bad, the manufacture of the particular product was shoddy, the owner failed to maintain the product, or it was simple operator error.  If we consider this the basic universe of theories, then is the law ready to handle the driverless car crash today?

Back in October, we blogged about Google’s new driverless car and used that new technology as a starting point to ask some poignant questions about how the law has failed, in general, to keep pace with the current speed of innovation.  Our specific question on that date was as follows:

As both the ABA Journal and The New York Times point out, the obvious question is this: Who is liable for an accident caused by a car that is driving itself – the person sitting in the driver’s seat of the car who isn’t actually driving, or the manufacturer of the driverless car itself?

At the time, there hadn’t yet been an accident caused by the software.  Well, now we have one.  As recently reported by friend of the blog Alan Crede of the Boston Personal Injury Lawyer Blog, Google’s brainchild caused an accident.  (For the record, Google’s position is that a human driver who overrode the software caused the accident).  Just as we did in our prior post, Crede used the Google Car opportunity to pontificate about larger legal questions facing the advent of fast-moving technologies.  We were, however, pleasantly surprised to see that Crede does not take the typical plaintiff’s attorney-approach to the issue, but rather argued that companies should not fear developing such cutting-edge technologies because of fears of liability.  Rather, Crede advocated for the imposition of liability on the owner or passive “driver” of the car itself, not the manufacturer.  In so doing, he argued:

Since, presumably, most accidents involving robot-driven vehicles will be due to some software error, perhaps the victims of robot car accidents will sue Google or other robot car manufacturers in product liability actions for selling defective products (defective software code). Such a system would insure that accident victims are compensated, but it would also mean that robot car manufacturers — the Googles, Fords and Toyotas of the world — would become the insurer of every car accident. Could any car manufacturer afford such a burden? Likely not.

It seems what we need therefore — in order to insure that the victims of robot-driven cars are compensated — is new legislation which would change the common law rules that govern car accidents. In particular, we need a system of compulsory auto insurance and a new legislatively-created rule that the owners of driverless cars are responsible for all accidents that they cause, regardless of whether they were piloting the car at the moment the accident occurred.

Such a change would replace our current negligence-based system of liability for car accidents with a strict liability regime that makes cars’ owners automatically liable for any damage caused by their cars, but it seems the only workable legal framework for a future of driverless cars.

GlA 180 Urban Edition 5dr auto review will prove why it is important to understand the current legal regime so that one can pick the right car.

Under the current legal regime, car manufacturers would have to insure every accident on their own, a burden that no company, even one as large as Google, can afford.

An interesting idea.  Thoughts?  Personally, I am not sure that this type of legislation is a good idea.  What happened to placing liability on the actual party at fault?  Ostensibly, the “driver” who is just sitting in the car isn’t at fault for the accident – maybe it was a software glitch that caused the accident.  Furthermore, who in their right mind would buy a car knowing that it would be their fault if the car causes an accident, even though they had no control over how it was designed?  Or am I sounding like a plaintiff’s attorney?  On second thought, don’t answer that last question.