Depositions can be funny. One of the joys of being a member of the Texas Bar is receiving the Texas Bar Journal, which always included the famed “Et Cetera” column by the late U.S. District Judge Jerry Buchmeyer, who offered amusing moments and excerpts from litigation.  For years and years and years, Judge Buchmeyer collected funny quips and quotes from deposition transcripts, trial pleadings, and trials and published them in his column.  In fact, his column became so popular, that whenever anyone flubbed a question during a deposition, someone would inevitably remark, “That’s one for Buchmeyer.” Sadly, Judge Buchmeyer passed away in 2009, but the world can enjoy his columns at the Texas Bar Journal’s website here.

We always wanted to submit something to the column but never had the opportunity.  Recently, though, something happened at a deposition that we – and apparently only we – thought was amusing.  Here is an excerpt from a recent toxic tort deposition:

Q     Do you know whether or not the specifications that were discussed were altered at any time after the summer of 1969?

A     No, sir.  I don’t know.

Q     So you have no personal knowledge of any subsequent negotiations which may or may not have occurred after the summer ’69.  Is that correct?

A     Correct.

Q     Summer of ’69. Somebody needs to make a Bryan Adams reference here, I think.

After that remark, though, there were crickets in the room.  Crickets! When we received the transcript, we turned to the relevant page to see if the court reporter had added, “Whereupon, there were the sounds of crickets.” Worse was the deafening nature of the silence! From both those assembled in the room and those attending the deposition by telephone! The attempt at humor fell flat, but it seemed so clever to us in our own minds! How can one discuss the summer of 1969 without referencing the old song by Bryan Adams? Oh, well. Maybe this deposition excerpt would not have been one for Judge Buchmeyer’s column, but how can one resist making a pop culture reference under those circumstances? How could anyone? Oh, bah, humbug.

You might recall that back in March, we interviewed the writers and producer of the 1991 film, Class Action, which starred Gene Hackman and Mary Elizabeth Mastrantonio as an estranged father and daughter, both lawyers, who find themselves on opposite sides of the same products liability case. We always intended to revisit and review the film, but as sometimes happens, time slipped away from us, and we never finished our draft of the review.  Tardy, but unfazed, we here at Abnormal Use resolved to use the recent Fourth of July holiday weekend to finalize the review, and so we have finally done so.

Primarily written by Carolyn Shelby and Christopher Ames, and directed by Michael Apted, the film is actually pretty good, and holds up well as a legal drama, even when viewed by weary and cynical attorneys 20 years after its original release. Shelby and Ames apparently came on board after the initial draft by attorney Samantha Shad had been developed. Their script received much praise from Roger Ebert in his 1991 review:

The screenplay by Carolyn Shelby, Christopher Ames, and Samantha Shad contains dialogue scenes so well-heard and written it’s hard to believe this is a Hollywood movie, with Hollywood’s tendency to have characters underline every emotion so that the audience won’t have to listen so carefully. There is a scene, for example, where father and daughter are preparing dinner together, and their civility gradually collapses into anger and tearful recrimination. And other scenes, deliberately of few words, in which lawyers try to say things without saying them – to imply what must be done, without being trapped into actually issuing unethical orders.

The film begins with a intercut sequence comparing the styles of Hackman’s fiery Plaintiff’s attorney Jedediah Tucker Ward and his estranged and far more conservative defense lawyer daughter, Maggie, played by Mastrantonio. While Maggie is a by-the-book defense lawyer who opines that certain principles are “deeply embedded in the black letter law of the state” and that “appeals to the contrary based on emotion have no place in a court of law,” Jed simultaneously argues in an adjacent courtroom that those assembled are “not in a court of law, but ‘rabbit hole’ leading to ‘Wonderland’ and ‘Mad Hatter’s tea party’.” Maggie, an associate who desperately wants litigation experience in order to make partner, is also sleeping with Michael, the junior partner liaison to an automotive company client. We ultimately learn this is not a very good idea. For his part, Jed is the type of plaintiff’s lawyer we all know who complains of “fascist Reagan judges” who throw cases out if they target big corporations. The two main characters are also huge law nerds. Jed and Maggie, during brief periods of personal détente, actually quiz each other about the underlying facts of old cases, including Weems v. United States, 217 U.S. 349 (1910), a cruel and unusual punishment case. Nevertheless, their long standing personal conflict escalates when they find themselves on opposite sides of the bar in a products liability case involving an allegedly defective automobile (although the film is careful to include a scene confirming that all necessary waivers have been signed – although we wonder if that conflict could be waived). The relationship is further exasperated when Jed’s wife and Maggie’s mother (JoAnna Merlin) dies of an aneurysm in the courthouse immediately following a contentious motion to compel hearing.

The products lawsuit proceeds as many depicted on film do, with the Plaintiff (Robert David Hall) – who viewers will recognize now as the medical examiner on television’s “CSI: Crime Scene Investigation” – painted as a sympathetic victim of obvious corporate gross negligence. The automotive company, of course, is the villain of the film; its corporate execs have disposed of an unfavorable report indicating circuitry problems in the vehicle at the behest of the aforementioned junior partner. Further, the fictional auto company internally concluded that it would be cheaper to defend 200 subsequent lawsuits than to recall the model of vehicle in question (not unlike the famous Ford Pinto case). We bet you can guess who wins the suit.

In 2011, the narrative remains interesting, even to legal viewers, although there is some nitpicking required.  Spoiler Alert!

At a motion to compel hearing at which Jed is seeking the addresses of current and former employees of the automotive company, Maggie properly responds and notes that the request may be unduly burdensome and require them to investigate the whereabouts of many, many people. However, Jed responds by admitting he called the automotive company’s pension department in a feigned attempt to locate an old friend.  He claims the department provided him with a current address, which the judge uses as a justification to grant Jed’s motion to compel. No objection to improper contact is made.

Near the conclusion of the trial, Jed calls Michael, the aforementioned junior partner who represents the auto company, to the stand. Although much ado is made of this move, no one mentions the attorney-client privilege and the fact that he cannot be compelled to discuss his communications with his client. Further, Maggie has a chance to examine the witness, and she does so! She elicits testimony that she knows to be false (in what is later revealed as her attempt to do justice at the expense of her own client because of her misgivings about the junior partner’s destruction of relevant evidence). However, during the examination of her colleague, she does nothing in that immediate moment to alert the court that Michael has given false testimony about the existence of the unfavorable report that he destroyed. Oh, my, the ethical dilemmas pile up quickly in this film.

The senior partner at Maggie’s Big Law firm, Quinn (Donald Moffat), notes that he will attend the deposition of the plaintiff and expresses some concern about whether Maggie has the fortitude to “eliminate” him as an effective witness. At the deposition, Maggie confronts the plaintiff with a number of facts, including evidence that he was treated by a psychologist for “car phobia,” his history of past accidents and tickets for driving to slow, and photographs of the accident scene, all of which seemed perfectly appropriate and relevant to the line of questioning in a products liability lawsuit. However, Jed and his law partner, Nick Holbrook (Laurence Fishburne, back in the days when he was credited as Larry Fishburne), strenuously object to the line of questioning and prematurely terminate the deposition upon the presentation of the accident photographs. Maggie copes with the aftermath of this deposition by drinking alone at a bar and comparing herself to a contract killer. However, the types of questions being asked by Maggie seem like standard, almost boiler plate, queries for a plaintiff’s deposition (particularly a class rep), though they are treated as if they are affront to justice and human dignity.

The large corporate film depicted in the film is portrayed as completely and totally unethical. The aforementioned junior partner, Michael, advises the corporate client that a report that he has not read is acceptable. When this report ultimately comes to light during the litigation, he makes efforts to destroy or bury the report when he learns it is actually unfavorable. When Maggie objects to such misconduct, she takes it to the attention of the senior partner Quinn, who initially appears to understand her dilemma. Quinn suggests that the report be buried in the voluminous set of documents delivered to Jed in dozens and dozens of banker’s boxes. However, Quinn ultimately condones Michael’s purposeful error in misfiling the report amongst those documents to make it even more difficult to find than a needle in the haystack. Maggie later learns that the report was not produced at all – even in the voluminous document dump. At the end of the film, we learn she uses this information to advise her father of a particularly relevant witness who can confirm the existence of the report. However, her actions to correct the discovery abuse and unethical conduct of her fellow members of the firm is done on the sly and not with the advice and counsel of an outside lawyer, the state bar, or even the judge. In light of that, although Maggie was acting to correct misconduct, she may have done so in a fashion that subjected her to disciplinary review as well, although that is not explored in the film.

Some fun other notes: At the time of the release of this film in 1991, Mastrantonio was just about to appear in Robin Hood: Prince of Thieves, while Hackman was on the verge of appearing in that year’s Unforgiven (a role for which he would win the Oscar). As revealed in our interview with Cort, Shelby, and Ames, Julia Roberts was nearly cast as Maggie over Mastrantonio, which would have made for a very, very different film.

Of late, we’ve written much about legal documentaries. Thus, we felt obligated to inform you, our dear readers, that HBO is airing another documentary of possible interest tonight. The Civil Procedure and Federal Courts Blog has alerted us to the following:

An HBO documentary, Mann v. Ford, will air Monday, July 18, 2011, at 9:00 p.m. Eastern time.  It follows a mass action filed in 2006 arising out of the alleged negligent toxic poisoning of the Ramapough Mountain Indians’ land from the Ford assembly plant in Mahwah, N.J.

A synopsis of the film is here on the HBO web site.

We should note that we’ve not seen the program as of yet, so we cannot comment as to its merits or offer an official review.

However, if we had to guess, we’d say the makers of the film are probably not very fond of the Ford Motor Company. From the HBO synopsis: “‘Mann v. Ford’ follows community leaders Wayne Mann and Vivian Miligan and their lawyers over the course of five years as their fight for justice takes them from community centers to courtroom[s] of American justice to the halls of Congress.” The Plaintiffs in the depicted suit are represented by Vicky Gilliam of The Cochran Firm and Kevin Madonna of Kennedy & Madonna, L.L.P.

The Thoughts From My Camera blog offers some brief comments on the recent New York City screening of the documentary (attended by Robert Redford, whose son, Jamie, is one of the documentary’s producers), while Philip W. Thomas of the Mississippi Litigation Review and Commentary blog has a few thoughts, as well.

We may or may not watch this one, but if we do, we’ll be certain to let you know.

Two weeks ago, we here at Abnormal Use offered our review of Plaintiff’s attorney Susan Saladoff‘s anti-tort reform documentary, Hot Coffee, which discussed, in part, the infamous Stella Liebeck McDonald’s hot coffee case.   We were critical of the film, chastising Saladoff for her editorial choices and potential lack of objectivity, particularly in light of her past as a trial lawyer and affiliation with numerous Plaintiff’s lawyers organizations.  Tonight, at 10/9 Central on the ReelzChannel, filmmaker Brian J. Kelly premieres his own documentary and analysis of the courts, InJustice. This project was funded in part by the U.S. Chamber of Commerce, one of Saladoff’s favorite targets in her own film.  Just as we warned you of Saladoff’s possible bias, so too must we advise you that Kelly’s documentary (which excoriates the legal system and the Plaintiff’s bar in particular) may not come from the most objective of sources.  Kelly was kind enough to grant us an interview regarding the film and its agenda.

InJustice purports to offer an in-depth look at the rise and fall of the so-called “kings of torts,” the wealthy and successful Plaintiff’s lawyers like Richard Scruggs, Melvyn Weiss, and William Lerach.  In so doing, Kelly seeks to illustrate the alleged faults of America’s litigation system.  Using interviews with lawyers, InJustice suggests that class-action attorneys have enriched themselves by perpetrating questionable asbestosis, silicosis, tobacco, and securities litigation, while their clients see little, if any, of the spoils.  The film also highlights how these kings of tort made their fortunes outside of the courtroom.  Specifically, the film digs up a quote by Scruggs, who apparently once remarked that the practice of law is a three-legged stool:  legal tactics, political pressure, and public relations.  The men used this hypothetical three-legged stool to perfection, pressuring corporate defendants into settling allegedly baseless claims without ever actually taking the cases to trial.  The men appeared invincible until their questionable tactics backfired on them.  InJustice closes with the story of how each man found himself facing his own judicial woes: judicial bribery (Scruggs), concealing illegal payments to clients (Lerach), and conspiring to improperly pay off plaintiffs (Weiss).

InJustice features interviews with defense lawyers who practiced with Scruggs, Weiss, and Lerach; however, the most compelling interview probably comes from attorney Charles Merkel, Jr., who described Scruggs’ use of the three-legged stool analogy.   Through these interviews, the film aims to demonstrate how well-trained plaintiff’s lawyers can manipulate the system and make millions of dollars without ever seeing the inside of the courtroom.  The story is intriguing and well-told; however, we here at Abnormal Use question whether these so-called kings of tort are a representative sample of the civil litigation system.

Like Hot Coffee before it, InJustice advances an agenda, and Kelly does so well.  Those who watch the documentary will likely be disgusted with the way the kings of tort are portrayed as manipulating the legal system for their own pecuniary gain.  Certainly, the extrajudicial tactics, coupled with the criminal consequences, of the film’s subjects may leave many viewers believing corporations are often the victims in trumped up class action lawsuits.  However, as noted above, InJustice is crippled by one major problem – films funded and promoted by special interests groups can never paint the whole picture or be relied upon as an objective account of a societal problem.

Unlike Saladoff, Kelly is not a lawyer.  Prior to making his new documentary, he made films about such things as the Blue Angels and the Cuban Missile Crisis. However, just like Saladoff, Kelly uses the documentary medium to promote his own opinions about the faults of the legal system. Like Saladoff before him, Kelly acknowledges that there are two sides to every story.  In an interview with Abnormal Use, Kelly insisted that he “tried to look at the other side that’s not typically covered.”  Unlike Hot Coffee, which Kelly believes is “based on opinion,” Kelly told us that with InJustice, he was looking at “right and wrong.”  In a sense, Kelly is correct – InJustice does focus on fully adjudicated cases and leaves much of the speculation up to the viewers themselves.  However, InJustice, like Hot Coffee, is an opinion piece, using stories of a few to draw categorical inferences on the system as a whole. In fact, it was Kelly own bad experience with the legal system that prompted his desire to make the film.  In a recent interview, Kelly told The Blog of Legal Times that he decided to pursue the project, in part, due lawsuit filed against him by a prior tenant.  Kelly prevailed in the suit, but only after amassing $80,000 in expenses defending against the plaintiff’s claims.

Not only does Kelly exhibit a potential bias against the legal system due to that suit, so too does the film’s principal sponsor, the U.S. Chamber of Commerce and its Institute for Legal Reform.  In our interview , Kelly noted that he initially pitched the film to cable network channels such as the Discovery Channel but received little interest.  A business associate in Washington, DC connected Kelly with the U.S. Chamber of Commerce, which ultimately invested in the project. Kelly insists that he accepted their support only upon the precondition that he would maintain editorial control.  Says Kelly: “We were able to work out a deal where they knew what we were out to do.  They really had to let us go and trust us to do what we set out to do.”  However, in the screener of the film we saw, the U.S. Chamber of Commerce is never specifically acknowledged as a producer or funding source in the film’s credits (although it is promoting the film and noting its support on its websites here and  here). Accordingly, it will be very difficult for InJustice to maintain its sense of independence and credibility, particularly in light of recent criticism by people like Saladoff who contend that the U.S. Chamber of Commerce is mounting a secret campaign to influence public opinion on the judicial system. In fact, InJustice may play right into their hands.

Indeed, we here at Abnormal Use were initially contacted about the film by a Washington, DC consulting firm, Hamilton Place Strategies.  On its website, Hamilton Place bills itself as a bipartisan policy and communications firm, an odd entity to be promoting a television documentary film.  The firm’s public policy advisory unit, HPS Insight, was founded by two alumni of the George W. Bush administration.  Further, that firm’s partners include members of President George W. Bush’s staff and advisers to Senator John McCain and Representative Paul Ryan.  If the firm has any members affiliated with the Democratic Party or more liberal groups, it was not readily apparent on the website.

We’re somewhat troubled by the arrival of two documentaries arriving with weeks of each other both attacking the judicial system from different perspectives. If Hot Coffee and InJustice were screened together, many viewers would probably leave the theater believing that the denizens of our judicial system – from the Plaintiffs lawyers suing corporations to the corporate defendants themselves – are corrupt and dominated by parties only out to protect their own self-interests by whatever means necessary. As officers of the court, we’re not sure that’s the best message to send, nor do we believe that the system is beyond repair (or even as disabled as Saladoff and Kelly contend).  Hot Coffee and InJustice both fail in one key aspect – they focus on exceptions rather than rules.  Saladoff’s selective presentation of the cases in Hot Coffee does not mean that tort reform is unnecessary, nor does Kelly’s highlighting of the ill-advised tactics of Scruggs and Weiss offer proof that all trial lawyers are somehow sinister and corrupt.  The cases presented in these two films are sensationalized exceptions, not the judicial norm.  In the end, though, InJustice is an opinion piece no better or worse than Hot Coffee.

Tonight, at 9/8 Central on HBO, comes the long-awaited premier of Plaintiff’s attorney Susan Saladoff’s anti-tort reform documentary, Hot Coffee.  We here at Abnormal Use have taken a special interest in the film since its original debut at the Sundance Film Festival in January.  We have highlighted the background and potential bias of the film’s maker and prepared a detailed (and objective as can be) FAQ file on the infamous Stella Liebeck McDonald’s hot coffee lawsuit from which the documentary derives its name.  In so doing, we have received many comments criticizing us for “reviewing” the film prior to having seen it. In fact, we were even accused of perpetrating a “dirty corporate disinformation campaign.”  Well, after months of requesting a copy of the film from Saladoff, her publicity firm, and ultimately, HBO, we here at Abnormal Use obtained an advance screener.  With that DVD in hand, we now offer our official review and commentary on this well publicized film.

Written and produced by Saladoff, the film offers four case studies to illustrate the alleged dark side of tort reform.  Beginning with the Liebeck case, Saladoff argues that corporations improperly exploited that famed case to promote massive tort reform.  Specifically, Hot Coffee alleges that the American Tort Reform Association and the United States Chamber of Commerce misrepresented the Liebeck case and duped many state legislatures into passing caps on certain recoverable damages.  Further, the film suggests that these advocacy groups devastated America’s civil justice system by funding the judicial campaigns of candidates willing to serve corporate interests at the expense of consumers and sympathetic Plaintiffs. (The film points to three other cases, as well, though they are less famous than the Liebeck case.).

Those who see the documentary may likely be persuaded of the “evils of tort reform.”  Saladoff brilliantly selects cases that tug on the emotional heart strings of even the most stoic of viewers.  After witnessing the struggle of parents attempting to provide for a brain damaged child or hearing a woman explain her unsuccessful quest for a jury trial after being brutally raped by co-workers, uninformed viewers may leave the film with a distaste for tort reform – at least as Saladoff presents it.  As a filmmaker and “documentarian,” Saladoff is persuasive, and she has garnered much attention from Hollywood for her efforts. (Indeed, non lawyer film critics  are falling for her propaganda). Cynical as we are, and willing to dig deeper than casual viewers, we here at Abnormal Use are not so easily persuaded.  Once one cuts through Hot Coffee‘s emotionalism, we see a film that exploits the McDonald’s case and other sympathetic litigants to promote Saladoff’s own personal agenda.

Call us crazy, but we thought a film entitled, Hot Coffee, would mostly be about, well, the hot coffee case.  After all, the film’s website heralds: “Hot Coffee reveals what really happened to [famed McDonald’s hot coffee Plaintiff] Stella Liebeck . . .” and that “[a]fter seeing the film, you will decide who really profited from spilling hot coffee.”  Saladoff told IndieWire: “The McDonald’s coffee case is the most famous case in the world, and yet almost everyone has it wrong.”  Those are bold statements.  Yet the 88 minute film dedicates only ten minutes to the Liebeck case.  If the Liebeck litigation has become the “most famous case in the world” and misunderstood by the American public, Saladoff could have dedicated the entire film to debunking any purported misperceptions.  Certainly, that’s what the title suggests she planned to do. But that’s not what she’s done. In reality, the McDonald’s case is nothing more than a cinematic hook to bring viewers to Saladoff’s more general propaganda.

Despite the short shrift the Liebeck case receives in the film, Saladoff argues that there are certain facts of the Liebeck case that were either somehow concealed from the public or never brought to light which, if known, would change the perception of the case from frivolous to somehow meritorious. Those facts are these:

(1) Liebeck spilled coffee while a passenger in a parked car, not as a driver in a moving vehicle;

(2) Liebeck was actually injured; she suffered second- and third-degree burns;

(3) McDonald’s policy was to serve coffee between 180-190 degrees;

(4) McDonald’s had been notified of 700 prior burnings;

(5) McDonald’s only offered Liebeck $800 to settle the litigation; and

(6) The jury’s punitive damages award was reduced to $800,000.

In selectively presenting these facts in this fashion, Saladoff contends Liebeck’s lawsuit was meritorious simply because she suffered actual damages and failed to show any desire to get-rich-quick.  Unfortunately, it is not the presence of actual damages and a noble spirit which keeps a case from being frivolous.  In fact, Saladoff neglects to address the point often made here at Abnormal Use:  coffee is meant to be served hot and does not become “unreasonably dangerous” until negligently spilled by the consumer.  This past week, when asked about our assertions on National Public Radio, Saladoff skirted around the issue, citing the same line that McDonald’s knew that hot coffee was, in fact, hot.  Apparently, any effort to challenge her on that point is just another dirty corporate disinformation campaign.

Although the film makes much ado about corporate attempts to influence the process, the role of trial lawyer and civil justice groups is surprisingly omitted.  (Apparently, it is only corporations that fund promotional campaigns to influence the judiciary and the electorate.). Nevertheless, the film criticizes corporations for hiring PR firms and hiding behind benevolent sounding front groups like the American Tort Reform Association, the U.S. Chamber of Commerce, or the Citizens Against Lawsuit Abuse.  Saladoff herself, however, has a long history of being involved in opposing groups, such as the Trial Lawyers for Public Justice and the American Association for Justice.  Of course, Saladoff would have you believe that these groups are noble entities formed to protect our citizens which would never participate in such conduct.  Right.

Hot Coffee also documents the story of Oliver Diaz, a former Mississippi Supreme Court Justice, to accuse the U.S. Chamber of Commerce of funneling money into the judicial campaigns of pro-tort reform candidates.  The film suggests that Diaz found himself running against a candidate hand picked and funded by the Chamber.  But here’s the catch: the film concedes that trial lawyers often donate to their own judicial candidates. But the film attempts to minimize this fact by noting that trial lawyers are limited by law in the amount of money they can donate.  This seems a bit unfair, right?  Big corporations are buying seats for judges while trial lawyers must sit idly by due to unfair, oppressive campaign finance laws?  Is the story truly so bleak for trial lawyers and their own advocacy groups? Not really.

First, Diaz actually won his election thanks to a hefty donation from prominent trial lawyer, Paul Minor (whose well-publicized 2007 conviction for judicial bribery six counts of honest services mail fraud, two counts of judicial bribery, one count of honest services wire fraud, and one count of racketeering you might recall (though in full disclosure, the Fifth Circuit  reversed the feberal bribery convictions in 2009, though, Minor was recently re-sentenced to eight years in prison in connection with the other charges.).  Second, famous plaintiff’s attorney Richard Scruggs, referred to certain Mississippi counties as “magic jurisdictions,” which he defined as:

[W]here the judiciary is elected with verdict money.  The trial lawyers have established relationships with the judges that are elected. . . .They’ve got large populations of voters who are in on the deal, their getting their [piece] in many cases.  And so, its a political force in their jurisdiction, and its almost impossible to get a fair trial if you are a defendant in some of these places. . . .  These cases are not won in the courtroom.

For some reason, Saladoff neglected to include that information.  And, we thought it was tort reform which was trying to close the courtroom doors?

The film also chronicles the cases of Colin Gourley, a boy who sustained brain damage as the result of medical malpractice during his mother’s pregnancy and delivery, and Jamie Leigh Jones, a woman raped and imprisoned while working for Halliburton subsidiary KBR in Iraq.  By using these tragic and sympathetic stories, Hot Coffee garners sympathy for the anti-tort reform movement while deflecting attention away from the fact that it is not just plaintiffs who benefit by opposing tort reform.  Of course, trial lawyers like Saladoff benefit in the best of ways: financially.  The larger the verdict for the plaintiff, the larger the payday for the trial lawyer.  It is noble to stand up for those who may have been wronged, but don’t present yourself as a disinterested party and cloak yourself in the guise of pure altruism when doing it.

Our original piece chronicling Saladoff’s history as a plaintiff’s lawyer and longtime affiliation with the Association of Trial Lawyers of America rang truer than we even realized.  In fact, it was cited just yesterday in The New York Times by its legal correspondent John Schwartz who, however, downplayed Saladoff’s possible lack of objectivity.  (We wonder what Schwartz would think about an environmental film produced by an oil company.). Schwartz did concede, though, that Saladoff is an “advocate.”  As editorialists ourselves, we would never object to someone simply expressing a point of view; we love the vast marketplace of ideas (though we find Saladoff’s background highly relevant to the message she offers). In this case, our goal is, and has always been, to expose potential bias and inconsistency, especially in light of the film’s presentation as an objective documentary peddling in previously unknown “truths.”  Just as Saladoff accuses the media of exploiting an allegedly meritorious hot coffee case, Hot Coffee is guilty of the same offense.  Saladoff preys on the emotions of viewers to advance her profession’s own special interests.

Saladoff declined multiple requests from Abnormal  Use for interviews, both in January and this week prior to the film’s HBO premier. (Actually, she initially accepted an interview request in January, then canceled at the last minute after the interview had been scheduled, and we never heard from her again.).

The film premiers tonight on HBO at 9/8 Central.

Tonight at 10/9 Central, the USA Network premieres its new legal drama, “Suits,”  which centers around high-powered corporate attorney Harvey Spector (Gabriel Macht) and his “pseudo-associate” Mike Ross (Patrick J. Adams).  We here at Abnormal Use obtained an advance screener of tonight’s pilot, and we enjoyed some of what we saw.   At its outset, “Suits” appears to be like every other legal drama past and present.  Mega-profile attorney, thousand dollar suit, big city firm – you get the picture.  However, “Suits” quickly adds a new – albeit unethical – twist to the genre.

With only a few minor, minor spoilers, the basic premise is as follows:  After achieving the position of Senior Partner, Spector is given the opportunity to hire his own associate.  Bored with the blandness of each “Harvard douche” applicant, Spector encounters good guy with tough luck Ross, who enters the interview room to hide from the police after a drug deal gone bad.  Spector is intrigued by Ross, who shares his same charisma and possesses an unparalleled photographic memory.  There is only one problem – despite acing the LSAT on numerous occasions, Ross has never attended law school.   Not one to to let a simple thing like a law license get in his way, Spector hires Ross as his new associate.

From this brief synopsis, it is readily apparent to any attorney what is wrong with “Suits.”  The show is an ethical conundrum.  Even beyond the unauthorized practice of law, the “finding good in an unethical situation” theme is persistent.  For example, in one scene we see Spector lying to a client who threatens to fire the firm while simultaneously accusing the client of acting in bad faith.  Lies and deceit do little to aid the already negative perception of lawyers in our society.  To make matters worse, it is this deceit which lands Spector the Senior Partner-gig and the opportunity to hire Ross.  Apparently Spector was wrong – bad faith does pay.

As bad as Spector’s interactions with clients might be, it is the prominence of an unlicensed attorney which pushes “Suits” into an ethical chasm.  As much as Spector makes any respectable attorney cringe, Ross is equally as enjoyable.  For starters, he’s brilliant.  He memorized BarBri’s bar review materials word-for-word and displayed legal knowledge far superior to any first-year associate we have encountered.  In addition, Ross displays a concern for clients visibly lacking in Spector.  Ross certainly has the potential to be an effective lawyer.  Unfortunately, however, someone forgot to remind the writers that the days of the apprenticeship have long been abandoned in the legal profession.  We can buy the smart guy wanting to be lawyer concept, but Spector’s decision to hire Ross knowing that, if caught, he undoubtedly would lose his license seems a bit absurd.  Of course, absurdity often makes for the best television.

We shouldn’t be surprised that a legal drama would depict lawyers in unethical situations.  Unfortunately, it is what people have come to expect.  The problem is that the show’s most noble character is the one rooted in the deepest ethical paradox.  Is “Suits” suggesting that law school is what strips us of all morality?  Are we not as smart as we think we are?  Are we replaceble by any person off the street with a photographic memory?  We here at Abnormal Use would like to think we are worth a little more than that.

The show’s ethical problems are so prevalent that they overshadow its legal inaccuracies.  Who cares that depositions can be scheduled on one day’s notice when it is an unlicensed lawyer signing the subpoenas?  We were hardly surprised to see Ross electing to move to sanction opposing counsel for failure to comply with the discovery requests he served only one day prior.  “Suits” is hardly an exhibition on civil procedure.

With all of its problems, however, “Suits” is a rather enjoyable show.  Everything that makes “Suits” bad from a legal standpoint makes it great for viewers.   We can appreciate Ross as the unexpected David competing against his Goliath Harvard-law co-workers.  As bad as Spector’s tactics may be, they are much more entertaining than watching some nice guy who refuses to push the bounds of civility.  While we do not condone the replication of Spector’s conduct in real life, Macht plays the part well and adds some excitement to the bland world of settlement negotiation.  If nothing else, Spector and Ross are well cast and believable, albeit in unbelievable situations.

After viewing only the pilot episode, we have no idea what direction “Suits” may take.  We anticipate Spector will develop morally through his relationship with his noble apprentice, while Ross continues to find himself in weekly shenanigans to hide his qualifications.  To be honest, as attorneys, we here at Abnormal Use are most anxious to see what happens after Ross graduates from the rank of first-year associate and actually has to sign his own pleadings and appear solo in court.  How long can this charade last before someone checks Ross’ bar number in the system?

Like South Park, we suggest attorneys check their ethical standards at the door before watching the program.  By doing so, “Suits” becomes less like an administration of the MPRE and more like a drama worth staying up until 10:00 to watch.  Spector and Ross are brilliantly cast and the show has great potential to break the David E. Kelley stranglehold on successful legal shows.  Don’t expect to see a microcosm of the true-to-life legal profession, but expect an entertaining 90-minutes which will leave you calendaring the show for the next week.

As noted in yesterday’s post on our recent interviews of Mark-Paul Gosselaar (of “Saved by the Bell” and “NYPD Blue” fame) and Breckin Meyer (Clueless and Can’t Hardly Wait), “Franklin & Bash” is a new legal dramedy in which the duo star as brash young lawyers who will do virtually anything for their clients.  The central premise of the show: these two young lawyers – fiercely independent and unorthodox – join a stuffy big firm in Los Angeles.  As you might imagine, the partners and associates at that big firm are not all appreciative of the new interlopers. We here at Abnormal Use obtained an advance screener of  the series’ pilot episode, which debuts tonight at 9/8 Central on TNT. Written by Bill Chais and Kevin Falls and directed by Jason Ensler, the pilot is whimsical and entertaining, though hardly an accurate depiction of the legal profession or life at a large law firm.

Jared Franklin (Meyer) is a quick-witted, scrappy lawyer who is perhaps trying to stand outside the shadow of his father, a well-known and apparently highly respected attorney.  Peter Bash (Gosselaar) is more of a charmer, both in his business and personal lives.  The pair’s firm might best be described as the type you’d see advertised on a bar’s bathroom-stall door (see video of their commercial–shot from a hot tub–here).  Within the first few minutes of the pilot, the ambulance-chasing duo score a client in a manner reminiscent of the “Seinfeld” episode featuring the heiress to the O’Henry! candybar fortune.  Here, a young male driver rear-ends another vehicle when he is distracted from the road by a mattress commercial, which plays on a jumbo screen near the roadway, featuring a lingerie-clad woman.  Just as Kramer and Jackie Chiles took on Sue Ellen Mischke, so, too, do Franklin and Bash take on the perpetrators of the racy mattress advertisement.

In that dispute, young Franklin and Bash find themselves facing the megafirm of Infeld Daniels. Their antics at that trial lead to the pair’s “big break” – they are offered jobs at the prestigious firm by senior partner Stanton Infeld, played by acclaimed actor Malcolm McDowell.  Both Franklin and Bash accept the offers, and so begins their “fish out of water” experience in the big, glossy litigation firm. Comedy ensues, or that’s the idea.

The show is enjoyable enough, with a number of light-hearted moments featuring the pair’s close, almost brotherly relationship.  It also offers some romantic-themed intrigue, with Bash, played by Gosselaar, still having trouble getting over an ex-girlfriend and fellow bar member, who appears to have moved on from their prior relationship.  There also promises to be some friction between the duo and Damien Karp, an Infeld Daniels attorney and the nephew of Stanton Infeld.  Karp, played by actor Reed Diamond, is suspicious of his new co-workers and unimpressed with his uncle’s decision to bring them on board at the firm.  He is positioned by the end of the pilot episode to be a nemesis of sorts to the main characters, particularly to the aggressive Jared Franklin.

There are some problems with the believability of the show, which includes scenes and dialogue far too quirky and eccentric to be convincing to viewers.  In one scene in particular, Gosselaar’s Bash is having a heart-to-heart conversation with a client in his hot tub.  Eventually, Bash stands up out of the hot tub–naked–to quickly scan the pages of a law book and pass it to his assistant, very seriously telling her to “Shepardize this case law.”  The scene comes off as a little awkward and a lot unrealistic.

As with any legal television show, there are some errors in the depiction of the law.  That is, of course, in addition to the naked hot-tubbing with a client.  For example, when Franklin and Bash begin work at Infeld Daniels, they uncover a plot by one of its lawyers to have an airline company place blame for a near accident on its pilot.  The legal issue?  Infeld Daniels represents both the pilot and the airline.  That would simply not happen in the real-life legal world, wherein the pilot and airline would be represented by separate counsel if the airline’s strategy was to blame its pilot.

In any event, for viewers who are willing to occasionally engage in a suspension of disbelief, the show offers an enjoyable glance into the lives of its two affable, fictional lawyers.  Its tone is similar to that of previous legal shows “Ally McBeal” or “Boston Legal,” which similarly offered equal parts interesting legal issues and quirky, yet endearing characters.  Don’t necessarily expect to laugh out loud, but be moderately entertained.

In anticipation of TNT’s upcoming legal dramedy “Franklin & Bash,” which premiers tomorrow night at 9 p.m. Eastern, we had the opportunity to fulfill a lifelong dream briefly interview the two stars of the show, Mark-Paul Gosselaar and Breckin Meyer (during a multi-party press conference, but still).  Gosselaar is famous, of course, for playing the iconic character of Zack Morris in “Saved by the Bell” and, more recently, for his role on “NYPD Blue.”  As for Meyer, you may recognize him as the  skateboarding high school student in Clueless or for his roles in Road Trip or Can’t Hardly Wait. So, once again, we here at Abnormal Use continue our series, “Abnormal Interviews,” in which we bring you interviews with practitioners, commentators, and, now, actors.

“Franklin & Bash” is a comedy featuring Gosselaar and Meyer as two small-time lawyers with big-time courtoom antics who are recruited by a powerful megafirm.  So begins their fish-out-of-water experience, which is the central premise of the show.  Both stars seem to be very exited about their new legal show, and for good reason. By their own accounts, they’re having fun filming the series, and as you’ll see from our review of the pilot episode tomorrow, the show offers its viewers an entertaining – though not necessarily realistic – glimpse into the lives of its fictional young lawyers.

As mentioned above, we were on a multi-party press conference call with Gosselaar, and then some time later, a separate multi-party call with Meyer. Accordingly, we were only able to ask each of them one question. Fortunately for you dear readers, we here at Abnormal Use are ace interviewers, and all we need is one question. Bearing in mind that caveat, the following is a full transcript of our exchange with Gosselaar, who plays attorney Peter Bash.

Simons:  Hey, Mark-Paul.

Gosselaar:  Hey, there.

Simons:  Our readership is made up primarily of lawyers, and I know that you’ve played lawyers in the past, but I wondered what, if anything, you did to prepare for this role.

Gosselaar:  I got a tan. That’s basically it. You know, I mean, I – you know, I’d had my legal fill when I did “Raising The Bar.”  Thankfully, you know, I was able to go with David Feige, who was the creator of that show, and my character was loosely based on him. You know, I went with him and was an intern at the Bronx Defenders for about a week and sort of got my legal, you know, insight during that week, and for the last two seasons. So no, there wasn’t much that I had to question.

But if I did have a question, one of our producers and writers, one of our head writers, Bill Chais, was a defense attorney and a lot of the stories that we deal with on the show are from his background. So, if we ever have questions we have people that we can go to, and that’s always important. And well, I think we’re pretty true to – I mean obviously it’s television, you take some liberties, but I think we’re pretty true to staying true to the sort of legal, call it, the legal frame.

During an earlier part of the call, Gosselaar also shared what makes “Franklin and Bash” different from all the other legal dramas viewers have seen before on the small-screen:

Gosselaar:  Well, I think — you know, we haven’t seen comedy in the courtroom in a while. I mean, “Boston Legal” is probably the last one, “Ally McBeal” is another one, “L.A. Law” was a brilliant legal drama with elements of comedy, so I think that’s what sets it apart from what’s currently on television, as well as sort of the relationship between the two guys.

You know, you go home with these characters at the end of the day, so I think that that’s a very important element that isn’t on television on your typical legal dramas at the moment.

Later that afternoon, we joined the press conference call with Breckin Meyer, who plays attorney Jared Franklin on the series.  Here’s a transcript of our interview with him:

Simons:  Hi, Breckin.

Meyer:  Hey, how’s it going?

Simons:  Good. Our readership is made up primarily of lawyers…

Meyer:  Okay.

Simons:  . . . I wonder if I were a client of Franklin and Bash, why would I want your character, Jared, to represent me?

Meyer:  Well, the good thing is with Franklin and Bash, you get both Franklin and Bash. . . .  Jared’s a kid who grew up with a silver spoon in his mouth. His father was a — still is a high powered litigator, and he rebelled against that by not wanting to be a lawyer, but eventually had to accept that it was his calling, but if he’s going to do it he’s going to do it on his own terms. And I think you’d definitely — you’d get lawyering like you hadn’t seen before. How about that?

Simons:  Okay. And your character’s been described as quick-witted and scrappy. Do you have anything to add to that description?

Meyer:  Really kind of almost off the chart remarkably good looking. That — I mean that’s not me, that what — I mean, that’s what I’ve heard. . . .Yes, so that’s how I’d describe it.

Turn back to Abnormal Use tomorrow for our official review of the pilot, which airs tomorrow night on TNT.

Last week, we heard an NPR story about a Wacky Warning Label Contest put on by a man named Bob Dorigo Jones, a Senior Fellow at the Center for America.  According to its website, the Center for America’s mission is “to educate, motivate, and empower Americans to expand skills, entrepreneurship, prosperity and freedom.”

The contest works like this:  People submit entries for the product warning labels which “entertain[] and alarm[] the nation about the lawsuit-happy culture and the lengths to which companies must go to avoid lawsuits.”  People can venture online and vote for their favorites, and there are even cash prizes for the contest winners.  We here at Abnormal Use like the concept of this contest: highlighting the ridiculous lengths to which manufacturers must go to protect themselves from lawsuits, and to protect people from their own lack of common sense.

For instance, here is one of the finalists:

You can view all of this year’s finalists here.  The contest has been going on for fourteen years.  Some information about the 2010 contest can be found here.  The winners of the 2011 contest will be announced in June.  We can’t wait, and we’ll be sure to let you know which warning label wins.  In the meantime, we’d like to hear your thoughts about the most absurd warning labels you’ve encountered, either as a consumer or legal professional.

Although though we were perplexed to see a federal court address the issue, we can’t say we disagree with today’s opinion from the U.S. District Court for the Western District of South Carolina, which found that the three Star Wars prequels were “unreasonably dangerous and defective” as a matter of law. See Kurtz v. George Lucas, Lucasfilm Ltd., and Indus. Light & Magic, No. 2011-1138-THX (W.D.S.C. April 1, 2011). After hearing cross motions for summary judgment, the court denied the Lucas Defendants’ motion for summary judgment and granted the Plaintiff’s motion finding no genuine issue of material fact as to the films’ defects.

The facts were these: In 2007, Plaintiff Danny Kurtz found himself at his local video store in Seneca, South Carolina browsing through the racks of new DVDs. His young seven year old son, Milo, pleaded with his father to buy him some action movies. Dutifully acquiescing to the request, Plaintiff bought him the prequels: 1999’s The Phantom Menace, 2002’s Attack of the Clones, and 2005’s Revenge of Sith. At the time of the purchase, neither the Plaintiff nor his son had seen the films. (“Somehow, I made it through the last decade without seeing those movies,” the Plaintiff testified at his deposition, although he later acknowledged his familiarity with the films’ generally poor reviews.). Although the purchase was “against his better judgment,” he relented only because of the joy he felt his child might experience in being introduced to the Star Wars universe, a delight the Plaintiff recalled from his own youth in the early 1980s. After a marathon weekend viewing of all three prequels, the Plaintiff and his son experienced nausea, confusion, light-headnesses, shortness of breath, tinnitus, and a “foreboding sense of ennui.”

Plaintiff brought suit individually and on behalf of his minor son against George Lucas and several corporations, asserting various tort theories, including negligence and strict products liability. Plaintiff also asserted a novel “tortious interference with childhood memory” cause of action on his own behalf, arguing that the release of the prequels had destroyed his ability to reminisce his own younger days and his youthful enjoyment of popular culture. (The alienation of affection claims of Plaintiff’s spouse, Carrie, were settled for an undisclosed sum.).

In their joint answer, the Lucas Defendants asserted the affirmative defenses of contributory negligence, assumption of risk, unclean hands, and equitable estoppel, essentially arguing that Plaintiff knew or should have known of the films’ lack of artistic merit and was thus barred from asserting any tort claims based upon his viewing of same. See In re: The Last Airbender, 523 F. Supp. 2d. 147 (N.D. Ga. 2010); In re: Ishtar Litig., 111 F.2d 102 (9th Cir. 1988).

In denying the defense motion for summary judgment, the court rejected the Defendants’ reliance on In re: Bob Dylan Live Performance Litig., 867 F.3d 539 (S.D.N.Y 2006), in which that court held that a once talented artist can devolve and become so well known in the community as a disappointment that damages are not recoverable as a matter of law. See also Shyamalan v. United States, 543 F.3d 129 (6th Cir. 2008). In distinguishing Dylan, the South Carolina court observed that while Bob Dylan’s decline had been gradual over a period of years, the decay of the Star Wars franchise was sudden and immediate (and preceded by nearly two decades of engendered good will prior to the prequels’ release in 1999).

The court then granted the Plaintiff’s motion for summary judgment, noting in a single paragraph order that the films were “unreasonably dangerous and defective as a matter of law.”

The case is also notable for a few other procedural rulings made by the court:

• The court quashed the Defendants’ deposition subpoena to actress Natalie Portman, who the court decided had “already suffered enough.”
• Finding the issue nonjusticiable and incapable of resolution by the judiciary, the court denied Plaintiff’s request to issue a declaration that Han Solo had, in fact, shot first.
• Earlier in the case, the court had dismissed Plaintiff’s state law Unfair Trade Practices Act claim which was premised upon the casting of Hayden Christensen as Anakin Skywalker in the second and third prequels. In so doing, the court noted that the Unfair Trade Practices Act claim was merely an attempt to assert an improper negligent casting cause of action, a claim which the South Carolina Supreme Court had only last year abrogated in the Watchmen litigation. See Moore v. Snyder, 572 S.E.2d 492, 652 S.C. 19 (2009).
• The court denied the Defendants’ request to consolidate the case with a similar North Carolina matter arising from a Charlotte family’s viewing of 2008’s Indiana Jones and the Kingdom of the Crystal Skull.