As we’ve previously mentioned, our editor Jim Dedman is now contributing one monthly post to the North Carolina Law Blog.  This very morning, his third submission was published at that site.  The topic: “Can Emoticons Beat the Hearsay Rule?” Yes, you read that correctly.  He is actually analyzing where those little smiley faces people append to the end of their texts or instant messages might be helpful in a hearsay inquiry. His conclusion: They actually might help (maybe, sometimes). Here’s an excerpt of the new post:

Carole Gailor of Raleigh, North Carolina recently spoke at a North Carolina Bar Association conference on the rules of evidence as applied to electronically generated information. In so doing, she remarked upon the authentication and admissibility hurdles that litigants must confront when attempting to introduce electronic or digital evidence, such as emails, computer generated reports, social media profiles, and other such information. However, she made a stray remark which prompted the law nerd in me to take particular notice. Ms. Gailor noted that an emoticon might, in fact, assist in the analysis of whether a digital piece of evidence is admissible.

As a preliminary matter, we could turn to Wikipedia or Urban Dictionary or the like to find a formal definition of the term “emoticon.” But that’s not really necessary, is it? But everyone knows that they are the little smiley or frowny faces – or sometimes far more complex textual graphics – utilized by writers on the Internet to convey all sorts of present emotions.

But why bother with a lay definition? A number of courts have already tackled the term.

Read the rest of the post here.

As we’ve previously mentioned, our editor Jim Dedman is now contributing one monthly post to the North Carolina Law Blog.  Yesterday morning, his second submission was published at that site.  The topic: “Social Media Discovery – Timing is Key.” Jim’s post is a response to an earlier blog entry by Ernest Svenson at his Ernie the Attorney blog, which you can find here.  Jim’s post begins:

Timing is everything in litigation. That’s certainly true in the discovery arena, even when dealing with the (still) relatively new field of social media.  Recently, Ernie Svenson a/k/a Ernie the Attorney wrote a fascinating post about the perils and pitfalls of subpoenaing Facebook for an individual’s social media profile and underlying private data.  According to Ernie, Facebook usually refuses to produce a meaningful subpoena response – the good stuff you’re hoping to get will likely not be in the company’s formal response. Accordingly, he offers some alternative approaches to obtaining that data through the formal discovery process. There’s not much to add to his very thorough post; but I would offer the following tips on timing such requests.

Read the rest of the post here.

Once you start issuing subpoenas for social media discovery, you’ve tipped your hand to your opponent.  In his post, Jim offers some suggestions on how to structure and time one’s social media discovery to maximize results and avoid potential spoliation.

We’ve been doing this blogging thing for about twenty months now, and we’ve enjoyed bringing you legal news and irreverent commentary on products liability issues. One of our proudest moments here at Abnormal Use was when we were included on the ABA Journal‘s annual list of the 100 best legal blogs last year. We very much appreciated the support of our readers who nominated us for inclusion on that list. Guess what?  The ABA Journal is now seeking nominations for this year’s list.  We humbly request that you, our dear readers, nominate us for the honor again this year.

You can do so by clicking here and briefly completing the very short nomination form. It should take only a few short moments to complete.

Be sure to tell them what you’ve liked about Abnormal Use this year (as the folks at the ABA Journal are looking for specifics). So far, we’ve had a pretty good year, if we do say so ourselves. We’ve continued to bring you the latest state and federal legal news and case commentaries in the products liability field.  We have interviewed a number of intriguing law professors, practitioners, and Hollywood celebrities (including the writers and producer of the 1991 film Class Action and even Mark-Paul Gosselaar and Breckin Meyer of TNT’s “Franklin & Bash” TV show). We offered some critical commentary on Hot Coffee, the would-be documentary film by plaintiffs attorney Susan Saladoff, which earned us shout-outs from both The New York Times and National Public Radio.  In March, Scientific American picked up a story we did on a series of predictions made in 1931 about the year 2011. We even came up with a comprehensive list of songs about attorneys and judges and authored what we thought was a pretty darn funny April Fool’s Day joke on the Star Wars prequels.  And, of course, each Friday, we have brought you a different legal themed comic book cover (which, you might not realize, is actually pretty difficult, as finding all of those legal comic book covers is sometimes like finding a needle in a haystack). We’ve even set up a page on Facebook. All of this we have enjoyed doing immensely.  Throughout this enterprise, we have also made a number of good friends in the legal blogosphere.

Which brings us back to our humble request for a nomination. Take a look at the nominating form and the ABA Journal‘s brief guidelines for submission.  If you enjoy the commentary we offer here and would like to support us in this endeavor, we would very much appreciate it. Nominations will be accepted until September 9.

Attorneys, save for a small cadre of early adopters, are typically slow to adapt to new technology and social medial utilities.  Accordingly, it may be some time before many practicing attorneys make their way to – or even hear of – Google+ (although invites are already being called “the hottest ticket in law firm marketing”).  You may have seen some of the buzz regarding Google+, and perhaps you were initially dismissive in light of the complexities and/or confusing qualities of Google’s other recent social media platforms, such as Google Wave or Google Buzz (which turned out to be quite a dud).  However, Google+ is the search engine giant’s attempt to compete directly with Facebook by establishing its own social network, but it’s also more than that.  Already, a number of attorneys – mainly those interested in legal technology, social media, or the next big thing – have migrated to Google+, turning it into both an interesting place for the discussion of legal technology and an echo chamber of sorts. In fact, the biggest challenge at this point seems to be convincing potential users to migrate to yet another social media platform.

If you use Facebook, Google+ will seem familiar to you, although it appears to be a bit less aesthetically busy.  The chief difference between Facebook and Google+ is that Google+ starts with the assumption that users have different sets of friends with whom the user will want to share different pieces of information.  In essence, it acknowledges that most true of truisms:  we all live in many separate worlds, and we don’t like for those worlds to collide.  From the very moment you join, you can separate your work friends from your college buddies and so forth.

Google+ does this by establishing what it calls “circles,” user groups to which you must assign those with whom you wish to connect using the site.  For example, you can establish a circle called “family” and assign relatives to that circle.  Similarly, you can create circles centered around interests groups such as law, technology, or even music or sports.  (You can even create a circle for those that you wish to mainly ignore.). When you elect to post something to Google+, you must decide which circle to which you will send the post.  Accordingly, a post sent to one’s sports or family circle will not be published to any other circles.  Users can of course send a single post to multiple circles, one circle in particular, or even one user in particular.  How does this affect attorneys?  Well, for one, it allows us to more easily discuss the law and legal issues on their social networking profile without pestering those who are not interested in that subject matter.  Those of us who use social media realize that there are many different “friends” with whom we have connected who may not wish to learn about the latest legal issue.  One can create a circle called “law” and share legal issues only with that circle and spare one’s remaining friends from any such discussion. This may be easier than maintaining separate personal and professional profiles.

How does this differ from Facebook (which, as you know, we here at Abnormal Use recently joined ourselves)?  Well, Facebook allows one to create different groups and control the level of information that is shared with those particular groups.  However, Facebook did not start with that ability as a core function.  When one becomes friends with another on Facebook, by default, that friend can see all of your information unless you adjust to private settings or assign that user to a particular group that limits the profile information that can be seen.  Further, if you’ve already accumulated hundreds and hundreds of Facebook friends, you’ll need to create certain privacy settings and add each friend individually to each desired privacy setting. That could become quite a hassle. With Google+, when you confirm a connection with another user, you must assign that user to a particular circle or circles as part of the connection process. It’s easier, in part, simply because Google+ is new.  However, Google+ seems to have been designed to ameliorate the “worlds colliding” dilemma, while Facebook has had to retcon itself to address that concern.

As we noted above, the biggest challenge for Google+ is for people – many of whom use multiple social networking utilities – to bring Google+ into the routine.  We’re currently struggling with that, as we already use Twitter, Facebook, and LinkedIn, but the (relatively) new Google+ iPhone app may make that a far easier task. In sum, Google+ is worth investigating.

Guess what? We here at Abnormal Use have set up a Facebook page for our blog content, which you can find here. Sure, we waited until well after that movie about Facebook was released, but we wouldn’t say we’re tardy in joining everyone’s favorite social network. If anything, we’re fashionably late.

As you might expect, we’ll be posting links to our blog content there, so now, you don’t even have to leave your favorite (or most familiar) social networking platform to learn what we’re up to here at our site.  That just shows you how considerate we are. We’re hopeful that this move will promote additional interaction with you, our dear readers, and allow us to reach you where you already may be.  We’re very accommodating, aren’t we?

So, now, if you like us, if you really, really like us, then you can login to our new Facebook page and hit the like button!

Today, we here at Abnormal Use continue our series, “Abnormal Interviews,” in which we conduct brief interviews with law professors, practitioners and other commentators in the field. For this latest installment, we turn to Ernest Svenson of the Svenson Law Firm.  He’s a New Orleans attorney and author of the old school law blog, Ernie the Attorney, which began in 2002. As a longtime legal blogger, he knows quite a bit about legal technology, blogging, and social media, so we thought we would pick his brain about those topics. He was kind enough to agree to an interview.

1. You’ve been a legal blogger since 2002. What is the biggest change you’ve noticed in legal blogs since that time, and is it for the better?

The biggest change in law blogging has been the explosion in the number of law blogs and the topics covered. Definitely a wonderful development, in my view. Lawyers are powerful information processors. We can output and consume prodigious amounts of information, and we can parse information for reliability better than most other professionals. Not all, but most.

When I went to law school law reviews were a staple source of new legal analysis, and I was fortunate enough to be an editor of the law review at my school. I have a very strong appreciation for how intricate the process was to publish a law review, especially how long it took. Word processing tools were complicated and expensive, and distribution wasn’t cheap either. Now a law professor who wants to comment on a new legal development can bang something out in a few days, or even a few hours, and upload it to his or her blog where it’s instantly available to anyone with a computer and an internet connection. To me, this is an amazingly beneficial development.

2. What’s the next big thing in social media that attorneys should be aware of?

Google+ seems to be hot, but I’m not sure that it is of high value to attorneys. At least not yet. Frankly, I think that attorneys are still struggling to assimilate some of the “old things” in social media. Divorce lawyers are probably the most keenly versed in the implications of social media in litigation, especially Facebook. But social media will have implications in many spheres besides just litigation.

Still, if lawyers want something to focus on I’d say “geo-location” tools like Foursquare or Facebook Places. As more people buy and use smartphones with GPS capabilities, we’ll see more social networking platforms that leverage information about where you are. This can be good for users (if they want to find a nearby place to eat or buy gas) or bad users (if they inadvertently reveal where they are when they intended to conceal their location, or lie about it). But, whether you view geo-location as good or bad, you need to pay attention to it because it will inevitably be more prevalent.

3. These days, there are many, many social media platforms, such as Facebook, Twitter, LinkedIn, and now, Google Plus. How can attorneys maximize their use of social media without becoming overloaded or spreading themselves to thin with so many sites?

Information overload has two components: output and input. Mostly people fret about receiving too much information. I agree with Clay Shirky (the NYU professor and prominent speaker and author) that we don’t have an “information overload” problem so much as we have a “filter failure” problem. We need to find better ways of filtering inbound information. My main tools are: (1) RSS readers, (2) Twitter and (3) trusted agents (which are really just sub-filters that feed into my RSS Reader).

For information that one outputs, again, there are tools. I have three blogs, or four, if you count my law firm website, and just as many Twitter accounts and Facebook pages. If I had to login to each of those places and post stuff I’d never get anything else done. I use a service called SocialOomph that lets me dump things into buckets that then get parsed out on a regular schedule. Discovering this tool was a boon to my workflow and has eased my stress at the same time that it gives the impression of increasing my output.

4. What do you think is the most overlooked social media utility for attorneys? Why is it overlooked?

Twitter. Before Twitter appeared I spent a lot more time with my RSS Reader, constantly tweaking the information stream so that I could get a strong mix of opinions and viewpoints as well as breaking news. Twitter now supplies that to me with virtually no tweaking, and I can gather that same information as easily on my smartphone as I can on a computer.

Lawyers, and others, tend to dismiss Twitter by saying “I have nothing to say on Twitter.” Fine, but many people that you would find interesting do, and you are missing out on an efficient way to tap into those opinions by ignoring Twitter. Sure, you have to curate your Twitter feed to capture useful views and not shallow ones. But that’s not as hard as most people think, and so they stick to gathering news from traditional sources which have filters to be sure, but filters that are preset for mass markets.

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

State bars are not as behind on social media as many lawyers think. The Louisiana Bar, my state bar, has a Twitter feed and a Facebook page. Other local bar associations have adopted social media as a cheap and yet effective way of communicating with its members. I predict that social media will be embraced by all bar associations eventually. Proprietary communication methods seem useful, until you realize that getting people to adopt a new communication platform is harder than herding cats. Facebook and Twitter may have funny names, but if more than a half a billion people know how to use those tools it makes sense to use them to talk to your constituents.

6. How can smaller firms and solo practitioners utilize social media and legal technology to simulate the advantages of a larger law practice?

Small firms have advantages now that we are only just beginning to become aware of. Larger is not better unless being larger helps tackle and otherwise insurmountable problem. Small firms can market better now because of social media and the internet, and they can collaborate with other practitioners anywhere in the world. That which is digital moves more quickly to more place and can be analyzed more precisely.

A small firm that wants to become paperless can do so much more quickly than a large firm. And at a much lower cost. Large firms have bloated overhead and are more easily trapped into longer term contracts. All of those large costs have to be passed on to clients. Small firms can work smarter and take advantage of innovation faster, thereby lowering their cost and delivering better service to their clients. Obviously, this assumes that the lawyers in both small and large firms are of the same caliber.

I believe that the quality of lawyering is not dependent on how large a firm is, but rather upon how clever the individual lawyers are. Being clever in arguing the law is paramount, but—increasingly—so is knowing how to use technology to gather information better and faster. Technology is increasingly important in how we persuade. An old (but wise) judge recently admonished a group of lawyers in New Orleans that “jurors expect lawyers to present visually compelling evidence,” adding that any lawyer who says “I’m too old to fool with this technology stuff” when addressing a jury is basically saying “I don’t know how to read very well.”

I couldn’t agree more.

BONUS QUESTION:  What is your favorite pop culture depiction of legal technology?

Probably The New Yorker cartoon where a guy with a hood is robbing a bank and the teller informs him politely that “You know, you can do this just as easily online.”

BIOGRAPHY: Ernest Svenson graduated from Loyola Law School in 1985 and then spent two years clerking for the Honorable Adrian Duplantier in the Eastern District of Louisiana.  He has practiced commercial litigation since then, first for a well-respected New Orleans law firm, and more recently as a solo practitioner.  He has started several weblogs, including PDFforLawyers.com and DigitalWorkflowCLE.com.  His Ernie the Attorney site (ernietheattorney.net) was chosen by the ABA Journal as one of the top 100 law weblogs two years in a row.  He believes that the practice of law is largely an “information processing business” and tries to help lawyers find more efficient ways to process their information. You can follow him on Twitter at @ernieattorney.

• Believe it or not, but the Marvel Comics character She-Hulk is an attorney. Above, you’ll see the cover of The Sensational She-Hulk #59, published not so long ago in 1994, during which She-Hulk, clad in her courtroom attire, asks the court for a “short recess” so that she can dispose of the host of super villains who have appeared. (One wonders how they all bypassed the security at the courthouse entrance). Whatever the case, we suspect the request was granted by the trial court judge. She-Hulk’s Wikipedia entry describes her as a “highly skilled lawyer” who has “served as legal counsel to various superheroes on numerous occasions.” She apparently practices at the fictional firm of Goodman, Lieber, Kurtzberg & Holliway which, curiously enough, has its own Wikipedia entry. (Below, at the end of this post, you’ll find the cover of She-Hulk #7, published very recently, only back in 2006. Note that She-Hulk dresses up for hearings and walks up the courthouse steps just like real lawyers do!)
• The ContractsProf Blog uses a clip from “Seinfeld” to illustrate the principles of Lauvetz v. Alaska Sales & Serv. d/b/a Nat’l Car Rental, 828 P 2d 162 (Alaska 1991). We encourage this method of legal instruction. As you know, we love “Seinfeld.”
• You may recall that here and here we mentioned the case of Barbour v. Int’l Union United Auto. Aerospace & Agric. Implement Workers of Am., (4th Cir. Feb. 4, 2010) (PDF), in which the Fourth Circuit adopted the last served defendant rule in the removal context. Beware: that case is now no more. Brian Peterson of the West Virginia Legal Weblog reports that the Fourth Circuit, en banc, has issued a new opinion in the case and held that it will not adhere to the last served defendant rule after all. Rather, it has elected to follow the McKinney Intermediate Rule. See the new opinion here. [PDF].
• Eric Goldman of the Technology & Marketing Law Blog writes about Badella v. Deniro Marketing LLC, 10-03908 CRB (N.D. Cal. Jan 24, 2011), a putative class action brought on behalf of “lonely and vulnerable men” who claimed they were tricked into using an online dating site. The court refused to dismiss all of their claims. Those are going to be some great depositions.
• We must confess that we love it when Plaintiffs claim one thing in their lawsuits and entirely contradict themselves with posts and pictures on Facebook. This past week, that topic was apparently quite popular, with a story at MSNBC/Reuters and follow-ups here at Overlawyered and here at the Wall Street Journal Law Blog. While you’re off reading those reports, we’re just going to go set our Facebook Wall to private.
• Deadline Hollywood, a widely read Hollywood blog, reported this week that pay cable giant HBO has bought the rights to “Hot Coffee,” the Susan Saladoff directed documentary about the Stella Liebeck McDonald’s hot coffee case. As you recall, we previously commented upon that film here. This, of course, means that the film will receive a much wider audience than it did at the Sundance Film Festival, where it premiered just a week ago . Writes Deadline Hollywood‘s Mike Fleming:
  

  EXCLUSIVE: HBO has closed a deal for Hot Coffee, the Susan Saladoff-directed competition documentary which focuses on how corporations have used the memory of outlandish legal verdicts as a way to press for tort reforms and avoid jury trials through arbitration on cases that actually have merit.

  HBO’s Sheila Nevins viewed the documentary after it premiered last Monday. I’m told the deal was mid to high six-figures. HBO licensed the film for broadcast and VOD for 2 years, and will afford the film a qualifying Oscar theatrical run before it airs on the pay channel. Preferred Content’s Kevin Iwashina brokered the sale. Carly Hugo and Alan Oxman produced with Saladoff.

  The film’s title refers to the famous case of a woman”s million dollar judgment from McDonald’s over a spilled cup of coffee. Saladin, a lawyer, focuses on other outrageous cases that illustrated where corporations were negligent or unresponsive. They include a case involving Halliburton, which housed a 19-year old worker overseas in a barracks with men and ignored her concerns. She was gang-raped.

  Although we caught some grief last week for pointing out Saladoff’s career as a Plaintiff’s attorney and longstanding ties to various “civil justice groups,” we stand by our post and look forward to see the film when it hits our television screens.

Fact: Technology is moving faster than many of us can fathom. This is, of course, news to no one. The laptop I bought just one year ago is now a “dinosaur,” and I could probably buy a brand new one with the same specs for roughly half of what I paid last year.

Fact: The law has not kept up with the quick pace of technology. This is also news to no one. Privacy concepts have been turned on their heads by the Facebook/MySpace/Twitter social media explosion. Entirely new concepts of law have also developed over the past few years; “e-discovery” has raised the stakes – and the cost – of litigation dramatically.

The ABA Journal provided another example of technology outpacing law in its newsletter last week: the driverless car, citing a recent New York Times article on the same subject. Apparently, Google has developed technology that can drive a car with minimal human input. In fact, the only accident that occurred during testing of the vehicle was caused by human, not car, error. This is a huge jump even from the Lexus LS460 that can park itself.

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?

We don’t have an answer yet, because it’s all hypothetical at this point, and “the law” hates hypotheticals. But my point is this: Do we really want “the law” to keep pace with technology?

Technology always asks “Can we?”, but in my experience, sometimes fails to consider the better question of “Should we?” For my part, I’m not sure a driverless car is a good idea. Thus, I disagree with Kenneth Anderson of The Volokh Conspiracy, who recently opined that “[t]he idea of robotic cars that drive themselves is a good one, I think, and one whose time is rapidly coming.” But the law is different. It must always ask, what “should” the law be? And if that means that it moves slowly, even glacially, while it considers the answer to that question in a new situation, then that’s okay. Or maybe I’m just old [fashioned].

For my part, I’m still waiting for someone to sell me my own personal Rosie.

Someday.

Mafia Wars significantly marginalizes the social utility of Facebook. I confirmed most of my Facebook friends against my better judgment, only to later hide their status updates, because I don’t care about the fake fortune they have amassed, the ” jobs” they have completed, or the multiple assassination attempts they have survived. I have gone to New York, Las Vegas, Paris, and London. I don’t need to pretend to go there to establish a simulated criminal empire that serves to camouflage a deep sense of loneliness. Moreover, because all Facebook users are subject to Mafia Wars updates, the backlash against Mafia Wars has also risen to new levels, robbing me of the usual cachet I enjoy when I express disdain directed towards society. Mafia Wars, how big a judgment would it take to end this?

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

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

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

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

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