As we previously mentioned, we here at Abnormal Use are spending May 2012 focusing on comic book covers featuring police line-ups.  Behold! Above, you’ll find the cover to Mr. District Attorney #4, published way, way back in 1948. Okay, it doesn’t look like there is anything in between the purposed “Merchants of Death” and the witness identifying the suspect.  In fact, the suspect who has been identified appears to be glaring icily at the witness from atop some type of raised platform.  This does not bode well for the witness. Alas.

For some reason, yesterday, we here at Abnormal Use were thinking about Star Wars.  It’s a bittersweet topic for us, to be certain. Did you know that two years ago, we published excerpts from several state and federal court cases referencing Star Wars characters? And, of course, our magnum opus was our Star Wars April Fool’s Day gag in 2011. Take a look, if you like.

Speaking of nostalgia, did you know that our very first edition of Friday Links was published way, way back on January 8, 2010? Take a look at that puny first entry – which didn’t even feature an image, much less a legal themed comic book cover – by clicking here!

Have you heard of Tiger Lawyer? If not, it’s clearly something you need to investigate. With a name like that, how can you not?

Don’t forget! You can follow Abnormal Use on Twitter here and on Facebook here! Drop us a line!

Alcohol abuse is undoubtedly a serious problem for the Oglala Sioux Tribe.  As noted in the linked AP article, nearly a quarter of all children born on the reservation suffer from fetal alcohol syndrome or fetal alcohol spectrum disorder.  Moreover, the average life expectancy for tribe members is estimated to be less than 52 years, which is about 25 years shorter than for average Americans.  As such, the lawsuit seeks damages for health care costs and other alcohol-related problems on the Pine Ridge Indian Reservation.  The tribe also wants a judge to prohibit alcohol sales to Native Americans in Whiteclay.

It is certainly interesting that the Tribe has taken the position that alcohol retailers in Whiteclay should discriminate against Native Americans who seek to legally purchase their products.  One can assume that most of the alcohol sold is being illegally smuggled by the purchasers back onto the reservation for consumption.  But do the retailers, distributors, or manufacturers have a legal duty to ensure the products are consumed off of the tribe’s reservation?  And how far would such a duty extend?  If tribe members started driving to the next closest town, would that town’s retailers also be required to refuse sales to Native Americans?

The defendants in the case have moved for summary judgment.  However, if the case is allowed to proceed it has the potential for far reaching problems in the future for beer companies.  As one of the attorneys pointed out in the AP article, if the lawsuit is successful it could force the beer manufacturers to analyze the sales data of all of its distributors and retailers to ensure that none are selling a disproportionate amount if its product.   Small college towns come to mind as other places where the quantity of alcohol sold could likely far exceed the amount expected based on the number of residents who are of drinking age.

This certainly seems to be a hot button issue in Nebraska.  There’s even been a documentary about the retailers and the problems in Whiteclay.  You can watch it here.

With summer on the horizon, the Consumer Product Safety Commission has issued a warning to users of portable pools.  According to the report, an average of 35 children under the age of 5 die annually in portable pools, accounting for 11 percent of all pool drownings.  Considering these statistics, the CPSC obviously has valid reasons for concern.  However, in our usual irreverent way, we here at Abnormal Use must question the sufficiency of the CPSC’s tips for the prevention of such accidents.

There’s nothing necessarily wrong with the CPSC’s tips.  Rather, the advice is more akin to a helpful reminder that breathing is essential to sustain life.  Take this tip for example:

Teach children to swim, float and other-life saving basics.  But do NOT consider young children “drown-proof” because they have had swimming lessons.

No doubt, the ability to swim is a great way to lessen one’s chances of drowning.  We understand that not all parents are ideal, but do people really consider children taking swim lessons as “drown-proof”?  After all, they are called swimming lessons – not Olympic training.  Maybe the better tip would be:

Even children capable of swimming are susceptible to drowning.  When children are playing in pools, always assume that accidents are possible.

Our personal favorite tip is one with a great deal of merit.  It is perfectly logical.  Yet, something about it seems a bit misplaced.

If you can’t fence the pool, use smaller, easier to store portable pools.  Then, empty the water ANY time you are not supervising the pool and turn it upside down or store it away.

Again, it’s good advice.  If a small pool is capable of being drained after each use, it makes sense to do so and take away the hazard.  But is this really the solution?  Reading between the lines, we know what the CPSC really meant to say:

If you choose to purchase an unsightly above-ground pool, fence it in.  If fencing is not an option, save yourself the embarrassment of having others know you purchased an above-ground pool by seeking other options.  Small plastic pools are socially acceptable for young children.  There is no shame in having your children observed temporarily playing in such pools.  But please, empty the water and remove the pools from your yard when not in use.  Teach children to clean up their toys.

Even if fencing is an option, understanding why anyone elects to purchase a large, above-ground pool is beyond our pay-grade.  If the CPSC was forthright, they would have taken inspiration from the late Mitch Hedberg:

Do not be persuaded through television advertising to purchase an above-ground pool.  Those commercials are only 30-seconds long because that is the maximum amount of time you can depict yourself having fun in an above-ground pool.  To prevent accidents and overall boredom, please seek out safer, more entertaining alternatives.

With that said, we do applaud the CPSC’s efforts.  Pools do present a risk of drowning.  With an appropriate level of care, many of these accidents can be prevented.  If you do have a pool in your yard – of any type – we refer you to the most important rule formulated by the Commission:

NEVER leave a child unsupervised near any pool or spa.

The enthusiasm of a new law blogger is unparalleled.  When a lawyer decides to blog, he or she has much to say and to offer potential readers.  Often, the new legal blogger already has several – perhaps even half a dozen – potential posts in mind.  In fact, it is that initial multitude of post ideas which prompts the desire to create a blog in the first place.  But, inevitably, as days pass, weeks go by, and weeks become months, the initial joy of blogging – like most other things that once made us happy – becomes a chore.  Sadly, the once promising blog evolves from a labor of love to a non-billable business development task, which typically falls to the bottom of the stack.  After all, non-billable work – particularly tasks which do not involve direct contact with actual or potential clients – must come second, third, or even fourth to other such plans.  This is why so many blogs die early deaths and why the legal blogosphere is full of blog graveyards.

There’s lot’s more, so click here to read the rest, which includes some suggestions on how to keep writers interested.

Argues Andy:

There is an on-going debate about whether music played from a vinyl record sounds better than digital music, but my goal is not to settle that debate.  My point is that collecting and listening to music on vinyl is just a richer, more pleasurable experience.

. . .

First, you can’t take vinyl with you.  You have to be at the stereo.  You have to physically handle the record, and clean it.  You have to operate the machine, which has moving parts.  The sound of the record isn’t the same every time, because playing a record literally wears it out.  That makes you treat the vinyl and the music on it with care and respect.  Finally, you can’t jump from song to song with a click.  So you hear songs you would otherwise miss (or not purchase at all).  Plus a record’s sleeve can be 12 by 24 inches, allowing ample room for really cool or really awful art.

Combining all these elements makes it likely that you are really already passionate about what you are hearing or more likely to become passionate about it.

Andy makes an excellent point; the art of listening to vinyl is, really,  an affectation of the listener.  We enjoy the pleasure we derive from listening to music on vinyl because it is the fruit of a labor of love.  Andy notes in the piece that he is “old, so when [he] started buying music, the CD was just coming on to the scene.”  That makes him not to much older than me; and although I appreciate the care involved in the collection of vinyl records, I must step forward to defend the often maligned, never cool enough for school compact disc.

(It’s a product, after all, so we can talk about this issue on a products liability blog, right?)

The CD, by its very nature, is mobile.  It can be played in the car, thereby freeing the driver from the awful constraints of the popular radio.  With portable CD players, either the once ubiquitous Discman or the fabled boomboxes of yore, the listener’s music of choicecan be easily brought from room to room, home to home, venue to venue, inside or outside.  Such technology allows us to take our own personal favorite albums, which may or may not be available on the radio or elsewhere, with us to play for our friends and such.

That’s far more difficult with vinyl, especially these days.

There’s also the quality issue.  CD’s do – and always have – sounded better. Remember when CD’s first arrived on to the scene in the mid to late 1980s? Listeners – not just snobby audiophiles, either – marveled at the depth of difference in audio quality between their old LP’s and the new CD’s. The more nostalgic fans – who insisted that the snaps, crackles, and pops of old vinyl were inextricably intertwined with the music listening experience – soured on CDs, finding new technology too clean and clinical in the absence of such accompanying noise.

But you can’t fault CD’s just because they eliminated some of the flaws of the system that you grew up enjoying, can you?

Plus, CD’s are simply more durable. Look at a 25 year old box of LPs and you will see faded, frayed, and damaged albums.  You will likely hear scratched and damaged content on the albums themselves unless the owner behaved like a museum curator.  With CD’s, the protective outer casing typically preserves the albeit album art (for the most part, at least). If the listener takes reasonable care, the music will sound just as good as it did on the day you initially bought it. Lord knows my 21 year old copy of Nevermind still sounds great.  Certainly, there are albums that one frequently enjoys that may require replacement on CD due to heavy listening.  I’ve had to  buy several of the Radiohead albums at least three times, and of course, I’ve bought The White Album at least four times (in various formats) over the last 25 years.  But I would have probably had to replace those albums more often had I been buying them on vinyl.

CD’s simply offer a richer listening experience absent a few, perhaps pleasurable, steps required of vinyl. There will always be people who will want to grind their own coffee and derive pleasure from the additional work required of that enterprise.  But there is nothing wrong with an easier more accessible way to enjoy music, particularly when the audio quality is superior.

Now don’t get me started on the issue of CD’s versus digitally downloaded music.  One can, of course, rip tracks from a CD onto one’s computer, but the default bit rate for imported tracks means that the audio quality is significantly less.

But that’s a debate for another day.

(An editorial aside: The best part of writing this article was learned that the boombox has its own Wikipedia entry.).

As we previously mentioned, we here at Abnormal Use are spending May 2012 focusing on comic book covers featuring police line-ups.  Above, you’ll see the cover of Dick Tracy #89, published way, way back in 1955. There’s nothing particularly jarring about the line-up itself (and much of that Warren Court jurisprudence was years in the future, anyway).  However, what strikes us about this cover is the amateur logo on the side of the police video camera. “Police T.V.”? In stencil? Wow, police, you couldn’t outsource that? Sigh.

Whoa! If you can believe it, this is our 650th post here at Abnormal Use! That’s a lot! Does this mean that we are in the same realm as Action Comics, which published its 650th issue back in the halcyon days of 1990, or even Detective Comics, which published its own 650th issue back in the fateful year of 1992? Superman published its 650th issue in 2006, as did Batman. We’re in good company.

Our own bloggers Stuart Mauney and Rob Green were recently published in the ABA Tort Trial and Insurance Practice Section’s Committee Spring 2012 Committee News newsletter. Their article is called “Emergency Response To Catastrophic Trucking Accidents.”  It can be found on page 3 of the PDF newsletter. Check it out. I mean, really, it’s got the word “catastrophic” right there in the title. You have to read it.

Once again, our pals at The Law and the Multiverse are offering some online CLEs. Not to be missed.

What? You’re not following us on Twitter? Quick, click here to remedy that!

With this as background, I was excited when a friend invited me to attend the NHRA Four-Wide Nationals at zMax Dragway in Charlotte, North Carolina, last month.  It’s the only four-lane concrete dragstrip in the world, where every ticket is a pit pass.  I took a stroll through the pit area, funnel cake with powdered sugar in one hand and a fried turkey leg in the other.  I took in all the sights, sounds, and smells of NHRA drag racing.  The “sights” included Top Fuel dragsters and Pro Stock race cars.  The “sounds” included high speed devices used to fix parts on the dragsters and the chatter of crew members as they made the necessary adjustments.  The “smells”?  Gas!  Exhaust!  Burned rubber!  I even got to meet Leah Pruett, who was competing in the Pro Mod series for R2B2 Racing out of Duluth, Georgia.

With our VIP credentials, we wandered over to the starting line for a closer look.  As we did so, a truck pulling one of the dragsters came perilously close to running over my foot, almost causing grievous injury.  The nascent plaintiff’s lawyer in me began to think “What if . . . ?”  Would I have a claim against NHRA for my injuries?  Would my claim be barred by my own negligence in attempting to balance a funnel cake in one hand and a turkey leg in the other?  Had I assumed the risk of injury by getting too close to the staging area?

As these thoughts went through my head, my defense attorney instincts returned.  I quickly read the reverse side of my ticket to find a “Notice and Warning to Credential Holder.”

By buying or using this credential you agree that:

YOU ASSUME ALL RISKS AND DANGER of property damage, personal injury, death, and all other hazards related in any way to attending this event, anywhere at the facility and at all times before, during or after the races.  Dangers include flying objects, vehicles, other people, conditions at the facility, and unforeseen hazards.  You agree that NHRA, track owners and operators, racing participants, and each of their respective officers, owners, officials, sponsors, contractors, employees and agents shall not be liable for any loss, damage, or injury to you and you hereby release them from all claims for liability.  Be alert for hazards at all times.

Flying objects?  Does that include the kernel of kettle corn which grazed my cornea after it flew out of the hands of the 10-year-old kid standing in line next to me at the lemonade stand?  Other people?  Are the terms “other people” and “flying objects” mutually exclusive?  Could flying objects include other people?  Does other people include the no-shirt, beer-bellied fellow with the “Mama” tattoo who bumped into me as we were shopping in the NHRA merchandise trailer?  Does “unforeseen hazards” include hearing loss from the use of defective earplugs?  So many questions and so few answers.

Despite all the risks, dangers and hazards of NHRA Racing, we had fun and would do it again.  A “shout-out” to Dave Lee (President), Roger Burgess (Founder/Chairman of the Board), and all the other folks at ProCare Rx, who sponsor the R2B2 Racing Team, for a great experience.

See y’all at the races!

Why would they do that?

It seems a curious statement to make, particularly if the expert has been around long enough to have been challenged on multiple occasions in litigation across the country.  Diligent counsel will always locate and review an opponent’s expert’s website, if one exists.  If the expert maintains that he or she has never been excluded on such grounds, defense counsel would naturally ask if that fact were still true. If so, the required follow up question becomes:  “If you’ve not been excluded on Daubert grounds, on what grounds have you been excluded?”

Recently, we deposed an expert who made such a representation on his website.  However, after spending less than five minutes on Westlaw, we discovered that he had been excluded in not one but three reported decisions.  Note that these were decisions that were on Westlaw, and these findings may not have been included unreported exclusions or those which occurred at the trial court level that were never appealed.  One such exclusion came from the very first case in which the expert had offered opinions.  At the deposition, we naturally confronted the expert with these three opinions and claimed not to know of them.  How is that?

Sure, two of the opinions were more than a decade old, but the third was from 2011 (and in that case, the trial court had excluded the expert, later granted a motion for new trial based on the belief that the exclusion was improper, and ultimately earned a reversal from the Court of Appeals because the expert’s opinions had been proven to be false by some properly admitted trial testimony).

How could someone not know that?  Well, maybe the expert simply received a call from the lawyer who hired them noting that the case had settled or otherwise resolved, and that lawyer felt it unnecessary to reveal the full story. But how could an expert elect to make that representation on his or her website and then not track whether or not that was true?

We shouldn’t object too much, as it’s always fun to hand an expert a court opinion he or she has never seen before.

Again, there does not seem to be must use for this technology in the legal field.  First and foremost, confidentiality and privilege concerns may prevent an attorney from sharing his exact location at a given time with anyone other than his client.  Further, clients will receive no additional value by “checking in” to their attorney’s office, although we suppose some practitioners could, in fact, offer some type of incentive for future clients, although we don’t know how that might look or whether it would be ethical or not.

Despite such concerns, these days, most commercial establishments, including law firms, have their own entries on Foursquare.  Sometimes these are created by the firms themselves, and more likely than not, the entries are generated by whatever crawling software those services use to create specific entries for a given city or town. But it’s not just law offices on Foursquare.  Also included are entries for the types of places lawyers frequent, such as courthouses, bar association headquarters, CLE sites, and other such haunts.

What inspired this post was a comment left by a Foursquare user a county courthouse somewhere in the Southeastern United States.  As a judicial center, it hosts various courts and offices where both civil and criminal trials are held.   Sure enough, the courthouse had its own entry on Foursquare, and the following comment was left by a visitor on December 21, 2011:

“If you kill in self-defense don’t destroy evidence and run away for 2 weeks, it looks bad to the jury.”

Wow.

Probably good advice, although we are trying to envision the exact circumstances by which this comment was offered.  Was this a juror commenting from the deliberation room?  Was this a courtroom observer commenting upon public proceedings?  An attorney offering pro bono legal advice? Was this a reporter?  Surely it was not the defendant attempting to learn from his or her mistakes?

Get this: that entry is not an anomaly.  Here’s a December 2010 comment we found to the Foursquare entry of a federal courthouse:

“Don’t break the law and you wont have to spend much time here.”

Again, probably good advice, though much more general than the first comment we discussed.

As you can see, there are some uncomfortable questions to be asked accompanying the usage of Foursquare in the judicial process.

The customer storms out of the place. The customer service representative follows her to the parking lot, yelling and screaming.  The customer, not to be outdone, continues the verbal assault from her car.  Finally, the customer decides to leave, places her car into reverse, and hits the gas.  As she raced backwards, she clips the customer service representative, causing her injury.

The customer service representative lawyered up and sued the customer.  That’s right.  You guessed it.  I represented the customer.

We mediated the case, in which the Plaintiff claimed over $20,000 in medical bills and a permanent injuries.  I met with my client before the mediation.  I asked her if she was comfortable offering an apology during the opening statements of the mediation session.  She quickly replied she was indeed sorry the whole thing had happened, and that the Plaintiff had gotten hurt.  I reminded her that hurtful words were exchanged, including racially insensitive remarks by both parties.  [Note: The remarks were so offensive that I am not going to publish them in this post.]  She seemed genuinely interested in getting the matter settled, and if an apology would help do so, she was all for it.

After the mediator explained the process, and the plaintiff’s attorney completed his opening remarks, I presented our case.  This was an accident, the customer was sorry this happened, and we hoped we could get the matter resolved, or words to that effect.  I then turned to my client, and asked her if she had anything to add.  To this day, I do not recall exactly what she said, but it was NOT an apology!  There was no acknowledgment of the injury.  She did not take responsibility.  She did not express any regret or remorse. Whatever she said, it offended both the Plaintiff, and the Plaintiff’s husband, who was with her at the mediation.  The husband stormed out of the room.  The Plaintiff’s body language and icy glare told me that we were going to start this mediation further apart than we had when we first arrived.

While we eventually settled, we spent a significant amount of time mending fences as a result of the insincere “apology.”  While an apology in mediation can allow closure, and if sincere, start the process of restoring trust, many people need help in crafting an apology.  As mediator Carl Schneider has written, “parties often need preparation before they are ready to offer an apology.”  The parties may need help with the words.  The mediator can help put “the apology in words and parties simply indicate their assent.”  In retrospect, I did a poor job of preparing my client for her apology.

In Schneider’s article, “What It Means to Be Sorry: The Power of Apology in Mediation,” he defines “apology” and what makes an apology work.  He then describes the use of apologies in mediation.  Schneider concludes:

An apology may be just a brief moment in mediation.  Yet it is often the margin of difference, however slight, that allow parties to settle.  At heart, many mediations are dealing with damaged relationships.  When offered with integrity and timing, an apology can indeed be a critically important moment in mediation.  Trust has been broken.  An apology, when acknowledged, can restore trust.  The past is not erased, but the present is changed.

Clearly, there are instances where an apology has been a critical element in resolving disputes, including lawsuits.  But that can only occur when the person apologizing is sincere, acknowledges the hurt, takes responsibility and expresses regret.