Who Wants to Work at ISIS?

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February 14, 2014

It’s almost Valentine’s Day, which means romance is in the air. Romance is certainly in the air at ISIS – although maybe romance isn’t quite the right word to use for what’s going on at Mommy Dearest’s headquarters. Hanky panky would be charitable. A labor lawyer would call it a hostile work environment.

That’s right, I’m talking about Archer – the man and the show. Could anyone be a better date for Valentine’s Day than Archer? The answer, of course, is yes. While he has some charm, it’s very limited and incredibly short lived.

The show itself, on the other hand, has a charm that lasts. Archer, his mother, Lana, Pam, Cyril…they’re all fantastically horrible. It’s like an animated work family version of Arrested Development (which makes sense, given the common matriarch they share). It’s funny, quotable, and clever. But I would never want to work there!

But if you were unlucky enough to be an employee there, would you have to put up with the verbal abuse, the sexual harassment, and the forced drug abuse? No. Get a lawyer immediately! In order to establish a hostile work environment, the problematic behaviors or statements must usually be pervasive and last for a period or time or involve a single incident that was extraordinarily severe. And the problems must be serious enough to actually alter or disrupt the conditions of the employee’s work environment. Finally, the actions or problems must be related to a protected classification, such as the employee’s age, race, gender, or religion. While not every offensive moment on the show targets a protected class, there’s enough there to start several lawsuits!

Most of the employees are guilty of creating a hostile work environment, but is ISIS responsible for its employees’ loathsome (but so watchable!) behavior? ISIS could avoid liability if it could show (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” See Burlington Indus. v. Ellerth, 524 U.S. 742 (1998).

Of course, ISIS hasn’t done anything to avoid liability – and its employees show no sign of stopping their offensive behavior. As a viewer, I’m so glad no one has learned their lesson because I love every outrageous moment. But if you’re going to work there, watch out: You’re heading into the Danger Zone!

Why I Always Visit the Lincoln Memorial

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Josh Gilliland

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February 12, 2014

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Funny thing about me: I will always visit the Lincoln Memorial when I am in Washington, D.C. I have gone in the good weather, in pouring rain, freezing snow and at midnight.

I always go.

Even at midnight on a cold night, people are there paying their respects to President Abraham Lincoln.

Why? Why does Lincoln matter?

Some Americans might find inspiration in President Lincoln’s Second Inaugural Address; others may find themselves standing taller when they hear the Gettysburg Address.

I say it is far more. Lincoln represented the best of public service. From his days as a young attorney, to the Illinois Assembly, to his one term in Congress, Lincoln stood for principles of the Declaration of Independence.

Congressman Lincoln lived at the same boarding house as former President turned Congressman John Quincy Adams; Lincoln’s roommate was the fiery Joshua R Giddings. God knows what the dinner time conversation was like over the future of America.

And still there is more.

Abraham Lincoln had to navigate the politics within the very young Republican party, keep an eye on potential challengers, and fight the bloodiest war in US History to hold the country together.

It would take eleven Vietnam Memorial Walls to include the names of every American who died in the Civil War. That is approximately 5,429 feet of names.

That does not include those whose lives would be defined by empty sleeves and lifeless eyes for the rest of the 19th Century.

One only needs to look at the photos of Lincoln after he was elected in 1860 and the photos in March of 1865 to see how President Lincoln wore the weight of those lost.

When the President said, “With malice towards none and generosity for all,” it was not political rhetoric; he truly meant it.

Yet after the horror of Civil War, President Lincoln looked to the future with a Reconstruction plan that was to be announced on April 17, 1865.

I wish to God he had lived to see that day.

Abraham Lincoln continues to be honored 205 years after his birth because he represented the best of us. Our potential as a country. He had his flaws, fought depression and self-doubt. But in the end, Lincoln was a man who studied law and heard the cry of public service when our country needed a hero. Abraham Lincoln fought, and died, upholding Jefferson’s truth that all men are created equal.

And that is why I feel honor bound to visit the Lincoln Memorial when I visit Washington, D.C.

I also always feel morally obligated to see Great Moments with Mr. Lincoln when I am at Disneyland, but that is another story.

Future Computer Forensics on Almost Human

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Josh Gilliland

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February 11, 2014

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Almost Human’s episode “Perception” presented a fantastic case study of computer forensics in 2048. The episode also showed the best legal issues to date.

The episode included augmented reality post-it notes, biometric security, 3D drug printing with data backed up to the Cloud, text messages, hacking, a lawyer appearing via hologram while a client was being questioned by the police and paying a private eye to destroy evidence for his client. It was literally like an eDiscovery pinata exploded.

Let’s break down the issues:

Virtual Post It Notes

Both John Kennex and the “bad guy” had augmented reality post-it notes. Kennex’s notes related back to the events that put him in a coma; the villain’s those who were responsible for her daughter’s death. Both had a subtle Moby Dick element to them on how revenge could lead to one’s ultimate destruction.

Herman Melville aside, figuring out how to make a byte-by-byte image of virtual post-it notes could make a computer forensic expert yell, “to the last I grapple with thee.” Where is the computer from which the data was generated? Is it in a cloud? Or something totally different. An expert would need to know how the augmented reality worked and the location of the device that generated the data in order to capture it.

Alternatively, they could just take a photo of the floating virtual post-it note.

3D Drug Printing

The 3D drug printing with cloud back-up was a beautiful example of existing technology in the future. The manufacture of drugs is a regulated industry. Licenses are required for pharmacists. Moreover, the data backed-up to the cloud would protected under both the Stored Communication Act (which hopefully will be updated before 2048) and the 4th Amendment (which hopefully will not be still under attack in 2048).

The intersection of heavily regulated device and cloud storage poses an interesting question: would the license for the 3D drug printer require as part of its license the waiving of rights under the 4th Amendment and Stored Communication Act to ensure it is not being used for an unlawful purpose? My gut says this would be the case.

Text Messages

Existing computer forensics has acquiring this data pretty nailed. Many companies have tools to capture the data, whether it is on the local device, the cloud or a service provider.

The question remains, did the police get a warrant for the father-daughter communications?

Lawyer On-Demand

Every attorney should take comfort that there are still lawyers in 2048 working at law firms. Almost Human is one of the few police shows that actually honored the right to remain silent and counsel in ages. The idea of being able to call your attorney for an instant virtual meeting currently can be done with video conference technology. Making your lawyer an on-demand hologram would just be cool.

And awesome billing entries: “Holographic meeting with client. 0.3”

Intentional Crimes

Both computer hacking with the intent to kill and the willful destruction of evidence are crimes. The hacking the 3D printer will end in first degree murder charges. The PI destroying recordings done for client that he was then paid to destroy will at a minimum cost him his PI license and at most bring charges for obstruction of justice.

Hat Tip

My compliments to the production team on highlighting real legal issues with technology in a way that moved the story along, without getting lost in the tech. Job well done.

Strict Liability for Killer Robots?

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Josh Gilliland

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February 6, 2014

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The Almost Human episode “Unbound,” raised an interesting question: what is your liability for building a robot that go on a killing spree?

As explained in the story, Nigel Vaughn (played by John Larroquette) built an XRN named Danica that went on a three day rampage at her “product demo” for elected officials and other VIPs. The XRN was built for combat and killed at least 26 police officers.

What would be Vaughn’s civil liability for Danica’s extremely high death count?

A plaintiff could bring a products liability claim against Vaughn on the theory that Danica (a product) had a defect in either her design or manufacture. Merrill v. Navegar, Inc., 26 Cal. 4th 465, 479 (Cal. 2001), citing Soule v. General Motors Corp. (1994) 8 Cal. 4th 548, 560.

Case law holds for a strict liability case based on defective design, “a product is defective . . . either (1) if the product has failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, or (2) if . . . the benefits of the challenged design do not outweigh the risk of danger inherent in such design.” Merrill, at *479 citing Barker v. Lull Engineering Co. (1978) 20 Cal. 3d 413, 418.

Focusing on the benefits of the design vs the risk of danger, a jury could consider, “the gravity of the danger posed by the challenged design, the likelihood that such danger would occur, the mechanical feasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequences to the product and to the consumer that would result from an alternative design.” Merrill, at *479 citing Barker at *431.

Danica the XRN killed in excess of 30 people over three days. This was after the DRN program had been cancelled, because of the android police officers going “crazy,” with some killing themselves. Moreover, the XRN had the same type “synthetic soul” as the DRN’s, showing no change in a design that was decommissioned. While none of the DRN’s went on a three-day rampage, Dr. Vaughn was on notice of a possible defect that would impact the behavior of a combat android.

The XRN was designed for combat and not law enforcement. Given the instability with the “synthetic souls” of the DRN’s, Dr. Vaughn should have been concerned with the “gravity of the danger” of a combat android with emotional instability.

A three-day killing rampage at a product demo would be difficult to predict. The DRN’s are helpful to see that it was possible something could go very wrong, but predicting Danica would go on a one-robot-woman Iwo Jima reenactment might not have been foreseeable. However, it was foreseeable that violence could have happened from the failure of the DRN’s, especially given the nature of Danica’s programing.

The MX program demonstrates there was a safer alternative design. While utterly lacking imagination or conversation skills, a safer android was ultimately put into police service.

Do the MX’s have adverse consequences to having android police officers? Yes. They simply are not human, lacking the ability to relate to those they are supposed to protect. This means no empathy and compassion. Those upholding the law need those qualities so the populace is not living in fear of armed robots walking the streets.

Danica ironically proved this point when the mother and girl got in Danica’s cab. Instead of killing both, she smiled when the little girl told Danica, “I think you are pretty.”

A kid sweet talked a killer robot. That would not happen with an MX.

Sweet talk aside, not even the great defense attorney Dan Fielding could defend Nigel Vaughn from the strict liability for Danica’s “defective” design that resulted in a three-day rampage.

A Lawyer on Rake

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Josh Gilliland

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February 4, 2014

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The TV Rake is like an ethics exam exploded. The show is about a seriously flawed attorney who seems to put himself above his client’s interests to get on TV, has huge gambling debts, an expired driver’s license, tax problems, an unpaid assistant and whose most stable relationship is with a $500 an hour prostitute when he is not womanizing. All of these issues would put the attorney’s moral character into serious question.

That being said, this is the first lawyer show since I have enjoyed since law school. It is like a train wreck you cannot turn away from. Moreover, there is a redeeming quality to the attorney that he is actually trying to zealously represent his clients as required by his ethical duties, despite serious character flaws that scream disbarment.

Yes, there is the willing suspension of disbelief that three Amish men arrested for shaving an Amish bishop would go to trial in a matter of days for a hate crime and attempted murder in Los Angeles. The right to a speedy trial aside, the docket is not that slow in LA. Never mind doing any discovery.

However, that trial ended correctly. There was not the intent for attempted murder, but definitely enough evidence to convict the men of assault.

Additionally, the pilot highlighted the importance of conducting document review to analyze sentence structure to identify false confessions from the one true confession of a defendant. The fact the first confession was true was something that could be hidden from the Court. While there were still multiple unsolved murders, the defendant was lawfully in prison for killing someone.

Lawyers have an important duty to society to represent their clients and do justice. This requires truthfulness to the courts, avoiding the commingling of client funds, and a whole list of rules governing professional conduct. We are supposed to be guardians of the judicial system. Rake might be a massive ethical pile-up on The 405 that will make a lawyer shake their head, but it is hard not to enjoy the show.

The Day of the Doctor’s Outfit

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Josh Gilliland

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January 28, 2014

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Joshua Gilliland shares his thoughts on Peter Capaldi’s new outfit for the 13th Doctor.

A New Contract: Mjolnir Strikes Back for the Return of Lightsabers

By

Josh Gilliland

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January 27, 2014

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The epic Twitter contract negotiations of Marvel and Star Wars heralded a heroic age of contract formation of offer, acceptance and consideration for the use of property.

The Twitter negotiations, however, also required trading Yoda, Hutts, plus Deadpool for Boba Fett, and Mace Windu for Nick Fury. The open discussions for trading human beings (and other living beings who are not animals or property), would violate the civil rights of those individuals, given the prohibition of indentured servitude. Moreover, @Marvel specifically rejected including any of Tony Stark’s armor in the negotiations out of fear Ewoks would be placed in them. As such, the parties discussion could be summarized as the following terms and conditions:

The Marvel & Star Wars Lease Agreement of Lightsabers for Mjolnir

@Marvel and @StarWars, both subsidiaries of Disney, hereby agree to the following terms and conditions:

@StarWars will lease to @Marvel one blue lightsaber, one green lightsaber, one purple lightsaber, one yellow lightsaber and one red lightsaber for the term of one week (7 day on Earth);

@Marvel will use the above mentioned lightsabers for scientific research.

@StarWars hereby warns @Marvel of the risk of injury of using said lightsabers, including loss of limbs, eye injury, blindness, beheading and even death.

In consideration for the use of the lightsabers, @Marvel will lend for a period of one week Mjolnir (7 days on Earth), making no warranties on whether anyone at @StarWars is worthy enough to lift Mjolnir.

@Marvel hereby warns @StarWars of the risk of injury for using Mjolnir, including lower back strain for attempting to lift, arm injury, dislocated shoulders, eye injury from lightening, hearing damage from thunder, electrocution, property damage from flooding, high winds, rain, or lightening strikes, and any other reasonably foreseeable injuries from attempting to control weather or throwing a hammer.

Choice of Law:

The parties agreements will be governed by the laws of the State of California.

Forum Selection Clause:

Any and all disputes will be heard in Anaheim, California, at Great Moments with Mr. Lincoln, and arbitrated by the animatronic Abraham Lincoln. The parties further agree to be bound by the arbitrator’s final decision on ay disputes, waiving all legal claims.

Waiver of Claims by @Marvel:

@Marvel waives any claims against @StarWars, its officers, agents, employees or volunteers from damage or loss caused by:

A. Any suit or proceeding directly or indirectly attacking the validity of this Contract, or any part of this Contract.

B. Any judgement or award: (i) declaring this Contract, or any part of this Contract, either void or voidable, or (ii) delaying the performance of any part of this Contract.

Waiver of Claims by @StarWars:

@StarWars waives any claims against @Marvel, its officers, agents, employees or volunteers from damage or loss caused by:

A. Any suit or proceeding directly or indirectly attacking the validity of this Contract, or any part of this Contract.

B. Any judgement or award: (i) declaring this Contract, or any part of this Contract, either void or voidable, or (ii) delaying the performance of any part of this Contract.

Express Agreement by Parties

Neither @Marvel or @StarWars will allow any of its officers, agents, employees or volunteers to use either a lightsaber or Mjolnir without a signed liability wavier for any injury sustained by using a lightsaber or Mjolnir. Children are expressly prohibited from using the property subject to this agreement.

Property Damage:

The parties will be financially responsible for any damage to the property subject to this contract.

Severability:

If any provision of this Contract is held invalid or unenforceable, its invalidity or unenforceability will not affect any other provisions of this Contract, and this Contract will be construed and enforced as if such provision had not been included.

Entire Agreement:

This Contract constitutes the entire agreement between @Marvel and @StarWars. Both parties revoke all prior or contemporaneous oral or written agreements between them that are inconsistent with this Contract. In the event of a dispute between the parties regarding the Contract, this Contract will be deemed to have been drafted by the parties in equal parts so that no presumptions or inferences concerning its terms or interpretation may be construed against any party to this Contract.