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People's Court: Geek Edition

As already discussed, I have a love/hate relationship with Hollywood’s depiction of lawyers.  But because I still can’t stop watching the lawyer shows, I started thinking about who I would use to put together my own legal dream team.

Below is my first stab at a fantasy line-up of characters for a legal drama.  For them to qualify, the characters have to come from movies or TV and the actors portraying them must be alive.  I’ll have to do another fantasy line-up sometime using dead actors, just so I can talk about Judge Smails.  For now, however, let me present the cast of characters for “Geek Law: Season 1.”

The Judge: Giles from Buffy the Vampire Slayer has to be the judge.  First of all, he’s English, so he’d wear the white wig, which would be awesome.  His research experience, both as a librarian and a Watcher, would also be a huge asset.  As a litigator, and particularly in e-discovery, I’ve found that it always helps to be before judges who know the area of law you’re addressing, such as Judges Peck, Facciola, and Scheindlin.  I’m confident Judge Giles would also prepare before each case to be similarly knowledgeable.  He’s also been both a good guy and a bad guy, which would help him temper justice with mercy.  Finally, if he can take on evil Willow, he can handle mere attorneys.

The Law Clerk: Dr. Sheldon Cooper would be fun, just because he knows he’s smarter than everyone else.  His knowledge and brilliance could be an asset to Judge Giles, although he would be nearly impossible to handle.  Poor Giles is used to dealing with a lot of insufferable superheros (which Sheldon practically is), however, and Sheldon would provide comic relief.  Plus, with his eidetic memory there wouldn’t be a need for a court reporter.

Bailiff: I know I’m breaking my own rules, but I can’t resist making Ronnie the Limo Driver the court bailiff.  He has an IMDB page and he plays a caricature of himself (I hope) on the Howard Stern Show, so I’m letting him slide.  He’s already shown he can handle dangerous security situations (he kept Teddy alive in the face of Artie Lange’s wrath) and he’s got lots of great catch phrases (“whoa, whoa, whoa, stop the clock”), so I would expect him to be the break-out star of the show.  BabaBooey!

Plaintiff’s Lawyer: Wonder Woman is my pick for the plaintiff’s lawyer.  It has to be a superhero, because they’re always sticking up for the little guy facing overwhelming odds.  Wonder Woman’s lasso of truth makes her the obvious choice.  Who cares if she doesn’t have an army of associates and paralegals – all she needs to do is throw that lasso around the witnesses to get all of the evidence she needs.  Now that my dream of Lauren Graham playing Wonder Woman in a movie written by Joss Whedon has been crushed I may have to replace it with the dream of Lauren Graham playing Wonder Woman in my legal drama.

The Investigator: Wonder Woman would still need an investigator, so I’d use Kalinda from The Good Wife.  I love her, I want to hang out with her, and I want her clothes, so you’ll see me write about her a lot.  Anyway, she would be a huge help to Wonder Woman in finding the smoking gun (and talk about a bad ass duo!).

Defense Partner: There are so many easy choices for this role, from Denny Crane to Dan Fielding to Ellen Barkin.  And while my choice is obvious, I can’t help it – Jeff Winger is too much fun to watch, regardless of whether he’s making an impassioned speech or acting like he doesn’t care when you know he secretly does.  And while I don’t know what’s going to happen to Community now that Dan Harmon has been booted, I do know that Jeff would be perfect for my show.

Defense Associate: Star Trek’s Data is the perfect big defense firm associate because he doesn’t need to eat, sleep, or take bathroom breaks.  In fact, I secretly wonder if big firms have a program underway to create a real-life Data, so they can stop dealing with annoying associates who want to have dinner with their family, go to the doctor, and/or sleep.  Data would also be perfect for handling all of the e-discovery issues that come up.  Technology-assisted review is a hot topic in e-discovery right now and Data is technology-assisted review personified.  He can review millions of bytes of data with the speed and precision of a computer, but with the understanding of a lawyer.

Defense Firm Receptionist: Agnes DiPesto would have to be the receptionist for the big defense firm.  I don’t have any reason for selecting her beyond the fact that she’s adorably wacky and could be another source of comic relief, which is always handy

So there you have it, the initial cast of Geek Law.  There would also be plenty of attractive extras and guest appearances, maybe even a few musical interludes, although there would be no dancing babies!  And next season I’ll bring in a new cast, filled with all of my favorite dead actors.

The Legal Geeks on Jaws, Liability for the Island of Amity & Other Sea Stories

Jessica Mederson and Joshua Gilliland discussing the legal issues presented in Jaws, covering cases involving shark attacks, the sinking of the USS Indianapolis, shooting stars, and how footage from Duel was used in The Incredible Hulk TV series.

No part of this video should be considered legal advice.

How a Lawyer Would Take a Bite Out of Amity for the Shark Attacks in Jaws

The 1975 film Jaws is truly the first summer blockbuster. The film launched the career of Steven Spielberg as the grandmaster of epic adventure movies that could make people jump out of their seats. It also set Spielberg’s precedent for including a shooting star in his films.

And while a movie about a shark can result in unfortunate lawyer jokes, there is a very good question the film poses: Was Mayor Larry Vaughn and the Town of Amity negligent for keeping the beaches open after the first shark attack? Would the Mayor and Town of Amity have any defenses to a negligence lawsuit?

It’s time to set sail on a shark hunt and review the facts:

Let’s Go Swimming

The first victim in the film is Chrissie Watkins, a college girl who went skinny dipping on Amity Island after attending a beach party in May 1973.

ChrissieWatkinsTwitter-PL-Exhibit-1
The imaginary deposition exhibit of the fictional Chrissie Watkins’ Twitter profile, if Jaws was retold with social media.

 

Chrissie was accompanied to the water’s edge by Tom Cassidy, another college student who grew up on Amity. Tom is spared the fate of being a meal for a shark, due to the fact he was too drunk to go swimming. This might be the only time where drinking kept someone from dying (the odd corollary is that skinny dipping can be fatal). Unfortunately for Chrissie, Cassidy was passed out from the drinking and unable to hear Chrissie’s cries for help, preventing him from rendering any aid.

This Was No Boating Accident

The original autopsy report stated Chrissie’s cause of death was from a shark attack. This promptly causes the Chief of Police to close the beaches.

Autopsy Form, Blank
21st Century update to the Chrissie Watkins autopsy report.

However, the Mayor countermands the Police Chief’s order to close the beaches. Moreover, the pathologist does an about face and changes his report to say Chrissie Watkins died of a boating accident.

There is an intense exchange between the Mayor and Police Chief over the importance of keeping the beaches open and the danger of yelling “shark” to the Island’s economy.

You Knew It Was Dangerous

Against the Police Chief’s wishes, the beaches are kept open. And on June 29, in view of the public, a dog named Pippet and a boy named Alex Kintner are victims two and three.

The very public death of Alex Kintner launches a major shark hunt by all the wrong people going out on boats for the bounty offered by his family (Remember, the carry capacity of a boat is length times beam, divided by 15. This rule is grossly ignored by many of the amateur shark hunters). In spite of horrifically poor seamanship, the want-a-be shark hunters actually catch a tiger shark without killing themselves.

What We Are Dealing With Here Is A Perfect Engine, An Eating Machine

SharkWarningSignChief Brody brings in a shark expert named Matt Hooper, who contradicts the autopsy report saying Watkins died of a boating accident. Additionally, Hooper wants to cut open the tiger shark to find out if it was the shark that killed Alex Kintner.

The Mayor refuses to verify if the tiger shark indeed killed Alex Kintner. However, Brody and Hooper perform an autopsy themselves in the middle of the night to learn there was still a killer shark off Amity Island.

Hooper and Brody set out to sea to find evidence of the shark, only to find Ben Gardner’s chewed up boat. Hooper finds a giant shark tooth during an in-the-water investigation of the boat. However, Hooper dropped the tooth when Gardner’s decapitated head floated by his face.

Despite being confronted with Brody and Hooper’s report, the Mayor keeps the beaches open for the 4th of July, with additional lookouts for sharks.

4th of July Attack

As one can expect, the 4th of July goes horribly wrong, with a sailor in a dingy being killed and the Police Chief’s son being hospitalized for shock after a close encounter with the shark.

This final attack gave Brody the ability to force the Mayor to authorize Brody to hire Quint the shark hunter.

 All Along the Shark Tower

The most on point case to the facts from Jaws is the 1976 case of Wamser v. St. Petersburg, 339 So. 2d 244 (Fla. Dist. Ct. App. 2d Dist. 1976).

In Wamser, a minor was attacked by a shark at a public (and free) city beach. The boy was attacked by a shark while swimming with his father approximately 25 feet from shore and approximately 15 to 20 feet north of the lifeguard stand. Wamser, at *245. The father and son knew there were sharks in the Gulf of Mexico, but they did not know of any shark attacks at the beach. Id.

The beach lifeguard was about to investigate a shark sighting when the victim was attacked by the shark. Wamser, at *245.

Deposition testimony showed the District Recreation Supervisor had a 24 year history with the city beach. He had never heard of a shark attack over his employment with the city. Id.

Two lifeguards also testified that they had never seen a shark in the area and any reports had turned out to be porpoise sightings. Id.

Having no Florida case on point for injuries caused by wild animals in their natural habitat, the Court relied on a Texas case and the Restatement of Torts.

The general rule is “the law does not require the owner or possessor of land to anticipate the presence of or guard an invitee against harm from animals ferae naturae unless such owner or possessor has reduced the animals to possession, harbors such animals, or has introduced onto his premises wild animals not indigenous to the locality.” Wamser, at *246, citing Gowen v. Willenborg, Tex.Civ.App.1963, 366 S.W.2d 695;  Williams v. Gibbs , 1971, 123 Ga.App. 677, 182 S.E.2d 164; Restatement of the Law of Torts, Ch. 20, § 508; 3A C.J.S. Animals § 174.

Based on the above, the Court held the following:

In the instant case there was nothing to indicate that the city had knowledge of a shark hazard. To the contrary, the record shows that the attack at a previously safe beach was unexpected. In the absence of reasonable foreseeability of the danger, there was no duty on the part of the city to guard an invitee against an attack by an animal ferae naturae, or to warn of such an occurrence.

Nor was the city under a duty to obtain information from local agencies to determine the frequency with which sharks appeared in and around the beach area, since there was no attack on record in the history of the beach to indicate the necessity for obtaining such information.

Wamser, at *246.

Cage Goes in the Water, Man Goes in the Water, Shark’s in the Water (And A Lawyer is at the Courthouse)

ToyShark

Given the number of victims and case law pertaining to shark attacks, we can expect the following findings of liability:

Chrissie Watkins: No liability, based on Wamser v. St. Petersburg, 339 So. 2d 244 (Fla. Dist. Ct. App. 2d Dist. 1976). There was no prior evidence of shark attacks in the area, thus no threats to put the Town on notice of a possible danger. To quote Warmser, “In the absence of reasonable foreseeability of the danger, there was no duty on the part of the city to guard an invitee against an attack by an animal ferae naturae, or to warn of such an occurrence.”

Alex Kintner: Big time liability for wrongful death. After the death of Chrissie Watkins, the Town was on actual notice of a threat of a shark. The Mayor’s act to keep the beaches open and arguably force the pathologist to change his findings from “shark attack” to “boating accident” could result in a finding of gross negligence, because it demonstrated a conscious and voluntary disregard of the need to use reasonable care by not closing the beaches and warning swimmers about sharks. There arguably is criminal liability for the Mayor’s actions for reckless disregard for life that resulted in a child being eaten alive.

Pippet the Dog: Depending on state law, likely able to find the owner was owed compensation for the value of his dog on a destruction of property theory.

Ben Gardner: No liability on the doctrine of assumption of risk. Gardner went out looking for a giant shark for the purpose of killing it. This undertaking is inherently dangerous and was done under his own free will.

Sailor on 4th of July: Town likely would be liable for the death of the sailor, based on the same theory as Alex Kintner. Moreover, there was notice there was still a man-eating shark in local waters and the Mayor kept the beaches open.

There might be defenses for the town, because of the following:

1) The public was on notice of a shark threat after the first two attacks, so arguably the sailor assumed the risk of going out on the water;

2) There were shark watchers out, also putting the sailor on notice of the threat;

3) Arguably, the Mayor could claim he acted reasonably, because the Mayor never saw the large shark tooth from Ben Gardner’s boat (only Hooper saw it) and that the tiger shark hard been found.

However, the defenses might not hold water, given that Hooper did report the tooth to the Mayor and that Gardner had been killed by a shark. Moreover, the Mayor refused to have an autopsy on the tiger shark, arguably showing disregard for an expert’s opinion. Furthermore, Hooper’s opinion that the tiger shark did not kill Kintner was confirmed by the unauthorized autopsy before the 4th of July attack.

Quint the Grizzled Shark Hunter: As with Ben Gardner, assumption of risk should preclude any recovery from surviving family members.

Farewell and Adieu Fair Spanish Ladies

Goodbye-SailorJaws did not inspire me to become a lawyer, but it certainly has wonderful legal issues.

While not every victim can be considered a wrongful death case, several of the victims’ families would be entitled to compensation for the Mayor’s actions in responding to the shark attacks.

The blood in the water at any trial would cause a jury damages awarding frenzy based on the following:

1) The Town being on notice of the shark threat;

2) Changing the autopsy report from “shark attack” to “boating accident”;

3) The appearance the Mayor “influenced” the pathologist to change his report; and

4) Keeping the beaches open with the knowledge of the man-eating threat.

The case of Amity would be very different than Wamser v. St. Petersburg, because of the knowledge of the threat after the first attack on Chrissie Watkins. However, recovery would hinge on whether the victim was an invitee at a public beach or someone who assumed the risk by going on a shark hunt.

Additionally, given the risk in hunting sharks (an endangered species best left alone), I encourage those interested in oceanography to follow my example and simply have a clown fish. Remember, there are no known reports of clown fish attacks resulting in the death of a human being.

ClownFish

Movies That Make Lawyers Think “Wait a Minute…”

Lawyers always see the world through code sections and case law.

For anyone related to a lawyer, married to a lawyer, or dating a lawyer, their beloved attorney is constantly analyzing their surroundings. This can make a simple night of watching a movie a challenge.

Take these seemingly harmless movies and what lawyers think of while watching them:

Harry Potter and the Sorcerer’s Stone:

Harry Potter spent the first 10 years of his life living in the cupboard under the stairs. Where was child protective services?  While the Charles Dickens style child suffrage built character for a later hero, how was that even legal in modern Great Britain?

Wizard Costume Halloween Boy
Wait a minute….they can’t make me live under the stairs…

At this point, the lawyer’s mind starts thinking about the specific language of the relevant code sections.

For example, a California attorney may stop watching the movie 10 minutes into the film to look up “child abuse” under the California Penal Code.

The attorney may focus on Cal Pen Code § 273a(a) and wonder if Harry living under the stairs meet the language of “willfully causes or permits any child to suffer.”

Would the the verbal treatment by the uncle be enough to prove unjustifiable mental suffering?

 

As the series continues, lawyers start thinking about other issues.

For example, whether there was any class action litigation against potion manufacturers is never addressed in the films. Would the litigation be similar to a pharmaceutical case? Lawyers start thinking about that as soon as one student falls in “love” with another due to Amortentia, Cupid Crystals, Kissing Concoction, Beguiling Bubbles or Twilight Moonbeams. On a fundamental level, how were any of those remotely legal and commercially available?

Toy Story 3 & Torture:

Did Toy Story 3 inadvertently sanction torture?

Barbie breaks Ken into disclosing how Buzz Lightyear was re-set by 1) knocking Ken out; 2) tying Ken up; and 2) ripping up his vintage clothes until Ken betrayed the dictatorial Lotso.

The lawyer who starts thinking about this might grab their iPad and look up Torture in their West Black’s Law Dictionary App. This is what they would find:

torture, n. (16c) The infliction of intense pain to the body or mind to punish, to extract a confession or information, or to obtain sadistic pleasure. — torture, vb.

 

Older-Lawyer-Thinking-425x275

The question remains, is destroying vintage clothes enough to cause intense pain to the mind to extract information to be torture?

What do jury instructions say on torture?

Is there any case law on emotional torture by destroying property?

How do I explain this fact pattern to the research attorney on the phone?

Captain America and Back-Pay?

E-Pruribus-Unum

Captain America: The First Avengers ends with Steve Rodgers waking up in New York City after spending nearly 70 years in ice.

Would Captain America be entitled to Army back-pay for nearly 70 years, adjusted for interest, inflation and cost of living increases since World War 2 under the Missing Persons Act, 37 U.S.C. §§ 551-558?

 

The true Geek Lawyer (and a few JAG Officers) would spend a lot of time researching case law dating back to World War 2 for the answer.

It’s a Wonderful Life

Cash-Envelope-200x300

Henry F. Potter kept the Building & Loans’ money that Uncle Billy lost.

Does Potter cover up the extra $8,000 somehow?

Does the bank notice an $8,000 deposit days after the town rallied to save George Bailey?

Is Mr. Potter later tried and convicted for grand larceny?

Think Like a Lawyer

Attorneys are taught in law school to “think like a lawyer.”  A side effect of such training is dissecting scenes of movies for their legal issues. Many of us have learned not spoil a perfectly good evening by asking these questions to non-attorney friends and family.

Movies That Make Lawyers Think "Wait a Minute…"

Lawyers always see the world through code sections and case law.

For anyone related to a lawyer, married to a lawyer, or dating a lawyer, their beloved attorney is constantly analyzing their surroundings. This can make a simple night of watching a movie a challenge.

Take these seemingly harmless movies and what lawyers think of while watching them:

Harry Potter and the Sorcerer’s Stone:

Harry Potter spent the first 10 years of his life living in the cupboard under the stairs. Where was child protective services?  While the Charles Dickens style child suffrage built character for a later hero, how was that even legal in modern Great Britain?

Wizard Costume Halloween Boy
Wait a minute….they can’t make me live under the stairs…

At this point, the lawyer’s mind starts thinking about the specific language of the relevant code sections.

For example, a California attorney may stop watching the movie 10 minutes into the film to look up “child abuse” under the California Penal Code.

The attorney may focus on Cal Pen Code § 273a(a) and wonder if Harry living under the stairs meet the language of “willfully causes or permits any child to suffer.”

Would the the verbal treatment by the uncle be enough to prove unjustifiable mental suffering?

As the series continues, lawyers start thinking about other issues.

For example, whether there was any class action litigation against potion manufacturers is never addressed in the films. Would the litigation be similar to a pharmaceutical case? Lawyers start thinking about that as soon as one student falls in “love” with another due to Amortentia, Cupid Crystals, Kissing Concoction, Beguiling Bubbles or Twilight Moonbeams. On a fundamental level, how were any of those remotely legal and commercially available?

Toy Story 3 & Torture:

Did Toy Story 3 inadvertently sanction torture?

Barbie breaks Ken into disclosing how Buzz Lightyear was re-set by 1) knocking Ken out; 2) tying Ken up; and 2) ripping up his vintage clothes until Ken betrayed the dictatorial Lotso.

The lawyer who starts thinking about this might grab their iPad and look up Torture in their West Black’s Law Dictionary App. This is what they would find:

torture, n. (16c) The infliction of intense pain to the body or mind to punish, to extract a confession or information, or to obtain sadistic pleasure. — torture, vb.

The question remains, is destroying vintage clothes enough to cause intense pain to the mind to extract information to be torture?

What do jury instructions say on torture?

Is there any case law on emotional torture by destroying property?

How do I explain this fact pattern to the research attorney on the phone?

Captain America and Back-Pay?

E-Pruribus-UnumCaptain America: The First Avengers ends with Steve Rodgers waking up in New York City after spending nearly 70 years in ice.

Would Captain America be entitled to Army back-pay for nearly 70 years, adjusted for interest, inflation and cost of living increases since World War 2 under the Missing Persons Act, 37 U.S.C. §§ 551-558?

 

The true Geek Lawyer (and a few JAG Officers) would spend a lot of time researching case law dating back to World War 2 for the answer.

Cash-EnvelopeIt’s a Wonderful Life

Henry F. Potter kept the Building & Loans’ money that Uncle Billy lost.

Does Potter cover up the extra $8,000 somehow?

Does the bank notice an $8,000 deposit days after the town rallied to save George Bailey?

Is Mr. Potter later tried and convicted for grand larceny?

Think Like a Lawyer

Attorneys are taught in law school to “think like a lawyer.”  A side effect of such training is dissecting scenes of movies for their legal issues. Many of us have learned not spoil a perfectly good evening by asking these questions to non-attorney friends and family.

The Legal Geeks Analyze Buffy the Vampire Slayer

Attorneys Jessica Mederson and Joshua Gilliland discuss Buffy the Vampire Slayer and the possible legal issues for the fictional Sunnydale High School and highlight the creative genius of Joss Whedon. Josh also pays tribute to the geek history of his hometown, Sunnyvale, California.

High school is hell, but can Sunnydale be sued for building on top of a hellmouth?

“From beneath you, it devours.”

High school is a rough time for most of us.  Joss Whedon took this basic truth and turned it into brilliance in  Buffy the Vampire Slayer, where high school’s metaphorical terrors turn literal.  And given that high school is hell, where better to locate a hellmouth then directly under Sunnydale High?

Big deal.  So there’s a hellmouth under Sunnydale High, so what?  Well, for parents considering sending their children there, they should know that, while Buffy attended Sunnydale High, the hellmouth was located directly under the library and even when the school was rebuilt they decided to put the hellmouth directly under the principal’s office.  And this hellmouth is not for the faint of heart.  At times there were large, octupi-like demons that would reach up into the libary out of the hellmouth (for example, in The Zeppo, one of my favorite Buffy episodes ever).  Later, under the rebuilt high school, the First Evil stocked up on uber-vampires known as Turok-Hans inside the hellmouth, preparing to take over the world.

Having such a hellmouth under the high school obviously has an impact on the safety (even the life expectancy) of students attending the school.  The question is – can somebody be held responsible for this poor design plan?  And the answer is – yes.

In California, the state in which the fictional Sunnydale High is set, a public entity such as a school can be held responsible for an injury caused by a dangerous condition of its property if you can show that: (1) the property was in a dangerous condition at the time of the injury; (2) the injury was proximately caused by the dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury that was incurred; (4) and either (a) a negligent or wrongful act or omission of an employee of the school created the dangerous condition within the scope of his employment , or (b) the school had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

All of the above can certainly be established for students and staff at Sunnydale High.  The Hellmouth is certainly a dangerous condition that caused physical harm and/or death to many students and staff (for example, the great psychologist Mr. Platt).  As for the type of risk suffered (e.g., killed by werewolves, turned into sea monsters), the law does not require that the precise nature of the accident be foreseeable – just that the general character of the event should be foreseeable.  Demonic activity and bizarre metamorpheses are certainly the general types of events that could be foreseen when your school is built on top of a hellmouth.  Finally, while the residents of Sunnydale were willing to turn a blind eye to dangerous conditions that existed in the entire town, an objective outsider would argue that, at least by the end of the first season, the school had active or constructive notice of the hellmouth’s existence.

In sum, Sunnydale High turns on its head the general belief held by courts that “schools are not considered to be dangerous places per se.”  The matriculation rate at Sunnydale High had to be shockingly low, with many sad losses of students, staff, and faculty (although Harmony actually improved after death).  And a good lawyer could have made the school pay for that…assuming, of course, that Mayor Wilkins didn’t kill her first.