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Relevance & the Rules of Evidence

Joshua Gilliland, attorney blogger for www.bowtielaw.com and www.thelegalgeeks.com, discusses Relevance under the Federal Rules of Evidence and the California Evidence  Code (No part of this video should be considered legal advice).

Dr. Horrible – Gun Manufacturer

As already established, I love Joss Whedon.  While Buffy will always be my first love, I think everything he does is great, each in its own special way.  Dr. Horrible’s Sing-Along Blog is fantastic for so many reasons, including: (1) its inspiration in the 2007-08 Writers Guild Strike; (2) its music; (3) its use of Neil Patrick Harris; and (4) Joss’s classic move of turning convetion on its head, in this case, by making the hero an insufferable stuffed shirt. (Nathan Fillion is great as Captain Hammer but he’ll always be Johnny from Two Guys, a Girl, and a Pizza Place to me, while Ryan Reynolds will always be Berg.)

Goggles

In addition to a reputation for excellence, Joss also has a well-deserved rep for killing off beloved characters.  In Dr. Horrible, of course, [SPOILER ALERT!] he killed the adorable, sweet, much loved Penny.  And while he killed her by impalement (a possible MO, per Josh, my partner in geekdom), it was as a result of the misfire of the Death Ray created by Dr. Horrible, although it was Captain Hammer who pulled the trigger.  Nevertheless, Dr. Horrible got the credit, in the eyes of the Evil League of Evil, for murdering Penny.  The question for The Legal Geeks, however, is what would the courts say about Dr. Horrible’s liability for Penny’s death?

In this situation, Dr. Horrible’s role would be similar to that of a gun manufacturer.  He created the Death Ray but he didn’t pull the trigger.  Indeed, he didn’t want Captain Hammer to pull the trigger, probably because the Death Ray was pointed directly at him at the time.  (Captain Hammer’s willingness to fire on a clearly-vanquished enemy can be compared to Captain Mal Reynold’s shooting of unarmed opponents.  This unusual willingness to have heroes act in morally grey ways is another Joss trademark, and one Josh and I discussed in comparison to George Lucas’s redo of Han Solo’s cantina gun shot.)

Death Ray

Dr. Horrible could argue that, as a gun manufacturer, he’s covered under the Protection of Lawful Commerce in Arms Act (the “PLCAA”), enacted by Congress in 2005.  This Act was passed in part to prevent lawsuits against manufactures of firearms “for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed or intended.”  This statute, which exempts manufacturers of legal, nondefective firearms from liability in products liability actions for criminal use of the firearms, would presumably not apply here for two reasons.  First, while semiautomatic assault weapons may be legal, a “death ray” is probably not a legal firearm.  Second, the death ray was presumably defective, as it misfired dramatically after a mere drop to the floor (Dr. Horrible wasn’t the best at making these weapons – the Freeze Ray didn’t work consistently either).

Assuming the PLCAA doesn’t protect him from liability, the question is whether Dr. Horrible can be held liable for the product he created.  Dr. Horrible lives in California, where the general rule is that a manufacturer can be held liable for dangerous products, although there is no duty to warn of a product’s known risks or obvious dangers.  With regard to the Death Ray, the dangers of firing it are obvious, although death by impalement would not be an obvious danger, so Dr. Horrible couldn’t use that general rule to protect him from a suit by Penny’s family.

A key question for the jury in a case brought against Dr. Horrible by Penny’s family would be whether the Death Ray failed to perform as safely as an ordinary consumer would expect when the product is used in an intended or reasonably foreseeable manner.  Firing the weapon at a bad guy (by a hero, no less) is arguably a reasonably foreseeable use of the death ray.  That same gun exploding into deadly shrapenel, however, would not be an example of a gun performing as safely as an ordinary consumer would expect, thereby making Dr. Horrible liable.

If a negligence claim was brought in addition to a products liability test, the issues would be the same, although Penny’s family would also have to prove that the defect in the death ray was caused by Dr. Horrible’s negligence.  Again, a death ray that explodes after being dropped once is a poorly designed death ray and Penny’s family would have a strong argument that Dr. Horrible was negligent in designing the death ray.

Of course, this entire discussion may be moot because, as a result of Penny’s death, Dr. Horrible became a powerful evil leader.  Captain Hammer, meanwhile, was reduced to many hours in intensive therapy and was unable to stop Dr. Horrible.  So the courts may not have the capability to impose a judgment against Dr. Horrible — making him truly judgment-proof.

Ian Campbell of ICONECT on eDiscovery, Soccer & Canadian Rock Bands

Jessica Mederson and Joshua Gilliland interview Ian Campbell on ILTA 2012 and the new features in XERA. Ian discussed eDiscovery, advanced search technologies of XERA, his love of soccer and his favorite Canadian rock and roll band.

Han Shot First- The Legal Geeks On Self Defense & Star Wars

Attorneys Jessica Mederson and Josh Gilliland reviewing “self defense” under Common Law and the Model Penal Code in analyzing whether Han Solo was legally justified in shooting Greedo first in the original Star Wars (Episode IV).

Han’s Legal Justification For Shooting Greedo First

Han Shot First.

There is no question about it.

And in 1977, no one questioned it.

However, the legal question remains, was Han Solo legally justified in killing Greedo (Provided the Empire’s Doctrine of Fear had similar Common Law traditions)?

For those who do not have the scene memorized, here is the dialog from the original version from IMDB:

Greedo: [In Huttese; subtitled] Going somewhere, Solo?
Han Solo: Yes, Greedo. I was just going to see your boss. Tell Jabba I’ve got his money.
Greedo: It’s too late. You should have paid him when you had the chance. Jabba’s put a price on your head so large, every bounty hunter in the galaxy will be looking for you. I’m lucky I found you first.
Han Solo: Yeah, but this time I’ve got the money.
Greedo: If you give it to me, I might forget I found you.
Han Solo: [stealthily going for his blaster] I don’t have it with me. Tell Jabba…
Greedo: Jabba’s through with you! He has no use for smugglers who drop their shipments at the first sign of an Imperial cruiser.
Han Solo: Even I get boarded sometimes. Do you think I had a choice?
Greedo: You can tell that to Jabba. At best, he may only take your ship.
Han Solo: Over my dead body!
Greedo: That’s the idea… I’ve been looking forward to this for a long time.
Han Solo: Yeah, I’ll bet you have.
[Han blasts Greedo, then heads out, tossing the bartender a coin]
Han Solo: Sorry about the mess.

Enter the 1990s

The 1997 re-release of Star Wars has Greedo firing his blaster before Han.

Moreover, Greedo wildly misses in extremely close quarters, if not point blank range.

This made Greedo not just a horrible shot, but an extremely bad bounty hunter.

Greedo should have been a Nerf Herder.

Always Shoot First

Here are the basic facts: Han is stopped at gunpoint by Greedo. During the entire conversation in the bar, Greedo has his weapon pointed directly at Han. There is a dispute over money, with Han saying “Over my dead body,” to which Greedo replies, “That’s the idea. I’ve been looking forward to this for a long time.”

Second, let’s review the Model Penal Code on using deadly force in self-defense. The MPC states:

§ 8.02   Use of Deadly force

[A]  Common Law – Deadly force is only justified in self-protection if the defendant reasonably believes that its use is necessary to prevent imminent and unlawful use of deadly force by the aggressor.  Deadly force may not be used to combat an imminent deadly assault if a non-deadly response will apparently suffice.

[B]  Model Penal Code – The Code specifically sets forth the situations in which deadly force is justifiable:  when the defendant believes that such force is immediately necessary to protect himself on the present occasion against:

1. Death;

2. Serious bodily injury;

3. Forcible rape; or

4. Kidnapping. 

The Code prohibits the use of deadly force by a deadly aggressor, i.e., one who, “with the purpose of causing death or serious bodily injury, provoked the use of force against himself in the same encounter.” [MPC § 3.04(2)(b)(i)] 

The issue under common law is whether Han reasonably believed that deadly force was necessary to prevent imminent and unlawful use of deadly force by the Greedo. 

Under the Model Penal Code, the issue is whether Han believed deadly force was immediately necessary to protect himself against 1) Death (in the event Greedo fired first); 2) Serious bodily injury (a blaster wound likely do serious injury if not fatal) or 3) Kidnapping (Greedo arguably could have intended to take Han to Jabba the Hut.)

The next issue is whether Han was required to “retreat” from Greedo.

The rules state:

§ 8.03   Retreat Rule

[A]  Common Law – If a person can safely retreat and, therefore, avoid killing the aggressor, deadly force is unnecessary. Nonetheless, jurisdictions are sharply split on the issue of retreat.  A slim majority of jurisdictions permit a non-aggressor to use deadly force to repel an unlawful deadly attack, even if he is aware of a place to which he can retreat in complete safety. Many jurisdictions, however, provide that a non-aggressor who is threatened by deadly force must retreat rather than use deadly force, if he is aware that he can do so in complete safety.

A universally recognized exception to the rule of retreat is that a non-aggressor need not ordinarily retreat if he is attacked in his own dwelling place or within its curtilage [the immediately surrounding land associated with the dwelling], even though he could do so in complete safety.

[B]  Model Penal Code – One may not use deadly force against an aggressor if he knows that he can avoid doing so with complete safety by retreating.  Retreat is not generally required in one’s home or place of work.  However, retreat from the home or office is required: (1) if the defendant was the initial aggressor, and wishes to regain his right of self-protection; or (2) even if he was not the aggressor, if he is attacked by a co-worker in their place of work. However, the Code does not require retreat by a non-aggressor in the home, even if the assailant is a co-dweller.

Finally, we must consider whether Han had a “reasonable belief” about Greedo’s threat. The Model Penal Code states:

§ 8.04   “Reasonable Belief” 

The privilege of self-defense is based on reasonable appearances, rather than on objective reality. Thus, a person is justified in using force to protect himself if he subjectively believes that such force is necessary to repel an imminent unlawful attack, even if appearances prove to be false.

Courts are increasingly applying a standard of the “reasonable person in the defendant’s situation” in lieu of the “reasonable person” standard.  Factors that may be relevant to the defendant’s situation or circumstances include:

  1. The physical movements of the potential assailant;
  2. Any relevant knowledge the defendant has about that person;
  3. The physical attributes of all persons involved, including the defendant;
  4. Any prior experiences which could provide a reasonable basis for the belief that the use of deadly force was necessary under the circumstances.

Applying the facts to the Model Penal Code and Common Law, Han was justified in shooting first and killing Greedo. Without a doubt, having a blaster pointed directly at Han put his life in danger. Additionally, Greedo’s statement “That’s the idea. I’ve been looking forward to this for a long time,” communicated Greedo’s intent to kill Han. Shooting first was the only away to prevent Greedo from using deadly force himself.

 

Greedo_NerfHerder_3024

As for the retreat issue, Han was already at gunpoint and cornered in the booth when Han shot Greedo. It is unlikely Han could have retreated with his back to the wall and in a seated position. Shooting his way out appeared to be his only option.

Finally, reasonable belief: Han was in Mos Eisley Spaceport, a wretched hive of scum and villainy. Second, Greedo had his weapon pointed at Han the entire time, with Han cornered in a booth. This should be sufficient to show the reasonableness of the threat to Han’s life.

While Han was justified in shooting first, a better question is why did Malcolm Reynolds shoot the Alliance pilot who was surrendering in Serenity?

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.

AbbyShot's Eleventh Doctor's Purple Coat