Home Blog Page 96

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.



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.

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.

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)


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.


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?


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


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.

AbbyShot's Eleventh Doctor's Purple Coat