December 1st, 2010

Hot Coffee Goes Sundancing

Everyone has heard about the McDonald’s hot coffee case where Stella Liebeck was scalded with third degree burns. And almost everyone has an opinion. Every so often, someone knows the actual details. Most though, just know that some lady spilled hot coffee on herself and sued McDonalds for millions. A Google search for hot coffee Stella Liebeck turns up over 11,000 hits, and hot coffee lawsuit turns up 60 million.

Now a movie has been made called, appropriately enough, Hot Coffee. And this movie explains why you know about this suit, why it’s part of the discussion over the civil justice system, and how it was used (and misused) for propaganda purposes. This is the blurb from the Hot Coffee site (which also has a trailer for the film):

Seinfeld mocked it. Letterman ranked it in his top ten list. And more than fifteen years later, its infamy continues. Everyone knows the McDonald’s coffee case. It has been routinely cited as an example of how citizens have taken advantage of America’s legal system, but is that a fair rendition of the facts? Hot Coffee reveals what really happened to Stella Liebeck, the Albuquerque woman who spilled coffee on herself and sued McDonald’s, while exploring how and why the case garnered so much media attention, who funded the effort and to what end. After seeing this documentary film, you will decide who really profited from spilling hot coffee.

Why write about this now? Because the documentary was selected today to play at the Sundance Film Festival. The festival picked just 16 films out of 861 submissions.

The Sundance site had this blurb on the film:

(Director: Susan Saladoff) Following subjects whose lives have been devastated by an inability to access the courts, this film shows that many long-held beliefs about our civil justice system have been paid for by corporate America.

The incident occurred in 1992, 18 years ago, and this one case still fuels debate. Why? It may because there are continuing attempts by the corporate world to gain immunity for negligent acts by calling it tort “reform.” And the way the argument is made is by looking for outlier suits, and trying to use those outliers as a means of changing the system as a whole. (Whether the McDonald’s case is an outlier will depend on your own viewpoint after reading the facts, but that is how “reform” politics fundamentally  works.)

The debate rages on.

 

November 30th, 2010

ABA Journal Lists Annual Blawg 100 (And Includes Me Again)

I’m flattered. I don’t know how else to say it.  The ABA Journal, the official magazine of the American Bar Association has picked my humble little blog as part of its 100 best law blogs in the country. That’s three years in a row now.

If you’re a new reader looking to see what this blog is about, you can read my 1,000th post where I discussed highlights of the past four years and gave links to those I thought interesting.

Turning to the ABA list, it will of course be criticized. Because really, picking a “best of” when it comes to a blog is not just a case of comparing apples to oranges, but of comparing apples to carburetors. Or chairs.

They will also get criticized, if the past is any indication, for having people vote for their favorites. Each blog is put into a category (mine this year is Torts) and folks have until the end of the year to vote. This voting thing has led in the past to ballot-stuffing, as happens in these types of online polls where some get a little too enthusiastic. (It’s also why I’ve picked Paris Hilton as my campaign manager, as discussed below.)

When the ABA Journal first created the Blawg 100 in 2007, I was pretty harsh because they had ignored the entire personal injury field; both plaintiffs and defendants, both small cases and mass torts. It wasn’t the ABA Journal‘s finest hour, but they did learn from it.

The second year they added two personal injury blogs — mine and the defense-oriented Drug and Device Law blog —  and included me in a “Regional” category with law blogs regarding China, South Florida, Los Angles and Texas, all writing about different stuff. Like I said, it’s comparing apples to carburetors.

Last  year six out of the Blawg 100 dealt with personal injury law. That was a big change, and a nice development, given that the ABA is the largest bar association in the nation and doesn’t always spend enough time with the consumer end of the law (personal injury, criminal, immigration, matrimonial) as it does with the big business interests. The category that time was called “Geo” and was once again based upon what part of the country (or world) the blog focused on. I was grouped again with some blogs that had nothing to do with this particular field.

Now this year the ABA Journal has a torts category, and I think they finally hit the nail on the head from an organizational perspective. Using the practice area as opposed to the regional area is a more logical approach. And they’ve picked some great blogs:

  • Abnormal Use: Lawyers at the tort defense firm Gallivan, White & Boyd write on products liability and conduct occasional “Abnormal Interviews” featuring Q&As with law professors;
  • Boston Personal Injury Lawyer Blog: Ignore the stock personal injury template that Alan Crede uses and concentrate on the writing. He’s a newcomer to the blogosphere and well worth the read;
  • Drug & Device Law: BigLaw firm Dechert has a group blog that focuses on the defense of, well, drug and device cases;
  • FDA Law Blog: Another newcomer to the blogosphere, the firm of Hyman, Phelps & McNamara focuses on government regulation of the food and drug biz;
  • Jackson on Consumer Class Action and Mass Torts: Another BigLaw entry, this by Russell Jackson at Skadden, Arps, Slate, Meagher & Flom, focusing on the defense of mass torts;
  • Marler Blog: Plaintiff’s attorney Bill Marler is the nation’s Grand Poobah of tainted food cases;
  • The PopTort: One of my favorite, blogs, put out by the plaintiffs-side Center for Justice and Democracy; they don’t sit still when the tort “reform” types try to protect big business from their own negligence.

Paris says to vote for this blog. Because it means little. And she knows a lot about that.

Now before I get to the obligatory “Vote for me” stuff, I note that by including me they have used up a valuable spot that could be taken by others. Two blogs, off the top of my head, that deserve to be included in the 100 are Overlawyered, which was also overlooked last year, and the irreverent Popehat. I don’t always agree with what their authors say, but there is little doubt that they are both exemplary law blogs that ought to be on any one’s “best of” list.

Even if you don’t want to vote, it’s worth perusing the names in the Blawg 100, as you are bound to find some new and interesting law blogs that you hadn’t heard of in the past.

I’ll also note that the BigLaw entries have a ready source of voters…all of the employees at those big firms, each with their own email address to use when registering. So expect one of them to “win” the vote.

Now we get to the Vote For Me nonsense. Bear in mind that this is all a meaningless. But, since beauty pageant’s are supposed to be fun, I’ve once again trotted out Paris to be my campaign manager to help hustle a vote here and there. I figured she was the right one to pick for a beauty pageant.

(Paris Hilton photoshopping by Dan Turkewitz)

 

November 28th, 2010

Tony Hawk’s Shred for Wii by Activision (Review: How Many Ways Can you Say Awful?)

Personal injury law is a consumer issue, usually dealing  with individuals battling corporations. But I’ll stray off that theme a bit today, to review a consumer product I did battle with over the weekend. It’s my blog and I get to do that kind of thing, especially if the product ticks me off because it doesn’t work.

Tony Hawk, for those that don’t know, is a skateboarder. One of the best. And he’s making a killing, it seems, by licensing his name to products as Tony Hawk, Inc.

One of those products is a video game designed for the Wii called Tony Hawk Shred, marketed by a company called Activision. Activision had marketed Guitar Hero, a mega-hit video game with a guitar used as the controller, so maybe the company thinks consumers will buy any game they distribute.

If you are the type to think that way, let me clear it up today with this review: Tony Hawk Shred is not yet ready for prime time. After a few hours of hook-up attempts and product returns, on behalf of a certain child that sleeps down the hall from me, I never did get this thing to work.

This is the idea for the game: A disc goes into the Wii computer, and you use a mock skateboard/snowboard filled with hi-tech doo-dads that’s placed on the floor for the gamer to stand on. The board is motion-sensitive and is supposed to act as a controller, the same way a handheld joystick might. Then, if it actually works properly, it responds to the user as it gets turned, jumped, grabbed and otherwise tricked upon to mimic skateboarding or snowboarding. As I said, that’s the way it’s supposed to work. You can see the commercial for it on YouTube.

Why would I review such a product on this blog?  Because my 8-year-old boy — who loves to skateboard and snowboard — got one from his Nana as a present, and that means Dad hooks it up if it’s beyond the kid’s capability. So I tell said kid to try to do it himself, because he should learn how these things work, and because my video game experience is rooted in Pong, PacMan and Asteroids a few decades back.  I confess that I also dabbled a bit in Solitaire and Minesweeper in the early ’90s when I had my first computer, but let’s face it, I peaked with Pong. No one will confuse me with a joystick cowboy. So the smart money bets on the kid to hook it up if he can.

Tony Hawk, center, showing off the controller board with fans who clearly were not in my basement this past weekend

But he couldn’t. So down to the basement I went. And the problem he seemed to be having is that the controller/board has to first be “calibrated” to the Wii. I don’t  know exactly what that means, but I do know that the Wii computer has to talk to the board/controller computer and that this dance between the two is a necessary step to start the game.

So after the kid tried and failed, I took a crack at it. And 45 minutes later, I hadn’t done any better. The instructions were simple, and after following, re-following, re-starting, re-booting, changing USB ports, changing batteries, and standing on my head to spit nickels, I finally buckled and called Activision’s technical support.

By a show of hands: How many think I could get a human on the line in less than 20 minutes? Right. Does anyone actually like these electronic answering service systems, other than the companies trying to save money by not hiring enough staff?

But I eventually got the human, finally, and she told me to move everything in the room at least four feet away from the board, so the board’s sensors wouldn’t be effected. And to move any heavy metal objects away. But after re-arranging my basement so the magic board sat there in the center by itself like some museum diamond, and even standing in another room to make sure not a hair moved in the vicinity of the computers while they tried their calibration flirtation, we still didn’t have a calibrated skateboard/snowboard. And we know it didn’t work  because there was Tony Hawk on the TV telling us so.  Over and over and over again.

So Activision’s technical support rep gave me a special number to call for advanced technical support. Ah ha! The magic ticket, I figured.

Only after hanging up, however, did I realize that she had given me the same number I had just dialed. Back into the electronic answering system I went, as the steam blew out from my ears.

Before going on, let me give you a tip if you have the misfortune of calling Activision technical support and being trapped inside its virtually humanless  hotline. If you want an actual, living, breathing person to help you, do not speak any of the following logical commands at the voice prompt: “Help.” “Customer Service.” “Human being.” “Representative.” Nor should you repeatedly pound on the “O” as this won’t get you an operator, though it might get you disconnected so that you have the pleasure of starting all over yet again.

No, the magic words are “Live Agent,” to distinguish it I suppose, from the dead agent robots that the evil mastermind designed to exhaust  your patience and have you hang up, so that Activision and Hawk need not pay more salaried humans. Most people, I suspect, will hang up in frustration after being unable to find a human on the hotline, which I guess is the idea.

Back to the story: My new Live Agent — a perfectly pleasant gentleman who I imagine is forced to put up with this crap all day long for those that can get through —  suggests our particular game might be a warranty issue, which I understood to be a polite way of saying I have a lemon. So I call the store to swap it out and start all over, except of course that they have none in stock. Nor does the store in the next town over, but I do find one in the Bronx, and finally fight my way through the crowds for the swap. The salesman who did the swap told me he’d heard of problems with the Wii version of the game.

Now you know where this is going, right? The second piece of crap was just as bad as the first. The controller, that being the board, refused to calibrate.  We never did get the game working.

The kid with his Tony Hawk shirt, before he got the crappy game as a present

The kid with his skateboard and Tony Hawk shirt, before he got the crappy game as a present

By this point, my kid had developed a new mantra. It goes like this: “I hate Tony Hawk.”  I doubt he’ll wear the Hawk shirt again that you see him sporting in the photo to the right. I thought about telling him that Hawk probably didn’t design either the hardware or software; that he’s  just an athlete that licensed his name. It wouldn’t be a bad lesson for a kid.

But then I thought, why should I defend Hawk? He wanted the money so he created Tony Hawk, Inc. and licensed his name. And besides, he claims to be involved in making the games. If he wants to preserve his name he must make sure the stuff with his name on it actually works. You don’t get to take the good stuff (money from licensing) without risking the bad (lost fans and shredded reputation if the product stinks).

When I brought the game back for a refund the salesman told me that the model released last year (Tony Hawk’s Ride) was also riddled with complaints about the Wii version. This was supposed to be the new and improved model. You’d think they would have worked the bugs out of the system with this one. But the guy told me that people will buy anything with Hawk’s name on it, so maybe management (and Hawk himself) don’t really care?

When I buy a computer, I expect it to work. Which is why I’ve used Macs since around 1995. And when I need to call tech support, Apple taught me to expect a person on the line that will actually help.  Tony Hawk’s Shred for Wii fails miserably with respect to both the game itself and the support it offers.

But wait, there’s more! You know that prompt  you sometimes get asking if you’d like to take the customer satisfaction survey at the end of the call? The one you always answer “no” to? This time I said yes. And as promised, the call came in two minutes after I hung up with tech support. And this was the kicker: After one question the customer survey line simply went dead. The company couldn’t even do that right. Or, perhaps, they really don’t want to know.

But at least I know this blog works.

Update 12/28/10:  A Tony Hawk Christmas (Shred Game, Updated)

 

November 24th, 2010

Happy Thanksgiving

Wishing one and all a happy and healthy holiday with the family.

Last year at this time, I did a Blawg Review based on Arlo Guthrie’s Alice’s Restaurant Massacree. If you listen around noon tomorrow, you ought to hear it come around on the radio. The song, that is, not the blog post. Because Alice’s Restaurant is the name of the song. Not the blog.

So give a listen and feel free to sing along. With feeling. In four part harmony if you like. Or not. It’s gonna be played anyway.

Go off and have a Thanksgiving dinner that can’t be beat, and at the end of the day, don’t forget to take out the garbage, using such shovels, rakes and implements of destruction as you see fit. To the cans. Not the dump. Which will be closed on Thanksgiving. Though I’d never heard of a dump being closed on Thanksgiving.

But you get the idea. If you’re sitting down with family, as I hope you are, look around the table and count your blessings.

 

November 22nd, 2010

Chandra Levy and The Rush to Judgment

A guilty verdict came today in the murder trial of Chandra Levy. She was an intern in Washington who might (or might not) have had an affair Congressman Gary Condit ten years ago. She was murdered while in Washington’s Rock Creek Park.  Fox News, at the time, turned this into its summer story as All-Levy-All-The-Time trying to force Condit from office.

But that isn’t why I write on the subject. I write because, according to this article, the evidence at the trial of Salvadoran immigrant Ingmar Guandique, who was arrested last year and charged with the murder, was reported as thin:

Prosecutors Amanda Haines and Fernando Campoamor-Sanchez obtained a conviction even though they had no eyewitnesses and no DNA evidence linking Guandique to Levy. And Guandique never confessed to police. Prosecutors hung their hopes in large part on a former cellmate of Guandique, Armando Morales, who testified that Guandique confided in him that he killed Levy.

But that news blurb doesn’t mean I have an opinion on guilt. I wasn’t in the courtroom hearing the evidence. By contrast, peruse the comments of the article and look at the rush to judgment in so many different comments. People make up their minds, not on hearing evidence over the course of a trial, but on how some reporter distills it all down to a few sentences. Here are a few samples from the last 10 minutes (there area already over 2,000 comments):

This sounds fishy. No direct evidence—I doubt that this guy would have been convincted if he was a smiling white guy without tattoos. Yes, he committed other crimes, but that doesn’t make him guilty of this one by default. I’m ashamed of our justice system for this decision and I hope it is appealed and overturned.

I think it is weird there is no DNA evidence but at least this guy is going to jail so he won’t attack any more people, just think about what his other victims went through, very glad he is going to jail!

This guy is innocent and the justice system is guilty!!!!!!….what a bunch of stupid attorneys, judges and jury group…seriously??…any fool can see that he did NOT kill her based on NO evidence…the Levy family did not put closure in anyway on this situation…it just reopened the wound!

so how did he become the murderer…wheres the evidence?! I’d love to see it!

another sacco and vanzetti trial

This man didnot do it. The DNA belongs to the middleman of Condit. Fear for his life and bribe for his family made him accept the verdict.

Those knee-jerk reactions are familiar with anyone that has picked a jury. It’s the rush to judgment over “these kinds of cases” if you happen to have a routine sort of fact pattern, such as a car accident. There are many who have already made up their minds. Facts aren’t really important to some people, because they have already made an emotional investment by forming an opinion on the case.

And the job of the trial lawyer is to find out who these people are before they get a chance to sit.