Blog Ipsa Loquitur

Published on under A Day in the Life

Published on under The News

In my third year of law school, I helped launch a legal reporting blog at my school; Legal As She Is Spoke gives students a chance to practice writing (and thinking) about the law.  The stories principally correct the mangled or absent legal analysis in the news.  I do a bit of that here, but I think these folks do a better job than I do most of the time.

My new favorite is “Judge Throws (Face)Book at Juror” — we all know it’s a bad thing for a juror to be eager to convict someone before the end of the trial.  But why exactly is it such a bad thing?  The answers can be surprising sometimes.

During a trial in Massachusetts, a juror fired off an e-mail to 800 of his closest friends saying, “[j]ust say he’s guilty and lets [sic] get on with our lives!” The Massachusetts Supreme Judicial Court rejected the defendant’s claim that he was prejudiced by the juror misconduct.

The court reasoned that the jurors were not exposed to any extraneous information that would have compromised the fairness of the trial. Similarly, Ms. Jons’s Facebook post is not a search for information related to the case, but a communication with her friends about the case.

Read the rest at Legal as She is Spoke.

Published on under Legal Theory

My favorite part of the newspaper is the comics. I personally like Calvin and Hobbes, but that one hasn’t been in the papers for about fifteen years. I settle for the “news of the weird” stuff these days. You know, stuff like “Kitten Rescues Family from Burning Home” or “SWAT Team Requested for Violent Midgets” that makes you chuckle for a few seconds. (The name of the newspaper in the second article is one letter away from The Onion, which made me do a double-take. It’s just good to know the police are available to take care of small problems.)

Sometimes, they involve crazy lawsuits that make you scratch your head and curse lawyers. You don’t read a lot of these cases in law school, since by definition “the crazy lawsuits” aren’t really good for demonstrating an awful lot of law or legal theory. But they’re still hilarious in their own right. For instance, Destructoid has an article about a lawsuit filed by a man who claims the creators of a video game made it “too addictive.” Scoff!

Destructoid makes this sound like the signs of a society gone wrong:

NCSoft [the developer of the game] has been trying to get the case dismissed, because it is ludicrous, but the judge has refused. This is the world we live in, where a man can sue a game maker because he played their game too much.

Sidebar: If I were the developer, I’d take it as something of a compliment if someone spent 20,000 hours (the equivalent of 833 days!) playing my game. Hell, if the gamer had a minimum-wage job that he spent 20,000 hours on, he could afford a shiny new Porsche 911 GT3 RS, and even insure it for about a week with the money he had left over.

This is not an example of a hilariously out of touch and inept judge handing out free money to a scheming freeloader. Filing a stupid lawsuit is a far sight from winning.

The Lawsuit

There are lots of different kinds of lawsuits. If you have a contract with someone, you can sue for breach of that contract. If you punch someone, you can be sued for an intentional tort (battery, specifically). If you accidentally injure someone, then the victim’s claim is for another kind of tort: negligence. Negligence is a time-honored lawsuit, and one of the areas we spend a lot of time on in law school.

NCSoft has tried to get the case dismissed for failure to state a claim, which is the standard way for dealing with crazy lawsuits. A failure to state a claim is pretty much what it sounds like; the lawsuit you filed in court doesn’t contain a recognized claim, it just recites a bunch of bad things that happened to you. Since the judge in this case, Judge Kay, has refused to dismiss the case for failure to state a claim, we can assume one of two things:

  1. Judge Kay has no idea what a video game is, how the law works, or what common sense is, and he should never be permitted to be in charge of anything ever; OR
  2. He had a pretty good reason for declining to dismiss the case.

So, because the motion was to dismiss for failure to state a claim, if there was actually a claim stated, the case shouldn’t be dismissed for failure to state a claim. It’s tautological, but it bears consideration, and Judge Kay would probably be happy to know that he’s not as woefully inept as Destructoid believes him to be.

A Claim of Negligence

The lawsuit claims negligence on the part of NCSoft. Negligence is composed of four relatively simple elements.

The first is that the defendant owes someone a duty to act with some level of care; to make sure that certain bad things don’t happen to certain people. Drivers owe a duty to pedestrians to make sure their car doesn’t end up on the sidewalk. Grocery stores owe a duty to customers to make sure the shelves don’t tip over. Doctors have a duty to make sure that when they amputate your leg, they amputate the correct one.

The second one is that the defendant failed to live up to that duty, breaching the responsibility he owed. The driver ends up on the sidewalk, the shelves collapse on a stroller, or the doctor amputates an arm instead of a leg.

The third element is that the plaintiff suffers a physical injury. Broken legs, shattered vertebrae, all the sorts of things that open-mic night comics think lawyers salivate over. (Operant conditioning is a harsh mistress.)

The fourth element is that the plaintiff’s injury was caused by the defendant’s breach. This should be pretty straightforward, but it ends up being kind of tricky when lawyers argue about whether any subsequent events severed the chain of causation, whether the defendant’s actions were the proximate causes or cause in fact, and so on and so forth.

Bringing it Home

So, then, for the plaintiff’s lawsuit for negligence to survive a motion to dismiss for failure to state a claim, it has to state that the plaintiff suffered an injury because the defendant failed to take a certain measure of care, and that the defendant had a duty to exercise that measure of care. None of these things have to be true. None of these things have to be proven. None of these things even get to be argued. The question for the judge is whether the plaintiff has stated a claim, not whether the plaintiff has a good case or a bad case or a laughably stupid case.

So if the plaintiff in this case says “these guys should have warned me the product was so dangerous, but they didn’t and I suffered an injury because of this carelessness,” that’s a claim. That’s negligence. That’s essentially all you need to do to survive a motion to dismiss for failure to state a claim.

Now, I would disagree that a video game company owes a duty to anyone to warn that their games may be addictive. I don’t think that the absence of a warning label “caused” the injury. I’m not even certain “I played your game too much” is an injury. In short, this lawsuit has a hilariously bad claim in it, but it’s still a claim. A judge shouldn’t dismiss a lawsuit for failing to state a claim unless it actually fails to state a claim. This doesn’t mean that NCSoft is doomed to pay this man frillions of dollars, or that they’ll even have to try the case.

NCSoft’s next move is to file a motion for summary judgment, which is where a defendant doesn’t contest the facts alleged by the plaintiff, but points out that even if they’re all true, the plaintiff would still lose. It’s the legal equivalent of shrugging your shoulders and saying “so what?” For example, NCSoft could admit they didn’t put a warning label on the game, and then convince the judge that they had no duty to warn players that the game was addictive. If successful, it’ll resolve the case in NCSoft’s favor, ideally restoring Destructoid’s faith in the legal system.

Published on under The News

Cindy Cohn, the legal director at the EFF, has written a wonderful review of the Google-Verizon deal that seems to have the entire internet aflutter. If you’ve never heard of the EFF, rest assured that they’ve worked tirelessly to advance civil liberties on the internet before any of us had even heard of the internet.

I had the good fortune to meet Ms. Cohn this past Spring; she’s remarkably brilliant, and you’ll be hard-pressed to find a more cogent analysis of the Google-Verizon deal from a net-neutrality perspective than the EFF’s take.

Published on under The News

Google has recently struck a deal with Verizon: I think they’re both hedging their bets in case this whole “Net Neutrality” thing doesn’t pan out. Google managed to wring out of Verizon a promise to leave the “regular” internet open, but the mobile internet (which is increasingly becoming “the internet”) is apparently fair game for all manner of tiered services. Reaction to this agreement has been varied; Epicenter has a nice roundup of the varied op-eds from around the blagonet. [Click a Doodle Doo]

Published on under The News

Fresh off the testgasm known as the New York Bar Exam, I’m visiting my folks in the Deep South: Atlanta. Everyone’s unflappably friendly here, but I’m convinced they’re secretly trying to kill me with pulled pork and racks of barbecued ribs. The thing is, the folks down here don’t pretend this stuff is even remotely healthy. They just let the food speak for itself.

As far as I can tell, three pounds of slow-cooked porcine perfection doesn’t scream “healthy choice.” There’s something to be said for letting me make up my mind about whether I want to live to see 40.

Now, this Vitamin Water stuff, that’s a pig of a whole different color. There’s an article on the Huffington Post about a recent lawsuit against Coca-Cola over false advertising for Vitamin Water. John Robbins completely misses the boat by calling Coca-Cola’s defense “a staggering feat of twisted logic,” when it’s actually a perfectly mundane and unremarkable legal defense. To explain, it’s best to start at the beginning.

Sugar Water

Coca-Cola is a company that sells sugar water. The success of Coca-Cola’s sugar water is based on their superior ratios of sugar to water, or ancient gypsy magicks, or something. I don’t know. For whatever reason, Coca-Cola’s sugary water drinks are wildly successful.

One of these successful sugar water drinks is called Vitamin Water. Someone is suing Coca-Cola for making unwarranted health claims about Vitamin Water; specifically, that the sugary water called “Vitamin Water” is not as healthy as it sounds. Coca-Cola has actually spent a lot of money marketing Vitamin Water as a healthy drink; this is presumably a less laughable claim when your principal product doubles as chrome polish.

If you’re Coca-Cola, there are a couple of ways to fight off a false advertising lawsuit.

The Boring Way

The first way is to disprove the elements of false advertising. This brings into issue both (1) what you say and (2) what is objectively true about your product. Assuming you could quickly settle what was said and what your ad campaign meant (hint: this will take forever and your legal fees will bankrupt you), you’d still have to argue about whether or not it was true.

So, once the lawyers are done quibbling, the scientists would go back and forth with clinical tests of sugary water on rats, and the jury would claw their own eyes out in a desperate attempt to cause a mistrial and earn their freedom. This is the way grownups with more lawyers than common sense settle their disputes.

Dear Reader, this is not the Almost Legally way.

The Fun Way

No, the fun way to defend yourself in a false advertising lawsuit is to stand your ground, concede points 1 & 2 above, and cry “puffery!” An advertiser can acknowledge that they made false claims about their product, but no reasonable person would ever believe these claims. At first, this seems like it wouldn’t be a great defense to lying about your product.

But that all depends on why we care about advertising in the first place. There’s a nice essay on the free market’s reliance on the truth in advertising on the FTC website. It explains the rationale behind regulating advertising in the first place.

Without getting too philosophical, capitalism hinges in part on people knowing which product is best for them. If advertising is allowed to flat-out lie, the consumer search costs required to find the right product create an incentive for producers to spend more time (falsely) advertising than creating good products.

If we accept this justification for promoting truth in advertising, then puffery is the free market equivalent of “no harm, no foul.” You need to use the magic words: “no consumer could reasonably believe” your claims. If only an idiot would believe your claims, then who cares if it’s not true? Your lies have not added to the reasonable consumer’s search costs.

Puffery isn’t a good defense to slight stretchings of the truth, though. If you’re going to claim puffery against false advertising lawsuits, go big or go home. This is a lot of fun if you’re a lawyer: tell your client to make their claims more outlandish. Axe Body Spray has turned this into a sport. Joe Isuzu was a golden god of puffery. Pretty much every beer commercial ever does this. Any ad claiming that MLS is watchable (zing!) is puffery in extremis.

The Upshot

So what John Robbins seems to take as some bizarre, mind-bending, reverse double-secret corporate conspiratorial psychology is really a pretty straightforward legal principle. Puffery is the best thing ever. Hell, if you don’t believe me, read The Best Puffery Article Ever. It’s a wonderful essay on puffery that’s not worth summarizing because you should read the entirety.

Robbins takes this opportunity to rail (rightly, I think) against the adverse effects of drinking lots of sugar water, but he touches on the actual issue only once and briefly:

I guess that’s why they spend hundreds of millions of dollars advertising the product, saying it will keep you “healthy as a horse,” and will bring about a “healthy state of physical and mental well-being.”

I agree with this point. This is a good point. This is where an insightful criticism of Coca-Cola’s defense would begin. Coca-Cola’s advertisements about Vitamin Water probably aren’t so fantastical that you or I would be foolish to believe them. But instead of exploring whether Coca-Cola’s advertisements rise to the level of absurdity needed to be puffery, Robbins complains:

  1. About the fact that you could buy the vitamins in a bottle of Vitamin Water for a penny. (The profit margins on vitamin-enriched sugar water are as outrageous as the profit margins on regular sugar water.)

  2. That this kind of sugar water has so much sugar in it that it should properly be classified as a different kind of sugar water: soda.

  3. That the overall obesity rate in America is depressingly high, and liquid calories constitute a depressing amount of our caloric intake. (I agree with both points, but Robbins fails to connect the American overconsumption of sugar water and our rising obesity rates with any false advertisements about any sugar water.)

  4. That Vitamin Water advertised on that Lebron James show.

  5. That the Lebron show was so popular. (I mean, I agree, but this really doesn’t have anything to do with anything. This smacks of heavy-handed SEO, like that time I wrote an article about fake Rolex watches and penis-enlarging pills.)

  6. That people ought to just drink water instead of sugar water, and that there are many ways to make water taste like things that are not water by adding things that are not water to water.

I agree with Robbins fundamentally; drinking sugar water all the time is silly, and I think there’s a very good chance that Coca-Cola’s ads are false advertising. I think that he and I are on the same team here: let’s drink less sugar water, and more water water. But this article is wildly ignorant of one of the fundamental principles of advertising law; to claim that Coca-Cola is employing some ineffable legal voodoo in its defense is flat wrong. Puffery is not new.