Welcome to Law.com’s Midweek Recess, in which we round up some tasty tidbits from the week’s legal news cycle. We’ll be here every Wednesday, so grab a cup of coffee and take a little break. It’s all downhill to the weekend from here.
Where Was Our Invitation?! - Famous funnyman Dave Barry hung out with U.S. Supreme Court Justice Stephen Breyer during a dinner at the Sun Valley Writers Conference this week, and he has the pictures to prove it. The two were among the speakers at the conference. Snapshots posted on Barry’s blog show Breyer gamely displaying an exaggerated “pose of extreme thoughtfulness” during what the comic claims was a discussion of constitutional law. We’re not-so-secretly hoping they were actually discussing the appropriate timing of jokes during oral argument. In several studies of humor at the high court, Breyer has generally ranked as the second funniest justice, as measured by how many of his comments prompt laughter from the audience during oral arguments. Some inspiration from Barry might just help Breyer finally pull ahead of that snarky Justice Scalia, perennial occupier of first (comedic) place.
Bonus: Barry reports that the photos were taken by attorney-author Scott Turow, with “direction” from actor Hector Elizondo.
Also, we really wish we’d been at that cocktail hour.
Charmed, We’re (Not) Sure - You know how in kindergarten they tell you that if you don’t have anything nice to say, you shouldn’t say anything? Magistrate Judge James C. Francis IV was forced to administer a remedial course on this topic to a lawyer earlier in the week.
The attorney, Denise Savage, emailed her opposing counsel, Daniel J. Brown, and called him “an asshole,” threatened to use conversations with him that she had recorded without his permission to discredit him. She added a few other choice phrases to emphasize that he should stay on the straight and narrow and not attempt to “fuck [her].” Mr. Brown brought Ms. Savage’s email to the magistrate’s attention, and the judge was forced to remind everyone that:
You’re an asshole, Dan” is not how an attorney should address her adversary. Nor is it proper professional conduct for a lawyer to make a surreptitious tape recording of her conversation with an opposing expert while he is performing a forensic examination.
We’d have to agree. What makes it even more unprofessional (and odd) is that Savage didn’t actually make any recordings; per her own admission, she lied about having done so in her email to try to get Mr. Brown to listen to her. It seems clear that she overdid things, sending a nasty note and making threats that turned out to be lies, the telling of which is very definitely a violation of professional conduct.
Yet we also can’t help thinking: This is not the first time one lawyer has called another “an asshole,” nor is it likely to be the last. So, truth be told, this whole thing is not so much a lesson in professional conduct as it is a seminar in the fine art of restraint. Specifically, Judge Francis suggested that Ms. Savage might have “used better judgment and pressed ‘delete’ instead of ‘send.’” Too true, Your Honor. Too true. And this leads us to the true lesson here: Kids, if you think opposing counsel is “an asshole” and you can’t resist saying so, at least tell him to his face. Don’t put it in an email. If you do, he might just be enough of “an asshole” to forward it to the judge.
To the Victor Go the (Sweet) Spoils – There’s trouble in Candy Land these days, and it’s not just Lord Licorice’s dastardly plan to take over the kingdom. Landmark Entertainment, which contributed new characters and other elements to a 1980s revamp of the classic board game, is suing Hasbro, alleging that the toymaker violated Landmark’s intellectual property rights by giving Sony Pictures the rights to make a live-action film based on the famous confectionery contest. Landmark contends that its license agreement with Milton Bradley (which was later bought by Hasbro), only covers the manufacture of toys, and doesn’t extend to movies or video games.
So, who will win this fight? Hasbro, Landmark, or Princess Lolly of the Lollypop Woods in a come-from-behind victory (“No one has rights to my kingdom but me!”)? Perhaps Hasbro will get out of the sticky situation by offering the folks at Landmark a sweet deal (avoiding getting bogged down a la Gloppy, the Molasses Monster of the Sweet-Tooth Swamp).
Getting the Call - Manuel Noriega, the former military dictator of Panama is suing Activision Blizzard Inc. for creating a character that resembles him for its “Call of Duty: Black Ops II ” video game. Noriega, who is currently serving multiple jail sentences in Panama for the murder of political opponents, has previously served sentences in both the United States and France. In his suit, his attorneys argue that Activision has violated Noriega’s right of publicity by creating a character that looks like the dictator. Further, they assert that the game makes him out to be “the culprit of numerous fictional heinous crimes, creating the false impression that defendants are authorized to use plaintiff’s image and likeness.” In addition, he’s concerned that the character may have caused “damage to his reputation.”
We’ll leave it to the court to decide the right of publicity issue (if you’re interested, Eugene Volokh wrote a great post about it here). However, we’d like to gently suggest that if you’re really concerned about your reputation, you don’t have to spend a ton of time worrying about being accused of “fictional heinous crimes.” Instead, maybe try not committing heinous crimes in real life. Just saying.
An R.B.G. Postscript – If you read our coverage of the recent explosion of Ruth Bader Ginsubrg fandom, you might have wondered: How does Madame Justice feel about all the attention? Pretty good, says NYU law student Shana Knizhnik, founder of The Notorious R.B.G. tumblr. In an interview, she said: “A friend of mine just emailed me to say that he asked her about it at an intellectual property conference in Italy, and she said that she loves it. He said [Justice Ginsburg] gave out [Notorious R.B.G.] swag to her clerks, so I’m pretty sure she both knows about it and likes it. That makes me feel good.”