Monthly Archive for December, 2006

Santa Claus Is Prevented From Drinking Beer in Maine

Published
by
Michael Law
on December 17, 2006
in Comedy
. 0 Comments

From Law.com:

A beer distributor says Maine is being a Scrooge by barring it from selling a beer with a label depicting Santa Claus enjoying a pint of brew.

In a complaint filed in federal court, Shelton Brothers accuses the Maine Bureau of Liquor Enforcement of censorship for denying applications for labels for Santa’s Butt Winter Porter and two other beers it wants to sell in Maine.

The dispute recalls a similar squabble last year when Connecticut told Shelton Brothers it had problems with its Seriously Bad Elf ale.

“Last year it was elves. This year it’s Santa. Maybe next year it’ll be reindeer,” said Daniel Shelton, owner of the company in Belchertown, Mass.

The lawsuit, filed last week, contends the state’s action violates the First Amendment by censoring artistic expression.

But the state says it’s within its rights. The label with Santa might appeal to children, said Maine State Police Lt. Patrick Fleming. The other two labels are considered inappropriate because they show bare-breasted women.

Lawsuit filed against Santa Claus. Let the man drink his beer.“We stand by our decision and at some point it’ll go through the court system and somebody will make the decision on whether we are right or wrong,” he said.

The lawsuit was brought by the Maine Civil Liberties Union, which says the beer labels are entitled to First Amendment protection.

“There is no good reason for the state to censor art, even art found on a beer label,” said Zachary Heiden, staff attorney for the MCLU.

The label for the English-made Santa’s Butt Winter Porter features a rear view of a beer-drinking Santa Claus sitting atop a barrel. The beer’s name refers not only to Santa’s ample backside, but also to the barrel. In England, brewers once used a large barrel called a “butt” to store beer.

States have the power to regulate alcohol through the 21st Amendment, which repealed Prohibition in 1933. “But I don’t know where they get the idea they can ignore the rest of the Constitution,” Shelton said.

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Defamation Factors

Published
by
Michael Law
on December 16, 2006
in Torts
. 0 Comments

From Brett Trout:

Once a defamatory statement has been proven under one of the previous definitions of slander or libel, the victim must still prove the statement was both published and identified the victim. If the statement was made about a public figure, the victim must also prove malice. Similarly, if the victim was a private figure, but the subject matter of the allegedly defamatory statement was a matter of public concern, the victim would have to plead and prove at least negligence on the part of the alleged defamer:

(1) Publication. Publication simply means that the statement was understood by a third party in a communication that was not subject to one of the privileges discussed below. A single third party understanding the communication is sufficient to find liability. The statement, however, cannot have been relayed by the victim or the victim’s agent, unless the victim was under a strong external compunction to relay the information.

(2) Identification. To qualify as defamation, the statement must relate to a corporation, a partnership or a living person (deceased individuals do not qualify). The identification of the victim can either be a direct or indirect identification, such as through an inference, a general description of the victim, or in a roman a clef, where it is clear the publication relates to the victim.

(3) Damages. Although damages are presumed if the statement is libel per se, it is still advantageous to prove damages, not only to maintain the option of changing the cause of action to a claim for libel per quod, but also to increase the potential award. Damages in a defamation case can be shown through a detailed description of the victim’s prior reputation and the extent of the distribution of the defamatory statement. Associated damages may include loss of income, emotional distress, physical pain and suffering, medical bills for mental anguish, humiliation, and embarrassment.

(4) Malice. While proof of malice is not necessary in a case of libel per se, proof of malice is required for causes of action where the victim is a public figure. Additionally, malice must be shown if the victim is a private figure and the victim desires to obtain punitive damages. Actual malice typically means that the statement is made with knowledge that it is false, with reckless disregard for whether or not it is false.

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Emotional Lawyer Training Seminar From Gerry Spence Disciple

Published
by
Michael Law
on December 15, 2006
in Lawyers
. 0 Comments

In a recent article by the LA Times, there is a description of a new lawyer training seminar, in which lawyers are expected to dig deep into their emotions to improve their skills:

The lawyer stood sobbing in the center of a darkened hotel conference room, ringed by dozens of other personal-injury lawyers. As the attorney recalled the final moments of his mother’s life, his voice cracked and his body shook with repressed grief. And all around the circle, the lawyers watching him also began to weep.

Then the others began to make their own confessions: “My parents died … ,” one began, his voice husky with tears. “I was disconnected from my father …,” another said. “All of a sudden, I thought about my mother … ,” a third added.

The leader of the seminar is a lawyer named Judd Basil. He is a disciple of Gerry Spence (author of many best-selling books, including How to Argue and Win Every Time and Win Your Case) who has been teaching this technique at his trial college as a three week course.

Basile and his mentor, lawyer and author Gerry Spence, say the technique helps attorneys become better people. Proponents also contend that it can help them persuade juries to award millions of dollars to their clients — about 40% of which typically goes to the lawyer.

Psychodrama, in which participants gain insight by acting out scenes from their own lives, was developed by Romanian-born psychiatrist J.L. Moreno, who brought it to the U.S. in the 1920s.

Here’s an example of a technique used :

A facilitator asked the lawyers to imagine a client who had touched them deeply. Then, she said, “Take on the physical persona of that client.” Finally, she asked the lawyers to tell the client’s story — in the client’s voice.

Lawyers began to act like car crash victims with missing limbs, or like people with brain injuries or disfigured faces.

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