Author Archives: Pamela

Why is a legal action called a suit?

The law has many strange and esoteric terms.  Have you ever wondered where the term suit, as it refers to a legal proceeding, came from?  Black’s Law Dictionary defines suit as “[a]ny proceeding by a party or parties against another in a court of law; case.”  It adds “lawsuit” and “suit at law” as synonyms.1  The use of the term suit originated in 14th century England, before there were organized court systems.  Disputes were settled in open-air communal meetings.2  The goal was not a reasoned decision, but an amicable settlement.  If that could not be achieved, the next resort was proof by oath, backed up by a physical challenge of some sort.
“In order to put the defendant to this hazard [physical challenge], the plaintiff was required to establish a prima facie case; and this was the purpose of his ‘suit’ (secta), the group of followers whom he had brought with him to back him up on oath. The suit had some affinity with witnesses, and they may have been subject to examination as to competence, but their testimony was only part of the interlocutory process and did not dispose of the matter.”3
“This sort of ‘witness,’ …, might have nothing to do with the trial; he belonged to the stage of the preliminary allegations, the pleading, where belonged profert (sic) of the deed upon which an action or a plea was grounded.” In time, the suit was absorbed into common-law procedure, mostly serving as transaction witnesses when written contracts were rare.5  Eventually, “they were not even produced, and only the formula in the pleadings was kept up.”6   Today, the allegations in a complaint filed to initiate a lawsuit serve the same function – of presenting a prima facie case – as the 14th century suit.  In the practice of adjudicating a motion to dismiss a lawsuit for failure to state a claim by taking the plaintiff’s allegations as true,7 we hear the echo of the medieval principle that the suit cannot be examined.

1. Black’s Law Dictionary (9th ed. 2009).
2. J.H. Baker, An Introduction to English Legal History 5 (3rd ed. 1990).
3. Id. (emphasis added).
4. James B. Thayer, The Older Modes of Trial, 5 Harv. L. Rev. 45, 48 (1891).
5. Baker at 362.
6. Thayer at 48.
7. “The question is whether, in the light most favorable to the plaintiff, and with every doubt resolved in his behalf, the complaint states any valid claim for relief.” Gentry v. Yonce, 522 S.E.2d 137, 139 (1999).

How the NSA mines our data

There has been lots of discussion recently about the data being collected by the NSA but very little that is helpful in understanding how such a large data-mining operation is actually carried out.  Popular Mechanics has a very helpful piece, identifying the various players, recapping the timeline of the controversy, walking the reader through the steps of the program, and explaining what the folks at NSA are looking for.

Cleaning up social media

Worried about what potential employers might see on your Twitter feed or Facebook page from a few years ago? Ever wished you could start over fresh in your social media life. If you’ve ever tried, you know how frustrating it can be. It’s almost like those social media sites don’t want you to leave. Actually, they do intentionally make closing or deleting an account complicated. But help is on the way. Take a look at Justdelete.me, a UK-based website that offers ratings of the difficulty of closing and removing your accounts on over 250 different social media apps and services.  There are also instructions for deleting your accounts on most of the sites in the list.  Now if there were only a way to vacuum up all those posts that got shared or re-Tweeted.

LinkedIn endorsements = ethical violations?

The most recent ABA Journal raises the question of whether endorsements on LinkedIn violate legal ethics rules.  The SC Bar addressed this issue in an Ethical Advisory Opinion in 2009.  The questions posed were:

Questions:
1) May a South Carolina lawyer claim his or her Company X website listing, including peer endorsements, client ratings, and Company X ratings?

2) May a South Carolina lawyer invite peers, clients, or former clients to post comments and/or rate the lawyer ?

And the answers were:

Summary
1) Yes, a lawyer may claim the website listing, but all information contained therein (including peer endorsements, client ratings, and Company X ratings) are subject to the rules governing communication and advertising once the lawyer claims the listing.

2) A lawyer may invite peers to rate the lawyer and may invite and allow the posting of peer and client comments, but all such comments are governed by the Rules of Professional Conduct, and the lawyer is responsible for their content.

The question still remains about unsolicited endorsements.  LinkedIn provides a way to hide endorsements.  Does doing nothing constitute claiming?  If a lawyer receives an unsolicited endorsement on LinkedIn and does not remove or hide it, has the lawyer “claimed” the endorsement such that it is now subject to all the rules governing communication and advertising, including those dealing with claims of expert status?

Study reveals economic impact of legal profession in South Carolina

On January 30, 2013, the SC Bar received a report on the economic impact of the legal profession in South Carolina.  The study was conducted by Dr. Joseph C. Von Nessen, Research Economist with the Division of Research at the USC Darla Moore School of Business.   The conclusion states:

The legal profession in South Carolina is a diverse professional service industry that interacts and contributes to many sectors of the state’s economy.  With nearly 13,000 lawyers and legal staff members working in South  Carolina, the legal profession has a strong economic footprint in the state. This employment level is estimated to have a total economic impact of over $2.6 billion annually on South Carolina’s economy. 

The full report can be found here: http://scbar.org/LinkClick.aspx?fileticket=ZspiTtJ53lg%3d&tabid=81

Background documents for Fisher v. University of Texas

The reference librarians of the Tarlton Law Library have assembled a research guide for the pending U.S. Supreme Court case, Fisher v. University of Texas. Oral arguments are scheduled for October 10, 2012. The guide can be found here: http://tarltonguides.law.utexas.edu/fisher-ut

The guide includes the text of selected court documents filed with the U.S. District Court for the Western District of Texas, the U.S. Court of Appeals for the 5th Circuit, and the U.S. Supreme Court. The guide also includes news coverage and law review articles about the Fisher case, and some basic information on UT student body profiles and statistics since 2008.

Tarlton’s librarians will continue to follow the case and update the guide as new articles are published.

Cartoon brief

Faced with a 5 page limit, a lawyer opposing a Justice Department antitrust settlement with e-book publishers submitted his amicus brief in the form of a “graphic novelette.” At first, this sounds like a terrible idea, but it’s remarkably effective.  He did make sure to comply with the font size and margin requirements.

On the Internet, no one knows you’re a dog.

But at least one court has recognized a case for fraudulent misrepresentation, based on assumption of a false persona or personae on the Internet.  The Illinois Court of Appeals stated that the “[p]laintiff and “Jesse” began an on-line romantic relationship that lasted [from April 2005] until July 2006. In addition to e-mails, “Jesse” and plaintiff exchanged personal photos, handwritten letters, and gifts. They even spoke regularly on the telephone; plaintiff alleged that defendant used a voice-altering device to disguise her female voice. Defendant, under her own name, also maintained a relationship with plaintiff during this period. In addition, defendant created a universe of approximately 20 fictional on-line characters involved with “Jesse,” including an ex-wife, a son, various family members, a therapist, and friends living in the United States and abroad. These characters communicated with plaintiff from separate and distinct e-mail accounts and even sent photos, handwritten mail, and packages from different states and foreign countries. Plaintiff sent gifts worth over $10,000 to defendant, “Jesse,” and various other characters.”

To find the opinion and read it for yourself, search for Bonhomme & St. James as party names in the Illinois cases database of your favorite vendor.