MRIs in motion show what happens on the inside

I've previously written on the benefit of MRIs taken under real-world conditions, where the patient is sitting or standing upright during the MRI. These types of MRIs are invaluable for explaining why some patients experience certain types of pain patterns, even when recumbent (lying down) MRIs can't always explain pain.

Here's an interesting video compilation of MRIs images set to motion (warning — brief clip of sexually explicit content):

Perception versus Reality: the jury can't hear everything

I caught a lucky break last weekend when one of my college roommates at the SAE house put his Razorback tickets up on Facebook. He has an infant and won't be making many games this year. We planned on going to Fayetteville for the game, so I stopped in Little Rock and got his tickets. To the delight of my son and I, the tickets were front row south end zone seats. Great seats for a great game. The Hogs capped off a dominating performance against Northern Illinois with a touchdown sprint by Korliss Marshall late in the 4th quarter. This happened right in front of our seats, and my whole family could have reached out and touched the players. The photo is a screen grab from the ESPNU coverage of the game.

My oldest son's perception of what it means to go to a Razorback game is forever changed. At 6, he'll probably always remember that moment on the front row. (My earliest memory of a game is from the age of about 4, most of the way up the grandstands. I was terrified of Big Red, the mascot.) In reality, it is rare to have those types of seats, even for big boosters. As I said before, I simply got lucky. (So did my friend — they volunteered to change seats when the south end zone seats were installed.)

Perception versus reality has its place in the courtroom, and juror feedback is a great thing for identifying the difference between the two. I've tried cases in three states in both federal and state court. Every judge does something a little differently about talking to the jury. Many times, juror feedback is limited by the Court. For example, in most federal courts, the judge won't permit any contact with jurors until after any appeals are finalized, and then only if the juror puts his or her name on a list. In state court in Arkansas and Texas, the custom is for the judge to tell jurors that want to discuss the case with the attorneys to leave through the courtroom; other jurors go out a different door.

After unfavorable jury verdicts (which any plaintiff's lawyer who tries many cases have had), jurors almost always report that they would have liked to see more information — more medical records, more tax returns, any information about car or health insurance, more witnesses from different parts of life. Courts have limited resources, and so attorneys must make choices about what evidence to present to the jury within a limited time frame. Attorneys for injury victims also can't present any evidence relating to insurance, which is a law we believe should be changed. This is the case even when the defendant has insurance to pay any judgment, or the medical bills actually paid by health insurance are far less than the rate charged by a hospital.

So the reality is that people have many more medical records and witnesses than could ever be presented to tell a complete story of a life-changing event. Court rules also limit what types of evidence can be shown to the jury. So, the jury's perception is shaped by constraints on time and by laws created by lobbyists to limit references to insurance and other matters that almost always interest the jury.

If you were on a jury, how would you handle the difference between perception and reality? How would you want an attorney to explain the difference to you?

Nathan Publishes Article in the Arkansas Law Review

The summer 2014 edition of the Arkansas Law Review is out, and I wrote one of the feature articles. The article is about the Arkansas Deceptive Trade Practices Act (ADTPA). The ADTPA permits any citizen who has been the victim of a deceptive trade practice to bring suit against the bad actor. The act is very broad and consumer-friendly. We most often see it when the Arkansas Attorney General uses it to stop wrongful practices, like very high interest check-cashers.

The Act contains an exemption for conduct "authorized" by federal and state laws and regulations. Some Arkansas courts apply the exemption as written. For example, when the Environmental Protection Agency approved an estimated mileage sticker for the Toyota Prius, an ADPTA claim against Toyota for misleading mileage estimates failed. The conduct was "authorized" by the EPA. When the ADTPA exemption is limited like this, it is known as an application of the "specific conduct" rule.

Some Arkansas courts have interpreted this to mean that all "regulated" conduct is exempt from the ADPTA. For example, some insurance companies argue that their claims practices are regulated and any ADTPA suit against them must fail, even though the insurance code defines certain insurance practices as deceptive (like failing to give you a reason for denying your claim). Primarily, the federal district courts for the Eastern District of Arkansas apply the rule this way; it is known as the "general activity" rule.

The Arkansas Supreme Court hasn't specifically ruled on this exemption. However, many courts around the country have ruled on similar exemptions.  My article surveys 50 other states, and concludes that most states having a rule similar to ours apply the specific conduct rule.

The full citation for the article is: Nathan P. Chaney, The Arkansas Deceptive Trade Practices Act: The Arkansas Supreme Court Should Adopt the Specific-Conduct Rule, 67 Ark. L. Rev. 299 (2014). I'll post a link when it becomes available.

Columbia County wet/dry petition gathers enough signatures, issue will be on November ballot

Chaney Law Firm client Vote for Growth in Columbia County has successfully filed a valid "local option" petition with the Columbia County Clerk. The county's long-standing dry status may be changing in the November election.

Under Arkansas law, the only way to change a county from dry to wet (or vice versa) is to file a local option petition. The requirements are strict; supporters of the petition must gather signatures from 38% of the registered voters in the county.

Vote for Growth in Columbia County turned in more than 1900 petition pages containing over 8000 signatures. On Tuesday evening, the Columbia County Clerk reported that the petition contained at least 4954 valid signatures, which is the minimum number required to get the issue certified. At least 1000 additional signatures must still be reviewed.

You can read more coverage on the Columbia County effort from the Arkansas Times and the Magnolia Reporter. These types of campaigns cost a significant amount of money, and you can donate online to help with the costs.

Our firm has helped several counties through the local option process. If you're interested in a local option election in your county, take a look at our overview here. We also have many blog posts on local option elections and general election law. We invite you to take a look.

The Hog Call®, now a registered trademark

The University of Arkansas received a trademark registration earlier this month for the Hog Call, the ubiquitous chant at Arkansas sporting events, weddings, pubs, and anywhere else a few Hog fans get together. I vividly remember watching the '03 Auburn-Arkansas game with a bunch of alums in Washington, D.C. while in law school. We called the Hogs. And called the Hogs. And called the Hogs. I'm sure the waitstaff was happy to see us leave. Unfortunately, we were too far away to be heard, and the Hogs fell 10-3. 

As part of any trademark application, the owner has to show that the owner itself uses the mark in commerce, and that the mark functions as an indicator of source. The trademark examiner initially objected to registration of the Hog Call on both grounds, claiming that a video of a crowd performing the Hog Call didn't prove that (1) the crowd would recognize the Hog Call as indicating the UofA as the source of the chant; and (2) the UofA wasn't technically performing the Hog Call in the video.

Undeterred, the UofA filed a new video with the Trademark Office showing none other than Frank Broyles performing the Hog Call. If Frank Broyles back in the day didn't represent the UofA, no one could. Here's the video:

This video was plenty for the examiner to withdraw both objections and grant the registration.

One interesting aside: in order to enforce a trademark for infringement damages, you have to provide notice of the registration by using the "®" symbol or using the words "Registered in U. S. Patent and Trademark Office" or "Reg. U.S. Pat. & Tm. Off." in connection with the mark. How do you do that with a sound?

It sounds weird to hear that a sound can be registered as a trademark, but it's true. There are many examples, such as the NBC chime, the MGM lion (start Dark Side of the Moon on the third lion's roar during the Wizard of Oz), the Looney Tunes theme song, and many more. Check out some examples on the USPTO's website here.