Charlie Sheen Isn't Stupid: An Example of How Lawsuits Are Built

Tonight, Charlie Sheen will appear on ABC for a lengthy interview on its 20-20 show - though if you've been following the news, you've probably already heard Mr. Sheen's loud and long protests against the cancellation of his CBS comedy, Two and a Half Men.

If you think that Charlie Sheen is a nut for roaming around and pontificating to Piers Morgan (CNN), Howard Stern, the crew at Good Morning America, TMZ.com, - well, the list goes on and on (the Washington Post calls this his "media storm") -- then you'd be wrong. Wrong.

Because while some may think that Sheen is crazy, he may well be crazy like a fox. Why? From a legal perspective, Charlie Sheen is doing a fine job of getting positioned for a big, fat lawsuit where millions (if not billions) will be on the line.

Lawsuits are Strategically Built, They Don't Spring Up Fully Formed

All lawsuits arise from a formal pleading (the petition or complaint) being filed down at the courthouse with the appropriate clerk, the original being placed in the public record and then copies being given to those who have been sued through a procedure called "service of process." However, that lawsuit didn't just start that day or that week.

Lawsuits are prepared and planned and built for weeks or months before that filing occurs. Facts are gathered, legal research is done. Evidence is made ready through the gathering of documents and the accumulation of witness statements.

You get ready for the fight in an aggressive, thorough manner. The claims that appear in that first filing are supported by lots of hard work and shrewd planning.

All plaintiffs work with their attorneys in this process. They gather evidence. They position themselves for the fight. They are an integral part of the team. And, if they're wise, they work with the potential defendants in an attempt to negotiate a resolution of the controversy before the legal war in the courtroom begins.

Which is exactly what Charlie Sheen is doing. Consider these things that we know and what they may well mean:

1. Charlie Sheen is represented by the Los Angeles law firm of Lavely & Singer - and Radar Online has published a letter that Sheen's lawyers have sent to Warner Brothers and CBS warning that Sheen has legal claims - that Sheen considers himself to be legally wronged.

Translate this to: Sheen's lawyers have given legal notice that a lawsuit - based on contractual damages as well as personal injury - may be forthcoming. Sheen's pondering and perhaps planning litigation - here's his formal notice to the parties he's considering suing. He's letting them know he has legal representation and they are letting the potential defendants know what these legal claims are.

2. Charlie Sheen is doing things now to counter any defense that might be asserted by these defendants. He's doing drug tests in front of the media - blood, urine - and coming out clean.

Translate this to: evidence that Steen is not operating under the influence through lab tests taken before witnesses who can testify that the tests were not fixed. Evidence here, not some stunt.

3. Charlie Sheen is ready to work. Sheen has repeatedly announced he's ready to continue with his TV show duties - even going so far as telling anyone who will listen that he would be showing up for work.

Translate this to: Sheen is letting everyone knows he's ready to continue with his contractual duties. He's not breaching here.

4. Charlie Sheen is actively seeking other projects. Movies, talk shows, etc. These don't seem to be panning out according to media reports.

Translate this to: Sheen is investigating whether or not he has been harmed by the things that have been said about him - has he been professionally injured, has he been legally defamed?

Say what you want about Charlie Sheen. Hate his show, or like it. Disapprove of his lifestyle or revere him as the new Hugh Hefner -- bottom line, Sheen is exemplifying an involved plaintiff preparing for a legal war and there are lessons to learn here.

By Bryant Esquenazi on March 1, 2011 1:32 PM

National Margarita Day in Miami: Free Drinks, Bar Specials - and Lawsuits Waiting to Happen.

National Margarita Day is today, Miami -- February 22, 2011 - though who knows when it will hit next year, because part of the fun of National Margarita Day is it just pops up on a random winter day each year. And, this year, it's popped up today.

The Broward Palm Beach New Times Blog reports that Rocco's Tacos is offering free margaritas in celebration. Well, one free margarita per person, but who would complain?

The Miami New Times gives details on what Jimmy Buffett is planning for National Margarita Day at his chain of Margaritaville restaurants.

The Food Channel has tons of margarita recipes for those of you who choose to mix your own concoctions. And, it reports that Miami has the honor of being one of the nation's "best major metro cities" for margaritas, citing the Cheers On-Premise Handbook 2008, whatever that is.

Google has searches for "National Margarita Day" as being "volcanic" as word of mouth passes the news about today being the day to celebrate America's favorite festive beverage.

Here in Miami, we're always happy to have fun and National Margarita Day sounds like a great party theme. Even if you don't like Jimmy Buffett.

However, drinking alcohol means that people risk drinking too much. When that happens, serious injuries and tragic deaths occur. Drunk driving, for example, isn't just a crime in Florida -- it's the basis for personal injury and wrongful death lawsuits against the driver - and if the driver is a minor, then his/her parents might be found legally responsible for money damages, too.

In personal injury cases where intoxication is proven, the Florida Legislature has passed a law where juries are not limited in the amount of punitive damages they can assess (read that law here, Florida Statute 768.736).

Bars, hotels, and restaurants in Miami and elsewhere are also legally responsible for monitoring their patrons because they can be held accountable for the injuries that result for drunken fun gone bad - although the law is specific on what these duties are.

Florida Statute 768.125 provides:

A person who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the intoxication of such person, except that a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such minor or person.

Premises liability and "dram shop laws" in Florida therefore make the seller legally accountable for monetary damages to those injured or killed from drunken driving but not other drunking activity that may cause injury (falling, overdose, etc.).

Anyone who sells or serves margaritas, or other alcoholic beverages, will be liable for a drunk driver if (1) the driver is 21 years old or less or (2) the driver was someone that they personally knew had a drinking problem.

So, Happy Margarita Day, Miami!! Have fun today - just be careful out there, and if the bartender stops serving you, don't get mad. Get a cab.

By Bryant Esquenazi on February 22, 2011 2:05 PM

Distracted Driving Lawsuits: Who Can You Sue for Loved One's Injury or Death in Distracted Driving Car Crash - Is There a Doctor's Duty to Warn?

Distracted driving causes car accidents - crashes where people are seriously injured or killed. Deaths due to distracted driving are still being studied by academics and governmental agencies. All we know for sure is that texting or talking on the phone while driving is causing car accidents and crashes where people are dying - or suffering severe harm.

The American Journal of Public Health reports that "[d]istracted driving is a growing public safety hazard. Specifically, the dramatic rise in texting volume since 2005 [fatalities from distracted driving increased 28% from 2005 - 2008] appeared to be contributing to an alarming rise in distracted driving fatalities."

Laws are being enacted across the country to outlaw texting while driving and (better) using a phone at all while driving. According to the Department of Transportation, 30 states have outlawed texting for all drivers and another 8 states have outlawed drivers from using handheld cell phones while driving - period. (Most of these laws were passed in 2010.)

In Florida, Preemption Law prohibits localities from enacting distracted driving bans.

It's a celebrity issue. Oprah has a campaign against Distracted Driving (you've heard it: the No Phone Zone). Meanwhile, thumb (or surf) through any tabloid and see Kim Kardashian with her phone; Lindsey Lohan with her phone; Justin B. or Justin T. with his phone.

It's cool to text and talk.

It's convenient to do it while driving. And, face it: even if it's illegal, lots of folks are going to be doing it and it is very difficult for law enforcement to stop. Think about it -- it is not that easy to see what someone is doing as they drive along a busy street or freeway. That will be a true eagle eye that can spot the texter and then successfully prove in court that they are guilty of Distracted Driving. (Although the laws are helping some defendants by providing an "illegal acts" defense in any subsequent lawsuit.)

Which makes the recent development so interesting. Doctors have thrown themselves into this fracas.

The New England Journal of Medicine published an article on distracted driving this summer that included an opinion that doctors have a duty to warn their patients about the dangers of distracted driving. That's right: when Kim Kardashian goes to see her doctor, his peers are suggesting that he explain to Kim that driving while using the phone is very, very dangerous.

After this, one doctor-blogger responded to this NEJM report not with criticism that distracted driving might not be within the doctor's responsibilities but instead to point to a Virginia Tech study that suggests that distracted driving might not be all that bad (oh, please) and that heck, he rides his bike anyway. Wow.

Do Doctors Have a Duty to Warn About the Dangers of Distracted Driving?

Maybe so. Doctors are arguably voluntarily taking on the duty -- and therefore, possibly exposing themselves to the liability. Doctors are including distracted driving as a behavior that may lead to injury and therefore, something against which they have a duty to warn their patients.

DOCTORS are arguably defining the duty in of all places, the New England Journal of Medicine and based on the blogging physician, it's not being challenged within the profession itself. It's not legislatures or plaintiffs' lawyers trying to pin it on them here.

By Bryant Esquenazi on October 14, 2010 4:57 PM