Two decades after it hit theaters and became an SF classic, 12 MONKEYS is being retooled as a new TV series, but does it still have the DNA to survive? Stars Amanda Schull and Aaron Stanford talk about the transition and why it works. Plus it’s the first big industry move of 2015 as IDW acquires Top Shelf Comix.
Though we still haven’t forgiven ABC for canceling Selfie, we are very encouraged by the shows filling in for Once Upon A Time (8pm, Sundays) and Marvel’s Agents of S.H.I.E.L.D (9pm, Tuesdays) during their winter breaks. This week we review Galavant, a comedy/musical fairytale series that reminds us a lot of Monty Python’s Spamalot and talk about how super cool it is for Marvel’s Agent Carter to be about a female hero. And of course, Maddy goes on a rant about there not being a Black Widow movie —- because come on, all the boy superheroes seem to need special powers, but girls like Peggy Carter and Natasha Romanoff are just as awesome without them!
All eyes are on Marvel this week with the debut of AGENT CARTER, and our first full look at The Marvel Universe post CAP and pre AVENGERS. Series star Hayley Atwell talks about her feelings on playing what has become a key part of the mythos. Then, we sit down with the cast of TNT’s THE LIBRARIANS who give a lot of solid reasons why if you aren’t watching, you might just be missing something good here.
I guess it’s just an occupational hazard with the lawyering game; assuming your clients are lying to you. Lord knows, I was guilty of it enough times. Of course, it’s easy to do that, when your initial conversations go something like this.
“I didn’t burgle that house, Mr. Ingersoll.”
“The police found your fingerprints in the house.”
“The police planted my fingerprints there.”
“The police found you in the house.”
“The police planted me there.”
Okay, that was a slight exaggeration. My clients don’t actually know the difference between burgle and rob. But you get the idea.
So, as I said, it’s an occupational hazard. And it affects all of us. Even Jennifer (She-Hulk) Walters. Even when her client is Captain America.
So, if you guessed today’s column is about Part 3 of “The Good Old Days,” from She-Hulk v.3 #10, you’re right. Now as this was part three of a three-part story, let’s get you up to speed.
In 1940, Harold Fogler left his home in Brooklyn and went out to Los Angeles http://www.discoverlosangeles.com to make his mark. He failed like a wino with bad bourbon. Largely because he hooked up with some “bad people,” who were planning to cause a riot on the Los Angeles docks. Harold’s younger brother, Sam, and a pre-Captain America Steve Rogers came out to LA looking for Harold. They found him. But the bad people found them.
The bad people ordered Harold to shoot Sam and Steve. Harold refused. Then Steve started telling the bad people how weak and cowardly they were. According to Harold, the leader of the bad people told Steve if he didn’t shut up, he’d kill Sam. Steve didn’t shut up. The leader killed Sam.
Seventy-four years later, Harold Fogler related this story for the first time while on his death bed. Then Harold’s heirs sued Captain America claiming that Cap wrongfully caused the death of their uncle Sam when he didn’t stop talking. Jennifer Walters represented Cap and Matt (Daredevil) Murdock represented the Foglers.
Matt introduced Harold’s deathbed statement as his main evidence. He also called Cap to the stand. Cap admitted that everything Harold said was true. And with that the plaintiffs rested their case. (And promptly lost, by the way, because the plaintiffs never introduced any evidence covering what damages Sam’s death caused his great-grandnewphews, so the jury couldn’t award them any money. But that’s another matter.)
Jennifer cross-examined Cap who told the jury his side of the story. It was basically the same as Harold’s side but it added two important things that Harold left out. First, the “bad people” were Nazi saboteurs and American fifth columnists working with the Nazis. Second, the leader didn’t threaten to kill Sam. He said, “Stop talking or someone will die.” Steve didn’t stop talking and the leader told Steve, “I should kill you.” But he didn’t want to kill Steve. He regarded Steve as weak and wanted Steve to marry and have kids so as to infect his country with his weakling genes. So the leader killed the “strong one,” Sam.
And there’s the difference: in Cap’s account, the leader didn’t threaten to kill Sam, he threatened to kill someone. Steve thought the leader was going to kill him, so didn’t know his talking would cause Sam’s death. That being the case, Steve didn’t act negligently in continuing to talk, so didn’t wrongfully cause Sam’s death.
The case became what, I used to call a swearing match when I was lawyering. No, I don’t mean the witnesses got on the stand and started cussing; although that happened often enough. No, it means one side’s witnesses testify and swear the events happened one way. The other side’s witnesses testify and swear they happened another way. Then it was up to the jury to decide which side’s swearing it believes.
She-Hulk was worried about the case. Steve couldn’t verify his version with any records because the matter had been classified. I think She-Hulk was over-thinking the case and worrying for nothing. Personally, I think it could have been the shortest closing argument in history. “Hey, jury, you have two versions of the story. One from a fifth columnist Nazi saboteur and terrorist, the other from Captain America. Who are you going to believe?” But She-Hulk worried. Probably because, lawyers believe their clients are lying, and she feared the jury would too.
Cap had anticipated She-Hulk’s doubts. But he needed She-Hulk to believe in his veracity, so that she could convince the jury of his veracity. So he had She-Hulk’s investigator, Hellcat, break into a government facility and steal the classified documents. He gave them to She-Hulk to prove he was telling the truth. But he told She-Hulk she couldn’t use the documents in trial.
Let me get this straight. Cap had no problem with Hellcat breaking into a government facility and stealing classified documents, but had qualms about introducing them in court? Hey, Cap, I have a suggestion for you. Should this happen again, call your contacts at S.H.I.E.L.D. or the White House and have them declassify the documents. They were seventy-four years old, for crying out loud, and had only been classified because back in the 40s, the government didn’t want the American people to know that “Nazis were working on U.S. soil.” Seventy-four years later, the government wouldn’t even care about this secret anymore. They would have declassified the documents for you in a second. Then you could have used them at the trial.
Anyway, armed with her new-found confidence in Cap’s veracity, She-Hulk gave an impassioned and convincing – because she was convinced herself – closing argument. She said exactly what I said in my version of the closing argument. Only longer. And the result was …
Actually, I don’t know the outcome of the case. Right as the forewoman of the jury was saying “We find the defendant…” the story cut to a new scene. I can’t tell you whether the jury found the defendant guilty or not guilty. Which is good. That way I don’t have to issue a spoiler warning.
So, I can’t tell you what the jury decided. I can, however, tell you this; despite what the forewoman started to say, the jury didn’t find the defendant either guilty or not guilty. This was a civil trial, remember. Juries don’t find defendants guilty or not guilty in civil cases. They either find for the plaintiff or find the defendant. But guilt doesn’t enter into their deliberations.
One little follow up and for this I do have to issue a
SPOILER WARNING!
Cap deduced that someone was behind this plot against him. Someone who wanted to discredit Cap and tarnish his reputation. Someone who convinced Harold to come forward after all this time, then convinced Harold’s heirs to sue Captain America, and leaked other evidence in the case. That someone was Dr. Faustus. So Cap, She-Hulk, and Daredevil fought their way past Dr. Faustus’s guards and into Dr. Faustus’s hideout, where Cap punched out Faustus cold.
Which created a whole new problem for She-Hulk. Cause when Dr. Faustus sues Cap for assault and She-Hulk represents him, if Cap denies his involvement, she won’t just assume he’s lying, she’ll know.
My beloved Chicago Bears are a team in turmoil. After installing a new head coach roughly two seasons ago, the team has simply never gelled since. This being in spite of fielding a team that is built beautifully on paper. Suffice to say as a fan, I’m left crushed and crestfallen.
But whereas die-hard football fans would simply spend the remaining time of the current season hatewatching games and greedily predicting the firing of staff, I myself am choosing a path of less anguish. No denial, anger, bargaining, depression, or really even acceptance. I’m choosing instead the art of distraction. OK, sure I bet that files under denial, but c’mon: I’m not denying my Bears blew this season in all three phases of the game. Rather than wallow in it, I think it’s a better use of my time to use my somewhat encyclopedic knowledge of comic book characters to build my own team of comics-based footballery.
From time to time we’ve seen the occasional X-Men softball game. Or perhaps a few long-lost scenes of a young Clark Kent tossing the pigskin around. But no, here, I’m relying on the known commodity that is the playground What If game. Here, the rules are simple: I’m constructing my own team of comic book characters to be fielded against any of your chosen champions. In an ultimate contest of “…nuh-uh, my team is better!” It should be fun!
Head Coach: Batman
The best coaches are motivators and strategists. Not withstanding his physical abilities, the greatest asset of the Dark Knight truly is his mind. I could think of no one better to organize a team, develop strategies that capitalize on a team’s strengths, as well as poke holes in the opponents. And while no one on my team would necessarily attempt to “Win one for the Gipper” through some unspoken bond of camaraderie, let’s be honest: Bruce has enough bat-bucks to incentivize his team if the thrill of victory isn’t enough. Furthermore, if the man’s backup plans to defeat the JLA could be used to easily thwart the JLA, well, imagine what would happen if planning was his only job!
Quarterbacks: Captain America (starter), Hawkeye / Green Arrow (backups)
Face it, every team needs that moral center. And at the best teams within the NFL in my lifetime? You have your Tom Bradys, Peyton Mannings, Drew Breeses, and the like. They’re these good ol’ boys who can make stars out of everybody around them. They rally to save the day. They don’t make stupid mistakes when the chips are down. Captain America is all of that and more. He’s a leader – natch – a strategist, and more than capable of firing an accurate projectile. Simply put, there’s no way I could found my team without him at the helm on the field of battle. And as a safe backups? The archers are just safe bets to move the ball accurately across the field.
Running Back / Fullback: The Flash, Juggernaut
When it comes to setting the run down, I’m a firm believer in potent tandems. The Flash is of course the speed on the team. Get the ball in his hand, set his blocks, and he’s in the red zone before you can blink. And when finesse isn’t needed on the goal line? Just put it in the hands of the unstoppable force. And if you don’t believe this balance works? Go ask the 85′ Bears’ Walter Peyton and Walter Perry.
Wide Receivers: Hawkman, Spider-Man, Mister Miracle
The ability to “go up and get it” is my primary concern. Having a natural flyer, a first-class acrobat, and a man who can literally get out of any coverage he might be in, all in order to come down with the ball? Well, that spells yardage to me. And certainly in all three cases, getting yards after catch is clearly not a concern.
The Offensive Line: The Blob (Center), Colossus and Strong Guy (Guards), Bishop and Groot (Setting the edge)
When it comes to protecting the QB, I can think of no line better. I basically built off the idea of immobile behemoths who can stand as a literal human (and tree) wall, from which Captain America can stand behind full-well knowing he has precious time to survey the field. And considering the line consists of an immovable object, two top-heavy strong-men, a guy who can absorb kinetic energy, and a living tree who can at least make things thorny if a linebacker slips by… I’m pretty well set.
Tight End: Beast (starter), Hal Jordan (backup)
A good tight end is many things to a team. He’s a lead-blocker. A pass-catcher. A known diversion. Basically, in my eyes… a wildcard capable of disrupting a defense in any number of situations. I believe with a thinker like Beast lining up, I’d gain insight, agility, and raw strength when needed. And should he be too physical a presence? Well, ole’ Hal and his trust emerald ring of power would do plenty to keep an opposing defender distracted. And hey, no one said you can’t catch a pass with a giant boxing glove, right?
The Defensive Line: Solomon Grundy, Grodd, Doomsday, The Thing
Forgive me: I just wanted four big, mean, nasty dudes ready to tear apart anything that moves when the ball is hiked. I give myself +5 points for choosing a monkey with telepathic powers to boot.
Linebackers: Thor, Hulk, Wonder Woman
Much like the D-Line, my LBs are all about aggression. But unlike Grundy and the gang, here I wanted to add a bit of mobility. While Hulk isn’t exactly light in the loafers… he more than makes up for it with the ability to leap great distances. And anyone who tried to skirt past either of my demi-gods will be eating dirt I say. Verily!
Safeties: Iceman, Plastic Man
Hear me out on this one kiddos. Safeties are those choice defensemen that disrupt any number of offensive tricks. Sending a great receiver down the field? Good luck doing it with ice under foot! Or if I choose to send an odd blitzer, what better to do it then a red and flesh colored bulldozer, complete with wacky sound effects? Nothing. Nothing is better than that.
Corner Backs: Wolverine, The Human Torch
A good corner is the type of guy willing to ride a receiver down the line every step of the way, and when the ball comes sailing towards their hands… no quarter is given. I could easily see “the best there is at what he does” being the type of evil scrapper than would ensure if a catch were to be pulled down… there’d be a short Canadian right there to make him pay. And if an adamantium-laced brawler isn’t doing it for you, how about a man literally on fire? Catch that ball with the heat of the sun literally breathing down your back. I dare you.
And last but not least… the kicker: Iron Man
Because Batman is the coach, and he’d probably get a kick out of a drunk punter.
I know I went a bit long, but I hope it got your gears spinning. So, who would be on your team?
Don’t you just hate it when work interferes with work? It’s a sure sign that you’re working too hard.
I am rarely accused of this. Nonetheless, it’s late Tuesday, my column goes up early Wednesday, and I’ve got more work stuff I’ve got to do. So, instead of the well-researched, rabid screaming think piece that surgically eviscerates the comic book world as we know it today, I’m going to share with you some stuff I love.
There was a time when comics fans were in touch with related media such as illustration art, pulp magazines, science fiction, old time radio and newspaper comic strips. This was a time that preceded the mega-million dollar superhero motion pictures in which many fans find their legitimacy. No, what we had were movie serials. Most of them preceded comic books per se, but not those media noted above that were our cultural forbearers. Some of these serials were a lot of fun. A couple were brilliant. Most were crap, but, to be fair, Sturgeon’s Revelation – 90% of anything is crap – is as vital today as it was when he stated it around 1958.
Keeping this in mind, and acknowledging one person’s crap might be another person’s holy grail, I want to share with you some of the heroic fantasy serials I deem worthy of attention.
We’ll start with what I regard as the best superhero serial of them all: the above-illustrated Adventures of Captain Marvel. Well acted, well written, fairly faithful to the Fawcett comic book, and featuring special effects that were quite good for their time and minuscule budget.
Whereas we’ve had a lot of other superhero serials, including the surprisingly well-made Spy Smasher (another Fawcett hero), the second-rate The Phantom, the third-rate Batman serials, and the god-it-truly-sucks Captain America serial, my second favorite are the two Superman serials, particularly the second, Atom Man Vs. Superman… Atom Man being none other than Lex Luthor. Superman was played by Kirk Alyn, who later had the lead in the pathetic Blackhawk serial (for one thing, the Blackhawk serial really didn’t have any air fight scenes). Noel Neill, who reprised the role in the 1950s teevee series, played Lois Lane.
A lot of fans dislike these serials because the flying scenes were animated. Animated not like Ray Harryhausen, animated like Hanna-Barbera. I suspect kids in the late 1940s didn’t have a problem with it, as it really isn’t that bad. Ms. Neill was the perfect Lois, and she continues to hold that title to this day. Kirk Alyn was fine as Superman, kind of cute as Clark Kent, and in costume he looked better than anybody save Christopher Reeve. An oddity: Lex Luthor was played by Lyle Talbot, who also played Jim Gordon in the second Batman serial as well as a major part in The Vigilante serial, based on DC’s long-running Action Comics feature. He also appeared in an uncountable number of television shows.
There’s more. A lot more. Really good ones such as The Shadow, The Spider, and the best of the bunch, Flash Gordon.
Next week.
Let’s see now, where were we before we were so rudely interrupted? Interrupted by me when I realized last week’s column was long enough, so decided to split it into two columns. Oh yes, She-Hulk V 3 # 9.
She-Hulk v 3 # 9 is Part Two of the three-part story, “The Good Old Days.” The titular good old days refer to a dock riot in Los Angeles in November of 1940, if that’s “good,” I think someone needs to invest in a new dictionary. The good old days also refer to the fact that during the incident Sam Folger died and now the grandchildren of Sam’s brother, Harold, are suing Steve (Captain America) Rogers for the wrongful death of their great-granduncle. Again, “good?” If you can’t afford a new dictionary, then at least bookmark dictionary.com.
Jennifer (She-Hulk) Walters was representing Cap and Matt (Daredevil) Murdock was representing the Foglers. Matt began his trial with the testimony of Officer McKinley, who told the jury what Harold Fogler said on his death bed sometime in 2014. Here’s Harold’s deathbed confession, as recounted by Officer McKinley.
In 1940, Harold left his mother and brother back in Brooklyn http://brooklyn.com/index.php and moved to Los Angeles. He fell in with a bad crowd. In early November, 1940, the bad crowd met in a warehouse near the Los Angeles docks to plan some trouble they were going to cause there. Harold stepped outside for some air where he was confronted by his little brother, Sam, who had left medical school and come across the country to accost Harold. Sam urged Harold to come back home to their heartbroken mother. Sam brought a friend with him, Steve Rogers, who was still in his pre-Captain America days.
Steve also started in lecturing Harold. And wouldn’t stop. Not even when the bad crowd hauled them into the warehouse. The boss tried to shut Steve up by pointing a Luger at Sam and threatening to kill Sam, if Steve kept talking. Steve kept talking. The boss killed Sam.
Now based on this account of what happened in Los Angels in 1940, Harold Fogler’s grand children were suing Steve Rogers, A.K.A. Captain America, for the wrongful death of their great-granduncle. They said Steve’s “wrongful act” and “neglect” caused Sam’s death.
I say what wrongful act or neglect?
In all U.S. jurisdictions including California, a negligence suit such as wrongful death has four basic elements which must be proven. The defendant must have owed the plaintiff a duty. The defendant must have breached that duty. The breach must have been the proximate cause of some injury to the plaintiff. And the plaintiff must have been damaged by said injuries.
I’ll tackle the injury element first, because it’s the easiest. Sam was killed. He suffered an injury. Death. Death’s the ultimate injury. But did Sam’s family suffer any damages from that injury?
But Sam’s not suing. He’s dead. I’m not so sure how Sam’s injury translates to Sam’s great-grandnephews. The family maintains that Sam would have become a doctor, a successful surgeon and provided for Harold’s family. But can they prove that?
Yes, Sam was in medical school but no one knows Sam would have become a doctor. He could have flunked out. It was 1940, so he could have been drafted and died in World War II. If Sam survived the war and became a doctor, maybe he would have practiced in some rural community in Appalachia where his patients paid him in pigs. Even if Sam had become the greatest and richest surgeon in the history of the United States, he had no legal obligation to provide financial assistance to his brother, his brother’s children, or his brother’s grandchildren. Any financial damages in this suit were speculative. At best.
Speculative damages was only the bad news for the Fogler family. The worse news was that as difficult as proving damages would be, that’s the least of their worries.
The Foglers had to prove Steve had a duty to Sam Fogler and that Steve breached his duty. We know Steve didn’t breach a duty by killing Sam, because the boss killed Sam. The Fogler’s theory of breach of duty was that Steve had a duty to stop talking when the boss threatened to kill Sam and by continuing to talk, Steve negligently caused Sam’s death. As far as I understand the law, Steve had no such duty and, thus, didn’t breach such duty.
The bad crowd committed several crimes against Steve and Sam. Kidnaping. Criminal Threats. Probably more. But those are enough for our purposes, I say in a blatant attempt to limit the amount of research I have to do. No one has a duty to submit to a crime.
If criminals running a protection racket threaten to bomb a store unless the owner pays them money, the owner has no duty to pay the criminals money. If the owner refuses to pay and the criminals bomb the store killing one of the store’s employees, the owner is not liable to the employee’s family for wrongful death.
The owner had no duty to submit to the criminals’ extortion demands. And, because he had no duty to submit, he did not negligently cause the employee’s death by breaching a duty. One can’t breach a duty one didn’t have in the first place. Indeed, most jurisdictions would call the owner a hero for standing up to the extortionists, not a tortfeasor who caused a wrongful death.
The owner’s refusal to pay protection may have resulted in the employee’s death, but it didn’t cause the employee’s death. The only people who caused the employee’s death were the criminals who committed the superseding, intervening act of intentionally bombing the store. They’re the only ones who should be sued for wrongful death.
In the same way, Steve had no duty to submit to the gang’s threats. So there’s no breach of a duty in his acts. Moreover, Steve’s refusal to submit didn’t cause Sam’s death. The boss, a superceding and intervening cause, caused Sam’s death by intentionally shooting him. The Folgers’ case is weak, on three of the four elements for negligence. Steve didn’t breach any duty to Sam by his actions. Steve’s actions didn’t cause Sam’s death. And any monetary damages Sam’s great-grandnephews may have suffered are, as I said earlier, speculative.
Personally, I can’t imagine why any lawyer agreed to take the case in the first place. I especially can’t see why Matt Murdock agreed to take the case. The world now knows that Matt is Daredevil. Matt was just disbarred in New York for, among other things, agreeing to represent a man who wanted to sue Daredevil despite the massive conflict of interests that’s inherent in suing yourself. I can’t imagine why Matt would set himself up for another potential conflict of interests complaint – not to mention a legal malpractice – by agreeing to sue one of his best friends. That’s hardly, as the Code of Professional Responsibility put it, avoiding the appearance of impropriety.
The story tried to explain why Matt agreed to take the case. It was because Steve asked him to take the case. According to Matt, Steve argued, “if I’d ever been his friend, if I cared about what he’d done as Captain America, then I wouldn’t pull my punches.” I don’t buy it. The explanation, that is. I bought the comic. Don’t go accusing me of shoplifting.
I don’t care if Steve and Matt were BFFs, field trip buddies, and even prom dates, Matt shouldn’t have fallen for Steve’s friendship guilt trip by taking the case. Matt should have told Cap, “I can’t take the case. It’s a violation of my professional ethics. And if you’ve ever been my friend, you wouldn’t put me into this situation by asking me to commit malpractice.”
Well that’s it for Part Two of “The Good Old Days.” I promise I won’t write about She-Hulk V 3 # 9 next week. But as it was only Part Two of “The Good Old Days,” I can’t promise that I won’t write about She-Hulk v 3 # 10 http://marvel.wikia.com/She-Hulk_Vol_3_10 and Part Three of “The Good Old Days” in a few weeks.
Can’t promise? I can practically guarantee it.
Sorry, but if your bucket list included “Read a comic book that has an explanation of the dying declaration exception to the hearsay rule on Page One,” you can’t cross it off your list yet. Because, despite what you read in She-Hulk v 3 # 9, you still haven’t read a comic book which has an explanation of the dying declaration on Page One.
She-Hulk v 3 # 9 is the middle chapter of a three-part story about Steve (Captain America) Rogers being sued for wrongful death in Los Angeles over an incident that happened on the L.A. docks in the year 1940. Cap was represented by Jennifer (She-Hulk) Walters and the Foglers, the family suing Cap, were represented by Matt (Daredevil) Murdock. Chapter One in issue 8 was the set-up. In issue 9, the middle chapter, the trial is about to begin.
So there on Page One Matt was giving his opening statement to the jury and defined the dying declaration exception to the hearsay rule for them. He told the jury that ordinarily a person may not testify about “what they heard someone say,” because it’s hearsay. Which isn’t accurate. I mean, come on, Matt used a simple sentence composed of only one- or two-syllable words. When has the law ever expressed anything with a simple sentence using only one- or two-syllable words?
The California Evidence Code defines hearsay in Section 1200 and it’s more complex than Matt let on. California defines hearsay as “a statement that was made other than by the witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” In order for a statement to be hearsay, it must 1) have been made by someone other than the witness, 2) must have been uttered outside of the courtroom, and 3) must be offered into evidence in order to prove the truth of the fact contained in the hearsay.
Let’s see if I can’t translate that into some simple sentences that use words of only one or two syllables for you. First, the statement must be an out-of-court statement. That’s easy, if a witness says something in court than it isn’t hearsay, it’s testimony.
(Damn! “Testimony.” Four syllables. Okay, I can’t use words of only one or two syllables. Some polysyllabic words will sneak into my explanation. But I promise they’ll be simpler polysyllabic words than polysyllabic.)
Second the statement must have been made by someone other than the witness who’s testifying. If Linus is a witness, he can testify as to what he told Lucy even if he said it when he wasn’t in the courtroom, because he’s the witness. But Linus can’t testify as to what Lucy told him.
The reason for this second prong of the hearsay definition is because if the person who actually made the statement isn’t testifying, that person’s demeanor can’t be seen and evaluated by the jury and the person can’t be cross-examined. (By the way, we call the person who made the statement the declarant in the law game and consider ourselves as having been pretty straightforward for using only a three-syllable word.) So, if the witness, Linus, testifies as to what the declarant, Lucy, told him, Lucy, isn’t subject to cross-examination and the statement is excluded as hearsay. But if Linus is testifying as to what he told Lucy, then Linus – the declarant – is available to be cross-examined and the statement isn’t hearsay.
The third and final prong of the hearsay definition is that the statement is being offered for the truth of the matter asserted in the statement. If Lucy and Linus were in a car accident then, later, Charlie was talking to Linus and said he saw the accident and that Lucy ran the red light, Linus could not testify as to what Charlie said in order to prove that Lucy ran the red light. That would be using the statement to prove of the matter asserted; that Lucy ran the red light.
Matt may have given the jury an over-simplified version of hearsay, but that wasn’t the worst of his sins. Matt next told the jury that he was about to offer testimony about a dying declaration, which is admissible because dying declarations are an exception to the hearsay rule.
Okay, that much is true. The hearsay has lots of exceptions. California wrote something like 18 exceptions to the hearsay rule into its evidence code. One of those exceptions, found in Evidence Code § 1242, was the dying declaration exception. Matt was correct when he said that dying declaration is an admissible exception to the hearsay rule. Had he stopped there, all would have been fine. Matt didn’t stop there.
Matt went on to explain that a dying declaration is, “when a person makes a statement believing they are about to die … that testimony is admissible, because of a long-held belief that people cleave to the truth on their deathbeds.” Wrong!
In the aforementioned California Evidence Code § 1242 – Aforementioned is a simpler polysyllable than polysyllabic, isn’t it? – a dying declaration is defined as a statement made by a person who believes he is about to die, “respecting the cause and circumstances of his death.” So not every statement a person makes on his or her death bed is a dying declaration. To be a dying declaration, it must be a statement made about the cause and circumstances of the person’s impending death.
For example, if Linus comes upon Charlie, who’s lying on the ground near death, and Charlie tells him, “I”m dying because Lucy pulled the football out from under me and I broke my neck,” that would be a statement made about the cause and circumstances of Charlie’s impending death. It would be a dying declaration and would be admissible as a hearsay exception.
If, on the other hand, Charlie were to say, “I’m dying, and Lucy’s stupid psychiatric advice wasn’t worth five cents,” it would not be a statement about the cause and circumstances of his impending death and would not be admissible as an exception to the hearsay rule.
This becomes important in our story. In the middle of Matt’s opening statement – after he gave the jury legally incorrect definitions of both hearsay and dying declarations but before he explained to the jury that the case was a wrongful death case – Matt called his first witness.
And I move into a brief aside, before I can move on to what’s “important to our story.” I know of no court which allows a plaintiff’s attorney to call a witness in the middle of his opening statement. The attorneys give their opening statements covering what their case is about and what they expect the evidence will prove and then they present the evidence. I don’t think even the allegedly uber-liberal of Los Angeles County disrupt normal courtroom proceedings by letting witnesses testify in the middle of the opening statements. But that, as I said, was an aside. Let us hie ourselves back to what’s important to our story.
What’s important to our story is that in order to introduce his dying declaration, Matt called police officer McKinley, who was in the hospital at Harold Fogler’s bedside as Harold lay dying. McKinley testified as to what Harold Fogler said from his death bed.
He shouldn’t have been allowed to, but he did. As we saw in She-Hulk v 3 # 8, Harold died sometime in 2014, three weeks before the trial in this story started. She-Hulk v 3 # 8 also informed us that Harold died of old age and natural causes while he was in his nineties. Harold’s deathbed statement was about how his brother Sam died on the docks of Los Angeles sometime in 1940 and how Steve Rogers was responsible for Sam’s death.
Harold’s deathbed statement wasn’t a statement about the cause and circumstances of his impending death, it was a statement about the cause and circumstances of his brother’s death some 74 years earlier. It was not a dying declaration as defined in the California Evidence code, so would not have been admissible as an exception to the hearsay rule.
You’re probably wondering exactly what Officer McKinley did say about Harold Fogler’s statement, how Cap caused the death of Sam Fogler, and why Harold’s grandchildren are suing Cap for the wrongful death of their great-granduncle. I’m afraid you’ll have to wonder a little longer. This column is already long and I’ve only covered what happened on Page One. I’m going to need another column to cover the other 19 pages of the story. But before I leave you in the To-Be-Continued limbo, I did have one more thought.
One more thought: as I explained the last time I wrote about this story, Cap has repeatedly told She-Hulk that he doesn’t want to win on a technicality, so he probably wouldn’t have let She-Hulk object to the not-really-a-dying-declaration-so-not-actually-an-exception-to-the-hearsay-rule on the grounds that Harold’s statement wasn’t a really dying declaration so wasn’t actually an exception to the hearsay rule. Personally, I don’t think that’s a technicality, I think it’s a lawyer doing her job. But what do I know? I’m not the lawyer who wrote the story, I’m just the lawyer who’s trying to make sense of it.
I’ve got the harder job.
At a special event in Hollywood today, Marvel Studios officially announced its film schedule for the next four years. Confirming rumors, the Doctor Strange film was announced, as well as pleasant surprise announcements for Captain Marvel and Black Panther
After an initial tease that it would be “Serpent Society”, the real subtitle for the next Captain America film was confirmed: Civil War. The plot would be the cinematic version of the story, following up from the events of Winter Soldier and Age of Ultron.
Guardians of the Galaxy 2, written and directed again by James Gunn, has been moved up for a release date of May 5, 2017. As soon as Gunn returns from Japan (he appeared via video) they’ll begin asking the hard questions, like the status of Cosmo, not to mention that odd looking fellow who looked, walked and sounded like a duck.
GotG2 was moved up to make room for Thor: Ragnarok. Featuring a return of both Chris Hemsworth and Tom Hiddleston, the film will follow the events of Avengers 2: Age of Ultron, and will serve to revitalize the character”.
Casting for the role of Doctor Strange with Buttercream Crinklebort had not been finalized “Otherwise we would have announced it today”, but assured it will be announced “some time before the release of the movie”, which has been scheduled for November 4, 2016. the film will open the door not only to the world of the supernatural, but to the world or parallel dimensions, a statement which will certain raise interest and eyebrows.
Black Panther is scheduled for November 17, 2017. Producer Kevin Feige announced that T’challa would appear, in costume in Captain America: Civil War, which meant that casting had already been decided. This was verified by the introduction of the actor, Chadwick Boseman, who came onto to stage amid thunderous applause.
Not bad, eh?
Captain Marvel was another unexpected surprise, scheduled for June 6, 2018. No casting was announced for Captain Marvel, though is was confirmed it would indeed be the adventures of Carol Danvers, an adventure that would span Earth and space. Announcements for the writer and director for the film would preced any casting announcements, with no timeframe set.
Marvel’s twentieth film will be Inhumans, scheduled for Nov. 2, 2018. The Kirby/Lee creation has long been theorized to be a potential replacement for Marvel’s mutant populace, unavailable for the studio’s use as the X-Men rights remain in the hands of 20th Century Fox. It was teased we might find out more about the Inhumans’ place in the MCU “sooner than you think”, suggesting teases in more imminent films.
And confirming the suspicions that started with the cameo of Thanos in the first Avengers film, Marvel announced that the plots in the films have been leading to the assembly of the Infinity Gauntlet, culminating in a two-part film, Avengers 2: Infinity War.
Noted omissions included no Hulk solo film, nor on for Black Widow. Marvel confirmed that both characters will appear in several of the Phase Three films, and while there’s a desire for more there are no specific plans. However, Feige did point out that there were plans where black Widow would play a “key, key role”, opening the door for more hopeful hoping by fans.
Making a passing mention of the upcoming Netflix series, Feige verified that unlike DC/Warner Brothers’ choice to keep the TV and film world separate, all of Marvel Studios’ productions take place in the same world, however on the outskirts some may be. We’ve already see connections between Agents of S.H.I.E.L.D. and the Cinematic Universe, so the door appears open for the web series as well.
To summarize Marvel’s Phase 3 release schedule:
It was like one of those puzzle pictures we used to read in Highlights Magazine in the dentist’s office waiting room. The “What’s wrong with this picture?” one. But with one major difference. In this case, the picture is She-Hulk v 3 # 8, and the answer to what’s wrong with it is, not much of anything. Still, I want to show I can waste as much of our time writing about how a comic book story got the law right as I can writing about how it got the law wrong. So here goes.
She-Hulk v 3 # 8 started in a Los Angeles hospital where a dying nonagenarian made a death bed confession regarding “something terrible he needed to get off his chest.” No, not his “I heart Snooki” tattoo. Unfortunately, the story immediately cut to three weeks later, so we don’t know to what the dying man confessed.
After said three weeks transition, Steve Rogers, the once and future Captain America – Seriously, does anyone really think Falcon will still be Captain America when the third Cap movie comes out in two years? – visited the law office of Jennifer (She-Hulk) Walters. Cap told Jennifer why he came, but not us readers. Again with the keeping secrets from the readers? All we know is that Cap’s being sued in Los Angeles Superior Court for wrongful death, because of something that happened in Los Angeles in 1940. The rest will be parceled out slowly over the course of this multi-part storyline. It’s enough to make you wish that Lost never got on the air.
Jennifer suggested filing a motion to dismiss the suit on the grounds that Cap died a few years ago and a person can’t be sued post-mortem. Cap nixed the idea. He didn’t want to win the case on a technicality. Which is just as well, as Cap didn’t really die. He had been shot with a gun that caused him to phase in and out of time and space and everyone thought he was dead; but he wasn’t. Filing a motion to dismiss that argued Cap had died when he hadn’t would have been a fraud on the court. Matt Murdock may play so fast and loose with legal ethics that he’d argue a motion based on a fact he knew wasn’t true; I’m not so sure about Jen.
Jen also considered the statute of limitations. Both state and federal jurisdictions have statutes which command that causes of action must begin within a certain number of years after the event which caused the cause of action. If the lawsuit isn’t filed within the statutory limit, it is procedurally barred. Hence the name statute of limitations.
Statutes of limitations exist to protect defendants from the possibility that the evidence necessary to defend themselves has been lost, destroyed, or forgotten in the intervening years. In California, the statute of limitations for wrongful death is set forth in California Code of Civil Procedure § 331.5 and it’s two years. Which means the time to file the wrongful death suit against Cap expired in 1942.
But the suit against Cap asked for equitable tolling of the statute, because the family didn’t learn it even had a wrongful death action until that deathbed confession three weeks earlier. Judges can grant a motion to toll the running of the statute of limitations, if the plaintiffs did not know about the claim until after the statute of limitations had expired. Some judges won’t, because they see it as a way of getting a case off their docket. But they can. Some judges do, because they see it as fair and equitable. But they don’t have to. The judge in our case probably doesn’t even have to worry about it.
Remember Cap already said he didn’t want to win on a technicality. He wanted to try the case and win it on its merits, so that his name would not tarnished in any way. A statute of limitations dismissal would be the type of technicality that Cap would veto.
And Jen would have to accede to Cap’s wishes on this, even though it might not be in his best interests. If a client wants his or her case handled in a certain way, the lawyer representing the client must accede to the client’s wishes, as long as the client’s wishes aren’t illegal or unethical. If a client wanted to put on perjured testimony, a lawyer wouldn’t have to do that; in fact, couldn’t do that. It’s illegal and unethical. But there’s nothing illegal or unethical – merely unwise – about not wanting to file a motion to dismiss and a lawyer couldn’t file one against the client’s wishes.
Someone asked me how Cap can be sued in Los Angeles when he’s a citizen of New York City. That’s easy. Whatever happened in Los Angeles back in 1940, Cap was there when it happened. That gave California and her courts personal jurisdiction over Cap for the case. If you visit L.A. and cause a traffic accident, the other people in the accident can sue you in L.A. That’s where the accident happened and where you were, when you caused it.
The next thing that happened was that Jen had to get some California lawyer to sponsor her appearance in a California court pro hac vice. This is a procedure by which a lawyer who is not licensed to practice in a state gets permission to be admitted to that state’s bar just for the one case; pro hac vice being a Latin term meaning “for this occasion.” It’s done by having a lawyer who is licensed in the state file a pro hac vice motion on behalf of the out-of-state lawyer.
But why, you may wonder, did Jen have to proceed pro hac vice? After all, waaay back in The Savage She-Hulk# 1, Jen lived, and practiced law, in Los Angeles. She was already a member of the California bar. Emphasis on the “was.”
California, like Ohio, has a registration requirement. In order to continue practicing law in California, every three years a lawyer must take enough California continuing legal education classes to meet California’s CLE requirements. Oh, and pay an annual registration fee. Several years ago Jen moved to New York and started practicing there. In addition, for some period of time, Jen was disbarred and worked as a bounty hunter. Although Jen got her license back, between years of practicing in New York and months of being a disbarred bounty hunter, Jen let her California license become inactive.
Yes, she could get her California license reinstated, but only after taking enough CLE classes to satisfy California and paying her registration fee – don’t forget her registration fee, money-strapped California won’t. But that takes time.
The wrongful death suit against Cap was filed no more than three weeks ago and probably later. Jen agreed to represent Cap some about days before it was set to go to trial. Jen didn’t have time to get her California law license reinstated. Hence the pro hac vice request.
Jen called Matt Murdock – who had just resumed practicing law in California after he was disbarred in New York, himself – to help her file a pro hac vice motion. He turned her down. So Jen ended up using Matt Rocks, one of former X-Factor leader Jamie Madrox’s duplicates who had become a successful entertainment lawyer in L.A.
For two days, Jen prepared herself for the trial, until she was confident that she’d be ready for anything the opposing side could throw at her. Which led to the big surprise ending. And to this
SPOILER WARNING!
As in, I’m about to give away the surprise ending of the story and you have been warned not to proceed if you don’t want to know it.
When Jen entered the courtroom, she discovered that opposing counsel was Matt Murdock.
Although, come to think of it, that wasn’t really all that much of a spoiler. If you didn’t see this ending coming the second Matt Murdock turned Jennifer down, you weren’t paying attention when you took Twist Endings 101.
The surprise ending did puzzle me, tough. Why didn’t Matt simply tell Jen he couldn’t help her file a pro hac vice because he was opposing counsel? There is absolutely no reason for him to have kept this information secret other than to be a dick. Still, considering some of the crap Matt has pulled in the past few years, being a dick may have been reason enough for him.
On the other hand, Jen should have known Matt was opposing counsel, anyway. As the attorney of record, Matt would have signed the official court filings in the case; the complaint, motions, requests for discovery, or what have you. Even if some other lawyer prepared the case, filed the complaint and all the other motions, and Matt only just took over the case; Matt would have filed a notice of appearance in the case to alert the court that he was now the attorney of record. Jen should have seen that notice while preparing for the case and known about Matt. If she didn’t, she should really withdraw from the trial, because she’s a poor excuse for a lawyer.
Now I said the story got the law right. Actually, it mostly got the law right. But the story would have us believe a seventy-four-year old wrongful death suit was going to trial only three weeks after the plaintiffs first learned their cause of action existed. I’m sorry, but no.
Neither Jen – three days – nor Matt – three weeks – would have had sufficient time to prepare their cases; what with all that pretrial discovery and deposing witnesses and endless motion practice. Both sides should have moved for a continuance to give themselves adequate time to prepare for a trial that is so important. Even squeaky-clean Cap could have no complaints to Jen’s moving for a continuance so she could have more than three days to prepare for a trial. Winning a trial because your lawyer is prepared is not winning on a technicality. And going to trial with a lawyer that hasn’t had time to prepare is more suicidal then playing Russian Roulette with a fully-loaded revolver.
Also, three weeks? I admit, I’ve never practiced law in California, so I can’t tell you how quickly civil cases move forward out there. But three weeks?
I can tell you that in Cleveland it takes several months – usually several years – for a civil case to come to trial. And Los Angeles County is 7.67 times more populated than the county where Cleveland sits, so probably has lots more civil cases clogging up its dockets. Those cases would be ahead of Jen’s trial and would have been tried first. There is no way a complicated wrongful death suit would ever come to trial in only three weeks.
Trust me, the constitutional right to a speedy trial only applies to criminal trials, not civil trials. Civil trials are about as speedy as Congress moving on immigration reform.
Well, what do you know? This is the longest column I’ve written for ComicMix. Turns out I was wrong before. Seems I can waste even more of our time writing about how a comic book story got the law right than I can writing about how it got the law wrong.
Columns / Glenn Hauman / News
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