The lawsuit complaint is a product, like a toaster. It can thus be “defective.” Several features support this assertion.
1) The complaint is not a written expression protected by the First Amendment. It is a tool to make money. When a writing is a tool and not an expression, it becomes a product subject to standard of care. Aviation maps that were incorrect and resulted in a crash were deemed to be defective products (1).
Mushroom textbooks that caused poisoning resulting from error in the illustration were deemed to be expression and protected by the First Amendment (2). They were said to be like books about aviation maps, not the aviation map product itself. One does not peruse nor read a complaint to learn of the author’s feelings and ideas. The complaint is a tool that is used for an effect, as a map is used to find a landing strip.
2) The dictionary definition supports (3): “a thing produced by labor.”
3) The legal dictionary supports (4): “something that is distributed commercially for use or consumption that is usually 1) tangible personal property 2) the result of fabrication or processing and 3) an item that has passed through a chain of commercial distribution before ultimate use or consumption.”
4) The Supreme Court agrees it is manmade items (5). “... respondent's microorganism is the result of human ingenuity and research.” The lawsuit is similar to a weaponized virus and artificial microbes, originating in human manufacture and having similar effect.
5) Intellectual property law supports (6). One will likely not be able to copyright a lawsuit complaint, as one might a pantomime or a book. Once a lawsuit has been committed to paper or other medium, one may apply for an utility patent a lawsuit if the complaint has originality (7).
6) A patent is a legal filing similar to a lawsuit. A patent holder was sued for product liability for a faulty design. The appellate court threw the case out for policy reason to avoid discouraging the filing of patents. It indicated that a patent was not an expression protected by the First Amendment, as claimed by the defendant (8, 9). On the other hand, the placement of a trademark, without involvement in any aspect of production, led to liability for a defective gift umbrella (10).
7) The lawsuit is heavily advertised and solicited.
8) It is manufactured on a custom but mass basis, using a format similar to the chassis of a car, upon which custom requests of the customer are loaded.
9) It is portable and delivered.
10) It is for the purpose of increasing income of lawyers.
11) It is purchased by the plaintiff, and made the subject of a contract with the lawyer.
12) It is aimed at the defendant like a gun. As does a gun, it requires a license.
1. Brocklesby v. United States, 767 F.2d 1288, 1294-95 (9th Cir. 1985), cert. denied 474 U.S. 1101 (1986) (mushroom encyclopedia protected by First Amendment); Saloomey v. Jeppesen & Co., 707 F.2d 671, 676-77 (2d Cir. 1983); Aetna Casualty & Surety Co. v. Jeppesen & Co., 642 F.2d 339, 342-43 (9th Cir. 1981); Fluor Corp. v. Jeppesen & Co., 170 Cal. App. 3d 468, 475, 216 Cal. Rptr. 68, 71 (1985). http://www.hsba.org/HSBA/Legal_Research/Hawaii/sc/15263.cfm (travel guide did not have duty to warn huge Pacific surf of Hawaii could be dangerous)
2. Winter v. G.P. Putnam's Sons, 938 F.2d 1033, 1038 (9th Cir. 1991)
4. Black’s Law Dictionary, 7th Ed., West Group, St. Paul, MN. p. 1225.
5. Diamond v Chakrabarty, 447 U.S. 303, 100 S Ct 2204, 65 L Ed 2nd 144 (1980).
7. 35 USCA Section (102). http://www4.law.cornell.edu/uscode/35/102.html
8. Principles reviewed in: http://www.autm.net/pubs/journal/92/liability92.html
9. Case decision: [still looking]
10. Kennedy v Guess, Inc., 806 N.E.2d 776 (Ind. 2004)
2 years ago