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Boot’s functional features don’t suggest single source

Person hiking in boots

Timberland boots have an iconic look that has been copied by numerous competitors.

That didn’t stop a federal court from upholding the USPTO’s denial of an application seeking registration of several specific features of one of its boots as a trademark.

TBL Licensing LLC argued its alleged trade dress satisfied the requirements for registrability — it’s not functional and has gained distinctiveness.

Senior U.S. District Judge Claude M. Hilton of the Eastern District of Virginia disagreed, saying the boot’s design features were functional, similar to earlier patented designs and didn’t indicate a unique source.

Timberland “has failed to link-up its large sales and advertising numbers with the one thing it needs to prove: that amidst a sea of similar looking boots, consumers nevertheless can identify TBL’s product just by the eight specified product features irrespective of any other marks used on or with the product,” the judge explained.

Hilton said granting Timberland’s trademark “would be antithetical to the pro competitive objectives of both trademark and patent law.”

The opinion is TBL Licensing LLC v. Vidal (VLW 022-3-550).

Trademark refusal

Timberland filed an application with the United States Patent and Trademark Office, or USPTO, to register eight specified features of one of its boots as a trademarked design.

The USPTO refused, finding that the features were functional and hadn’t acquired distinctiveness as source indicators.

After losing on administrative appeal, Timberland filed suit and the parties moved for summary judgment.

Common features

Timberland alleged that eight distinct features make its boot design trademarkable: a padded collar, a two-tone multi-hardness sole, a Vibram-style lug sole, an hourglass heel counter, quad-stitching, U-shaped vamp stitching, a hexagonal eyelet, and a bulbous toe box.

After comparing those features to designs from earlier utility patents, some of which had expired and were subject to fair use, Hilton said the evidentiary record presents a case that Timberland’s applied-for design is functional.

“Under Lanham Act § 2 (e) (5), trade dress cannot be registered if it is functional as a whole,” he wrote. “Section 2 (e) (5) legislatively adopts longstanding judicial precedent and USPTO practice barring the registration of functional matter. That precedent and practice strike a balance between trademark law and patent law: the former protects reputation, potentially in perpetuity, because the registered trademarks do not expire as long as they continue to designate the source; the latter promotes innovation with a patent grant for a limited term ….”

As such, even if functional trade dress has gained distinctiveness, the Lanham Act prohibits registration because the matter should be protected, if at all, not by trademark law, but by patent law.

The 4th U.S. Circuit Court of Appeals uses a four-factor test to assess functionality: “(1) the existence of utility patents disclosing the applied-for design, (2) advertisements and other promotional materials touting the functional benefit of the design, (3) the existence of alternative designs and (4) any effect on the manufacturing or quality of the product,” Hilton added.

“A strong showing on the first two factors … compels a finding of functionality, because a prior patent has vital significance in resolving the trade dress claim, constituting strong evidence that the features therein claimed are functional,” the judge wrote.

Also, each of the claimed features has been common in the industry for decades and at least one utility patent discloses each feature of the boot design, and some patents claim the features, Hilton added.

As most of the utility patents are now public domain, Hilton said to conclude that Timberland “can strip the public’s right to copy and benefit from these features today would be antithetical to the pro-competitive objectives of both trademark and patent law.”

In fact, Timberland’s advertising hypes the design’s features to do what they are supposed to in a good boot: “they make it comfortable, they make it durable, they make it waterproof, and they make it suitable for its intended uses, including hiking … and pursuing some work projects for which toe protection is needed,” the judge said.

Acquired distinctiveness

Next, Hilton considered whether the features had secondary meaning, or an acquired distinctiveness.

“The Fourth Circuit has made clear that secondary meaning entails a rigorous evidentiary standard,” Hilton said. “Such a standard is hard to meet in product design cases because normally it is difficult to parse apart how much of sales success is due to the inherent desirability of the product. That in turn makes it hard to determine how much, if any, of the product’s success is due to consumers seeing the design as a source identifier.”

And when several competitors use a design that one company wants for its own, customers won’t see the design as suggesting a single source of goods. Thus, “[t]eaching consumers to ‘look for’ whatever design feature said to be a source identifier is a critical form of advertising in product design trademark cases,” Hilton wrote.

“Despite almost 50 years of advertising, TBL has not produced any evidence that it engaged in ‘look for’ advertising,” the judge pointed out. “When TBL’s advertisements do mention any of the applied-for features, they mention the functional benefits, such as waterproofing and durability.”

Hilton said Timberland’s existing trademarks allowed consumers to recognize their boots long before looking closely to see if they have all eight claimed features.

“The saturation of the market with look-alike boots using many of the same functional features is fatal to TBL’s claim that consumers look for these features to identify TBL’s boots and distinguish them from competing boots,” the judge explained. “TBL itself acknowledges over and over in its advertisements that there are many imitators. This is at odds with the principal of secondary meaning, which requires that a mark or dress has come through use to be uniquely associated with a specific source.”

Hilton concluded that Timberland didn’t carry its burden to prove that the eight features are nonfunctional and that customers recognize them as a unique marker of the source of the boots.

Coverage resolved in ‘gruesome’ accident

Hot air balloon

In a case where two people suffered “gruesome injuries” in a hot-air balloon accident, the district court made no error when it ruled that an insurance policy’s coverage limit of $100,000 per passenger applied rather than the $1 million coverage limit for non-passengers, the 4th U.S. Circuit Court of Appeals has held.

The injured persons argued that, under the language of the policy, they were not “passengers” in the balloon at the time they were injured.

But Judge Robert B. King said the lower court correctly found that the appellants were passengers.

“On this record — and accepting the facts in the light most favorable to [the appellants] — the district court correctly ruled that [the appellants] — were inside the balloon’s basket when they were injured,” King explained.

Judge Allison Jones Rushing and Senior Judge William B. Traxler Jr. joined King’s opinion in T.H.E. Insurance Company v. Davis (VLW 022-2-259).


Melynda Davis and Robert Spencer were injured in a commercial hot-air balloon accident in Pennsylvania in 2015.

As the balloon descended, its “vent line” — a rope that controls the opening and closing of the vent at the top of the balloon’s envelope — got trapped under the balloon’s basket. This caused the vent line to remain open, eventually leading to the envelope’s collapse.

Wind and gravity caused the balloon’s deflating envelope “to move laterally and dangerously downward toward a nearby electric power line.”

Despite efforts from the ground crew and balloon pilot, the envelope came into contact with the power line. Electricity traveled through the balloon’s metal components and passed through Davis and Spencer to the ground. The pair, who were passengers on the hot-air balloon ride, “suffered gruesome injuries from electrocution.” They sued three defendants in 2016.

While this damages lawsuit was pending, T.H.E. Insurance Company initiated insurance coverage proceedings in the Eastern District of Pennsylvania, seeking a declaratory judgment that Davis and Spencer were passengers at the time of the accident under the language of the insurance policy.

The policy — “Hot Air Balloon Liability Coverage Form” — provides coverage “by way of two mutually exclusive coverage provisions” with each having its own monetary limit.

The first provision, “Coverage A,” applies to bodily injury claims from non-passengers and provides a coverage limit of $1 million per occurrence.

The second, “Coverage B,” applies to passengers and limits coverage to $100,000 per passenger.

Per the policy, a passenger is “any person, other than the ‘pilot in command,’ in or entering the ‘Hot Air Balloon’ for the purpose of riding therein or alighting therefrom following a flight or attempted flight.”

T.H.E. Insurance Company had previously offered to pay Davis and Spencer $100,000 each, based on the limit of Coverage B. The offer was rejected.

Proceedings were stayed until resolution of the damages lawsuit, which was settled in 2019.

After the stay was lifted, T.H.E. Insurance Company sought a declaration from the Maryland district court that Coverage B is the applicable coverage and that $200,000 is the maximum coverage available to Davis and Spencer.

Davis and Spencer subsequently lodged counterclaims for contractual and statutory bad faith, alleging the insurer acted in bad faith by failing to offer Coverage A’s limit and that “there was no reasonable basis upon which the Insurer could have correctly concluded that Coverage B” applied in this case.

In August 2021, the Maryland court granted a motion for summary judgment by T.H.E. Insurance Company and rejected Davis and Spencer’s bad faith claims, finding “no evidence in the record” to support claims that Davis and Spencer were outside of the basket at the time of their injuries.

“Consulting Pennsylvania law, the court ruled that Davis and Spencer were ‘passengers under the Policy even if they had been ejected from the basket or exited… on their own volition before being injured by the electrical shock,’” King wrote summarizing the lower court’s opinion.


Davis and Spencer’s first appellate challenge asserted that the court erred in awarding summary judgment on its coverage claim, arguing that the claim is barred by res judicata due to the settlement agreement executed in the damages lawsuit.

The appellants also said “a genuine dispute of material fact exists as to whether they were ‘passengers’ under the Policy at the time of their injuries.”

King noted that under Maryland law, res judicata does not bar the insurer’s coverage claim because T.H.E. Insurance Company was not a party to the damages lawsuit.

“Moreover, that the settlement agreement in the damages lawsuit does not bar the Insurer’s coverage claim is consistent with Maryland’s preference that insurers should not inject themselves into tort liability cases that have been lodged against their insureds,” King wrote.

As to the district court’s interpretation of coverage limits, Davis and Spencer maintained they were not “passengers” at the time they sustained their injuries and that Coverage A is applicable.

King disagreed.

“Accepting either party’s asserted view of the facts, however — as the district court recognized — Davis and Spencer were ‘passengers’ under the Policy. Thus, the $100,000 per passenger coverage limit provided by Coverage B is controlling,” the judge wrote.

King agreed with the determinations from the district court and T.H.E. Insurance Company that the appellants “were both inside the balloon’s basket at the time of their injuries,” thus making them passengers under the policy. King noted the conclusion was supported by recollections from the pilot and a ground crew member that “Davis and Spencer’s bodies were substantially inside the basket after the accident.”

Davis and Spencer contended that an expert witness report prepared by a professional engineer named Sommer “creates a genuine dispute of material fact,” as the report supports the claim that they “had crawled out of the basket and the area of the balloon” prior to the electrical shock. The district court granted a motion by the insurer to strike the report.

“There is no ‘reliable foundation’ — on this record or otherwise — that supports the Sommer report’s flawed assumption that Davis and Spencer were outside the balloon’s basket at the time of their injuries,” King wrote.

Regardless, King noted that under Pennsylvania legal principles, the appellants were “alighting” from the balloon and would be passengers under the policy, even if they were outside of the basket.

Since the Maryland court did not err in applying Coverage B, King wrote that the bad faith claims by the appellants were “without merit,” and affirmed the judgment of the lower court.

Attorney comments

Virginia Beach attorney Steve Emmert represented Davis and Spencer on appeal, with Washington, D.C., attorney Douglas Desjardins on brief.

“While we’re both obviously disappointed in the result, I’m confident that the Fourth Circuit panel fully considered all of our arguments; the judges just disagreed with us on the law,” Emmert said in an email to Virginia Lawyers Weekly.

Philadelphia attorney Louis Kozloff, who represented T.H.E. Insurance Company, declined to comment.

Emmert noted that the lawyers in the case “had a very cordial relationship” and said Kozloff “was a thorough professional throughout the appellate process.”

Jury: Medication not cause of hemoglobin drop — Defense verdict

Type of action: Medical malpractice

Injuries alleged: Wrongful death

Court: Fairfax County Circuit Court

Tried before: Jury

Demand: $3,000,000

Verdict or settlement: Verdict

Amount: $0 (defense)

Attorneys for defendant (and city): Michael E. Olszewski and Kambria T. Lannetti, Fairfax

Description of case: The decedent, a trauma patient who had fallen at home, presented to the hospital on Dec. 4, 2019. She had suffered a right arm fracture and various facial fractures.

Upon admission, the patient’s hemoglobin count was 10.8 g/dL. Thereafter, she was placed on IV fluids in anticipation of arm surgery. That arm repair surgery occurred in the late hours of Dec. 6, 2019.

The following morning, the patient’s hemoglobin had dropped to 7.6 g/dL. Nevertheless, she was placed on Lovenox, a blood thinner, for deep venous thrombosis prophylaxis. During the evening of Dec. 8, 2019, she became unresponsive. An ABG was done, which revealed a hemoglobin of 4.8 g/dL. Life saving measures were started, including a blood transfusion. The patient died in the early hours of Dec. 9, 2019.

The plaintiff alleged the defendants failed to recognize the decedent’s hemorrhage, as evidenced by a significant drop in hemoglobin. He alleged they should not have given the patient Lovenox. The suit implicated the care of two nurse practitioners and a trauma surgeon.

The defense expert witnesses refuted the plaintiff’s contention showing the patient had no signs or symptoms of internal bleeding and explained that Lovenox, when given prophylactically, does not cause or exacerbate internal bleeding. The defense experts also claimed that the drop in hemoglobin was from hemodilution.

After five days of evidence, the jury deliberated for less than an hour to return a unanimous defense verdict.

Kambria Lannetti, counsel for the defendants, provided case information.


Man died after staff allegedly disregarded chest pain — $4M verdict

Type of action: Wrongful death, civil rights

Injuries alleged: Death

Name of case: James A. Boley Jr., Administrator of the Estate of Robert Lee Boley, Deceased v. Armor Correctional Health Services, Inc., Arleathia Peck, Emmanuel Bynum

Court: U.S. District Court for the Eastern District of Virginia, Richmond Division

Case no.: 2:21-Cv-00197

Tried before: Jury

Name of judge or mediator: Judge Roderick C. Young

Date resolved: 12/9/2022

Verdict or settlement: Verdict

Amount: $4,000,000

Attorneys for plaintiff (and city): Mark J. Krudys and Danny Zemel, Richmond

Description of case: Plaintiff alleged that Robert Boley, an inmate at the Deerfield Men’s Work Center, sought care for acute chest pain, but was disregarded by correctional and medical staff. Boley was found dead the following morning. An autopsy report determined that Boley died of a “ruptured aortic aneurysm due to hypertensive and atherosclerotic cardiovascular disease.”

Mark J. Krudys, plaintiff’s attorney, provided case information.


Marketing is vital, but leave it to an assistant

Marketing is what drives the growth of a law firm. To me, it is the single most important function of a practice, because outside of word-of-mouth referrals, typically there are no clients walking through the door without marketing.

But if lawyers are doing the marketing, then the marketing either is not done right or it’s not done at all. That’s because lawyers have a lot going on and frequently are so consumed with handling cases and clients that the marketing can get neglected. When that happens, a law firm’s growth stalls.

In order to avoid that, I believe someone should be hired for, and strictly dedicated to, marketing a law practice. A marketing assistant is that person. Here are some things to keep in mind when it comes to this vitally important law firm position.

When hiring, I look for young people who genuinely have an interest in and enjoy marketing. College students with high energy and motivation have worked very well for me. Plus, they are on top of what is new and relevant in social media, which is a crucial component to any successful marketing strategy.

As with any position, don’t just hire anyone. Find a few great candidates and then pick the one you believe is the strongest. If things don’t work out, then move on. Always hire slow and fire fast.

For me, the big advantage of having someone dedicated to marketing your practice in-house as opposed to hiring an agency revolves around trust and accountability. A marketing agency gets paid whether or not it delivers, whereas the marketing assistant is motivated not only to make sure the works gets done, but that it gets done right. This to me is so very important.

The marketing assistant should be tasked with a full plate of marketing duties. Blog writing, video creation, social media content, review generation, and pay-per-click campaign management should all be done regularly.

Christopher F. EarleyI highly encourage the creation of a marketing manual and series of checklists for the marketing assistant to follow. This gives the assistant a playbook to follow.

The marketing assistant also should be knowledgeable about tracking basic marketing data (or be willing to learn), because Google Analytics and other key marketing tracking metrics reveal crucial information on whether a given marketing campaign is effective. If you don’t track the marketing, you have no idea if something is working.

This can be a part-time or full-time position, which will depend on your budget and desire for growth, and can be an in-house or virtual position. It’s generally not an expensive position to fill, and the benefits can be massive. Plus, it frees you up to do the work you want to do — and should be doing.

If you have any questions or feedback about this important law firm position, email me at [email protected]. I would love to hear from you.

Christopher F. Earley is an attorney and author who concentrates his practice on the representation of the seriously injured and their families.

Motorcyclist sustained multiple fractures after collision — $1.5M settlement

Type of action: Personal injury

Injuries alleged: Fracture of T7-T8 vertebra, collapsed lung, acute kidney failure, multiple fractures of pelvis, left and right ulna fractures, right radius fractures, right and left tibia fractures, right thumb fracture, bilateral knee ligament injuries, multiple lacerations and abrasions, and iron deficiency anemia, resulting from blood loss

Name of case: Runion v. Beach

Court: Fauquier County Circuit Court

Case no.: CL22000379-00

Date resolved: 11/2/2022

Special damages: $425,000 in medical bills, $43,000 in lost wages

Demand: $1,500,000

Verdict or settlement: Settlement

Amount: $1,500,000

Attorneys for plaintiff (and city): Boris Kuperman, Fairfax

Description of case: On Sept. 28, 2020, Runion was operating a motorcycle in Fauquier County approaching the intersection of Marsh Road and Ritchie Road. As Runion reached the intersection, the defendant — who was attempting a left turn onto Ritchie Road — pulled directly into his path.

Runion, who was traveling near the speed limit of 55 mph, collided with the rear right of the defendant’s vehicle, and was thrown violently from the seat of his motorcycle.

Runion was transported via medical helicopter to Inova Fairfax Hospital. He would spend the next few weeks at the hospital. He suffered fractures to his thoracic spine, pelvis, left forearm, right forearm, left lower leg, right lower leg and his right thumb. He suffered a collapsed lung, acute kidney failure, blood loss, anemia and multiple laceration/abrasion wounds. Additionally, Runion underwent five surgeries to address his multiple injuries.

On Sept. 30, 2020, Runion underwent surgery for his right forearm, left forearm, right lower leg and pelvis. This surgery included closed treatment with manipulation to the right distal radius, application of uniplanar external fixator to the right distal radius, open reduction and internal fixation to the anterior pelvis, stress fluoroscopy of the pelvis, closed treatment without manipulation to the right proximal tibial plateau, irrigation and debridement of the left forearm bones, complex closure of an open wound to the left forearm, open reduction and internal fixation of the left forearm bones, application of a tissue expander to the left forearm, application of wound VAC to the left forearm, and arthrodesis/fusion to the pubic symphysis.

On Oct. 2, 2020, Runion underwent surgery on his left forearm and bilateral knees. This surgery included repeat irrigation and debridement of his left forearm wound, manipulation of the bilateral knees, application of stress for fluoroscopy to the bilateral knees, and application of tissue expander to the left forearm. On Oct. 5, 2020, he underwent surgery on his right thumb. This procedure included debridement and closed treatment of the right thumb distal phalanx fracture.

On Oct. 7, 2020, Runion underwent surgery on his left forearm. The procedure included an excisional debridement of his volar forearm wound, complex layered closure of his volar forearm wound, and application of wound VAC to the left forearm.

On Oct. 9, 2022, he underwent additional surgery on his left forearm. The procedure included open reduction with internal fixation of the intraarticular distal radius fracture, delayed primary closure of the left forearm, open reduction and internal fixation of the right radial shaft fracture, and repair of the right extensor indicis proprius tendon.Following his release from the hospital, Runion faced, and still faces, a long road to recovery. He would go on to experience multiple more surgeries, and over a year of nearly continuous physical therapy.

Plaintiff’s counsel demanded the defendant’s policy limits of $1,500,000. An investigation into the extent of the defendant’s assets was conducted but it did not reveal substantial assets.

A lawsuit was filed in the Fauquier County Circuit Court to toll the statute of limitations. The case was settled for the defendant’s policy limits shortly thereafter.

Boris Kuperman, plaintiff’s counsel, provided case information.


Plaintiff recovered funds loaned to defunct aviation business — $831,807.99 verdict

Type of action: Corporate dissolution

Injuries alleged: Fraud, mismanagement of funds

Name of case: Kongolo v. Papillon Air, Inc. and Kindambu

Court: Loudoun County Circuit Court

Case no.: CL 20007391

Tried before: Judge

Name of judge or mediator: Judge James Howe Brown

Date resolved: 10/11/2022

Special damages: $3,200,000

Demand: $3,200,000

Offer: $400,000

Verdict or settlement: Verdict

Amount: $831,807.99

Attorney for plaintiff (and city): James P. Magner, Leesburg

Description of case: Plaintiff is a citizen of the Democratic Republic of the Congo who loaned $3.2 million to the defendant, Didier Kindambu, for the purpose of starting up an aviation business based in Leesburg.

Defendant squandered most of the money and, separately, was investigated, arrested and convicted of fraud related to federal Payroll Protection Plan loan abuse. Plaintiff was stranded in the DRC due to COVID travel restrictions, while the assets of the company were being seized by the federal government.

Plaintiff hired counsel to attempt to recover any amount of the funds he had loaned to company that could be recovered. Counsel was able to get a corporate receiver appointed who managed to secure and liquidate assets in the amount of $831,807.99.

Kindambu then challenged the distribution of corporate assets to the plaintiff under the grounds that there was no documentation of the loans from the plaintiff and, as a 50% shareholder of the company, Kindambu was entitled to half of the funds.

The plaintiff prevailed at trial in proving that the intent of the parties was that the funds from the plaintiff were intended as a loan and that repayment of those funds was always a term of their agreement, even though no formal loan agreement had ever been signed.

The court ordered that all the funds, less certain costs, collected by the receiver would be turned over to the plaintiff.

Plaintiff’s counsel James P. Magner provided case information.


The Speluncean Explorers case: How would you decide?

Question mark on blue background

The year is 4300. Defendants on appeal are convicted of murder, sentenced to hang. They seek reversal from the Supreme Court of Newgarth. (“The Case of the Speluncean Explorers,” Lon Fuller, Vol. 62, Harvard Law Review 616 (1949).)

Consider yourself the sixth judge deciding the case. Let’s review the facts:

Five men are trapped in a catastrophic mine cave-in. All appreciate their lives are at risk by starvation. They have no food. Their rescue is beyond the time of their life expectancies without food. This is according to the people on the outside above ground with whom they have spoken via radio. They are desperate.

One of the cave explorers, Roger Whetmore, suggests they obtain food to survive by drawing lots to determine which of them will be sacrificed to be consumed by the others. They had been advised via radio it was doubtful they could be rescued before they would perish from starvation.

After discussion, they agree to use dice, but before the dice are cast, Whetmore withdraws from the arrangement. When it is Whetmore’s turn to throw the dice, one of the defendants does so for him. The throw goes against Whetmore. His life is sacrificed.

His friends survived, but not for long unless the Supreme Court reverses the death penalty for the murder of Roger Whetmore. Sentence was imposed by the lower court on the basis that the applicable statute provides: “Whoever shall willfully take the life of another shall be punished by death.” The statute does not allow for any exceptions.

Your colleagues weigh in, expressing views reflecting mid-20th-century legal philosophy, e.g., natural law, legal positivism and legal realism. One of the five justices withdraws, with the vote to affirm or reverse even at 2-2. You are now the deciding vote. Here is a summary of what each justice opines:

Chief Justice Truepenny, a legal positivist, explains that the statute is clear and unambiguous. There is no option but to affirm the conviction. But he does suggest that the spelunceans seek clemency from the executive branch of the government, and the court should join in the petition.

Justice Foster, a believer in natural law, votes to reverse, taking the view that the “… positive law is inapplicable to this case, and that the case is governed instead by what the ancient writers … called the law of nature … e.g., self-defense.” (He concludes that the spelunceans were not in a state of a civil society, but in a state of nature. Here defendants acted willfully with determination.)

Justice Keen, leaning toward legal positivism, affirms the conviction. He points out that the moral issue of whether what the men did was right or wrong is not pertinent to deciding the case. The statute is clear: They are guilty. The fact that colleagues do not like the law is irrelevant.

Although Justice Tatting withdrew from deciding the case due to competing rationales, articulating that he cannot resolve the doubts he has about the law of the case, he does, however, criticize the views of his colleagues. He points out that a person who acts to kill another in self-defense does not act willfully. Rather, he or she acts in response to an impulse in human nature.

Justice Handy is “amazed” at the opinions of his colleagues and their references to positive law and the law of nature. Instead, public support for the men as well as common sense lead him to vote for acquittal based on realism.

He rejects the thinking of his colleagues, and advocates using common sense and the popular will, as evidenced by a poll showing that 90% of the people want to let the defendants off with little or no punishment. He suggests achieving this result by using whatever legalistic device seems most adaptable to the occasion. (Perhaps Oliver Wendell Holmes’ comment that the life of the law is not logic but the felt necessities of the time is what is in his mind.)

Before making your decision, which will be determinative, you should be aware that there are actual cases and incidents in legal history involving cannibalism. The overarching issue in these cases that proceeded to trial is whether necessity beyond self-defense under the law is a valid defense to murder.

See, for example, the English case Regina v. Dudley and Stephens (1884) in which the defendants were on a lifeboat with no hope of survival. They killed the sick cabin boy for food and survived. They were tried and convicted of murder on the basis that necessity was not a defense to murder. Subsequently, they were pardoned.

Consider also the 19th century sinking of the ship Essex by a great whale. Survivors resorted to cannibalism. The terrible incident inspired Melville to write “Moby Dick.”

So, what is your decision?

Paul Mark Sandler, trial attorney and author, can be reached at [email protected].

VSB Disciplinary Actions: Jan. 9 Issue

Effective Dec. 16, 2022, the Second District Subcommittee, Section II of the Virginia State Bar issued a public reprimand with terms to Kelly Lynn DiCorrado of Norfolk for violating the professional rules governing diligence and communication. This was an agreed disposition of misconduct charges.