Santa Strikes Back

Uh-oh, Christmas is over and  the old man in the red suit decided to retaliate over the lawsuit filed against him by the children of the world. Originally appeared in the December 2001 issue of the ABA Journal.

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Santa Strikes Back


Readers may recall that holiday cheer was dampened two years ago when the children of the world filed a class action against Santa Claus (Santa Suit, Jan. 2000). That action remains pending as thousands of judges who have received gifts from the defendant continue to recuse themselves. Now Mr. Claus is fighting back with his own class action:

Santa Claus, Plaintiff


Children of the World, Defendants.


Plaintiff, Santa Claus, aka St. Nick, Kris Kringle and Father Christmas, sues John and Jane Does 1-3 billion and alleges:

1. This is an action for damages and equitable relief.

2. Plaintiff is a jolly old soul engaged in a complex enterprise of global commerce.

3. Defendants consist of the class of all kids in girl and boyland, including infants tender and mild, who have received merchandise from plaintiff over the years without compensation.

4. Recission. Throughout the fall, plaintiff and his employees have met with defendants at various shopping malls and department stores to negotiate contracts for the delivery of goods. Each negotiating session is marked by grossly unequal bargaining power as defendants literally climb on top of plaintiff to dictate their unreasonable demands. (Defendant possesses substantial photographic evidence to support this allegation.)

5. To persuade plaintiff to accede to their demands, defendants employ numerous forms of coercion and intimidation, including but not limited to pitiful pleas, doleful looks, drooling, beard pulling, and high-pitched screaming. Defendants frequently vomit on plaintiff to “seal the deal.”

6. These sessions result in billions of unconscionable contracts requiring defendant to personally deliver trillions of packages on a single evening, to wit, December 24, to every zip code in the world using a costly and inefficient shipping method. As defendants repeatedly emphasize during the negotiations, time is of the essence in performance of each contract.

7. Labor law violations. The only consideration plaintiff receives for his extraordinary services are stale cookies and spoiled 2% low-fat milk. Although he is hundreds of years past retirement age, plaintiff has no 401k plan or other retirement security.

8. Whereas defendants used to be satisfied with little tin horns and little toy drums that go rooty-toot-toot and rummy-tum-tum, they now demand expensive electronic equipment and name-brand athletic apparel. As a result, plaintiff has been forced to lay off his largely unskilled workforce of elves and spend long overtime hours assembling PlayStations® and stitching Swoosh® marks.

9. Reckless endangerment. Contrary to popular belief, it is not fun to ride in an open sleigh, especially at high altitude. It is a terrifying experience. Yet rather than support reforms to improve plaintiff’s working conditions, defendants show callous indifference by seeking to actually increase the hazards with repeated calls to “let it snow, let it snow, let it snow.”

10. Fraud. Each year, defendants induce plaintiff to deliver the subject goods by affirmatively misrepresenting their behavioral status, providing false assurances that they have been good when, in fact, they have been rotten. Upon information and belief, despite receiving ample notice that plaintiff is coming to town, defendants continue to pout, cry and shout.

WHEREFORE, plaintiff prays for damages, equitable relief, and that everyone have a merry little Christmas and happy holiday, despite the fact that he is a little ticked off right now.

Santa Suit

A perennial holiday favorite Harmless Error column.  Santa Suit originally appeared in the January 2000 issue of the A.B.A. Journal. Caroline Kennedy selected it for inclusion in her anthology, A Family Christmas.

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Santa Suit


Children’s rights is a popular issue these days. One reason is that it is an impossible issue to oppose. A person can not stand up and say, “I oppose children’s rights.” Such a person would be reviled, especially by children. Of course, in our society we carry everything to extremes. Holiday cheer received a jolt yesterday with the announcement of a new lawsuit:

Children of the World, Plaintiffs


Santa Claus, Defendant.


Plaintiffs, consisting of the class of all children who on or about December 24 were hanging stockings by the chimney with care in the reasonable belief that St. Nicholas soon would be there, sue defendant and allege:

1. This is an action for an accounting, damages and injunctive relief.

2. Upon information and belief, defendant is a citizen and resident of the North Pole, where he maintains his principal place of business. The court has subject matter jurisdiction of the action pursuant to 28 U.S.C. § 1332.

3. Count I – Breach of Contract. Throughout the fall of 1999, plaintiffs met with agents of defendant at various shopping malls to negotiate the delivery of certain goods on the evening of December 24, for which plaintiffs paid valuable consideration in the form of exorbitant tie-in charges for photographs of the negotiating sessions. Plaintiffs repeatedly informed defendant, through his agents, that time was of the essence in completing such deliveries. As of this date, many of the contracted goods have not been delivered. Other goods were nonconforming and lacked batteries, rendering them of no use of plaintiffs.

4. Count II – Deceit. Defendant fraudulently induced plaintiffs to improve their conduct against their will by misrepresenting that defendant knows if plaintiffs have been bad or good, when, in fact, defendant lacks sufficient knowledge upon which to form a reasonable belief regarding such matters. In justifiable reliance upon these representations, plaintiffs invested substantial labor in not shouting, pouting or crying and at all times relevant hereto were good for goodness sakes.

5. Count III – Infliction of Emotional Distress. On the relevant night, defendant knew or should have known that plaintiffs were snug in their beds with visions of hand-held video games and name-brand athletic apparel dancing in their heads. Despite such knowledge, defendant willfully and maliciously concealed off-brand goods and inherently worthless property such as sweaters and umbrellas in packages that misrepresented their true contents. Plaintiffs suffered severe emotional shock and fright upon opening such packages.

6. Count IV – Trespass and Conversion. Defendant’s implied license to enter plaintiffs’ premises terminated upon his substantial breaches of contract, rendering all subsequent entries actionable trespasses. Once on the premises, defendant exercised substantial dominion and control over an estimated 200 tons of cookies and 44,000 gallons of milk, converting such property and depriving plaintiffs of its beneficial use.

WHEREFORE, plaintiffs demand judgment for compensatory and punitive damages, injunctive relief and an accounting.

All 50 Harmless Error Columns Right Here

Available for the first time in one place, below is the complete inventory of McClurg’s Harmless Error humor column in the American Bar Association Journal.

Many of these columns have been reprinted elsewhere. Caroline Kennedy included Santa Suit (Jan. 2000) in her anthology, A Family Christmas, where it appears alongside works by the likes of Mark Twain, Robert Frost, and Shakespeare.  (Use the Contact link on the top right for permissions requests.)

The Harmless Error columns appear below in chronological order, starting with On Shelley’s Case (Oct. 1997) and running through Santa Strikes Back (Dec. 2001).  Learn more about Harmless Error and get a clickable list of all fifty columns here.

On Shelley’s Case

Originally appeared in the October 1997 issue of the ABA Journal.

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On Shelley’s Case


The Rule in Murray’s Case. The Rule in Rolanda’s Case. Who remembers those? Probably just Murray and Rolanda, their lawyers and a few close friends. But everyone remembers the Rule in Shelley’s Case. This is because the rule is vitally important to every lawyer until five minutes after completing the bar exam.

Who was Shelley and what made her so special? Next month, top property lawyers from around the world will gather in Hawaii to tackle this ancient riddle at the First International Conference on The Rule in Shelley’s Case and Jet-Ski Championships. For three days, these experts will present scholarly papers, engage in profound debate and do cannonballs off the highdive board.

You may qualify as such an expert. Take the following classic essay exam to find out:

 A conveys Whiteacre to “B for life, then to C for life, then to B’s heirs” (Practice tip: The Rule in Shelley’s Case applies only to property called Whiteacre or Blackacre.) B, the life estate grantee and remainderwoman, is involved with C, an aging rock star who turns out to be a fertile octogenarian.

B gets pregnant and gives birth to little D, a delightful toddler when he is sedated. (C, the artist formerly known as Q, was a cad who already had nine children: H, I, J, K, L, M, N, O and P.)

You may be asking yourself, “Where does Shelley fit into all this?” It’s a good question, but questions aren’t allowed during a test.

A gets jealous and enfeoffs C with a backhoe. C is rushed to the ER by EMTs, gets CPR from and RN and an IV from an MD, but it’s too late. C is DOA.

If things weren’t bad enough, C’s HMO refuses to pay for his MRI. A, guilt-ridden, turns to drugs (you guessed it: LSD) and shoots himself with a BB gun. B, unable to find suitable daycare for little D, loses her scholarship at UCLA, flunks her LSAT and is hounded by her CD club.

C was last spotted by CNN hiding somewhere in the mountains of the former USSR.

Analyze D’s rights to Whiteacre. Don’t look at the answer until you have fully worked through the problem.

Answer: What did we just say about looking?

Real Answer: Under the Rule in Shelley’s Case, D gets nothing because if a life estate is conveyed to a grantee and a remainder to the grantee’s heirs, both the present estate and remainder are taken by the grantee (or maybe it’s the grantor, we always get those messed up).

If you’re still wondering about Shelley, you’ll have to attend the conference. Don’t forget to bring lots of legal pads and sunscreen.

100 % Guarantee

Originally appeared in the November 1997 issue of the ABA Journal.

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100 % Guarantee


Warranty law has always been fraught with pitfalls for the unwary lawyer. Drafting warranties for modern consumers presents special problems because of their higher expectations. Follow these tips and sample warranty provisions to avoid legal tangles:

1. Marketing studies show today’s purchasers like warranties that are “consumer-friendly.” Use this proven opener:

Hello Smart Shopper! My, you’re looking good today. How are the little ones? Feeling blue because your new product turned out to be a piece of junk? Call to speak to one of our Customer Account Therapists. And remember, we love you.

2. Consumers appreciate honesty. When attempting to limit warranty coverage, be sure to use plain language:

Very Limited Warranty. This product is of extremely low quality. We made it that way on purpose so we could sell it really cheap. Our Only Warranty In the Universe: If the product malfunctions in any way, return it to our service center and we’ll chunk it for you. Be sure to include $19.95 for shipping and handling.

3. Modern consumers like to feel a close connection with the corporations they buy from. Offering a convenient telephone “help-line” bolsters consumer confidence:

Questions? Complaints? We encourage you to call our toll-free number any time we’re not here. We offer you a variety of choices because we care about your business: weekdays after 5:00 pm, weekends and holidays. Listen to the menu, use the phone buttons to enter your complaint, ATM code and the lyrics to Boogie Fever, hit the # sign, hang up and we’ll call you back on the expiration date of your product warranty.

4. Health-conscious consumers are highly concerned about the fat content in their diet. This presents a dilemma for food sellers because of the exact correlation between flavor and cubic yards of fat. Present unfavorable nutritional information in the best light possible:

Fat content. In tests, one teaspoon of this product was found to burst the hearts of laboratory rats. However, our researchers believe these rats were already at risk due to a diet high in dairy content (primarily cheese) and probable hypertension from a daily routine of running for their lives.

WARRANTY: Humor writer does not guarantee laughs. Individual chuckling may vary. Consult physician before guffawing. Busting a gut is not recommended.

Please, Mr. Postman

Originally appeared in the December 1997 issue of the ABA Journal.

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Please, Mr. Postman


The “mailbox rule” is an elementary principle of contract law which holds that a contract acceptance is valid upon dispatch in the United States mail.

Some assert that the conveniences of modern technology may soon render the mailbox rule obsolete. For example, already under the emerging “cell phone rule” a contract may be offered, accepted, breached and the offeror verbally abused without ever having to leave one’s car.

Others argue persuasively that the legal profession will never allow the mailbox rule to die because it is one of the only rules lawyers remember from law school. Thus, familiarity with strategies for avoiding this harsh rule is essential.

Once a contract acceptance is deposited in the mail, the sole means of withdrawing it is to actually physically retrieve the letter. Fortunately, several creative options exist for accomplishing this:

1. The Official Method. The only method approved by the U.S. Postal Service for retrieving a letter once it has made it into the hands of a postal worker is begging. This ancient form of pleading, known in Latin as Si placet, Bone Vir Tabellarius, is believed to have originated in 398 B.C. although it did not gain widespread judicial favor until the Marvelettes made it into a hit single in 1961.

2. The Magic Trick Method. Tell the postal worker you are going to perform a magic trick. Reach into her mailbag and pull out a rabbit. If there’s no rabbit inside, pull out a coupon book, an electric bill, anything you can get your hands on. Whatever comes out, pretend it’s a rabbit. While the postal worker is dialing 911, retrieve the acceptance letter from the mailbag.

3. The Enticement Method. Tell the postal worker the local sporting goods store is holding a two-for-one sale on assault weapons and that neither rain, nor sleet, nor dark of night should keep him from taking advantage of this limited offer. Withdraw the letter while he’s gone — quickly. (Kidding, kidding. Please, no letters from offended postal workers and definitely no packages.)

4. The Career Change Method. Intercept the letter by rapidly taking the civil service exam and actually becoming a postal worker. The risk of this approach is that, because postal workers earn more than many lawyers and get to drive around in those cool little trucks, you may lose interest in contract law and forget about retrieving the letter.

The Comma

Originally appeared in the January 1998 issue of the ABA Journal.

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The Comma


Many years ago, on a hot desert night near Roswell, New Mexico, a world-altering event occurred. Four superior beings from a far away place came together and forever changed the fate of millions of innocent lawyers.

That’s right. I’m talking about the night the Ivy League Committee on Uniform Citation met to create Rule 15.2 of The Bluebook, which mandates in profound language: “If the title of a work ends with a date, the page number must be set off by a comma.”

A transcript of that clandestine meeting recently surfaced in a footnote under suspicious circumstances. In an ABA Journal exclusive, here is the true story of Rule 15.2 and its infamous comma. The meeting opened with Editor-In-Chief Irving Frunk explaining the merits of his proposal to the other editors:

Irving: We need that #*%##&* comma! Rule 15.2 means nothing without The Comma. I’ll gladly die for it.

Frieda: Accord.

Dan: Accord.

Wendy: Contra. Put down the gun, Irving.

Irving: Okay, but I want proof of everyone’s commitment to The Comma. I’ve decided to quit law school and become addicted to amphetamines so I can contemplate the comma twenty-four hours a day.

Dan: I’m going to have Rule 15.2 tattooed on my buttocks, right under the rules for Separately Bound Legislative Histories.

Frieda: I’ll cut out my husband’s entrails and form them into the shape of one huge comma.

Irving: What about you Wendy?

Wendy: I have to take care of my sick parents.

Irving: Doesn’t the comma mean anything to you?

Wendy: Alright, I’ll put them in a nursing home.

Irving: Fantastic. We’re all behind The Comma. But before we can officially adopt it, we’re obligated under our Non-Discrimination Policy to give equal consideration to the period, exclamation point and question mark.

Wendy: What about umlauts? They’ve never gotten a fair shake. We don’t have a single umlaut in the entire Bluebook. It might be a nice change.

Frieda: That’s sick. Shoot her, Irving. She doesn’t love the comma like the rest of us. We don’t need change. We need The Comma. The comma is the only possible answer. And to give it dignity, we must enshrine it in parentheses.

Dan: I have an even better idea. Let’s put a hundred commas in a row! Look at this.

(Dan distributes the following draft of his proposal:)


Dan: Isn’t it glorious? Think of the symbolism. Commas giving birth to commas, bursting onto the next page, into the next generation and beyond. Let’s make it a thousand. Ten thousand! Commas for infinity. Commas for …

Irving: Easy, Dan. Slow down. First we need to get everyone obsessing about The Comma, then we’ll be free to do as we please. It’s been a long night. We need food and rest. We’ll reconvene at sunrise to draft a preamble to the comma. Let’s close with our traditional blessing. Place your hands on The Bluebook. Thank you for 365 pages of stability and truth. And thank you for The Comma. Amen.

Disclaimer: This is a work of fiction. All characters and punctuation described herein are either invented or used fictitiously, except of course for The Comma, which is all too real.

Sentencing Suzy

Originally appeared in the February 1998 issue of the ABA Journal.

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Sentencing Suzy


Children have an almost instinctive sense of the law. This no doubt derives from their pervasive experience with the adversarial system, which begins at birth.

By the time she is able to walk, the average child has been enjoined more than 200,000 times. Every movement, every reflex, every instinct is met with injunction: “No! Don’t bite. Don’t touch. No! No! Don’t hit. Don’t pull. Spit that out. No!” Not surprisingly, children develop excellent legal problem solving skills, from which lawyers can learn.

Consider the case of Suzy Spikes. Suzy is a precocious preadolescent girl who is close friends with my daughter, Caitlin. They play together when Suzy is not busy preparing for hearings in juvenile court. Suzy has taught Caitlin many lessons about life, most of which concern how to beat the rap.

During a recent neighborhood gathering, Suzy added a new twist to a popular childhood game. “Combat Monopoly” became an instant hit until the EMTs arrived to remove Suzy’s deed to Baltic Avenue from Billy Johnson’s nostrils.

Suzy received a speedy trial for this offense from her parents, Art and June Spikes, before whom she has successfully argued hundreds of cases. However, in this case her defense was hampered by an evidentiary ruling to “Not say even one word while I’m speaking to you, young lady.” The sentencing phase of her proceeding provides valuable lessons for lawyers:

An accused has the right to speak in mitigation of punishment. Suzy asserts she’s an innocent victim of the system and recounts her wounded childhood.

She reminds the judges that she’s always been their “precious little puddin’” and “snuggly-wuggly-bug.” She extolls the many months of patience she showed during her mother’s pregnancy and asks for the same consideration. In summation, she attempts to bribe the judges. Her allocution, though impassioned, leaves the judges unmoved.

A prior record can prejudice the accused. In response, Mrs. Spikes raises Suzy’s recent convictions on 23 counts of Negligent Failure To Make Bed, 47 counts of Willful Annoyance and 1,205 counts of Bad Attitude with Intent to Act Like A Teenager, a felony.

At this point, a baggie falls out of Suzy’s pocket and a pending charge of Unlawful Possession of Jolly Ranchers is added. Suzy objects to the introduction of this character evidence. Her objection is overruled, but she has preserved grounds for an appeal.

Never antagonize the court during sentencing. When pitiful sobbing fails to bring mercy, Suzy switches tactics to aggressive advocacy. She denounces the “corrupt judges of this kangaroo court” for their perceived inability to “never possibly know in a million years” the pressures faced by eleven-year-old girls.

To emphasize her point, she throws up on the carpet. This error in trial strategy results in a stiff upward adjustment under mandatory sentencing guidelines recently adopted by the Spikes household. Suzy is currently due to be released from her room in her junior year of college.

In future columns, we will continue tracking this interesting case through appeal, Suzy’s adolescence, first date, sixteenth birthday and hard time in the penitentiary.

Perpetually Clueless

Originally appeared in the March 1998 issue of the ABA Journal.

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Perpetually Clueless


Some readers have e-mailed suggesting that the Rule Against Perpetuities would be a natural fit for this column. Of course, they’re absolutely right. Other than the Bluebook, there is perhaps nothing more intrinsically funny in all of law.

You can easily test this theory by gathering any group of highly-serious senior partners in a conference room. The more dour the partners, the better the test results. First, get them in a really bad mood by telling them insurance costs are skyrocketing, the copiers are harassing the fax machines and the staff is threatening to strike unless Casual Day is expanded to include Pajama Week and Beach Party Summer.

Administer the test by reading explanations of the Rule Against Perpetuities from any standard hornbook. By the time you get to the part about fertile octogenarians, the partners will be flipping each other’s ties, snorting milk out their noses and making funny sounds with their armpits.

Why is the Rule Against Perpetuities so funny? Lots of reasons. For one thing, no other legal rule has doctrines that sound like old blues tunes. “Bad As To One, Bad As To All” and “Unborn Widow” could have been classic hits for Muddy Waters.

But the most hilarious thing about the Rule Against Perpetuities is that no one understands it. Yet everyone still vividly remembers not-learning the rule. Studies show that all the average lawyer knows about the rule is that, for reasons never fully developed, “21 years” is important to property law.

To this day the legal folklore circulates that because the rule is so complex, a lawyer cannot commit malpractice by misapplying it. However, my colleague assures me this is not true. He says that lawyers can indeed get sued for violating the rule, it’s just that no one can ever figure out why.

But pity poor law students, who must actually worry about the rule. Here are a typical law student’s class notes on the Rule Against Perpetuities:

RULE AGAINST PERPETOOTIES — No contingent future interest … transferee … vest or fail within 21 years … death … life in bean??? creation???? interest???????

PROF SAYS RATIONALE STRAIGHTFORWARD — A rule against remote vesting designed to limit … grantees-ORS! … Alien Nation of property??? … something something something …

Cut off contingent??? uncertainty???? inhibit transfer?????

EX. A conveys Blackacre to B for life then to children of B who survive her. B has son C. EASY ANSWER: Contingent remainder subject rule <<< find out what this means.

SLOW THE **** DOWN! Something about???



1. Is there any way the interest might have or might NOT have vested OR failed to vest … 21 YEARS?

2. Can a measuring life be alive … 21 YEARS?

3. Are you 21 YEARS OLD? Must be drunk to understand Rule — prof joke.

4. … 21 YEARS 21 YEARS 21 YEARS …

[Three more pages of clarifying notes]

Prof says don’t worry about. NOT ON TEST. No one understands. Not malpractice!!!

That barely scratches the surface of the Rule Against Perpetuities. Don’t even get me started about it because these things can go on and on for more than … you guessed it, 21 years.

Matter of Form

Originally appeared in the April 1998 issue of the ABA Journal.

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Matter of Form


It’s tax time. Last week I went to collect the forms I’ll need. When I was returning the U-Haul, I ran into a bunch of other taxpayers returning their U-Hauls. We were all stressed out about the mountain of paperwork looming ahead. This is no surprise. Surveys show tax season makes Americans depressed and trees downright suicidal.

The tax system needs simplifying, but there’s good news. Last night I was watching Internal Revenue Service hearings on the Sci-Fi Channel and learned that the IRS is recommending a total overhaul of our tax forms.

Under the proposal, ten trillion tons of old forms will be recycled into paper-mache replicas of adorable tax dependents which will be sold on the Home Shopping Network as collector’s items.

This will allow the agency to finally fund its top priority project: sponsoring a bright red race car on the Nascar circuit. If the IRS proposal is adopted, all existing forms will be replaced by a single page, the ultimate in tax filing efficiency, the brand new …


1. Taxpayer Name(s):_______________________.

2. Total Tax Owed: ___________.

3. Additional Tax Owed ___________.

4. Remaining Amounts Owed ___________.*

* Tax Tip: Most amounts are in fact owed. If unsure whether a particular amount is owed, use the accompanying worksheet and perform this test: Write down the amount in the space provided. If it contains a digit larger than zero, it is an “amount owed” under Internal Revenue Code §28502.

5. Anything Leftover ____________.

6. Gratuity (18% for families of six or more) __________.

7. “I LOVE THE IRS!” TEESHIRT (specify size and color) $32.00 and one-year no-audit guarantee.

8. TOTAL AMOUNT DUE (add lines 1-7) ___________.

9. Amount of refund: [Do Not Write In This Space]

10. Do you like this new form? Check one: yes – no – like we really care

11. The life of an IRS agent is no picnic. Do you know what it feels like to be reviled? Check one: yes – no – only by my ex-boy/girl friend(s).

12. Can you spare five bucks for the half trillion dollar deficit? Check one: yes – no problem – anything for a pal (add to amount on line 8).

13. Estimated tax for 2005

14. Estimated income for 2005.

15. Attach check for amount listed on line 14.


To obtain additional forms, find us on the World Wide Web at send.more.$$$.gov. Ordering additional forms is quick and easy. Due to overwhelming demand, receiving them is currently out of the question.

BIG SALE! Corporate Giveaways! Tax Shelters! Used Social Security numbers! All prefixes. Dining room set, baby clothes. Call and leave message.

Dog Daze

Originally appeared in the May 1998 issue of the ABA Journal.

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Dog Daze


Some people believe the animal rights movement is of recent origin, but the “one free bite” rule of tort law, which has long granted every dog the inalienable right to sink his teeth into human flesh at least once, proves this is not so.

Recently, the one free bite rule has been criticized for discriminating against humans, many of whom pay dearly for their bites. (If you think I would stoop so low here as to mention MARV ALBERT!!! or MIKE TYSON!!! just to get a cheap laugh, I am really hurt.)

The one free bite rule is actually a greatly misunderstood creature (much like Marv and Mike). A refresher course on this important doctrine is in order. First, beware that bites are not always “free” under the rule. Unscrupulous canines have been known to bill unwitting bitees for labor costs after the attack.

Even more disturbing, undercover K-9 agents in L.A. recently broke up a fraudulent mastication ring run by a gang of vicious Dobermans. According to a spokesmutt, the dogs were duping consumers with offers of “free bites at the apple,” failing to disclose that the gratuitous chomps were limited to “Adam’s apples.”

Most importantly, dog owners need to be aware that not all bites are covered by the rule. Here is the actual rule: A dog owner is liable for a bite only if he knew or had reason to know of the animal’s dangerous propensities. Test your understanding of the principle by solving this thorny multiple choice question:

Vic is the owner of Froo-Froo, a docile poodle who devoted all 72 dog-years of her life to chewing on a tennis ball and rolling over on command until she met Inga, an activist rottweiler down the street. After that, Froo-Froo’s personality changed dramatically.

The tennis ball now sits on the porch, in a puddle of disgusting green slime, while Froo-Froo stays holed up in her doghouse waiting for UPS deliveries that arrive at odd hours. Strange noises emanate from the doghouse around the clock: grinding, clanking, banging and what sounds curiously like snarling to the Curtis Mayfield tune “Superfly.” But whenever Vic goes to investigate, Froo-Froo pretends she’s not home and Vic is left to clean up the empty whiskey bottles piled outside.

One day a mysterious note appears in Vic’s mailbox, composed of letters cut (crudely, as if by paws) from a magazine: “HeLLo, Mr. ViC. Can U spell NEWTuR?”

The next morning, when Vic calls Froo-Froo out for breakfast she springs from the doghouse sporting spiked body armor and titanium fang implants. At that moment, the mailman arrives, pats Froo-Froo on the head cheerfully and says, “Roll over, pooch.”

In an action by the mailman’s survivors, Vic will:

(A) Win, if the jurisdiction adopts the new “one thousand free bites” rule.

(B) Lose, because Vic had reason to know of Froo-Froo’s dangerous propensities.

(C) Win, if Froo-Froo can intimidate the jury.

(D) Lose, because there’s no such thing as a free bite.

Canned Sincerity

Originally appeared in the June 1998 issue of the ABA Journal.

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Canned Sincerity


My colleague recently received a mail offer to purchase an amazing new book called The Someone Cares Encyclopedia of Letter Writing. This real book contains “over 525 thoughtful letters . . . for every conceivable occasion already written for you.” The “heartfelt” form letters cover everything from complaining about your kid’s soccer coach to offering sympathy for an “unnamed tragedy.”

What a great idea for lawyers! With all our form books, we’re still at sea when it comes to personal correspondence. Lawyers encounter lots of emotional situations where a heartfelt letter could prove invaluable. The decision to leave a law firm is a perfect example. Breaking the news to one’s colleagues can be agonizing. Think how great it would be to flip open a book and find a sensitive letter ready to be custom-fit to your situation:

Form 269: Law Firm Resignation Letter

Dear ________:

I regret to inform you that I am leaving the firm. Please don’t think my decision has anything to do with my [low salary/long hours/dislike for you personally/sexual harassment suit]. I’ve been thinking about this for some time and feel the timing is right given our recent [open and honest communication/frank discussion/bar brawl].

I can honestly say I’m going to [miss you/miss this place/miss your spouse/ruin your name/the beach every day]. I will take many things with me, the most important of which is [our friendship/a grudge I will hold for the rest of my life/the office furniture]. When I look back, the picture I will always remember is [the day you hired me/the first case we won together/the one I took of you at the firm party and keep in my safe deposit box].

To show my [appreciation/good faith/utter disdain for you], I plan to send you a [special gift/sizable check/dead cat].

Thanks for taking this so well. You are a true [friend/lawyer’s lawyer/##&$%%].

[Warmly/Sincerely/I’m Outta Here!]

Your Name

Such a personalized letter is likely to touch any former colleague and to prompt a similarly heartfelt response:

Form 270: Reply to Resignation Letter

Dear _______:

It is with a heavy [heart/handgun/stack of work you left unfinished] that I reply to your notice that you are leaving the firm. Your service here will never be [forgotten/forgiven/understood/discussed], no matter how long you have been gone.

We wish you lots of [happiness/good wishes/personal setbacks] in the future. If there is any way we may [be of assistance/enforce our non-compete agreement/be rid of you more quickly], please do not hesitate to let us know.

You can just stick your office key [on my desk/in the mail/where the sun don’t shine] and collect your final [congratulations/paycheck/humiliation] at the firm meeting on Friday.

[Warmly/Sincerely/Good Riddance]

Your Name

I don’t know about you, but I could really use a book like this. Like a lot of men, sometimes I’m simply too absorbed in important things like [my work/myself/watching sports] to feel. I’d much rather pay someone else to do it.

Hadley’s Reprise

Originally appeared in the July 1998 issue of the ABA Journal.

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Hadley’s Reprise


Lawyers think law professors have it easy, but teaching today’s students demands a wide range of skills: juggling, magic tricks and preferably a decent animal act. This generation has been force-fed flash and sizzle entertainment since birth. Videogames, MTV, action flicks, sitcoms, web sites … their entire lives are one huge neural stimulus.

But then law school comes along and pushes the pause button. No more action, just moldy old cases written in the most stilted prose imaginable. Take a classic contracts case like Hadley v. Baxendale. Insomnia? Just read this snoozer.

Hadley hired Baxendale to transport a broken mill shaft for repair. Because Hadley’s mill couldn’t operate without the shaft, time was of the essence. Baxendale transported the shaft for repair by canal and it arrived late, causing Hadley to lose business. Hadley sued for lost revenues, but couldn’t recover them because he hadn’t told Baxendale about his special circumstances.

The court starts out: “[A]t the last Gloucester Assizes, it appeared that the plaintiffs carried on an extensive business as millers at Gloucester; and that, on the 11th of May, their mill was stopped by a breakage of the crank shaft … blah, blah, blah.” From a reader interest standpoint, this introduction suffers from several flaws, not the least of which is that people hate sentences with “assizes” in them.

We need to update legal education to keep in step with modern consumer expectations. I propose that law schools hire writers to rewrite all old cases with the goal of making them more readable, more comprehensible and possibly into blockbuster movies. Here’s what a little sprucing up can do for a relic like Hadley v. Baxendale:

Shark attack! Baxendale watches in shock as the Great White, rare in English canals, rises from the dank water and devours the front of his boat.

He hadn’t counted on this. “Now I’ll be late delivering the mill shaft for sure.” Hefting the broken shaft as a harpoon, he dives in the canal to fight the shark, oblivious to the men in the black sedan parked on the barge following him.

Meanwhile …

Hadley pulls from Rita’s embrace. “I need time to think,” he says sullenly and retreats to the veranda with his glass of whiskey. Where was Baxendale? The fool was two days late arriving at Greenwich with the broken shaft. Everything depended on that shaft getting fixed on time. His career, the mill, his dark secret … Rita.

He feels her silky touch and turns to accept her waiting lips, all the while thinking: I should have told Baxendale this delivery was important, but I forgot.

Meanwhile …

Baxendale stumbles into the repair shop and collapses. Three days late, but it’s a miracle he made it at all. He had to drag the Great White twenty miles after it swallowed the mill shaft, on one leg. Why had he done it? For 2£, 4 s., and he wasn’t even sure how much money that was. Yet he risked his life. Risked everything … for Rita.

Peppier than the original, don’t you agree? If you have any thoughts about the big screen version, please do send them. Personally, I picture Robert Duvall as an irascible Baxendale, maybe Brad Pitt as a young, driven Hadley and definitely Sandra Bullock as Rita. I’d go see anything with Sandra Bullock, except maybe Marbury v. Madison.

Hep Catalogs

Originally appeared in the August 1998 issue of the ABA Journal.

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Hep Catalogs


With all the fuss over law school rankings, the question arises as to exactly what causes a school to get highly ranked. Experts have identified two principal factors: 1. Being Harvard. 2. Having a really good catalog.

Since lower-ranked schools are not Harvard, they need to work on better catalogs. I got one in the mail the other day that was so slick I thought it came from J. Crew and accidentally enrolled in a global studies program while trying to order the dean’s chino shorts. To compete in the modern marketplace, it’s important for law schools to invest in hip, student friendly catalogs.

Here are some suggestions:

Message from the Dean. Most law school catalogs begin with a message from the dean. These messages can be unbelievably boring (except for the one my dean wrote), jammed with platitudes (truly moving sentiments, sir) and suffer from chronic repetition of the word “tradition” (23 times really isn’t so bad, dean). Today’s applicants want a dean who can communicate openly and honestly about their academic concerns. Here’s a sample:

“Waz-up? It’s me, your Deanster, the Deanzilla of deans, MC Heavy D Dean, but you can call me Jeff. We all go by first names here because we see student satisfaction as our primary mission, way above teaching law.

“I, like, gotta keep this short ’cause I’m on my way to teach my Constitutional Law class. Today we’re studying the jurisdiction of the Supreme Court. Hurl-a-rama? No way, dudes. We’ll be jammin’ to a techno-laser show while we’re learning it.

“Paper Chase, Schmaper Chase, let’s talk Melrose Place …”

Curriculum. High-ranked schools offer lots of boutique courses addressing important issues in legal education: globalism, multi-culturalism, post-modernism, basically anything you can stick an ism on. This makes your catalog look dull if all you have are relics like Property and Income Tax. New courses cost a lot. Save money by dressing up the names of the old ones, making sure to include the proper buzz words.

For example, Income Tax has more panache as “Global Deconstructionism of Multi-Cultural Payors In A Post-Modern Society.” If you really want to be on the cutting edge, be daring. Go beyond global, beyond post-modern. Rename Civil Procedure “Deep Space Pennoyerism In A Neo-Neffist Universe.”

Faculty. Applicants are very interested a school’s faculty. If your faculty lacks outstanding academic credentials, make up for it by emphasizing their other qualities. Example: “Professor Hal Weenicker, B.A., J.D., Brickyard University, tidy appearance, punctual, likes movies, walking and cats, never killed anybody.”

Academic Calendar. Most law school catalogs include an academic calendar, but many make the mistake of emphasizing negatives like tuition due dates and exam periods. Gain ground on the elite schools by fashioning a calender that appeals to young applicants:

Monday: Sleep In Late; Contracts; Rest Period; Lunch; Nap-time; Enfeoffment Mud Wrestling; Slumber Party at Dean’s.

Tuesday: Civil Procedure Coffee and Danish Drop-In; Jerry Springerism Alternative Dispute Resolution (prerequisite: proof of insurance); Lunch; Criminal Law Lecture Series: “The Defense of Mental Incapacity” (at Vino’s Bar).

Wednesday through Friday: Torts Snowboarding Trip and Review Session.

Saturday: “Casebook Recycling Day” to benefit Environmental Law Club.

Sunday: Student-Faculty boxing.

Suzy Assumes the Risk

Originally appeared in the September 1998 issue of the ABA Journal.

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Suzy Assumes the Risk


Suzy Spikes is joining a soccer team and the insurance industry is jittery. Suzy is my daughter’s litigious, histrionic and some might say irretrievably delinquent 11-year-old pal. You might recall the last time we checked in on her she was vigorously appealing her home detention for unlawful insertion of a Monopoly game piece into a neighbor’s nasal cavity (Feb. ‘98).

Insurers of the La Petite Soccer League agreed to let Suzy play only if she signed a strict code of conduct and exculpatory agreement. Since Suzy has been banned from every sports team in the state except the “Juvie Detention Center Fightin’ Tigers,” Art and June Spikes felt they had no choice but to acquiesce. The agreement should prove useful to lawyers confronted with other high risk situations involving dangerous animals, psychiatric patients or preadolescent girls:

Airtight Liability Agreement

The La Petite Soccer League (“La Petite”) and Suzanne Marie Spikes (“Probationer”) enter into this binding agreement, in consideration of which La Petite grants Probationer the privilege of participating in its soccer program and Probationer forfeits all of her legal rights:

1. Lawsuits conflict with the La Petite values of team spirit and cooperation and are forbidden by league rules. Probationer assumes the risk of any and all perceived injustices, feelings of persecution, preteen angst, gripes and grievances of any kind. To show her good faith, she shall dismiss her age discrimination claim against the Teeny Tiny College for Pixie Knowledge for making her take a nap when she was seven years old.

2. Probationer shall not share her views on the legal rights of children within 300 yards of La Petite.

3. Probationer shall be conclusively presumed to be the sole proximate cause of any physical injury, mental distress, casualty loss, vandalism, hostage situation or attorney’s fees occurring while she is on La Petite premises. La Petite shall be indemnified for all such losses.

4. Rulings by referees during league play are final and unappealable. Contrary to Probationer’s assertion, there are no “inalienable rights” in a soccer game. There are no rights at all. All rulings shall be accepted with a happy face and without verbally or physically assaulting the referees.

5. Probationer shall not aim soccer kicks at sensitive body parts of players, referees and especially coaches. In the likely event Probationer is expelled from a game, she shall not incite the crowd with chants of “Free Suzy Spikes” as occurred last summer at the Sock ‘Em, Chop ‘Em Karate Academy.

6. Probationer consents to random searches of her lunch box for her favorite snacks: Psycho-Amp Cola, Hunka-Chunka-Choco Chip Frisbees and Jetstream Sugar Bars.

Signed and Sealed this incredibly stressful day of September, 1998. (Against my will. Suzy.)

Postscript. League play got underway and Caitlin reports Suzy is excelling as a team leader. She scored four goals in a game last week, one of them legal. Her persuasive advocacy and hunger strike persuaded the coaches to change the team name from Daisy Girls to Marauding Femmes. She’s made lots of new friends, especially among the security guards. Her sports agent even bought her a new bike.

Agreeing to Disagree

Originally appeared in the October 1998 issue of the ABA Journal.

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Agreeing to Disagree


Ever notice how the Supreme Court can’t seem to agree on much? The court’s modern opinions are often a maze of fractured voting.

Rumor has it an early justice once proposed that unanimity be required in all decisions, but they voted on it and ended up split 1-1-1-1-1-1-1-1-1. They tried to settle it with Rock, Paper, Scissors, but one justice used real rocks and an ugly brawl broke out, after which the idea was dropped.

I can understand when the justices disagree about highly-charged constitutional issues, but they seem to rarely agree about anything.

Consider a case like Idaho v. Coeur d’Alene Tribe (1997), a dispute over the ownership rights to the bottom of a lake. No doubt this was important litigation, but it’s not exactly Marbury v. Madison, or even the lesser known Marbury’s Cousin Murray v. Madison. Yet look at the splintered voting record:

Kennedy, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, and III, in which Rehnquist, C.J., and O’Connor, Scalia and Thomas, JJ., joined, and an opinion with respect to Parts II-B, II-C, and II-D, in which Rehnquist, C.J., joined. O’Connor, J., filed an opinion concurring in part and concurring in the judgment …

It goes on, but you get the idea. Way too confusing. At the end I expect to see, “See next month’s opinion for answer.” We need some clues to figuring out these mega-part opinions, something helpful like “PLAINTIFF WINS,” or better, “Instructions to User: Ignore everything except footnote 10.”

Unfortunately, things are getting even worse. Check out the voting lineup in the just-decided Weefus v. Dufus:

Kennedy, J., announced the judgment of the Court in which no one agreed except Mrs. Kennedy and even she wasn’t too crazy about parts of it. Scalia, J., booed.

Rehnquist, C.J., dissented vigorously from Part XXXVII-A,E,I,O,UandsometimesY-iiiiiiiiii until informed there was no such part, so he wrote his own and unleashed a vicious assault against it.

Breyer, J., concurred in Part II-A, dissented from Part II-B, was mildly amused by Part II-C, wadded up Part II-D and stuck it under his desk to keep it from rocking and used Part II-E to make paper airplanes that he and Thomas, J., shot down with rubber bands. Ginsburg, J., joined in the dissent from Part II-E so she’d have paper for her own planes.

Stevens, J., dissented, changed his mind and dissented from his dissent. On petition for reconsideration, he dissented from the dissent to his dissent, at which point he lost track of which side he wanted to win and abstained.

O’Connor, J., concurred in part in footnote six, dissenting from it not being numbered seven. Souter, J., dissented from O’Connor’s partial concurrence, stating: “The issue of whether footnote six should be renumbered was not raised in the trial court and is not properly before the Court.” O’Connor then filed a Supplemental Dissent canceling her RSVP to Souter’s dinner party on Saturday.

Part I of Conclusion To Humor Column: I should point out that I love Supreme Court justices. Part II: None of the above is intended to reflect on the personality of any particular justice. Part III: Except maybe one. Part IV: See next month’s column for answer.

Conquering Renters’ Blues

Originally appeared in the November 1998 issue of the ABA Journal.

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Conquering Renters’ Blues


As you might recall from law school, modern property law developed out of the Norman Conquest in 1066 A.D. What you might not know is that the whole mess started because the king of England refused to return William of Normandy’s security deposit on a castle he rented.

The king, adopting a tactic still used by landlords today, claimed William left too many holes in the walls when he vacated the premises. William argued the king was being unreasonable since there’s no way to bludgeon serfs with a mace without leaving holes in the wall. But the king wouldn’t budge and the Norman Conquest followed.

Property law hasn’t changed much in the last thousand years. Landlords continue to withhold security deposits at an alarming rate. Meanwhile, most renters lack the resources to mount a conquest, placing them at a bargaining disadvantage.

So what’s a renter to do? Expert property lawyers agree there’s only one reliable legal strategy to avoid losing a security deposit: never, ever rent. Buy a house. But before you do, review these important property law concepts for your protection:

Covenants Running with the Land

Always check to see if there are any covenants running with the land, which can restrict your use and enjoyment of the property. To run with the land, the covenant must “touch and concern” the land. To investigate this, sit down with your land and talk openly about the covenant. If the land is sincere, it should be touched and concerned. If not, it’s probably an insensitive jerk that should be dumped for another parcel.

Marketable Title

When buying property, be sure it has a marketable title. The more marketable the title, the higher the value. For example, Graceland, Little House on the Prairie and Wrigley Field are all very marketable titles. On the other hand, Place Where Joe Lived, Temple of Doom and Chernobyl aren’t.


A major concern in buying a house is determining what are and are not fixtures. Fixtures are items permanently attached to the property. If an item is a fixture, it goes with the house as part of the transaction.

To avoid later disputes, iron out in advance which items are fixtures. In a recent landmark case, a judge ruled that a couch potato named Ernie was a fixture who went with the house. The decision was bad news for home buyers, but great news for Ernie’s wife, Coleen.

Easements by Prescription

Make sure you have proper egress and ingress rights to the property prior to purchase. If not, you’ll need to get an easement from your neighbor. The simplest kind of easement to obtain is an “easement by prescription.” Follow these four easy steps: invite your neighbor over for dinner, dump some Valium in his beverage, wait thirty minutes, hand him a pen and the necessary papers.

Lateral Support Rights

Honestly, I’m not too sure what these are, but rumor has it this will be the next big “rights” movement to sweep the nation. Whatever you do, don’t violate the rights of your lateral supports because you could get slapped with a big lawsuit.

If you absolutely must rent, you might as well get your money’s worth out of your security deposit. Hang your pictures with a sledge hammer.

Fowl Play

Originally appeared in the December 1998 issue of the ABA Journal.

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Fowl Play


Under modern law, if an animal causes harm, the owner is held responsible. But it hasn’t always been that way. Under old European codes, the animals themselves were put on trial. They even had counsel appointed to represent them. No joke.

The practice apparently developed from the Mosaic law that “if an ox gore a man or a woman that they die, then the ox shall be surely stoned, but the owner of the ox shall be quit.” Thomas Frost documented 92 such trials in France in his 1897 essay, Trials of Animals.

Roosters were especially at risk of being hauled into court because of the superstition that they were in league with the devil and laid eggs that hatched horrible winged serpents called basilisks. A chronicle from Basel reports that in August 1474 a Swiss rooster was accused of laying such an egg. He was tried before a magistrate and convicted. Both the cock and his alleged egg were sentenced to death.

Check out the cross-examination of the defendant in this travesty:

Prosecutor: Mr. Chicken, I show you what’s been marked as Exhibit “A.” Do you recognize it?

Defendant: I’ve never seen that egg before in my entire life.

Prosecutor: Oh really. Maybe your confession will refresh your memory. Do you recall making this statement to the police? I quote: “Baccck, baccck, baccck, baccck, baccck, bacck, baccck, baccccccccccck!”

Defendant: Lies! I never said that. I don’t even know what it means!

Prosecutor: Do you deny this is your signature?

Defendant: Those chicken scratchings? It’s a forgery. I’ve been framed.

Prosecutor: Isn’t it true you’ve hatched horrible winged serpents in the past?

Defendant: No! I’m a rooster.

Prosecutor: Then perhaps you can explain this photograph seized from your coop. For the record, the photo shows eight horrible winged serpents in the back of a minivan wearing soccer uniforms with the defendant in the driver’s seat.

Defense counsel: Your honor, there’s a simple way to resolve this case. Let my client sit on the egg. If it does not fit, you must acquit.

Judge: Request denied. We’re not going to turn this trial into a circus, counselor, so get down from the tightrope and take that red ball off your nose.

Prosecutor: Isn’t it true that you acted very frightened when the authorities came to your dwelling?

Defendant: Of course, I’m chicken.

Prosecutor: The inquisition rests. Your honor, the evidence is overwhelming that the defendant is guilty of sorcery, consorting with a known Beelzebub and unlawful possession of a demon egg within the city limits.

Judge: I have no choice but to find you guilty and sentence you and your egg to death.

Defendant: No, please judge. I hate running around like a chicken with my head chopped off, especially when it really is. I’m innocent.

Execution day drew a huge crowd of media pundits who analyzed the case endlessly until the egg hatched and a horrible winged serpent devoured them.

Legal Hoopholes

Originally appeared in the January 1999 issue of the ABA Journal.

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Legal Hoopholes


Labor law has been getting a lot of press lately as the professional basketball strike—the “NBA lockout” as it’s known—grinds on. Some lawyers, those with way too much time on their hands, are anxious to know why the strike hasn’t been resolved. Here are the most-asked legal questions:

Q. Why do they call it a “lockout”?

A. The players are actually physically locked out of all facilities. However, the measure isn’t as harsh as it may seem because of the deep talent level in the NBA. All teams have at least one player on the roster experienced at playing the low post and breaking and entering.

Q. What is the crux of the dispute?

A. The argument is over a complicated formula for determining the amount of “basketball-related income” to be received by the players and that to be retained by the owners. After months of heated negotiations, the main sticking point continues to be the precise percentage split between the two groups.

Q. Are they close to agreeing on a percentage?

A. Out of concern for the fans, both sides have offered to compromise. In the most recent proposal, the owners are demanding 100 percent and the players are demanding 100 percent.

Q. Is there a way to generate more money to make everyone happy?

A. The parties have been working on a plan to boost revenues by enlisting corporate sponsors. Rumored corporate tie-ins in the works have the New Jersey Nets becoming the Microsoft Net Browsers, the Miami Heat becoming the Lennox High Efficiency Heating and Cooling Units and the New York Knicks being renamed the No Nicks, No Scratches Minwax Floor Polishers.

Q. What about the Boston Celtics?

A. They’re terrible.

Q. Miami Heat center Alonzo Mourning has publicly accused the owners of greed. Apparently, Mourning feels the $13 million he was scheduled to receive this season is unfair. Is he right?

A. It’s more than unfair. It’s an outrage. How can we as a society justify paying only $13 million to a person highly skilled at putting a ball in a hoop while continuing to allow our nation’s teachers to ransack the economy for up to thirty thousand dollars a year?

Q. Is the loss of revenue during the strike crippling the owners?

A. Some revenue continues to flow in. Fans who pay $1,000 a ticket to sit in the front row just to be seen are still showing up. At a recent canceled game between the Knicks and the Lakers, Spike Lee was ejected from an otherwise empty Madison Square Garden for taunting Jack Nicholson.

Q. What is NBA Commissioner David Stern’s current negotiating strategy?

A. Trash talking and slam dunking his balled-up napkin into a styrofoam coffee cup.

Q. Every day my local newspaper prints “total games missed” because of the strike. How many games would be left if play were resumed today?

A. Not many. We’re getting close to the critical 100,000 game threshold deemed necessary to make for a viable season (not including the 24,000 playoff games).

Hold Your Fire

Originally appeared in the February 1999 issue of the ABA Journal.

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Hold Your Fire


Gun control is becoming an issue of increasing prominence in educational circles. In higher education, there’s good news and bad news. The good news is surveys show college students are more affluent than persons who don’t go to college. The bad news is this enables them to purchase top-of-the-line firepower that can pierce the body armor worn by most professors.

I’m kidding, of course. Professors don’t wear body armor. They don’t make tweed body armor with bullet-proof patches on the sleeves. That was just to lighten the tension. As someone who actually teaches a law school course on gun violence, I know first-hand that emotions run high in the gun control debate.

Just the other day I observed a group of students engaged in a lively debate with their Constitutional Law professor over the proper interpretation of the Second Amendment. Their arguments were quite persuasive, as was their pistol-whipping. The professor not only agreed with their position, but handed over his wallet.

To participate authoritatively in the gun control discourse, you need to know lots of statistics. The gun control debate always comes down to statistics. Fortunately, there are plenty of statistics to support any opinion. The fact that these statistics are often exaggerated or irrelevant seems only to fuel their use, as each side tries to statistically one-up the other. Here’s a typical gun control debate:

Gun Control Proponent: Last year in Japan, only one person was killed by a gun, while in the U.S. more than seventeen million people were killed just from getting hit in the head with ejecting shell cartridges.

Gun Control Opponent: Japan is a very regimented society. Only one Japanese citizen out of a hundred thousand gets to experience the excitement of dodging gunfire. Besides, every day in America, twenty million people use guns in self-defense and millions more use them to safeguard the country from British invasion.

Proponent: Nonsense. Studies show a gun in the home is one-hundred and forty-six million times more likely to be used to kill a snail darter than for self-defense.

Opponent: Pro-gun control statistics are one billion times stupider than anti-gun control statistics.

Proponent: If you laid all the preposterous claims of gun control opponents end to end, they would circle the universe for infinity.

Opponent: Statistically speaking, non-gun owners are six-and-a-half trillion times more likely to be ugly than gun owners.

Proponent: There’s a 99.99 percent chance that the rude remark I’m about to make concerning your mother will cause the veins in your neck to explode.

Opponent: My machine gun can pump bullets into your abdomen at gajillion-bazillion rounds per second.

Unfortunately, at this point, the quality of the debate usually begins to deteriorate.

Accidents Happen

Originally appeared in the March 1999 issue of the ABA Journal.

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Accidents Happen


As lawyers know better than anyone, every story has two sides. This can be frustrating when one is searching for the truth.

What should you do when two witnesses tell such completely opposite stories you can hardly believe they’re describing the same event? First, make sure they really are describing the same event and that you haven’t mixed up the case files.

If that’s not the problem, it’s possible the witnesses are lying. But be aware that conflicting eyewitness accounts can also result from honest differences in perception. Studies show people tend to perceive things in ways that best suit their needs.

This is especially true in relationships and automobile accidents. Since relationships would require more than 500 words to explain, we’ll focus on auto accidents.

Notice the different perceptions reflected in these insurance forms filed by two drivers involved in the same collision:

Describe How Accident Happened

Driver 1. I was minding my own business driving with my eyes glued to the road practically in slow motion when my neighbor’s death machine suddenly warped out of his driveway aimed straight at me.

Driver 2. With my head turned completely around looking for cars, I was backing out my driveway at approximately one-third of a mile per hour when my neighbor decided recklessly and without warning to launch an assault on the land speed record.

Describe Damage to Vehicles

Driver 1. My irreplaceable, vintage automobile is a total loss. Amazingly, despite the explosive force of the accident, my neighbor’s car has only a tiny dent in one fender.

Driver 2. After I pried myself loose from the twisted wreckage of my vehicle, I immediately inspected my neighbor’s rusted-out junkbox. Miraculously, the heap suffered only a minor, hardly noticeable scratch.

Describe Any Injury to Persons

Driver 1. My vertical leap and ability to enjoy life have been severely impaired. I’ve had to cancel my plans to quit my job as an accountant and become an NBA basketball player. The doctors say my case of PTCBLMSS (Post Traumatic Can’t “Be Like Mike” Stress Syndrome) is the worst they’ve ever seen. Fortunately, my neighbor was not hurt at all, except for a very slight bump on one arm.

Driver 2. It’s hard to write with my shattered elbow in this cast. I’ll submit an addendum when I get out of the hospital. As for that crock about my neighbor’s vertical leap, you should know that old Mrs. Merryweather (rest her soul) outrebounded him in last year’s neighborhood basketball tournament.

Other Comments

Driver 1. After reviewing the tragic circumstances of this horrible crash, I’m sure you will agree my neighbor is guilty as sin and does not deserve the great American privilege and responsibility of holding a driver’s license. If he doesn’t admit the accident was one hundred percent his fault, it’s only because he’s a pathological liar.

Driver 2. After you carefully investigate this terrible collision, I am confident you will come to the conclusion that I am as free from fault as a newborn baby. If my neighbor doesn’t confess all responsibility, it’s only because lying and bad driving are part of his devil-worshiping religion.

Short Subjects

Originally appeared in the April 1999 issue of the ABA Journal.

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Short Subjects


Millions have read Jonathan Harr’s bestseller, A Civil Action, the true tale of a labyrinthine toxic tort suit in Massachusetts that ground on for six years. Amazingly, Harr condensed 196 volumes of depositions, 78 days of trial testimony and 57 volumes of hearing transcripts into a taut legal thriller.

Simplifying the complex takes real talent. No one does it better than Hollywood, as Touchstone Pictures proved when it cut the six-year litigation down to only 118 minutes in a movie version of the book starring John Travolta.

But brevity has a cost – the loss of detail that made the original story so compelling. The real test comes this fall when Attention Deficit Productions brings A Civil Action to television.

The half hour special (retitled simply Action) strives to please today’s easily-distracted, channel-flipping audience while retaining all the important drama and characters from the original: Schlichtmann, the idealistic, obsessed plaintiffs’ lawyer; Conway, his stalwart partner; Facher, the formidable adversary; and Judge Skinner. Check out the complete script:

A spring day in 1982:

Schlichtmann: We gotta sue these guys.

Conway: Okay. [Commercial break]

Several years follow in which the plaintiffs ask defendants for a bunch of documents and stuff. [Commercial break]

At trial, young Schlichtmann gets guidance from the patriarchal Facher:

Facher: Objection! [LOOK SMUG]

Facher: Objection! [LOOK SUPERIOR]


[INSERT SCENE FOR TV: Schlichtmann attacks Facher. Facher reveals he’s Spiderman when he leaps to avoid thrust and sticks to ceiling. Sudden hurricane hits courtroom. Schlichtmann saves everyone. Falls in love with beautiful juror.] [Commercial break]

Captivating experts are called to untangle the complex evidence:

Schlichtmann: Please explain to the jury what the 12,000 pages of data [Commercial break] from the hydrogeological groundwater study [Commercial break] revealed, remembering that the producers have allotted your character only one second.

Expert: Defendants bad.

Heated settlement discussions continue (commercials woven in to save time):

Schlichtmann: That’s our offer. But that’s not all. You not only get the settlement and dismissal. Act now and we’ll send you the incredible Abdomenizer. A whole new you in three weeks. It’s a good deal, Facher.

Facher: Outrageous. If my ‘Original Club’ wasn’t securely protecting my auto from theft, I’d use it to knock some sense into you.

Closing argument finally arrives:

Schlichtmann: Ladies and gentlemen, I want to thank you for your attention and patience during these four grueling minutes of trial.

Judge Skinner: I will now instruct the jury. Run, don’t walk, back to that room and reach a verdict. Giddyup.

Juror: Aren’t you supposed to give us four convoluted questions that will later prove controversial?

Judge Skinner: No time for that. It’s thumbs up or down. [LOOK AT WATCH] Too late. Everyone shake hands and go home.

Frequent Crier Miles

Originally appeared in the May 1999 issue of the ABA Journal.

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Frequent Crier Miles


With complaints against airlines up 26 percent last year, Northwest picked a bad time to trap passengers in their seats for up to 11 hours during a January storm.

Things got worse when American’s pilots staged a “sick-out,” stranding thousands of angry fliers. (Official comment of the International Association of Pilots With Really Weak Immune Systems: “We were sick as dogs. No Kidding, Coughing, sneezing, scratchy throat, that aching feeling. It was awful.”)

Whatever the cause, both incidents were bad breaks for the airlines in light of recent marketing studies showing “vassalage” and “ruination of life” as two airline practices that annoy consumers.

Now Congress is getting into the act. Besieged with complaints about everything from getting no explanations for flight cancellations to being forced to hand babies over to security screeners at metal detectors, members of Congress have proposed a comprehensive Air Traveler’s Bill of Rights.

Not surprisingly, the airlines don’t like the proposal. Industry lobbyists have come up with an alternative bill of rights they assert is more balanced and fair to both sides. Here it is:

Air Traveler’s Bill of Rights (nonchangeable without penalty)

1. You have the right to remain silent. In fact, we prefer it that way. Please keep your trap shut the entire trip. If you choose to give up this right, anything you say can and will be used as an excuse to ram your head into the overhead compartment.

2. You have the right to arrive at the airport and find we canceled your flight. Why? You don’t really want to know. It was canceled two months before you made the reservation. Truthfully, we haven’t even looked into buying a plane for that flight. We’ve also canceled your credit cards, haircutting appointment and big date for this weekend. Right now, we’re towing your car.

3. You have the right to have an attorney present during check-in, provided she buys the most expensive business-class ticket on this week’s Hot 100 price list. If your attorney cannot afford one, you need a more successful attorney.

4. You have the right to have a drink cart parked between you and the bathroom at all times. Moving a drink cart with intent to urinate is a federal felony.

5. You have the right to be pepper-sprayed if you verbally abuse airline personnel with epithets such as, “Could you please help me? I’m begging you.”

6. You have the right of all Americans to be treated rudely and with contempt.

7. You have the right to a free radiological examination of your infant children. Since you whined so much about having to hand the totsters over to members of our crack security squad, just pop ‘em down on the X-ray machine belt and pick them up on the other side.

8. You have a right to have your knees surgically removed so you can fit in a seat designed for very tiny toy people with no knees.

9. You have the right to redeem the declining value of your frequent flier miles for selected bus travel in the Midwest, provided all travel be completed before the first date to fall on the date beginning on the date of travel.

10. You have no right to your luggage. Just forget about it.

Yeah, Yeah, Yeah

Originally appeared in the June 1999 issue of the ABA Journal.

Harmless Error - A Truly Minority View on the Law

Yeah, Yeah, Yeah


Some people blamed Yoko Ono for the Beatles’ breakup, but now comes the discovery that the demise of the Fab Four was rooted in a bizarre artistic dispute over the recording of Sgt. Pepper’s Lonely Hearts Club Band.

John Lennon had a keen interest in legal matters, particularly those involving searches and seizures. His various legal run-ins gave him the idea to record a concept album about—you won’t believe this—the law. Unfortunately, the other moptops hated the idea. They rejected his proposed title of Sgt. Pepper & Associates, Limited Liability Partnership: If this Record Doesn’t Hit Number One, You Don’t Owe Us a Dime.

That was the beginning of the end. John was bitterly disappointed as he watched his idea being dismantled night after night during those famous recording sessions at Abbey Road. For the first time ever, here in John’s own words that I made up, are his original psychelegadelic versions of some of the greatest songs in rock history:

Lucy In the Sky With Diamonds

“Rumor had it this was some kind of drug song, but that wasn’t it at all. I wrote it about an admiralty case. Lucy was the name of a barge. The first verse went like this (strumming guitar):

Picture yourself in a boat on a river, with tangerine trees and marmalade skies, suddenly a submerged log rips through the hull, the navigable waters grow incredibly high.

It’s original title was Lucy Underwater With Multiple Liens and Judgments.

Being For the Benefit of Mr. Kite

“A negligence case, with a tricky charitable immunity issue included. For the benefit of Mr. Kite, the defendants staged a show one night—on trampolines of all things.”

“As if that wasn’t reckless enough, they induced plaintiff to jump over men and horses and, with conscious indifference to his welfare, through a hogshead of real fire. There weren’t even any warnings on the hogshead.”

Fixing A Hole

“Paul wrote this one. He had this line going through his head (singing), I’m fixing a hole where the rain gets in and I told him to add to keep my tenant from suing me. I wanted it to be a tale of landlord-tenant oppression. When Paul sang the chorus line, Where it will go-oh-oh-oh, I said ‘Paul, yer daft. Change it to Implied warranty of habitabilitee-ee-ee-ee’ but he wouldn’t have it.”

A Day In the Life

“My favorite cut on the LP because it stays fairly true to my original idea, which was to track the thoughts of a down and out personal injury lawyer who starts each morning searching the newspaper for clients. The first version went like this (reading lyrics):

I read the news today.
Oh boy!
A wrongful death case. Victim didn’t notice that the lights had changed.
Eyewitnesses: A crowd of people stood and stared.
Economic damages: Victim may or may not be from House of Lords. Nobody is really sure.
I read the news today.
Oh boy!
Four thousand holes in Blackburn, Lancashire. The mother of all products liability cases.
Note to self: Will need expert witness. Holes are very small. Have to count them all.

Lest anyone think I’m showing disrespect to the Fab Four, I feel obliged to point out: I love you Beatles, oh yes I do, I love you Beatles, I love you true . . .

Contract Sports

Originally appeared in the July 1999 issue of the ABA Journal.

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Contract Sports


As sports fans look forward to another season of exciting NFL football, the slow process of coming to contract terms with this year’s draft picks continues. Why does it take so long to sign players to contract? These sports law insights help explain it:

High-Low. As with all contract negotiations, the basic negotiating strategy in the NFL is the high-low method. The draftee’s sports agent starts high and the NFL team starts low. Each side compromises until agreement is reached. Here’s a typical negotiation:

Agent: We demand a $50 million signing bonus, title to the stadium, a new Ferrari and renaming of the city after my client.

NFL team: Hundred dollar Wendy’s gift certificate, free stadium parking on game days, new Huffy ten-speed and we’ll rename the offensive line coach’s cat after your client.

Agent: $40 million signing bonus, all stadium concessions, vintage Corvette with fuel injected engine and rename a major highway after my client.

NFL team: Ten thousand dollars, all non-alcoholic beer concessions, vintage Pinto with fuel injected passenger compartment and rename the alley behind the mayor’s house after your client.

This continues for months, sometimes through a bitter training camp holdout, until the parties agree on what they were willing to accept at the beginning.

First Round Pick Exception. A major negotiating exception exists for first round draft picks. Signing these players is seen as so vital to a team’s success that they get just about whatever they demand.

Look at the compensation package obtained by a hot first-round quarterback in the ‘99 draft: “In consideration for his running and throwing, Player shall receive the Chrysler Corporation, Bill Gates’ checkbook and a major country to be named later.”

Incentives. NFL teams assume a huge risk when signing players of unproven pro potential to fat contracts. Lots of big bucks signees turn out to be busts. As a protective measure, NFL lawyers now routinely insert incentive clauses in contracts that provide for higher payments upon players attaining specified goals. Here’s a commonly used clause:

“Player shall be paid incentive bonuses according to the following schedule: 1. Avoiding DWI charges: $10,000; Avoiding drug charges: $100,000; Avoiding assault charges: $500,000; Avoiding Three Strikes and Your Out sentencing: $1 million.”

Sports Agents. Although sports agents get criticized for being stubborn negotiators, they can’t help it. It’s apparently part of their genetic makeup as I learned last week when visiting a sports agent friend. He told his kid to take out the trash and this colloquy ensued:

Kid: I’ll do it for twenty bucks and unlimited Nintendo privileges.

Agent dad: You’re outta your mind. I’ll give you fifty cents.

Kid: You insult me. And after all I’ve done for this organization. Perhaps my services are no longer valued here. Maybe I should call the Hammersteins next door and see if they’re in the market for an exceptional kid.

Agent dad: Alright, alright. Five bucks, but that’s my final offer.

Kid: Dad, I’m going to pretend I didn’t hear that.

While we anxiously await the season opener, I have a great programming tip for ESPN—televise the contract negotiations. No need to worry about losing viewers with a boring defensive struggle. Rumor has it the negotiations can get quite offensive.

Hiring Squeeze

Originally appeared in the August 1999 issue of the ABA Journal.

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Hiring Squeeze


According to Kimm Walton’s popular book, Guerrilla Tactics For Getting the Legal Job of Your Dreams, when legal interviewers ask tough questions like “What’s your greatest weakness?” it’s not so much because they want to know the answer as to test your ability to handle pressure. So avoid baring your soul with honest answers like “Life terrifies me” or “I hate the law.”

Walton wisely advises job applicants to prepare answers to tough questions in advance, but if she’s right about employers intentionally putting us on the spot, a more aggressive response may be in order. People are stressed out enough at job interviews. We don’t need interviewers trying to make us look bad. As Americans, we enjoy the basic, inalienable right to do that for ourselves.

Fight back! Try the brand new interviewing strategy designed with today’s pugnacious young lawyer in mind: Intimidation. Answer all tough questions with the goal of making the employer afraid NOT to hire you. For example, the next time a law firm asks, “Do you have what it takes to bring business into the firm?,” say, “Of course. It’s in the trunk of my car. Just tell me whose business you want.”

Here are some of the toughest legal job interview questions according to Guerrilla Tactics and some Gorilla Tactics for answering them:

Q. Tell us about yourself.

A. Which one. Fred’s been bad. He can’t come out today.

Q. Did you get into any other law schools?

A. Plenty. In fact, I got into every Ivy League school except Columbia. Now there’s a school that deserves its top ranking. It has the finest alarm system in the nation.

Q. What’s your greatest weakness?

A. An unquenchable thirst for vengeance. I’ve spent years in therapy battling it, but always end up trying to get even with my inner child.

Q. Where do you see yourself five years from now?

A. As a highly-paid member of your firm or possibly at the Super-Max Federal Correctional Facility in Colorado.

Q. What’s your greatest strength?

A. I can carry a rocket-propelled grenade launcher in one hand.

Q. Why didn’t you get an offer from your last employer?

A. I might have. It was hard to understand what he was yelling from behind the locked door.

Q. Why aren’t your grades better?

A. Because my professors, like most people around me, possibly including you, are engaged in a massive conspiracy to persecute me unjustly. I know because Hillary Clinton, who lives inside my head, told me so.

Q. Who else are you interviewing with?

A. I’ve been offered several jobs, but they’re not legal positions, at least not in this country.

Q. Why should we hire you?

A. Ha, ha. Don’t, and find out.

Obviously, this strategy is not for everyone. It’s only for the criminally insane. For everyone else, I suggest sticking with the advice in Guerrilla Tactics.

Heal Thy Self

Originally appeared in the September 1999 issue of the ABA Journal.

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Heal Thy Self


With Congress debating a patient’s bill of rights, it seemed like a good time to reprise one of the most requested Harmless Error columns of the last four years.

Legal disputes arising from the denial of medical coverage by managed health care organizations are on the rise. HMOs face a difficult challenge in making coverage decisions because they must delicately balance two conflicting interests: providing quality health care for their patients at a reasonable cost and hoarding as much money as possible.

Here are some of the more common questions about coverage and some standard responses from HMOs:

Q. How do I know if my condition is covered?

A. Check the “Exclusions” section of your plan description. Typical services excluded from coverage include dental care, cosmetic surgery and anything costing more than ten dollars. Our preferred method for determining whether a condition is covered is through an autopsy. However, before seeing a coroner, you must get a referral from your primary care physician.

Q. Is mental health treatment covered?

A. Are you crazy? That stuff is expensive. However, to serve the mental health needs of our loyal plan participants we’ve set up a therapy help line. Simply dial our toll free number and select from the following menu of sensitive pre-recorded treatments:

1. Quit Your Whining.
2. It’s Your Mother’s Fault.
3. Dump the Jerk.
4. Those Strange Voices In Your Head Aren’t Real.
5. Smiling Your Way Through Deep, Dark Depression.

Q. Is Viagra covered?

A. Only under the extended plan. Ha. Kidding. The real answer is: NO. Due to rising pharmaceutical costs, we’ve been forced to make minor adjustments in our prescription coverage. Effective immediately, the following prescriptions are no longer covered: the most popular drugs selected by physicians for effective treatment of the most common ailments suffered by human beings.

Q. How can I get in to see an “Out-of-Network” provider as described in my plan?

A. You can’t. That’s a typo. The coverage is for “Out-of-Work” providers. They’re much cheaper.

Q. What happens if coverage is denied, but I desperately need treatment?

A. We recognize the need to resolve coverage disputes expeditiously. For this reason, we’ve established a speedy automated appeal procedure.

Step one: Request EZ Complaint Form 5436.

Step two: Fully complete all 72 pages, including attached “Humiliating Intrusion Into Your Personal Life and Medical History Form 7435.”

Step three: Conveniently deposit the completed form in any nearby trash receptacle. While you relax in the comfort of your home, your claim is being automatically processed and denied.

Q. I’m blind. Does your company show special sensitivity in handling claims by the sight-impaired?


Q. My plan excludes coverage for pre-existing conditions. What does that include?

A. The new industry-wide definition for pre-existing condition is: “Any illness, disease, infirmity, malady, affliction, ailment, injury, sore throat, cough, scraped knee, fever, infection, broken bone, concussion, kidney stone, pregnancy, tumor, hemorrhage, psychosis, missing limb, ache, pain, or gripe of any kind arising on or before the date on which medical treatment is sought.”

Q. Does my plan cover home visits by a designated provider?

A. Ha, ha, ha, ha, ha, ha, ha, ha, ha, ha, ha, ha, ha … stop, you’re killing me.

Suzy’s Re-dress

Originally appeared in the October 1999 issue of the ABA Journal.

Harmless Error - A Truly Minority View on the Law

Suzy’s Re-dress


My daughter’s litigiously delinquent pal, Suzy Spikes, just turned 13, causing concern in the neighborhood over the effect of adolescence on Suzy’s already temperamental nature.

Fortunately, most of the new locks, guard dogs and lawyers on retainer proved unnecessary. Apart from a few hundred histrionic outbursts, three Officer Needs Assistance calls and a minor incident in which Suzy bound Billy Johnson with electrical cord until he conceded she was the nicest girl in the seventh grade, Suzy’s adjustment to teen status has gone surprisingly smoothly.

Until last week, when her middle school imposed a new uniform dress code. On the first day, school officials determined Suzy’s outfit was out of compliance. In response to being sent home, Suzy organized a demonstration in the parking lot in which mobs of seventh-grade girls chanted “No ex post facto plaid” and sang “We Shall Overcome Hunter Green” until administrators reluctantly granted Suzy a hearing.

Principal Geeker represented the school. Suzy appeared pro se. It was a mismatch.

Q. Suzy, you have the uniform dress code in front of you. Show me where it says students are permitted to wear leopard-print tights.

A. Doesn’t say you can’t.

Q. Platform combat boots?

A. Doesn’t say you can’t.

Q. Faux rabbit fur scarf?

A. I stand by my previous answers. If the dorks who wrote this hideously unfair and stupid dress code wanted to outlaw my everyday wear, they should have said so. How was I supposed to know?

Q. It just so happens I’m the dork who wrote this hideously unfair and stupid dress code.

A. Then I should inform you that anything you say can and will be used against you. This state has strict laws protecting children.

Q. Sigh.

Suzy’s case consisted of the testimony of several other adolescent girls who swore under oath they would literally “die” if they couldn’t wear their new $50 teeshirts from Abercrombie & Fitch. Then came Suzy’s turn to examine the principal.

Q. Tell me, Principal Geeker, if that’s your real name, with all the problems facing our schools, why did you decide to dedicate your career to ruining the life of an innocent 13-year-old child?

A. I assure you the purpose of the dress code was not to ruin your life.

Q. Lies! Distortion!

A. Suzy, please.

Q. Objection! Badgering counsel. How can I possibly be expected to defend myself when every move I make I get tormented by The Man?

A. Overruled.

Q. Fine. Send me to the electric chair.

A. Sigh.

Suzy’s closing argument was compelling. She made an impassioned plea for liberty, individuality and Doc Martens, cried real tears, threw up on the vice principal, and threatened a class action on behalf of all similarly situated hormonally impaired and garment-oppressed 13-year-olds. Principal Geeker has called in sick for three weeks, so disposition remains pending.

Say What?

Originally appeared in the November 1999 issue of the ABA Journal.

Harmless Error - A Truly Minority View on the Law

Say What?


The hearsay rule and its many exceptions are a marvel of complexity. The confusion starts with the basic definition of hearsay as any statement made out of court “offered to prove the truth of the matter asserted.” If an out-of-court statement is offered for a purpose other than proving truth, it’s admissible.

Some lawyers believe all statements are offered to prove their truth and that opponents sometimes subvert the rule by misrepresenting the real purpose for which evidence is offered.

This allegedly occurred in a recent criminal case where John was on trial for killing Bill. The prosecution pinned its case on a post-it note seized from John’s refrigerator that said “To Do: 1. Pick up dry cleaning. 2. Empty litter box. 3. Kill Bill.”

The defense cried hearsay, but the prosecutor argued indignantly that the note wasn’t being offered to prove John killed Bill, but only to show John has good penmanship, is an organized person and has potential as a hit songwriter because he can rhyme “Bill” and “kill.” The judge readily agreed and admitted the note, but cured any problem by telling the jury not to think about it.

Of course, John’s note could also come in as an Admission of a Party-Opponent, but why the law gives credence to these stick-in-the-muds is a mystery. In any event, all lawyers can use a refresher on the hearsay exceptions. Here are two for starters:

Records of Vital Statistics. Diverse constituencies attended the drafting convention for the hearsay rules, including a faction of rabid sports fans with a love of sports trivia. These diehards insisted on a hearsay exception for records of vital statistics such as most RBIs, most yards rushing and most third down conversions by a player facing mandatory sentencing.

Opponents argued the exception was unnecessary because such statistics can come in under other exceptions, such as that for dying declarations: “Gasp. Most touchdown passes … cough … cough … Dan Marino … ackkk.”

But the determined sports fans won. Unfortunately, lots of precious courtroom time is wasted over squabbles about whether a statistic is “vital.” Cubs fans think their stats are vital, Knicks fans theirs, it goes on and on. At one recent trial the litigants got so rowdy they began throwing snow balls at the jury and beer sales had to be shut down.

Mental, Emotional or Physical Condition. Another important hearsay exception is for statements regarding a person’s mental, emotional or physical condition. Under this rule, just about any gripe concerning what ails a person is admissible. “My back is killing me,” “I think I’m gonna throw up” and “Oh no, I have a huge zit” all come in. The problem is no one wants to listen to this complaining in the first place, much less admit it into evidence.

However, sometimes a closer look reveals evidentiary significance in everyday whining, as the above examples demonstrate when studied in context:

“My back is killing me. I’m not carrying that body one more step.”

“I think I’m gonna throw up. Maybe I should cut down my intake of illegal narcotics.”

“Oh no, I have a huge zit. I hope no one recognizes me from the liquor store robbery.”

Next month we’ll cover the hearsay exception for “excited utterances,” concentrating on lawyers’ responses to the statement: “I’m leaving the firm and taking all the clients with me.”

Tot Tech

Originally appeared in the December 1999 issue of the ABA Journal.

Harmless Error - A Truly Minority View on the Law

Tot Tech


In our high-tech information society, product manufacturers are well aware of the importance of product release announcements for generating buzz in the marketplace.

Lawyers often play a crucial role in compiling and reviewing new product documentation prior to its release. Sometimes it goes to their heads, as two Silicon Valley lawyers recently demonstrated:

Product Release Announcement

The development team of Todd and Rita Billington are delighted to announce the release of their new product, Kate, on Wednesday, 2:23 a.m., at Memorial Hospital. Processing difficulties delayed the product release one day, a snag that caused concern and prolonged wailing among the Rita Division of the Billington team.

Product specifications:

Weight: 7 lbs
Length: 20 inches
Memory: none
Connections: cordless once removed from packaging

Although customer response has been warm, critics have accused Kate of being over-engineered and lacking several important features called for in the original user requirements documentation, including a simplified user interface and automatic scream-saver when not in use.

The Billington team resisted investor pressure to outsource the development, insisting on maintaining full creative and legal control over the product and its source code. However, negotiations are already underway with several neighborhood independent contractors to outsource some future product maintenance and support on big nights out.

Kate comes equipped with many features demanded by today’s consumers of high quality tots: drooling, gurgling, cooing, chubby thighs and the prettiest pair of blue input units on the market today. The product is easily booted and rebooted using adorable tiny shoes from the Gap Kids typically delivered by outside suppliers.

Management is currently tackling what it terms “minor bugs” with Kate, including complaints that the product’s dual ports open frequently and without warning. Experts predict the problem will correct itself within 30 to 36 months, the estimated time frame to RAM the idea of using a toilet into long term memory. Until then, the problem is being addressed using extra-absorbent softwear.

Looking for a hard drive? How about an impossible one? Packing Kate’s 300 essential travel accessories, mastering the tech support to install her car seat, and negotiating traffic while faced backwards waving a cookie is guaranteed to make even a trip to the grocery store the hardest drive of your life.

Users must also beware of the virulent “Colic” virus, which rapidly disables all product functions except the sound card.

The product comes with a limited warranty: “Product is warranted to perform reasonably well for 13 years, at which time all operating systems will suddenly crash and product will function erratically and unpredictably. This is normal. Do NOT attempt to return product to place of manufacture as serious injury could result.”

While management irons out these complaints, the Billington team’s primary focus is to make Kate at least modestly compliant by Y2K. Currently, Kate is ignoring all user commands.

(Congratulations to new product owners Markus Weber and Wendy Nather, Chicago, IL, whose real birth announcement inspired this one.)

Cupid’s Covenant

Originally appeared in the February 2000 issue of the ABA Journal.

Harmless Error - A Truly Minority View on the Law

Cupid’s Covenant


With Valentine’s Day looming, it’s a good time to get some legal perspective on the whole relationship thing, especially the breaking up part. We need to face the fact that despite our hopelessly unrealistic expectations, most relationships don’t last.

Breaking up has serious consequences for both parties which need to be considered in advance, while equal bargaining power still exists. Never enter into a relationship unless BOTH parties have executed the…

Relationship Termination Agreement

The undersigned prospective lovebirds, being of sound mind but probably not for long, enter into the following agreement to govern their respective rights and responsibilities in the event of a partnership dissolution:

1. I agree not to go around blabbing the embarrassing secrets and quirks you confessed to me in strict confidence on the silly assumption that I wasn’t going to some day hate your guts. Breach of this paragraph shall constitute tortious interference with prospective advantageous relationships.

2. Within 10 days of the contract termination, I covenant to place 25 melodramatic phone calls to you, at least half of which shall occur late at night while I am intoxicated. Just to remind you that I still have strong feelings for you, at least five of these calls shall qualify as “harassment” under applicable law.

3. I shall retain any and all cards, gifts and other items of endearment supplied during the contract term for one full calendar year, at which time I may dissolve them in sulphuric acid. I shall re-read all cards on at least five occasions, and hereby bind myself to feel nostalgic, wistful and wonder whether we made a mistake on each such occasion.

4. When asked why the contract was terminated, I shall falsely represent: “It was a mutual decision. We’re still good friends.”

5. Upon breakup, you shall return all items of personal property belonging to me, with immediate attention to any videotapes made during the course of said contract.

6. It is understood that the next person I date shall be less attractive than you and that this provision shall be strictly construed against the datee. I agree not to date your best friends, even though I think a couple of them are really hot.

7. Friends shall be split as follows: (fill in blanks) ________ is my friend. Do not even attempt to speak to him/her, as he/she is subject to an express condition subsequent to curse you loudly in the event of a contract breach. ________ can be your friend, since I’ve always found him/her affected and annoying. Everyone else is my friend (choose one or more depending on property settlement) on Mondays, Wednesdays and Fridays, alternate weekends and major holidays.

8. I agree not to hang out on “your turf,” including but not limited to your front porch and the alley behind your house, especially while on a date.

9. I covenant not to refer to any future contracting party as “Puppytoes” or “Yum-yum.”

10. I shall have the option of temporarily resuming the contract on at least two occasions after the breakup, at least one of which shall be initiated by a romantic chance encounter, preferably at someone’s wedding. It is understood that these contract renewals will be for short periods and end badly.

Cable Cartel

Originally appeared in the March 2000 issue of the ABA Journal.

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Cable Cartel


With cities threatening lawsuits and stiff fines for lousy service and millions of viewers flocking to satellite dishes, cable television companies have realized they need to upgrade their image. The giant, caring brain inside the cable industry’s public relations center has responded with this insert for next month’s bill:

Important Customer Information

It has come to our attention through your constant whining and complaining that some of you couch potatoes aren’t satisfied with our service. Apparently, you think we treat you shabbily. Well, of course we do. Why? Because we can.

Just kidding. We love our customers. That’s the reason we’re writing to tell you about some exciting new improvements, that and a paralyzing fear of government regulation:

New programming. We’re happy to report that last month’s 500 percent rate increase has allowed us to expand our programming to include many new and exciting channels:

(1) Empty Sky Network. See the sky live 24 hours a day.

(2) Bovine Growth Network. Watch cows mature from birth to adulthood.

(3) The Jones Channel (TJC). People with the last name “Jones” discuss their life experiences.

(4) TNT Network. Not Ted Turner’s outfit. We’re talking real TNT! Live detonations around the clock.

(5) Plus 27 more golf channels!

Help line. Have a question? Call us anytime. You won’t get to talk to a real human being because cable companies do not employ actual live workers. However, we do have a great new phone menu designed to demonstrate how completely we control your pitiful boobtube-watching lifestyles:

If you’re calling from a touch tone phone—and we know you are so don’t even think about pretending you’re not—press 1. Wait for static. Press 5. Wait for static. Press 3, 6 and 9 at the exact same time. Now press 4 and then 8 REALLY FAST. Wait for static.

Press 1 finger to nose. We’re not kidding. Do it. … (Whistling) … We’re not in any hurry. Are you? There, that’s better. Now press 2 and then the pound sign. Or 7. It doesn’t really matter.

To report a service outage, enter your phone number, street address, zip code and mail us a picture of your house with directions. Stay on the line. For billing questions, skip to our state of the art automated account system and, seriously, good luck. If you have a complaint, press the star sign and hang up. Go watch more TV and you’ll feel better.

If at any time you wish to repeat this menu, you must be a very bored and lonely person. Go watch more TV.

Service appointments. Experiencing a service interruption? No problem. We offer four convenient and reliable appointment slots to help you manage your busy schedule: Fall, Winter, Summer and Spring.

Pay-per-view. Some of our most special programming is available only on a pay-per-view basis. Sign up now for the “Thrilla in Ashtabula” for only $99.95. See the heavyweight grudge match of the century as Lennox Lewis defends his crown against some other guy TBA.

Our promise to you. We’re 100 percent committed to providing you intermittent sound and video images and a monthly bill. If you’re not completely satisfied, we encourage you to try out one of our competitors. Be sure to figure in interstate moving costs when comparing monthly rates.

Cellular Rights

Originally appeared in the May 2000 issue of the ABA Journal.

Harmless Error - A Truly Minority View on the Law

Cellular Rights


The right to keep and bear a cell phone is one our nation’s most cherished liberties, yet a movement is afoot to restrict this freedom. Bills have been introduced in 25 states to prohibit driving and talking.

Beware. Freedom of digitized speech is in danger. Outlawing driving while talking would be just the first step. Next it will be no checking voice mail while piloting jetliners, then no ordering pizza while inserting plutonium rods. Where will it end?

But there’s good news. Lobbyists for the National Association for the Extreme Pecuniary Benefit of the Cellular Phone Industry have persuaded members of Congress to introduce the Cellular Freedom Act (CFA). Here’s why you should support the CFA:

Driving and talking. Some people feel that driving while talking on a phone is dangerous because it is distracting to drivers. And indeed it can be. Trying to talk and drive through red lights while motorists are flipping you off and shouting obscenities can be dangerous and distracting, especially when you’re trying to concentrate on the newspaper.

Under the CFA, anyone flipping off a motoring-cell phone user will be charged with reckless driving and improper signaling.

Cellular disruption. Sometimes — about 5 million times each day — cell phones go off at inopportune times, such as in the middle of theater performances, sermons and U.S. Supreme Court proceedings. In our nation of misplaced priorities, it is cell phone users who are made to feel ashamed on such occasions, when in fact they are victims of rude behavior around them.

Are the lives of Supreme Court justices really so overburdened that it would kill them to let lawyers answer the phone during oral argument? Of course not, but I’ll bet they’d pitch a fit if an advocate so much as paused to check Caller ID.

The CFA will restore the dignity of cell phone users everywhere by requiring that all activity within 100 yards of a ringing cell phone cease immediately. Time shall remain suspended until the call recipient gives the all clear sign that the conversation is over and no further calls are expected.

In the event multiple phones ring at the same time, the loudest phone wins. Should a dispute arise, all callers shall call back and the subsequent “ring-off” will determine talking order.

Talk-Talk. Some people can’t understand why people must be on the phone every second of the day, no matter where they are or what they are doing. The fact is, blabbing addictions are a serious problem in the U.S. that we have ignored for too long.

The CFA recognizes “prattle disorder” as a disability that must be accommodated by federal law. Under the act, all movie theaters, performance halls and classrooms will be required to have designated “Talking Sections” with sufficient electrical outlets to meet the battery-charging needs of the Get Off the Freaking Phone!-impaired.

Still undecided in the fight for cellular rights? Ask yourself this: “What if some day I’m greatly exceeding the speed limit on the Interstate through a construction zone during rush hour and get an urge to call my significant other to exercise my first amendment right to have a highly emotional argument over who should pick up the dry cleaning? Do I want the government saying I can’t do that?”

Ruff Justice

Originally appeared in the June 2000 issue of the ABA Journal.

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Ruff Justice


In San Francisco, they hold Dog Court. This is where troubled dogs end up when they choose the wrong path in life, such as the one directly behind a fleeing postal worker.

Both sides show up and present their stories. Sometimes they bring witnesses and even lawyers. In half the cases, the dogs are ordered leashed or muzzled. Difficult cases are referred to pet shrinks. One dog was put on Prozac because, in the judge’s words, “he was so high-strung.”

What’s it like inside the canine justice system? The ABA Journal offers this exclusive firsthand account from Rex (not his real name), a retriever charged with vandalizing public property.

Day 1/Holding cell

Nervous. Agitated. Don’t like the way that German Shepard is wagging his tail at me. And the mutt with the scabs and one ear looks mean. Said he works in the automobile security industry. I don’t belong in here with them. They’re animals!

I’m innocent. Just in the wrong place at the wrong time—standing next to a fire hydrant getting ready for a little jog around the neighborhood, stretching my left rear quadricep.

Starving. Nothing to eat since I’ve been here except biscuits and water. Come to think of it, that’s all I get at home. That really bites.

Day 2/Interrogation

Right to remain silent? What kind of a right is that? Howl at 110 decibels. Now that’s a right …

Stop! Quit hounding me. How many times is he going to say, “Did you do it, boy?” and I say “Woof, woof,” before he realizes that’s my story and I’m sticking with it.

Day 3/Line-up

Some line-up. A chihuahua, alley cat and an unemployed performance artist named Stefan. So much for due process. But it doesn’t matter. I’m home free. No eyewitnesses except that mangy hound — Elrod! What’s he doing here? And with them. He must have rolled over.

Time to stay calm. Stop panting and lick that slobber off your lip like it’s the most natural thing in the world. They’re bringing him over. Be cool, Elrod. We’ve never met. We’ve never met. Elrod, stop licking my face. No sniffing. Elrod! Maybe I can still cop a plea.

Day 4/Sentencing

The judge is reading my rap sheet. It sounds bad, but I could explain everything if he would just listen, and if I could talk. For example, all those citations for chasing cars never would have happened if my owner would have just bothered to mention he was coming back. Thanks for the raging abandonment complex, master.

As for the aggravated assault against the cable guy, I am 100 percent blameless. “Guard the house, Rex.” That’s what the man said. I just do what I’m told. It’s not like he ever gave me a list or anything. Never said, “Bite intruders unless they’re wearing a patch that says they work for a regulated utility.” If the dude had been a burglar, I’d be a hero. Probably get my picture in the paper.

Uh oh, it’s sentencing time. Fourteen years in the backyard! No way. I’ll never survive captivity. Well, I have all my life, but still. Man, those better be dog years.

Originally appeared in the July 2000 issue of the ABA Journal.

Harmless Error - A Truly Minority View on the Law


E-commerce has exploded. You can buy just about anything online these days. eBay Inc. alone offers four million auctions a day, in 4,320 categories. It was only a matter of time before e-lawyering came of age.

Ambitious new web sites are about to start auctioning legal services. Law firms will be able to bid online to provide services ranging from personal injury defense to drafting real estate documents. The idea is to get firms to bid against each other, driving down legal costs.

Some traditionalists object to legal services being treated like a fungible commodity. They fear e-lawyering will devalue the hallowed attorney-client relationship, an intimate union built on trust, confidence and open communication.

They may have a point. Check out this transcript of a recent online transaction, submitted by a frustrated, e-challenged lawyer: Transaction Record #90896

Lawyer. Hello. I’m writing to inquire about the products liability defense case posted on your web site. My law firm is new to electronic representation, so please tell me how to proceed. Frankly, I have concerns that the auctioning of legal services may detrimentally affect the attorney-client relationship. I am hopeful you can alleviate these concerns.

E-Client. Enter your name, address, seven-digit password, credit card number and amount of bid. Scan bid for viruses and make sure decimal points are placed correctly. In our experience, virus-infected bids and misplaced decimal points can seriously impair attorney-client relations.

Lawyer. (long cyber-pause) I am writing to see if we can set up a time and place to meet to discuss the case.

E-Client. Your last entry could not be processed. Double-check credit card number and try again.

Lawyer. Don’t you think we should get to know each other before proceeding further? After all, as your lawyer, I would be among your closest confidants. And, of course, I am very interested in learning more about your company to make sure you’re a good fit for my firm.

My name is Tom … for 25 years … president of bar association … $5 million verdict … Lawyer of the Year … firm’s clients include … raised in … church caught fire … years in recovery … beautiful wife and three children.

E-Client. Hello, Tom. We’re a Delaware corporation. Enter amount of bid.

Lawyer. Could you tell me more about the case?!! Successful representation depends on complete familiarity with the facts.

E-Client. Click on Case Specifics for additional details.

Lawyer. I did click on it!!!!! I clicked on it until my fingers bled!! It finally took me to a porn site!!! I can’t even tell what kind of product it is. The picture is the size of an electron. Is it a can opener? A Slinky?

E-Client. It’s a thresher. Click on the image to enlarge the picture. Do you want to bid?

Lawyer. This whole set-up is outrageous!!!!!!!!!! You’ve destroyed the sanctity of the attorney-client relationship!!!!!!!!!!!!:(:(:(:. Don’t you want to know anything about your lawyers except their bid?

E-Client. How much does your firm charge for photocopies?

Lawyer. I can’t take it.

E-Client. Sorry, Tom. Bidding just closed on the products liability case. Would you be interested in bidding on this week’s special, the “Dime-O’-Dozen” bond deal package?

Note to readers: Real online legal services auction companies do not function as described above. This is silly parody.

Suzy’s Breach

Originally appeared in the August 2000 issue of the ABA Journal.

Harmless Error - A Truly Minority View on the Law

Suzy’s Breach


The last time we checked in on Suzy Spikes, my daughter’s litigiously delinquent pal, she was defending herself in a school dress code proceeding. Fortunately, the matter settled.

Suzy agreed not to throw up on school officials during future closing arguments. In return, the dress code was amended to recognize a fundamental right to wear fake tattoos, Mocha Latte nail polish and any outfit evoking the parental response, “Over my dead body.”

Suzy’s latest legal dispute began when she ordered a subscription to Zipgirl magazine. Zipgirl focuses on the issues most vital to today’s adolescent girls: boys and looking good. Reliable teen sources inform me they would actually die without important articles like “Hottie or Soulmate: How To Tell For Sure” and “Britney Spears’ Tips for Keeping Your Belly Button Exposed 24-7.”

Suzy neglected to pay for the subscription, which led to a contentious correspondence exchange pitting a large media conglomerate against 13-year-old Suzy. The inequality in this match-up became quickly apparent:

Dear Ms. Spikes:

You ordered Zipgirl magazine and asked us to bill you. This is your 40th bill. Please sit down right now and take care of this obligation. Act today and receive Zipgirl’s exclusive and very short bonus issue, “Wisdom From Dawson’s Creek.”

Harold Butts, Account Manager

Dear Mr. BUTTS (ha, ha):

You have a lot of nerve trying to charge me for your crummy magazine. I should bill you for the time I waste reading it. In case you didn’t know, I have a lot better things to do than read. Your bills are hurting the environment. Stop sending them or I will report you to Greenpeace.

Yours very truly,
Suzy Spikes

p.s. “How To Get Him To Notice You” was a joke. It didn’t even mention the most obvious ways, like spray painting your name on his locker or hitting him in the head with a stapler.

Dear Ms. Spikes:

We are in receipt of your recent correspondence. If you do not remit the amount due within 14 days, we will have no choice but to refer this matter to our legal department.

Harold Butts

Dear Mr. Butts:

Ooh, like I’m really scared.

Yours very truly,
Suzy Spikes

Dear Ms. Spikes:

You are in breach of your subscription contract. Take appropriate steps immediately to avoid legal action.

Jean Babbleton, Attorney

Dear Ms. Babbleton:

You broke the contract! Because I am the victim of frequent threats to be to grounded for life if I do not change my ways, I read and relied on “10 Ways To A Whole New You.” Despite following all ten suggestions, I have spent three of the last four months in my room.

I’m sure Sam Donaldson would be very interested to hear about how your mean company likes to pick on precious, innocent children.

Yours very truly,
Suzy Spikes

Dear Ms. Spikes:

Keep the magazines.

MediaGiant, Inc.

Unappeased, Suzy kept writing letters until MediaGiant agreed to give her a free lifetime subscription and send an affidavit to her parents accepting sole responsibility for Suzy’s recent misbehavior.

Campaign Refinancing

Originally appeared in the September 2000 issue of the ABA Journal.

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Campaign Refinancing


[Written before Congress passed campaign reform in 2002 in the form of the bipartisan McCain-Feingold bill, parts of have been struck down by the U.S. Supreme Court as violative of the First Amendment.]

Campaign finance reform has played a contentious role in this year’s electioneering, yet many people still are confused by the intricacies of this important issue.

Voters, not being as smart as elected representatives, see campaign finance reform in simple terms. Surveys show 100 percent of ordinary dumb voters “strongly agree” with the statement: “Anyone who regularly gives me large sums of money is a pal of mine.”

However, the issue is far more complicated, as proved by the fact that Congress has been unable to agree on it since first raised during the Madison administration. The good news is that opposing forces finally agreed to sit down and work out their differences. The bad news is their first meeting ended in a brawl over what time to adjourn for lunch.

Lawyers, as vital members of the political debate, need to know about campaign finance reform. Here are the most commonly asked questions:

Q. What exactly is “campaign finance reform”?

A. “Campaign finance reform” is a term used by persons seeking political office. Beltway etiquette rules prohibit candidates from speaking, writing or even thinking about the concept after 7 pm on election day.

Q. Many critics have the perception that special interests are “buying votes” with their contributions. What is being done to address this perception?

A. Long barraged by such complaints, some officials have proposed simply selling votes outright at a fair market price. “We’re sick and tired of being accused of backdoor dealings,” said one indignant senator.

Q. What is “soft money” and why do they call it that?

A. Soft money is money that, under our airtight election laws, contributors are prohibited from giving to candidates, so they give it to their friends to spend for them. As for the name, one historical theory is that early politicians preferred paper currency over bulky change, which slowed their movement to the next fundraiser.

Q. Opponents of campaign finance reform argue limitations on campaign contributions violate the first amendment. Is this true?

A. Yes. The argument is historically based. Due to a typographical error, a crucial clause was omitted from the first amendment. The amendment originally stated: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or pertaining to any other matter unless members get generously comped for it.” (emphasis added)

Q. Why did it take so long for Congress to require that groups sponsoring issue ads disclose their donors?

A. Because donors to groups like “Moms for Mother Earth” (Biohazard, Inc., Waste Dumps R Us and Ultraslime) complained that the truth puts them at an unfair disadvantage in the marketplace of ideas.

Q. Being a special interest sounds like fun. I like getting my own way. How do I know if my interests are “special” enough? I like to bowl and collect dead animals.

A. An interest qualifies as “special” if the holder is able to satisfy the four-part test set forth in §4678.03 of the Code of Federal Regulations:

1. Get out your checkbook.

2. Find the balance.

3. Count the number of digits.

4. If the total exceeds 6, you’re a special interest.

If you’re a less-than-special interest, just check the little presidential campaign box on your tax form each year. You will get exactly $3 of political clout.

Rocket Science

Originally appeared in the October 2000 issue of the ABA Journal.

Harmless Error - A Truly Minority View on the Law

Rocket Science


The National Missile Defense (NMD) is the successor to President Reagan’s Star Wars initiative. The system is designed to protect us from unfriendly “rogue states” by blasting their missiles out of the sky with our missiles. The NMD should be of great interest to lawyers because if it doesn’t work, probate business may be picking up considerably in the future.

Unfortunately, despite a price tag of $60 billion, hitting “a bullet with a bullet” is proving as hard as ever. In June, the New York Times reported that NMD tests have been rigged to hide the fact that the interceptor missiles can’t distinguish decoys such as balloons from real warheads. The Times said the government is deliberately “dumbing down” future tests to increase the odds of success.

Officials deny decoy trouble, but a test in July raised eyebrows when the “kill vehicle” failed to detach from the interceptor rocket. According to a high-placed source, the kill vehicle’s fault codes were interpreted to say: “I refuse to suffer any more humiliation. I am not leaving this interceptor until you do something about those decoys.”

Now, ultra-top secret documents appearing in this month’s Los Alamos National Laboratory Tattler newsletter confirm that there are indeed bugs in the anti-missile system.

Field test #72 transcript

Defense Contractor: Direct hit!

General: Get out. We hit that missile?

DC: No sir. It appears to be a balloon.

General: Decoy?

DC: Birthday.

General: What the #$%# [redacted for national security reasons] is a birthday balloon doing in outer space?

DC: It wasn’t exactly outer space. It was at a Chuck E Cheese, somewhere in the Midwest as best we can tell.

General: I thought we dealt with the spherical decoy problem.

DC: With great success, I’d say. The interceptor hasn’t mistaken Venus for a warhead since Test #59. As for the moon, we just have to pray the enemy attacks during an eclipse.

Field test #201

DC: The interceptor has launched. This time we’ve equipped it with video so we can see how it behaves as it approaches the missile. The missile is coming into view.

General: What are all those flashing lights?

DC: Stadium scoreboards. Part of the new decoys. See how they spell out “DECOY” between “Touchdown” and “Awesome”?

General: What’s all that other stuff? Isn’t that Porky Pig?

DC: Yes sir. A float from last year’s Rose Bowl parade. We used a variety of decoys to refute critics who say the tests are unrealistic. We also launched the Statue of Liberty, some inflatable Miller-Lite cans and a couple of barns, in case someone claims we can’t hit the side of one. The kill vehicle is zeroing in. It’s going to hit the … no, the … no, the … (BIG EXPLOSION IN OUTER SPACE!)

General: Porky Pig?

DC: Reasonable mistake, general. The pig has a similar infrared signature to a Soviet SS-20 warhead, except it’s a different shape and ten thousand times bigger.

General: Another failure (sigh).

DC: To the contrary—an impressive triumph. Pig like that hits a major city, we’re talking some serious damage.

Hogwarts Torts

Originally appeared in the November 2000 issue of the ABA Journal.

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Hogwarts Torts


Like many adults who were less than pleased to receive the news that they were expected to actually grow up one day, I love Harry Potter. For readers who have been heavily sedated or in trial for the past several years, Harry is the protagonist in J.K. Rowling’s bestselling books about a remarkable young wizard somewhere in England.

Why is Harry so remarkable? Two reasons. First, he saved the entire wizarding world while only a tot. Second, never in the history of education has a student been subject to as much tortious conduct as Harry Potter at the Hogwarts School of Witchcraft and Wizardry.

Harry finally got fed up and sought legal advice. In an amazing Harmless Error exclusive, here are the actual notes the solicitor took during the initial client interview:

Client. Harry Potter. Resides at number 4, Privet Drive (note possible separate action against aunt and uncle for false imprisonment). Insists all law office correspondence be delivered by overnight . . . owl?

Defendants. Hogwarts School of Witchcraft and Wizardry. Location: kept secret, probably to avoid service of process. Individual defendants include entire faculty, fellow students Malfoy, Crabbe and Goyle, and some chap named Voldemort, a/k/a You Know Who, d/b/a He-Who-Must-Not-Be-Named.

Premises liability. Defendant maintains the premises in an unreasonably dangerous condition, in breach of its duty to client, an invitee. Hazards include dungeons, trapdoors, a willow tree that beats people senseless, trolls, three-headed dogs, toxic potions, trick stairs into which students disappear, and a forbidden forest adjacent to the premises containing attractive nuisances such as werewolves, dementors and dark lords.

Gross negligence. Defendant sponsored a school competition known as the Triwizard Tournament, into which client was entered involuntarily. Rather than compete in age-appropriate contests such as three-legged races, participants were required to fight dragons, swim under freezing water for more than one hour, and negotiate a maze filled with monsters, hexes and curses.

Strict liability for keeping dangerous animals. Rubeus Hagrid, teacher of a required course in Care of Magical Creatures, shows conscious indifference to the welfare of Hogwarts students by recklessly exposing them to vicious animals, including most recently, Blast-Ended Screwts, which client describes as “ten-foot long, armored creatures with stingers, suckers and fire-blasting ends.”

Infliction of emotional distress. Professor Sibyll Trelawney, at all times acting within the scope of her employment as Hogwarts teacher of Divination, has engaged in a pattern of extreme and outrageous conduct intended to induce severe emotional distress in client by repeatedly prophesying his imminent and hideous death.

Assault. Upon client’s arrival for 4th year, one “Peeves” caused imminent apprehension of harmful bodily contact by dropping water balloons on client from the top of a magical staircase. Defendant has allowed Peeves to reside on the premises for hundreds of years despite full knowledge that he is a poltergeist with violent and malicious tendencies.

Products liability. Defendant knows or should know that two students—Fred and George Weasley—operate a business on school premises specializing in the manufacture of defective products such as Ton-Tongue Toffee and Canary Creams, the only utility of which is to cause laughter while consumer suffers gross tongue engorgement or feather sprouting.

Damages. Emotional trauma and permanent disfigurement (nasty scar on forehead).

Disposition. Bloke doesn’t want to sue! Only seeking advice on licensing his celebrity right of publicity. Referred him to Gilderoy Lockhart’s solicitor for advice.

Really Intellectual Property

Originally appeared in the December 2000 issue of the ABA Journal.

Harmless Error - A Truly Minority View on the Law

Really Intellectual Property


Every lawyer remembers the LSAT®. But how many people remember how incredibly hard it was, especially the analytical reasoning section? In writing an instructional guide to law school, I had occasion to revisit the LSAT®, and came away believing it’s a miracle I ever got a single question right. Check out these sample questions:

Instructions. The following questions test your ability to understand relational structures. Carefully select your answer, then close your eyes and randomly blacken a space on the score sheet. Good luck! Ha, ha.

Question 1. Analyze the relationship structure among the following dots. Place them in order from most important to least important:

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Questions 2-5. Assume exactly six of the dots are representatives at a national punctuation conference. Six chairs are evenly spaced around a table. The chairs are numbered 1 through 6, with successively numbered chairs next to each other and chair number 1 next to chair number 6. Each chair is occupied by one of the dots. The following conditions apply:

. must sit next to .

. must sit next to ., ., or both

. can sit anywhere except in front of the coat rack because it makes him look like ! and he is already sensitive about his shrill temperament

. must be seated at the end of this sentence to make it grammatically correct.

2. Which of the following seating arrangements does not violate the stated conditions?

a) . . . . . .

b) . . . . . .

c) . . . . . .

d) . . . . . .

3. Assume . sits next to ., . sits next to ., . sits next to . and . sits next to . Assume further that their table is in the smoking section. Which of the following best describes the resulting seating arrangement?

a) ??????

b) ??????

c) ??????

d) ??????

4. Assume each dot sits in its proper seat, except ., who sits on ., with the resulting seating arrangement of . . : . . Which of the following is most likely to result?

a) A violation of the stated conditions.

b) A game of musical chairs.

c) A broken pelvis.

d) A sexual harassment suit.

5. Assume the dots, feeling slighted as the only ones in the universe not asserting their intellectual property rights, hire an agent. The agent will seat the dots as follows:

a) .® .® .® .® .® .®

b) .© .© .© .© .© .©

c) .com .com .com .com .com .com

d) All of the above.

Fortunately, the good folks behind the LSAT® publish several helpful test aids: the Official LSAT PrepTest®, the Official TriplePrep®, the Offical TriplePrep Plus with Explanations®, and the all new Official® QuadraPrep® PremiumUltraPlus® with Explanations As To Why You Should Plan on Taking the LSAT® Several Times® (last one is made up).

Palsgraf Uncovered

Originally appeared in the January 2001 issue of the ABA Journal.

Harmless Error - A Truly Minority View on the Law

Palsgraf Uncovered


Palsgraf v. Long Island Railroad. The mere mention of it evokes memories of that fateful day at the Long Island train station when two railroad workers trying to help a man board a moving train accidentally dislodged a box he was carrying. The box turned out to contain fireworks that exploded and knocked a scale over onto Mrs. Palsgraf.

Two judicial giants—Benjamin Cardozo and William Andrews—wrote opinions in the case, Cardozo for the majority and Andrews in dissent. For 70 years, 1Ls everywhere have been forced to try to unravel these legendary, but exceedingly complex opinions.

Palsgraf suffers from a lot of problems, but the biggest one, as documented in the illustrious Prosser casebook, is that “[t]he event could not have possibly happened.” These were ordinary fireworks, which fell onto the tracks below a sturdy platform. No one testified to seeing a scale fall. Mrs. P’s first complaint alleged that stampeding passengers knocked the scale over.

How did an accident that never happened become the most famous case in torts history? The answer lies in this little-known transcript of an in-chambers colloquy between Cardozo and Andrews:

Cardozo: This is the most ridiculous case I’ve ever seen. There’s only one answer.

Andrews: Dismiss it?

Cardozo: No way. Let’s write legendary exceedingly complex opinions about it. Remember back in law school how everybody hated us because we were always raising our hands with the right answers? Here’s our chance to get even. Picture all those law students obsessing about a legendary case that never happened. Imagine the panic attacks. It’s rich!

Andrews: It does sound fun, but what makes you think this preposterous mess will become legendary?

Cardozo: Look, I’m a big name. People think everything I write is legendary. Here, I’m going to say a person is liable for negligence only if the plaintiff was foreseeable.

Andrews: What’s so legendary about that?

Cardozo: The way I’m going to say it. I’m going to obfuscate the hell out of it. Obfuscation is the key to all great opinions. Just look at Pennoyer v. Neff.

Here’s a sample I already drafted: “What the plaintiff must show is a wrong to herself; i.e., a violation of her own right, and not merely a wrong to someone else, nor conduct wrongful because unsocial, but not a wrong to anyone.”

Andrews: What the heck does that mean?

Cardozo: Nothing! That’s the beauty of it. It gets even better: “Negligence, like risk, is thus a term of relation. Negligence in the abstract, apart from things related, is surely not a tort, if indeed it is understandable at all.”

Andrews: I don’t understand that at all, but I guess that’s the point. What should my legendary opinion say?

Cardozo: Let’s really mess with their heads by writing about two completely different subjects. I’ll go on and on about duty, then just when they think they might be figuring things out, you start talking about proximate cause. Use that ridiculous hypo you’re so fond of.

Andrews: The chauffeur and the car full of dynamite? That’s no hypo. It’s a joke. The chauffeur says to the guy with the dyna—

Cardozo: Whatever. Just cram it in there somehow. And remember—the overriding goal is to write an opinion that makes the reader think he’s losing his mind.

My Phony Valentine

Originally appeared in the February 2001 issue of the ABA Journal.

Harmless Error - A Truly Minority View on the Law

My Phony Valentine


If the rules of romance were taken as seriously as rules of law, 99 percent of new lovers would be pursuing fraud claims against their partners. Why? Because with everyone on their best behavior in the early stages of a relationship, what we see is seldom what we get.

Protect your legal and emotional rights. Enter relationships with open eyes and informed consent. Require all suitors to execute the …

Truth-In-Loving Disclosure Statement

I, the undersigned paramour, hereby agree to abide by the time-honored romantic tradition of completely misrepresenting who I am at the beginning of our relationship, to be increasingly candid in the middle stages and to finally reveal my stunning array of character defects, true beliefs and annoying quirks at the end.

This agreement shall be fully implemented within six months, being the estimated time in which our eternal, undying love will change to bitter resentment:

1. Ridiculously early in our relationship, I covenant to begin calling you my “soulmate,” with the appropriate numeric designation to distinguish you from my other ___ [fill in total number of lifetime soulmates; write on back if additional space needed].

2. When asked why my prior relationships didn’t work out, I shall state “we had different goals,” failing to mention that one of mine is to sabotage all relationships.

3. I will tell you that I love all the little things you do, when in fact, I hate all the little things you do, especially the way you (choose one or more): talk incessantly, squeeze the toothpaste tube in the middle, sneak up on me with a flashlight.

4. Men: I shall misrepresent that I love to communicate, listen to Sting, and especially dance. Women: I shall misrepresent that I have a deep interest in the standings, statistical leaders and weekly injury reports for all major sports.

5. I will insist with a straight face that “I never want to try to change you,” even as my list of suggestions for improving your appearance, personality and lifestyle approaches the 10,000 mark.

6. I shall pretend to find it cute how your cat climbs all over me while I’m sucking on an asthma inhaler at the same time your dog is attempting to have intimate relations with my leg.

7. We shall talk on the phone at the following frequency: 1st month: five times per day. 2nd month: three times per day. 3rd and 4th months: once per day. 5th month: when I need a ride. 6th month: when I forget to check my Caller ID.

8. In the 2nd month, I agree to begin combining the words “committed” and “you” in the same sentence; provided: I will not add “mental institution” to such sentence until the 5th month.

9. In months 1-2, we shall engage in frequent, excessive public displays of affection. During months 3-5, PDAs shall decline in direct proportion to number of syllables we utter to each other while dining out. In month 6, excessive PDAs shall resume, but only with persons not party to this agreement.

10. I will see only the good in your many negative qualities until the 6th month, at which point I will come to the startling realization that your playfulness is really immaturity, your caring is co-dependence, your confidence is narcissism, your …

11. At all relevant times, I shall confuse love with lust.

Insurance Deterrence

Originally appeared in the March 2001 issue of the ABA Journal.

Harmless Error - A Truly Minority View on the Law

Insurance Deterrence


Insurance companies enjoy a unique privilege among businesses—the ability to unilaterally alter contract terms in their favor simply by sending out an “Important Notice” notifying policyholders of the changes.

Just last year, customers of a major insurer received an Important Notice informing them that one of the most desirable features of their homeowner’s policy—guaranteed replacement cost coverage—was being eliminated. This was accomplished through a sophisticated legal maneuver known as: printing the words “this coverage is eliminated” on a piece of paper.

How do insurance companies get away with changing the rules in the middle of the game? I asked a contract law expert who said the technical explanation is “Because they’re insurance companies.”

I decided it’s time to fight back, so I sent my own . . .

Important Notice
to Insurance Company

Enclosed is my new homeowner’s policy. Several changes have been made. Some of these changes expand existing coverage, while others expand it even more. Still others have been left blank for me to fill in later. If you have questions about the changes, feel free to call me during normal business hours while I am away at work. Do not call during non-business hours as I will be very busy breaking up my furniture, which is covered under my new policy at 12 times replacement cost.

Premiums. Due to the rising costs of basic necessities such as the fireworks manufacturing equipment I am stockpiling in my insured dwelling, I regret to inform you that I have been forced to adjust my premium.

Please remove all the zeroes from my current premium amount and stick them on the end of my smoke detector discount. Deduct the new premium amount from the smoke detector discount and remit the balance to me in biannual installment payments.

Definition of “Insured.” A lot of my acquaintances feel they are wasting money paying for policies they are terrified to use because you have threatened to raise their premiums if they have the nerve to actually file claims. To reduce costs and improve efficiency, we’ve decided to consolidate.

The definition of “insured” in my policy is hereby amended as follows (changes in italics): “you and your parents, aunts, uncles, siblings, cousins, beer-drinking buddies, co-workers, dates, auto mechanic, hair stylist, dentist, personal trainer, people you wave to on the street and anyone who forwards you jokes by e-mail.

Fire Damage. For too long, you have arbitrarily denied coverage for one of the most common losses faced by millions of hardworking Americans—arson. Coverage for this occurrence is now included.

Vandalism. Your overly narrow definition of vandalism is amended to include red wine stains, crayon marks, home improvement projects gone awry, bad decorating decisions and holes in walls caused by policyholders smashing their skulls against them upon receiving Important Notices from insurance companies.

Additional Coverages. The coverage section of my policy is further amended to include “anything else that might go wrong.”

Reservation of Rights. As always, I reserve the right to change this policy whenever I want without bargain, exchange or consideration simply by sending you another Important Notice.

Since I mailed the above notice, I’ve received a flurry of Important Notices from my insurance company, all of which I’ve been dissolving in the leaking vat of sulphuric acid I maintain in my well-insured living room.

Suzy’s Soulmate

Originally appeared in the April 2001 issue of the ABA Journal.

Harmless Error - A Truly Minority View on the Law

Suzy’s Soulmate


Good news and bad news for supporters of Suzy Spikes, my daughter’s litigious, delinquent pal. The good news is that 13-year-old Suzy found romance. The bad news is that, like most events in Suzy’s life, it threatens to become another landmark case.

It all started when some girls at The Gap teased Suzy for being the only person in the 8th grade who hadn’t found a soulmate. Determined Suzy decided she would find a soulmate that very day, and also that she would file false police reports against the girls who teased her.

Bless her heart. Poor Suzy was baffled when her romantic instincts failed on the first attempt:

Suzy: Hey, you. That’s right. I’m talking to you.

Boy: Yeah.

Suzy: Wanna be my soulmate?

Boy: Can’t. Already have one.

Suzy: Your loss. Anyways, you dress like a dork.

Suzy turned next to her neighbor, Billy Johnson, much to everyone’s surprise. It seems like just yesterday Suzy was threatening to report Billy to the EPA for being an environmental hazard. In fact, it was just yesterday.

But they managed to negotiate a deal whereby Billy agreed to be Suzy’s soulmate in return for Suzy agreeing to quit libeling him in her neighborhood newsletter, The Spikes Report. Always careful to protect her rights, Suzy drafted the following agreement which she made Billy sign:

Suzy’s Soulmate Agreement

I, Billy Johnson, agree to be Suzy Spikes’ soulmate for a period not to exceed the second Suzy says to get out of her face. Since I would rather die than embarrass Suzy for picking a crummy soulmate, I will strictly follow Zipgirl magazine’s Super-Six Soulmate Tips:

1. Communicate honestly. Zipgirl says honest communication leads to happy and successful relationships. Therefore, I will always admit Suzy is right.

2. Be sensitive. Because I couldn’t bear the thought of lovable, adorable Suzy suffering feelings of rejection, I will never turn down her requests to hand over my allowance.

3. Heal old baggage. I hereby release all claims against Suzy for the time she accidentally jammed Baltic Avenue up my nose in Combat Monopoly, and for burying me in the sandbox with only a straw sticking out when we were four, and for tricking me into paying her $14 for a pop-top she said was Britney Spears’ belly-button ring, and for …

4. Don’t be needy. When Suzy and I fight, which Zipgirl says is normal, I will not be needy by yelling for my parents or medical attention.

5. Show them you care. I will call Suzy’s probation officer and tell him it was me who spray-painted “Suzy Rules” on the 8th-grade lockers and that Suzy is just an innocent victim of a patriarchal society. When I get to the juvie detention center, I will destroy all three drawers of Suzy’s records.

6. Be a great date. If we go out in public, I will keep my head down and walk 30 feet behind Suzy, unless we’re at The Gap and some girls start teasing her for not having a soulmate.

Signed: Billy Johnson

Suzy and Billy actually got along for a while—about four minutes—until Suzy accused Billy of breaking her heart, as well as the agreement, by refusing to clean her room. Suzy was last seen downloading breach of contract forms off the Internet.

Hair Piece

Originally appeared in the May 2001 issue of the ABA Journal.

Harmless Error - A Truly Minority View on the Law

Hair Piece


What’s so funny about a hairy hand? That’s what I set out to investigate after several requests for a column about Hawkins v. McGee, 146 A. 641 (N.H. 1929), better known as “the hairy hand case.”

Hawkins was a contracts case in which the defendant doctor guaranteed plaintiff, a young man with a burned hand, “a hundred per cent [sic] perfect hand” if he would let the doctor perform surgery on him. Instead of a perfect hand, plaintiff ended up with one that grew thick hair, apparently because of a skin graft from his chest.

I conducted a scientific poll to determine exactly why Hawkins is so funny to lawyers. After months of investigation, the only statistically valid answer turned out to be: “I don’t know. There’s just something funny about a hairy hand.”

The survey respondents added their opinions: (1) that a hairy gallbladder also would be funny; (2) that a hairy eyeball would be odd, but not necessarily funny, and, in fact, could create a driving hazard; (3) that “hairy hips” sounds funny, but would actually be pretty disgusting; and (4) that hairy teeth would require difficult choices between hygiene and style.

Still in search of something really funny about Hawkins, I delved into the case itself. The issue was one of damages. The court ruled that the damages for the botched operation should be the difference in value between a hairy hand and a good one.

How much is a hairy hand worth? That sounds funny. See what you think, in this real FAKE excerpt from the court’s …


What is the difference in value between a hairy hand and a good hand? The issue can be resolved only by careful evaluation of the relative burdens and benefits.

It is beyond dispute that a hairy hand carries substantial burdens. Haircut costs, already high, would double. Even finding a hand salon could prove difficult. And how does one style a hairy hand? Blunt cut? Shag? Dreadlocks?

The court takes judicial notice that a “bad hair day” can cause severe emotional distress. Must plaintiff now suffer the trauma of a “bad hand-hair day”as well?

Finally, we would be remiss to ignore the embarrassment plaintiff will suffer from the tactless stares and inquiries of those who would question whether he is master of his domain.

But defendant asserts that against these burdens must be weighed the many values of a hairy hand.

First, he contends plaintiff will be able to wash his car without a mitt. While that would be convenient, plaintiff presented expert testimony that it is only 1929 and he doesn’t own a car.

Defendant next argues plaintiff can save money in winter buying fur gloves; however, this argument is based on the speculation that plaintiff will be successful both in locating and befriending an opposite-handed victim of hairy-skin-graft malpractice to split the cost of a pair of gloves.

Defendant also notes plaintiff can pretend the hand is a tarantula and use it to scare people at parties. However, we believe this joke would get old fast and do not consider it a long term benefit.

Defendant’s strongest argument is that there is something intrinsically funny about a hairy hand. While we agree, we nevertheless enter:

Judgment for plaintiff.

Note: This parody is not about the real plaintiff in Hawkins, who suffered genuine hardship.

Reference Work

Originally appeared in the June 2001 issue of the ABA Journal.

Harmless Error - A Truly Minority View on the Law

Reference Work


Law schools require applicants to submit multiple letters of reference in support of their applications. While this would seem to be an excellent method for screening candidates, a problem arises from the fact that many letters of recommendation come across as completely bogus.

After years of study, linguists have finally determined the reason: they are completely bogus. Why? Because law school applicants make two common mistakes in choosing references.

The first blunder is opting for letters from “big names”—politicians, judges and lawyers—rather than people who actually know the applicant. Admissions committees are flooded with less-than-sincere letters from muckety-mucks, like this one sent on behalf of fake applicant Daryl Langdon by a prominent U.S. Senator:

Dear Admissions Committee:

It is my great pleasure to recommend Dernyl Plankton for admission to your law school. I feel I am well-qualified to comment on Durgle’s qualifications because, although I’ve never actually met the young man, a generous contributor to my campaign who is a friend of Darnell’s family showed me his college yearbook picture.

From my intimate acquaintance with this grainy black and white photograph, I can state confidently that Dino possesses all of the qualities necessary to do well in law school, including two more or less normally-placed eyes, relatively few acne scars and a sizable forehead, suggesting the presence of a decent-sized brain. Please admit Daphne to your law school, so my campaign contributor will quit harassing me.

Bernard Schlepclot (signature by machine)
U.S. Senator

A second common error is submitting letters of recommendation from people whose most recent contacts with the applicant date back to the Pleistocene era. Perhaps some applicants meet only one reputable human being in their lives willing to say something nice about them in writing.

I don’t know if that’s what happened in Daryl’s case, but … well, just look at this letter:

Dear Admissions Committee:

Lil’ Daryl asked me to write a letter for him and I am happy to do so. I was Daryl’s teacher at the Tots on Cots Daycare Center and know him well.

Daryl has many fine qualities. He’s as cute as a bug, especially when he remembers to wipe his nose, which has a tendency to drip. He is also one of the best little best nap-takers I’ve ever seen. That boy can sleep 8 hours a day if you let him, and sometimes we did.

Daryl shows natural leadership ability, especially among smaller toddlers whom he can easily shove to the ground. He is also a very tidy young man. He always puts his toys away when he’s finished pounding other children over the head with them.

The only qualities that might hinder Daryl in law school are that he whines when he doesn’t get his cartoons and wets his pants frequently.

I have every confidence Daryl will make a very fine lawyer.

Yours very truly,
Mrs. Doris Lichenstock

The good news is that Daryl got into law school despite the questionable reference letters. The bad news is he still wets his pants, especially when called on in Property.

Bad Law

Originally appeared in the July 2001 issue of the ABA Journal.

Harmless Error - A Truly Minority View on the Law

Bad Law


Researchers have announced alarming findings from a study of science textbooks used by middle school students: they’re riddled with inaccuracies. Led by John L. Hubisz of North Carolina State University in Raleigh, investigators poured over the dozen most popular science texts and compiled a list of errors 500 pages long.

This got me worrying about legal education. Has anyone ever studied law school casebooks for accuracy? I took on the task, painstakingly reviewing casebooks in the first-year curriculum for errors. The results were shocking. Here are just a few excerpts of questionable accuracy from some of the most popular first-year casebooks:

Famous Property text:

“Of all areas of law, future interests holds the greatest everyday relevance to most lawyers. Hardly an hour goes by that a lawyer isn’t called on to apply The Rule in Shelley’s Case, although most lawyers ‘pay the rent’ with bread and butter Rule Against Perpetuities cases.

“The law of future interests is so simple and straightforward that ‘future interest mill’ firms now rely on secretaries to fill out forms to manage their hectic practices, which can average 1,000 fertile octogenarians a week.”

Famous Legal Writing text:

“Flowery run-on sentences with no punctuation are the key to good legal writing. Before beginning any sentence, ask yourself, ‘How many words can I cram into it?’ If your answer is less than 250, rethink the sentence.

“When writing a brief, use lots of inflammatory, ad hominem-filled hyperbole, as judges greatly prefer it to clear reasoning.

“Don’t worry about typographical errors. No one notics thm. And remember, if you personally think your writing is good, you’re probably right.”

Famous Torts text:

“Tort reform is a very non-controversial issue. American business leaders in particular are unanimous in their praise that our tort system functions like a smooth-running timepiece. Their only complaints are that personal injury lawyers receive inadequate compensation and that high punitive damages awards occur too infrequently.

“On the other side, most plaintiffs’ lawyers feel strongly that industry can be counted on to do the right thing and that the judicial system should just back off and leave corporate America alone.”

Criminal Law text:

“Because murder is a serious felony, it is sound legal advice to tell your clients to dispose of the body and murder weapon quickly. Explaining with a well-timed wink that fewer witnesses means lower litigation costs can help ease your path to a smooth trial.

“One thing you don’t have to worry about practicing criminal law is getting paid. Criminal clients are by nature honest and reliable people who remain grateful even after conviction. Most will carefully set aside a portion of their income each month from selling drugs in prison to pay outstanding legal bills.”

Famous Civil Procedure text:

There’s been concern in educational circles that texts are being “dumbed down.” I didn’t believe it was a problem in law school until I came across this excerpt in a Civil Procedure casebook:

“Once upon a time there was a Pennoyer and a Neff. They lived in a dark, scary forest called Personal Jurisdiction. One day a scary monster called the Supreme Court descended on the forest, laying a curse upon the land …”

Pretty disturbing results, huh? Don’t be too concerned. Other educational research shows that the harm caused by flawed textbooks is minimized by the fact that most students don’t read them.

The© Controversy

Originally appeared in the August 2001 issue of the ABA Journal.

Harmless Error - A Truly Minority View on the Law

The© Controversy


The music industry has won its lawsuit against Napster to prevent song swapping on the Net. Pfizer, maker of Viagra, is suing a Little Rock woman for selling bottles of “Niagara,” claimed to be an aphrodisiac for women. Margaret Mitchell’s heirs sued to block publication of Alice Randall’s controversial takeoff of “Gone With the Wind.”

With the explosion in intellectual property rights, I knew it was only a matter of time before trouble arrived, which it did last week in the form of an alarming cease and desist letter from an IP firm claiming to represent the heirs of one Mr. Ug.

The letter asserts that Mr. Ug—allegedly a Homo erectus Peking Man domiciled in a cave in China 500,000 years ago—was first to utter the word the. The heirs are claiming a copyright in the and want me to quit using it. They also seek damages for past infringement. I could use some legal advice. Here’s the letter:

Dear Sir:

We recently became aware of your meager attempts to achieve humor through the© deliberate and willful exploitation of our client’s property; to wit, the© word the

Specifically, in the© past 48 months, we have documented more than 7000 copyright infringements of the© protected work in your humor columns, email, bathroom graffiti and other writings, all in violation The© Copyright Act of 1976, §101 et seq. Last month alone, we collected 63 infringing checks from your garbage written to The© Ole Neighborhood Tavern.

Mr. Ug copyrighted the© in or about 498,000 B.C. when, as a result of an apparent misunderstanding of the properties of fire, he pressed tongue to palate while simultaneously exhaling, thereby authoring theeeeaaaaahhhhieeeee, one of the most enduring and highly-creative works of the 498th-century, B.C.

(Immediately thereafter, he authored another dramatic work — ump, ump, ump — while bludgeoning himself with a club to distract from the pain in his flaming foot.)

As Mr. Ug’s lawful heirs, our clients assert a copyright in the© entire compilation work and a derivative right in each subpart: the, eee, aaaaa, hhhh, ieeeee, as well as ump (which we are currently disputing with Major League Baseball).

As you may know, copyright law requires that the protected work be expressed in a tangible form. Fortunately, Mr. Ug was a Peking Man of great foresight.

Enclosed is a photograph of the inside of Mr. Ug’s residence where you can clearly see the copyrighted works carved in the rock directly above the crude drawing of what appears to be a sabre-tooth tiger devouring Mr. Ug’s neighbor (we also assert a copyright in all pictures of tigers, neighbors and food products). According to our expert anthropologist, the chisel mark at the end is in fact a © symbol.

We demand that you immediately cease and desist using the© either orally or in writing and that you compensate our clients for past use. Be advised that This Letter© is copyrighted and that copying, quoting or even reading it will subject you to additional legal action.

Very truly yours,

We Own It, the Macho IP Firm

Personally, I feel strongly that the overly-aggressive assertion of intellectual property rights threatens free speech, and you can quote me on that. However, if you do it without written permission, you’ll be hearing from my intellectual property lawyers.

Oil Fume

Originally appeared in the September 2001 issue of the ABA Journal.

Harmless Error - A Truly Minority View on the Law

Oil Fume


Following a summer of high gas prices, blackouts in California, and record oil company profits, some worriers think we might need to tweak our nation’s energy policy. Since many of the proposed solutions will entail considerable legal wrangling, lawyers need to be well-informed about this vital issue. Here are some of the most commonly-asked questions:

Q. Who’s to blame for our current energy woes?

A. Unfortunately, U.S. supplies of persons to blame for the energy crisis are running dangerously low. Experts predict that if we don’t begin conserving blame soon, we will run out by 2010. In the meantime, politicians and pundits have taken to bashing Etienne Lenior for inventing the internal combustion engine in 1860.

Q. What happened to President Bush’s campaign promise to pressure OPEC to “open the spigots”?

A. Aides claim the President never used that term, but rather, said “gropen la friggets,” which aides describe as “just one of those things the President says sometimes.”

Q. The Administration favors reducing clean air standards as a way to boost the economy. Would it work?

A. Possibly. Such a move could lower gas prices, as well as stimulate lagging markets in throat lozenges, asthma inhalers and oxygen tents.

Q. Is seems like a lot of these questions are picking on President Bush. Do the Democrats have anything better to offer?

A. Yes. A prime source of alternative energy: hot air.

Q. Should we be worried about the proposal to drill for oil in the Alaskan wildlife preserve? What if there’s a spill?

A. Oil companies say not to worry because they’ve come up with a new plan for protecting the Alaskan environment, which is to paint everything black. The companies claim they’ve been judged unfairly for spills simply because oil shows up badly on snow and water. An oil company exec likened the plan to buying a dark sofa to hide red wine stains.

Industry officials have also criticized local wildlife for not engaging in more self-help. As one industry official put it, “If a seal can balance a ball on his nose, why can’t he learn to rub a Handi-Wipe® on the ground. It’s not rocket science.”

Q. I read that American consumers are so fed up with high gas prices that they’re staging protests. True?

A. Yes. Millions of SUV owners recently converged on soccer fields around the nation to rev their engines and talk on their cell phones about the problem. To prove their commitment to being part of the solution, they turned down their AC units to medium for five minutes.

Q. There’s been speculation that recent oil company mergers have contributed to the problem by limiting competition. Is that true?

A. “Nonsense,” says Wink Gouger, new CEO of Amoco-Chevron-Exxon-Mobil-Texaco, Inc.

Q. A lot of people think a complex conspiracy lies behind gas price hikes? What’s the real story?

A. $omething $impler.

Q. Maybe I’m missing something, but 28 years ago an OPEC embargo practically ground the nation to a halt. Since then we’ve been consuming 17 million barrels of oil a day, while paying almost no attention to conservation or the development of alternative fuels. Don’t we as a nation bear part of the blame?

A. No. That’s very unreasonable of you to even ask that question.

For Children’s Sake

Originally appeared in the October 2001 issue of the ABA Journal.

Harmless Error - A Truly Minority View on the Law

For Children’s Sake


Protect the environment. Reform welfare. Lower taxes. Regulate the Internet. Control guns. And do it all for the sake of children!

Politicians are coming to believe that any issue can be sold to the American people so long as it is dressed up in the language of protecting children, as demonstrated by this recent argument on the House floor in favor of increased subsidies for tobacco:

“Mr. Speaker, fellow members, I’m here today to urge support for my bill to increase federal subsidies for tobacco. A vote for my bill is A VOTE FOR CHILDREN!

“Look around us. What do you see? Falling stocks. Declining earnings. Plummeting home sales. But youth smoking isn’t declining. No sir. It’s rising and it will keep rising, thanks to the tobacco industry and the children of this great land of ours. God bless them.

“There are those among us who oppose more tobacco and smoking due to health concerns. But what lesson do we teach our children if we let a few malignant cells kick our butts, especially those little punks causing all that small-cell lung cancer? Sure, 400,000 smoking-related deaths a year seems like a lot, but we have a whole lot more than 400,000 PRECIOUS CHILDREN in this great nation of ours!

“Just think what a better place America would be if more children smoked. We’d have a lot fewer kids going to bed hungry at night, because tobacco is a proven appetite reducer. We’d have a lot fewer kids running from the police, as their lung capacity would be severely diminished. We’d have a lot fewer kids … well, we’d just have a lot fewer kids period.

“Rather than condemn the tobacco companies, we owe them our blessings for helping to keep our nation’s children off the streets and in hospitals where they’re safe.

“It’s a national tragedy that our children lag behind the rest of the world in math, science and verbal skills. But kids who smoke know their math! I guarantee you that. A child can’t shell out $3.50 for a pack of cigarettes without knowing how to manage her allowance, especially when she’s buying them illegally from convenience store clerks who aren’t exactly rocket scientists when it comes to making change.

“Speaking of science, educational research has long shown that science is best learned through hands-on experiments. Smoking allows children to experience first-hand the amazing physiological effect of ammonia additives in pumping up the bloodstream’s ability to absorb nicotine at an accelerated rate.

“Moreover, because of the walloping buzz this delivers, our children will be learning this important lesson while their mental acuity is at its highest level.

“You want to talk about language skills? Where do you think kids are going to learn words like ‘anaplastic carcinoma’ and ‘thoracic irradiation’ if not from the tobacco industry?

“I want to close with a touching story about a POOR DISADVANTAGED CHILD in my district who lives next to an enormous tobacco farm. The nearest playground is 20 miles away, but you don’t hear him complaining. Why? Because, like a lot of kids, Lefty’s learned that tobacco harvesting equipment is much more exciting to play on than swings and slides.

“Finally, I seek unanimous consent to place into the record these important documents in support of my bill—pictures of my INCREDIBLY CUTE GRANDCHILDREN!”

Return to Vendor

Originally appeared in the November 2001 issue of the ABA Journal.

Harmless Error - A Truly Minority View on the Law

Return to Vendor


Judging by the passion and vituperation the topic evokes on Internet consumer complaint sites, video rental late fees may be the number one legal issue facing average Americans. The complaints are eerily similar:

“I rented There’s Something About Mary from the 3-day section and returned it exactly on time …”

“I rented There’s Something About Mary from the 5-day section and returned it exactly on time …”

“I shoplifted There’s Something About Mary and Her Sisters from the adult section and returned it exactly on time …”

Much of the ire is directed against Blockbuster, which in June settled a class action over excessive late fees by agreeing to dole out $460 million in discount coupons to almost 40 million customers. The hitch? An $85 late fee for not using the coupon by noon on the following day! Just kidding, Blockbuster.

Consumer advocates have identified two principal causes of late fee disputes: confusing rental policies and intransigent clerks.

Confusing rental policies. Many late fees result from misunderstandings regarding return policies. Industry officials deny the policies are confusing, but check out this 3-day rental provision found in small print on the back of a rental agreement used by a popular chain:

3-day rentals are due back in 2 days, except on weekends when they are treated as 1-day rentals, unless we really need them back in a hurry, in which case you have exactly one hour to fast forward through that sucker; except during Monday Bonus Specials, when 3-day rentals may be kept 5 days, provided said 5-day period begins running on the previous Tuesday. Save time and trouble by conveniently paying your late fees in advance.

Intransigent clerks. “When was the video returned?” is the great imponderable of modern times. Many disputed late fees involve a “he says/computer says” argument over when the customer actually returned the video.

Of course, the truth is that video stores have no idea when videos are returned. This is because, despite the fact that it’s a multi-billion-dollar-a-year business, the best idea the video industry has come up with in 25 years for verifying video return times is the unimpeachable “jam them in the bin” system—also referred to as the “Scanner? What’s a scanner?”-system.

When late fee disputes arise, your fate is in the hands of the highly-flexible video store clerk. For their uncanny ability to never budge under any circumstances, video store clerks should be hired to negotiate U.S. arms treaties. Here’s a typical colloquy:

Clerk: The computer says you owe $4,328.53 in late fees for Tootsie.

You: That’s impossible. I returned that video the day after I rented it—16 years ago!”

Clerk: That’s not what the computer says, which means you must be a despicable liar. Can everyone in line hear me?

You: But I swear, I returned it on time! Look, here’s a character affidavit from my mother, polygraph results showing I’ve never returned a video late my entire life, and a time-stamped surveillance tape of me actually returning the video on time.

Clerk: Would you like any popcorn or candy to go with your late fees?

Of course, there’s always the appeal process to the store manager who, relying on the computer’s expert testimony, will affirm the clerk’s finding of fact that you are indeed a liar.

Andrew Jay McClurg is a law professor whose teaching and research interests include tort law, products liability, legal education, privacy law and firearms policy. He holds the Herbert Herff Chair of Excellence in Law at the University of Memphis Cecil C. Humphreys School of Law.
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