No Trial Delay for Solar Eclipse

U.S. District Judge Steven “Not So” Merryday denied an Assistant U.S. Attorney’s (AUSA) motion to delay a trial because a witness employed by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) had prepaid for a trip to view the August 21, 2017 solar eclipse in totality.

The court reasoned that the delay would “subordinate the time and resources of the court … to one person’s aspiration to view a ‘total’ solar eclipse for no more than two minutes and forty-two seconds.”

Can’t take issue with the result, but instead of just saying that, the magistrate–perhaps seeking his own two minutes and forty-two seconds of fame–penned a silly too-cute-for-words order built around Carly Simon’s 1972 hit “You’re So Vain.”

You may recall that Simon’s anonymous, self-absorbed antagonist (suspected to be Warren Beatty) “flew [his] Learjet up to Nova Scotia to see the total eclipse of the sun.”  (Speculation has it that Carly was referring to the 1970 total eclipse that was viewable along the East Coast of the United States).

In his order denying the motion to postpone, Judge Merryday mocked the AUSA who filed the motion for “boldly mov[ing] … where no AUSA has moved before”  and for “oddly” describing the eclipse “‘scheduled to occur,’ as if someone arbitrarily set the eclipse, as an impresario sets a performer to appear at a chosen time and place.”

He unnecessarily ridiculed the witness for his prepaid “personal indulgence,” again invoking the Carly Simon song, which featured this line immediately preceding “the total eclipse of the sun” line: “Well I hear you went to Saratoga, and your horse naturally won.”

When an indispensable participant, knowing that a trial is imminent, pre-pays for some personal indulgence, that participant, in effect, lays in a bet.  This time, unlike Carly Simon’s former suitor, whose “horse, naturally won,” this bettor’s horse has–naturally–lost.

Meanwhile, he diminished the significance of a total solar eclipse as “just another astral event.”  The rare August 21 total eclipse will be the first to travel from coast to coast within the United States in nearly 100 years.

–Order, United States v. Joseph Bishop, U.S. District Court, Middle District of Florida, Tampa Div., Case No. 8:17-cr-266-T-23JSS (Aug. 18, 2017) (Thanks to David Barman.)

Legal Trivia Question: Largest Arrest in U.S. History

Just as doctors need patients, lawyers need clients.  One can surmise that local criminal defense lawyers got plenty of business during the largest mass arrest in U.S. history.  How many people were arrested and where did it occur?

  1. 140 in Peoria, Illinois
  2. 1500 in Boston, Massachusetts
  3. 12,000 in Washington, D.C.
  4. 17,500 in Los Angeles, California

ANSWER: In May 1971, more than 500,000 anti-Vietnam War protesters descended on Washington, D.C. with the intention of shutting down the federal government by blocking the streets.  As of that date, 45,000 American soldiers had died in Vietnam and more than 250,000 troops were still stationed there.  At least 12,000 protesters were arrested from May 3 through May 5, including Daniel Ellsberg.

Ellsberg, a former Defense Department analyst, had helped compile a report on the history of U.S. involvement in Vietnam from 1945–68 for Defense Secretary Robert McNamara.  The study, which became known as the “Pentagon Papers,” exposed controversial, previously hidden truths about the scope and purpose of U.S. participation in the Vietnam War.  Ellsberg leaked the Pentagon Papers to the New York Times, which began publishing them in installments.

The Nixon administration sued for an injunction, which resulted in a landmark U.S. Supreme Court case, New York Times Co. v. United States, 403 U.S. 713 (1971), where the Court ruled in favor of the newspaper by a 6-3 vote, a major victory in troubled times for the First Amendment right to free speech and a free press.  Publication of the Pentagon Papers helped turn the tide of public opinion against the war.  It took until June 2011, forty years to the day from the original publication of the Pentagon Papers by the New York Times, before the U.S. government officially declassified and released the papers.

The answer, therefore, is C.

Truth About McDonald’s Coffee Spill Case in Five Minutes

Several former students sent me this video of Adam Ruins Everything’s explanation of the infamous McDonald’s coffee spill case.  They thanked me for telling them the truth in Torts about the grossly distorted case.  I actually stopped talking about it a few years ago, but may need to bring it back because the distorted view still seems prevalent.  I guess we could call it an early form of “fake news.”  Unfortunately, it was all too real for poor Stella Liebeck.

The video does a great job, in a humorous way, of summarizing key points, including: (1) Stella was a 79-year-old passenger in a parked car when she accidentally spilled the coffee on herself (not driving while trying to add cream and sugar); (2) She initially sought only a small amount from McDonald’s for her medical expenses (not a greedy, litigious person); (3) She suffered third-degree burns that her doctor said was the one of the worst cases he had ever seen; (4) The temperature of the coffee was around 190 degrees; (5) Evidence at trial showed 700 prior McDonald’s coffee burn instances; (6) McDonald’s own witness testified the coffee was a hazard at the temperature it was served; (7) The $2.7 million verdict was mostly punitive damages, which the jury calculated by awarding what testimony showed would equal two days worth of McDonald’s coffee sales; and (8) The damages award was reduced by the trial court so that, in the end, Stella only received about $600,000 (of which her lawyer probably received a third, plus expenses).

Only thing missing to drive the point home that this case was anything but frivolous is an image of Stella’s horrific injuries from a spilled cup of coffee, which we included in previous mentions of the case here and here.

1L of a Ride Video Course

1L of a Ride Video Course Marketing Video

Check out sample video clips for the 1L of a Ride Video Course based on McClurg’s bestselling law school prep book of the same name.  In addition to McClurg, the 13-part series features award-winning law professors Christine Coughlin (Wake Forest), Meredith Duncan (University of Houston), and Nancy Levit (University of Missouri-Kansas City).

Each video is a concise ten minutes, followed by a short self-assessment quiz. The videos include:

1. Introduction to the Video Course
2. Planning Ahead and Biggest Fears
3. Structure and Role of U.S. Courts
4. Socratic and Case Methods
5. Overview of First-Year Curriculum
6. First-Year Sample Course: Torts
7. How to Read and Brief a Case
8. The C.R.E.D.O.—Top Five Habits of Successful Law Students
9. Essential Study Techniques
10. Legal Research Basics
11. Legal Writing Basics
12. Managing Stress and Maintaining Well-Being
13. Professionalism

Research shows students gain not only from reading, but seeing and hearing, in part because video helps accommodate diverse learning styles. Use the videos to enhance comprehension and retention. Studies also show students prefer and benefit from one-on-one facetime with professors, which the videos, while no match for the real thing, can help simulate.

The video course is available as a standalone product or bundled with a print or e-copy of the book (recommended) here at the West Academic Publishing Store.

Beware of Tripping Alligators and Fake Warning Signs

Fake warning signThis sign warning “Do Not Feed Hallucinogens to Alligators” would be amusing if it were real, but it’s not.

Complicating life at, where we love to post interesting warning labels and signs, is the proliferation of fake, Photoshopped samples.

Sometimes it’s hard to tell.  University of Memphis first-year law student George Scoville sent me the alligators picture.  It looked a bit sketchy.  Research led to a Reddit post detailing indicators that the picture is fake, including, for example, a Shutterstock watermark on the mushroom.

Real sign, but fake warningBut George had also sent a second similar photo: “Do Not Give the Bison Psychoactive Substances.”  This one looked real.

Determined not to be fooled twice, George, applying good legal research skills,  wrote to the San Francisco Recreation and Park Department (the bison are in Golden Gate Park), receiving a reply that explained:

“That sign was put up as a prank. We took it down as soon as we became aware of it.”

So the sign is (was) actually real.  Diabolical!  On the other hand, it is Golden Gate Park in San Francisco, home of “Hippie Hill” and neighboring Haight-Ashbury, so it’s possible a sincerely motivated animal-lover posted the sign.

Before posting anything on Facebook or otherwise, take a minute to check it out.  A quick check over at SNOPES will usually expose widely disseminated fake news, such as the recent viral Facebook post that Mark Zuckerberg was giving away $4.5 million to Facebook users who shared a thank you message.

In the meantime, signs or not, it’s not a good idea to give psychedelics to animals.

Freudian Slip By Defense Lawyer?

What would this guy have to say about it?

What would this guy have to say about it?

When a defense lawyer in a defective building case says “scare and kill” when he means to say “care and skill,” is that just being tongue-tied, or is it a Freudian slip?

From a judge friend comes this:

In a recent motion hearing in a multi-party construction case, the attorney for the developer of the allegedly defective building intended to refer in his argument to his client’s “care and skill” in constructing the involved building. He got a little tongue-tied, however: instead of referring to his client’s construction method as involving “care and skill,” he identified it as one involving “scare and kill.”

Simplistically, a Freudian slip is an unintentional word snafu that reveals subconscious thoughts or feelings.

No Prejudice in This Dismissal

GavelA lawyer friend in Jacksonville, FL sent along this funny story about a plaintiff who objected to his complaint being dismissed “with prejudice”:

At a mediation, a settlement agreement was reached, so the mediator formalized it in a written document.  The plaintiff’s lawyer was going over each of the terms in the document  with the plaintiff.  When they  got to the term that stated “Plaintiff will dismiss the Complaint with prejudice,” the client looked up and adamantly stated, “I will not!  I am not prejudiced, and believe everyone is equal under the eyes of God.”

For non-lawyers, “dismissed with prejudice” is a legal term of art meaning that a case cannot be re-filed.  “Dismissed without prejudice” means that case can later be re-filed.  Needless to say, for settlements and other final dispositions of cases, defendants insist that the case be dismissed with prejudice.


Supreme Court Emoji Challenge

Thinky EmojiInsurance law expert and all-around funny, clever guy Randy Maniloff has come up with a fun test for spelling out the names of 10 famous U.S. Supreme Court cases using only emoji.  How did this come about?  He explains in his latest issue of Coverage Opinions:

The other night I was out to dinner with my 9 year old daughter. As we waited for her mac & cheese to arrive I decided to give her a lesson on the Supreme Court. I figured I’d start with the basic operation of the federal judiciary. From there move on to some landmark Supreme Court cases. And by dessert we’d be discussing the Necessary and Proper Clause. But she wanted no part of it – begging me to stop.

So I took a different tack. I’d tell her about a case and then she would use my phone to find emojis to write out the case name. This idea she loved. While it didn’t last long, as dinner arrived, it gave me an idea: The Supreme Court “Emoji Challenge.”

For non-lawyers, the first takeaway from this is how geeky lawyers can be.  My own daughter grew up playing “Spot the Tort.”

I confess I fared poorly on the exam, but maybe it’s a generational issue.  Law students: Be sure to take the test. Rumor has it that several Constitutional Law professors (only at the higher-ranked schools) intend to use it on their upcoming Spring final exams.

Hilarious New Book: UnVentional by Tom Giesler

How do you describe a book that is so original, creative and wacky that the best comparison to it is to MAD Magazine?  (Fitting since Al Jaffee, the legendary MAD cartoonist and creator of the fold-in cover, wrote the forward to it.)

We’re talking about Patent Illustrator Tom Giesler’s new book, “UnVentional,” an unhinged collection of bizarre free inventions to save the world.  Watch his hilarious trailer for a clearer picture:


Adam Savage, co-host of Mythbusters: “Tom Giesler has the illustrator’s version of perfect pitch. His drawings perfectly capture the sense of strange adventure inherent in every patent drawing. This book is a virtuoso performance.”

David Rees, author of How To Sharpen Pencils: “Brilliant, hilarious, and weirdly inspiring, unventional will forever change the way you look at objects that don’t actually exist.”

Fernando Cota, former U.S. Patent Office examiner: “Mr. Giesler has, for better or worse, applied the principles of open sourcing to the patent process. His cavalier vision is a world free from patent attorneys, licensing, patent examining fees, and, unfortunately, regard for public safety.”

This would make a perfect, unique gift.  Order it on Amazon.

Technology Dangers for Lawyers

Former student George Carder sent along this tale of caution about technology and client relations:

I was preparing a will for an 87-year-old woman.  She and her 67-year-old daughter were meeting with me.  I was looking at her previous will, which said she was to be “interned.”

I was thinking that didn’t look right and that the correct word was “interred.”  So I pulled out my phone, hit Google and touched the mic button.  When I said “interred,” unfortunately, Google didn’t hear the “in” part.

Can you imagine my embarrassment when my phone shouted out the definition of what it thought it heard?

–Thanks to George Carder

Snoopy the Legal Beagle

Snoopy The Legal BeagleBeing lifelong fans Peanuts and Snoopy fans, is happy to promote this ebook, Snoopy the Legal Beagle.

Snoopy, Esq. gets into all sorts of antics in these classic Charles Schulz comic strips.  After all, what could possibly go wrong with Snoopy running the litigation team?

Snoopy Defends Peppermint Patty

Mom Lacks Clarity on Relations with Cuba

International Relations Meets Daughter-Mother RelationsWe’ve all seen those funny texts posted on Facebook and elsewhere.  Being a skeptic by nature, I assume most of them are made up … but maybe not.

From a good friend in South Florida we get this hilarious text exchange between her and her mom about the historic recent reestablishment of diplomatic relations between the United States and Cuba after a fifty-four year gap.

It makes me laugh every time I read it.  Lest you think my friend’s mom is not very smart, the contrary is true.  She’s a highly educated professional … but obviously not a big follower of politics or world relations.

Meanwhile, I’ve suggested to my friend that she clean up her language when talking to her mother.

Medical Students Beat Law Students in Song Parody Match-Up

Doctors and LawyersAdding to the ongoing battle for supremacy between the two dominant professions–law and medicine– seeks your input as to who does the best song parodies, law students or medical students?  Many examples of each populate YouTube, so I just picked the two with the most views.

They’re both impressive and hilarious in my view, but I give the nod to the med students in this particular Fight Club Doctor-Lawyer Parody Video Match-Up.

Law Students (Law School parody of Payphone by Maroon 5)

Medical Students (I Don’t Know parody of Let it Go from Frozen)

I argued in a law review article that doctors and lawyers should learn to work together out of self-interest.  They need each other.  Public esteem in all professions is on the decline.  Lawyers and doctors shouldn’t contribute to it by bashing each other.  And both groups are already stressed out enough.  Studies show members of both professions suffer high depression, substance abuse and even suicide rates.   The stress starts early, as you can see in both of these videos.  Indeed, it’s arguably the main theme of both.

Great job by both groups in creating these fun stress relievers for others.  Long live Medico-Legal humor (new category I just made up)!

Motion to F*** This Court

Motion to F This Court… and Everything It Stands For.

As bad as the title to this motion is, the content is even worse.  I’m sure you can find the entire motion somewhere online, but, as we know, is a family friendly website.

Gee, I wonder if the motion was granted.

The Law School of Rock

Believe it or not, lawyers like to rock.  You’d be surprised by the number of lawyer musicians.  Here’s a psychedelic nugget from the sixties as performed by my cover band, The Rants.  Believe it or not, our band plays for tens of dollars in a single night.

Where the First and Second Amendments Intersect

Exercise your First and Second Amendment rights in the same place.

Exercise your First and Second Amendment rights in the same place.

Former student Ben Wilkins took a trip to Somerville, Tennessee to search through deeds from decades past.  Now that’s genuine, old-fashioned lawyering.

While there, he snapped this picture, astutely noting that he’d found a place where one can exercise their First and Second Amendment rights at the same time.

–Thanks to Ben Wilkins.

Everybody’s Gone Surfing, Even the Cats

Cat sign 1So I’m taking a pleasant walk along a Florida beachfront park and encounter this sign warning that it is a crime, punishable by up to one year in prison, to abandon cats in the park.  I’m thinking, “That’s weird.”

Cat sign 2Then I get to a second sign warning it is unlawful to feed or abandon cats or other animals.  Unlawful to feed a cat?  Wait a minute.

At this point, I’m thinking, “Aren’t we engaging in some serious overkill on the cat issue?”

But then I come to a third sign and go, “Uh-oh.Cat sign 3” Did Tuggers run away to join the other cats?

Poor Tuggers.  Hope he is found.  In the meantime, if you are at the beach and come across an Orange Domestic Shorthair sunbathing or shell collecting, be felonious (or it is feline-ious) and feed the poor thing.

Meanwhile, anyone who would abandon a cat deserves a bad fate.

Share the Road … Or Else

Share the RoadFrom a golf course in Florida, comes this pair of signs.

The first one features a seemingly contented (despite having a decapitated head) golf-cart driver cruising along above a warning to “Share the Road.”

Twenty yards farther along we get a much more ominous sign.  Same cart, but the driver has been “disappeared.”  Did he fail to share the road?

An investigation is underway.

Or else.


Children Sue Santa Claus; Jolly One Fights Back

Old Saint NickIt’s the season to reprise those two holiday favorites from the Harmless Error vault:

Santa Suit —  The children of the world file a class action lawsuit seeking redress for perceived grievances against the man in the red suit.  (Caroline Kennedy selected this column for inclusion in her A Family Christmas anthology.)

Santa Strikes Back — Turns out the jolly one has his own issues about his Christmas job.  Mightily ticked off, he files his own lawsuit.

Enjoy and Happy Holidays from!

Cartoon Scenarios that Made It to Court

Falling anvils can happen to anyone.

Falling anvils can happen to anyone.

Thanks to legal humorist extraordinaire Randy Maniloff for a nice shout-out to as part of his recent article exploring cartoon accident clichés that found their way to the courthouse.

Exploding cigars, falling anvils, you name it.  Turns out the experiences of Wile E. Coyote and Tom and Jerry also happen to ordinary people, and Randy cites the cases to prove it.

That’s one of the things we most appreciate about him.  Like (and unlike so many purveyors of legal humor), Randy doesn’t circulate undocumented anecdotes that may or may not have really happened.  He researches and provides citations to everything.

So check out his great list of cases involving common cartoon scenarios that made it to court.

People Sometimes Stuck Things in Justice Breyer’s Underwear

Justice Stephen Breyer

Justice Stephen Breyer

Ryan A. Malphurs conducted an interesting study of laughter in proceedings before the U.S. Supreme Court, following up on the work of Jerry Wexler for the New York Times.  His entire article is must-reading for fans of legal humor, but this attention-grabbing opening excerpt from an oral argument in Safford Unified School District v. Redding certainly stands out:

Justice Breyer: In my experience when I was 8 or 10 or 12 years old, we did take our clothes off once a day, we changed for gym, okay?  And in my experience, too, people did sometime stick things in my underwear–


Justice Breyer: Or not my underwear.  Whatever.  Whatever.  I was the one who did it?  I don’t know.

Studying all notations of “(Laughter)” appearing in the Court’s oral argument transcripts during the 2006-2007 term, Malphurs found 131 instances of ha-ha outbursts.

–Ryan A. Malphurs, “People Did Sometimes Stick Things in my Underwear”: The Function of Laughter at the U.S. Supreme Court, 10 Communication L. Rev. 48 (2010).

The “Companion Text” to Law School Named as an Amazon Editors’ Favorite Book of the Year

The "Companion Text" to Law School named one of Amazon's Best Books of 2014.

The “Companion Text” to Law School named an Amazon Editors’ Favorite Book of the Year.

The “Companion Text” to Law School: Understanding and Surviving Life with a Law Student has been named one of the Amazon Editors’ Favorite Books of the Year.  Pretty cool.

Nice Shout-Out to The “Companion Text” to Law School

The "Companion Text" to Law SchoolMy law school prep book, 1L of a Ride, gets a lot more attention, but my book written for the loved ones of law students–The “Companion Text” to Law School: Understanding and Surviving Life with a Law Student (West 2012)–got a nice shout-out on Paul Caron’s popular TaxProf blog.

Thanks to Al Sturgeon, Dean of Students at Pepperdine Law, for  his insightful take on my chapter called Eight Things to NEVER Say to a Law Student, which include:

  1. “Don’t Worry, You’ll Do Fine”
  2. “Maybe You Weren’t Meant to Be in Law School”
  3. “Remember, It’s Only a Test”
  4. “Is That the Best You Could Do?”
  5. “Do You Really Have to Work on That Tonight?”
  6. “What Kind of Lawyer Do You Want to Be?”
  7. “Do You Have a Job Yet?”
  8. “Have You Heard the One About the Lawyer, the Shark, and the Pornographer?”

If you’re attending or planning to attend law school and want your loved ones to understand your crazy, stressful journey, check out The “Companion Text” to Law School.  Here’s the Table of Contents.

Great-Grandma Unhappy About Being in Court

Great-granny unhappy with court appearance.A fleeing bank robber made the mistake of seeking refuge in his 94-year-old great-grandmother’s home with pursuers hot on his trail. When the police arrived, the only ones present were the accused and great-grandma. At trial, the defendant, Mr. Jones, elected to represent himself, never a good idea.

The prosecution called his great-grandma as a witness. To say she wasn’t happy about the proceedings and, in particular, the conduct of her great-grandson would understate her disenchantment with sitting in the witness box.

We’ll let her explain. Here’s the text of page 209 of the trial transcript shown in the photo, where she concludes her testimony:

 THE WITNESS: He’s a sick ass, that’s what he is.

 THE COURT: The record will reflect that she’s identified Mr. Jones.


 THE WITNESS: Have me dragging out in the cold in the wintertime and everything and shit.

 THE COURT: Mr. Jones, did you have any questions?

 DEFENDANT JONES (the great-grandson): No.

 THE COURT: All right. You may step down.

 THE WITNESS: And since when did he get a law degree? Dumbass.

 THE BAILIFF: Ma’am, you’re finished, okay?

 THE WITNESS: Damn right. Get the hell out of here and get back home.

 THE BAILIFF: Okay, you don’t need to say anything else, okay?

Law degree or not, give the great-grandson credit for the smart strategy decision not to cross-examine.  Small wonder the prosecutor described the great-grandmother as “one of the most entertaining witnesses this writer has ever encountered” in the state’s appellate brief.

— Trial Transcript, State of Ohio v. Jones, Case No. 2014CA-00051, at 209 (Ohio 5th Ct. App.).  Thanks to Laura Ozak.

Hogwarts Torts

halloween picFor Halloween, we reprise Hogwarts Torts, a Harmless Error column fan favorite, detailing the torts inflicted on poor young Harry Potter.

Death Certificate Shows Man Died from Slipping on Banana Peel

Poor guy died from slipping on a banana peel.

Poor guy died from slipping on a banana peel.

Slipping on a banana peel is, of course, a classic clichéd accident depicted in cartoons.  As my 1Ls get ready to tackle the famous trilogy of banana peel slip and fall cases in the Prosser, Wade & Schwartz Torts casebook next week, the nagging question that lingers is: do people really slip on banana peels?

A previous post discussed this issue, but check this out.  It’s a 1927 Tennessee death certificate for a 74-year-old hospitalized man.  A bit hard to read, but the highlighted note written across the top and going down the right side says:

Inquiry at Hospital: They state that patient slipped on banana peeling and fell shortly before death.

Best Case Name Contest

A former student of mine at the Florida International University College of Law sent this along, his entry for “Best Case Name of the Month.”

This month’s contestant is Wise v. Strong, 341 S.W.2d 633, 634 (Mo. Ct. App. 1960).

Spoiler alert: Strong wins.  Strong always wins.  *Tear.

Send along any entries you come up with!

–Thanks to Michael Hirschkowitz.

Law Review Articles CAN Have An Impact

Preying on the Graying coverOne doesn’t have to look far to find criticism of law professors for spending such a large portion of their time writing long, heavily foonoted, sleep-inducing law review articles.  We even poke fun at ourselves for it, Exhibit A being The World’s Greatest Law Review Article.

But law review articles can and do have an impact.  Have to share the good news that my proposal for a statutory presumption of elder financial exploitation in my recent Hastings Law Journal article, Preying on the Graying: A Statutory Presumption to Prosecute Elder Financial Exploitation, was signed into law by Florida Governor Rick Scott on June 20.  The proposal passed unanimously through every legislative committee and both the Florida House of Representatives and Florida Senate, showing that at least some bipartisan issues still exist.

Don McClurg, USS JeffersThe article arose from a cruel financial exploitation incident involving our remarkable dad shortly before he passed away last year.  He’s shown here during WWII.

On October 1, 2014, when the law takes effect, prosecutors in Florida will have several more tools at their disposal.  In addition to my presumption statute, the new law (HB 409/Offenses Against Vulnerable Persons) creates the nation’s only elder hearsay exception and eliminates the requirement of proving deception or intimidation in elder exploitation cases.

Elder financial exploitation is a problem of enormous scope and growing rapidly as baby boomers age.  The crimes are notoriously underreported and under-prosecuted, often due to the same factors that make older adults vulnerable to exploitation in the first place.  If you care about this issue and know a legislator in your state, contact them and let them know they can help by supporting legislation similar to Florida’s.

In the meantime, watch after your own elders.  Don’t make the mistake of assuming they are immune to exploitation.  We would have voted our father to be the World’s Most Unlikely Victim.

Signs of the Times: Dive Head-First Into Pavement

Signs of the Times… at least that’s what these two signs seem to be indicating.

–Thanks to Gary Golden.


Buy 1L of a Ride Second Edition

1L of a Ride Second Edition coverThe "Companion Text" to Law SchoolIf you’re contemplating or applying to law school, boost your ability to maximize success with the highest-rated law school prep book, 1L of a Ride: A Well-Traveled Professor’s Roadmap to Success in the First Year of Law SchoolRead the Amazon Customer Reviews.

And don’t forget the loved ones. They’re in for an adventure too.  The “Companion Text” to Law School: Understanding and Surviving Life with a Law Student is the only book written just for them.  Named one of Amazon Editors’ Favorite Books of 2014.

A Legal View of U2 — Pro Bono or No Bono?

Mark Purdy Bono CartoonFriend of and legal cartoonist Mark Purdy has penned a cartoon raising an intriguing question that has long puzzled lawyers and rock music lovers alike.  It’s purdy funny (ouch, sorry).  So what’s your answer, are you “Pro Bono” or “No Bono”?

Pro bono legal work are services rendered by lawyers without charge to low income clients or otherwise in furtherance of the public good.  (Pro bono comes from the Latin phrase pro bono publico, which means “for the public good.”)

Lawyers get a bad rap, but most non-lawyers probably do not realize that lawyers donate literally millions of hours of free legal services annually in the United States.  Name another profession whose members donate so much of their time.  (Click here for a comprehensive 2008 study of pro bono service conducted by the American Bar Association.)

“Captain Justice” Responds to the Government’s Motion to Not Be Called “the Government”

Franklin, TN Lawyer Drew Justice, aka Captain Justice

This story has made the rounds but is worth repeating here if for no reason other than many of my current and former law students at the University of Memphis claim an association with Franklin, Tennessee lawyer Drew Justice, aka Captain Justice.

In a criminal case in which Mr. Justice represents the defendant, the government filed a motion in limine to prohibit the defense from referring to the prosecution as “the government,” asserting it was prejudicial.  Justice replied that such a ban would violate the first amendment, but went on to argue, that should the court agree with the government, er, the prosecution, what’s good for the goose should be good for the gander:

Should this Court disagree, and feel inclined to let the parties basically pick their own designations and ban words, then the defense has a few additional suggestions for amending the speech code. First, the Defendant no longer wants to be called “the Defendant.” This rather archaic term of art, obviously has a fairly negative connotation. It unfairly demeans, and dehumanizes Mr. Donald Powell. The word “defendant” should be banned. At trial, Mr. Powell hereby demands be addressed only by his full name, preceded by the title “Mister.” Alternatively, he may be called simply “the Citizen Accused.” This latter title sounds more respectable than the criminal “Defendant.” The designation “That innocent man” would also be acceptable.

Moreover, defense counsel does not wish to be referred to as a “lawyer,” or a “defense attorney.” Those terms are substantially more prejudicial than probative. See Tenn. R. Evid. 403. Rather, counsel for the Citizen Accused should be referred to primarily as the “Defender of the Innocent.” This title seems particularly appropriate, because every Citizen Accused is presumed innocent. Alternatively, counsel would also accept the designation “Guardian of the Realm.”

Further, the Citizen Accused humbly requests an appropriate military title for his own representative, to match that of the opposing counsel. Whenever addressed by name, the name “Captain Justice” will be appropriate. While less impressive than “General,” still, the more humble term seems suitable. After all, the Captain represents only a Citizen Accused, whereas the General represents an entire State.

Along these same lines, even the term “defense” does not sound very likeable. The whole idea of being defensive, comes across to most people as suspicious. So to prevent the jury from being unfairly misled by this ancient English terminology, the opposition to the Plaintiff hereby names itself “the Resistance.” Obviously, this terminology need only extend throughout the duration of the trial — not to any pre-trial motions. During its heroic struggle against the State, the Resistance goes on the attack, not just the defense.

WHEREFORE, Captain Justice, Guardian of the Realm and Leader of the Resistance, primarily asks that the Court deny the State’s motion, as lacking legal basis. Alternatively, the Citizen Accused moves for an order in limine modifying the speech code as aforementioned, and requiring any other euphemisms and feel-good terms as the Court finds appropriate.

Great stuff!

Captain Justice Responds to Government’s Motion to Not Be Called the Government, Tennessee v. Powell, Case No. I-CR-086639-B (Cir. Ct., Williamson County, Tenn., undated).

Plaintiffs Say “Boo!” to Haunted Halloween Tort Immunity

Randy Maniloff

Randy Maniloff explores Halloween tort cases.

Insurance expert, stand-up comic, and friend of, Randy Maniloff, penned an interesting article in his latest issue of Coverage Opinions about whether people who get frightened at Halloween haunted houses, with resulting injury, can sue.

He writes:

On any other evening, presenting a frightening or threatening visage might be a violation of a general duty not to scare others.  But on Halloween at trick-or-treat time, that duty is modified.  Our society encourages children to transform themselves into witches, demons, and ghosts, and play a game of threatening neighbors into giving them candy.”  Bouton v. Allstate Ins. Co., 491 So. 2d 56 (La. Ct. App. 1986) (also noting that the Louisiana legislature has recognized Halloween as a special occasion by exempting it from the statute which prohibits the wearing of masks in public places).

But does this “Halloween rule” apply to haunted houses?  All sorts of duties are imposed on property owners to maintain a safe premises.  Do these same rules apply when the premises are advertised as having, as their only purpose, to scare visitors?  Indeed, many visitors will leave a haunted house disappointed if they were not frightened while there.  That being the case, can the visitor of a haunted house now turn around and sue for injuries sustained in the process of getting what he asked (and paid) for?

His research turned up five reported judicial decisions in which visitors of haunted houses sought recovery for injuries “sustained on account of being scared.”  Notably, the plaintiffs lost every case based on assumption of the risk analysis and the social utility of keeping haunted houses scary and darkly lit.  In one case, a startled plaintiff in a pitch-dark house turned to run and ran smack into a brick wall.

Hate to be a party-pooper, but I think there’s a duty to act reasonably to prevent highly foreseeable injuries at premises open to the public.  The goal of a haunted house is to terrify, the expected result is that customers will be terrified, and the instinctive response to terror is to run.  But no one can see!  Give them helmets, maybe even put flashlights on them, or scare them outside where they can run into the cushy-walls of cornfield mazes.

“Eerily,” as Randy notes, all five cases are from Louisiana.

Flow Chart for the Tort of Nuisance

Nuisance Flow ChartA student from my very first Torts course a million years ago sent me this brilliant flow chart for the tort of nuisance, which comprises substantial and unreasonable interferences with the use and enjoyment of one’s property.   The most interesting thing about it is that it actually summarizes the law pretty well, assuming one has dropped acid before studying it.  Credit on the chart attributes this work of art to one Margaret Hagen.  Well done!

“Torts Illustrated”

Torts IllustratedA 1L sent me this “Torts Illustrated” image, sort of a grown-up version of Garrett v. Daily, a famous case that all law students study in which a five-year-old was sued for pulling a chair out from under an elderly woman.  If anyone knows the original source, please send it along so we can give proper credit.

In the meantime, one can only imagine what the swimsuit issue would look like.

First U.S. Reports Opinion Not Exactly a Blockbuster

United States ReportsHere’s a trivia question for lawyers and law students.

Question: What was the very first opinion issued in the U.S. Reports case reporter; that is, the opinion claiming that coveted number one slot of “1 U.S. 1” as a citation?

Answer:  Well, it’s a bit of a letdown.  You’d think they’d want to start with a bang, something Marbury-esque.  But no, here’s the first case in the U.S. Reports:

The Lessee of Hyam and others

April Term, 1759.

1 U.S. 1, 1 Dall. 1, 1759 WL 20 (Pa.), 1 L.Ed. 11

Copy of a Deed inrolled in the King’s Bench in England, proved before the Lord Mayor of London to be a true one; allowed to be given in Evidence to a Jury to support a Title to Lands in this Province.*

*11 mod. 2 c. 2.

Well, at least it had a footnote.

School Daze: National Jurist Interviews McClurg about Starting Law School

The National Jurist interviewed me and a couple of other law school prep book authors in its September 2013 issue regarding happiness tips for new law students.  Here’s the article:

The National Jurist – Sept 2013 McClurg Interview


Coverage Opinions Interviews McClurg

Insurance law expert and humorist in his own right, Randy Maniloff, did a nice interview with me in the latest issue of Coverage Opinions, his bi-weekly electronic newsletter reporting and commenting on new court decisions addressing insurance coverage disputes.

He asked a lot of great questions covering everything from the state of product warnings the state of legal education.

Read it here: Coverage Opinions Interview July 24, 2013.

Sad But True: Law Professors Wanna Rock

Someone sent a message in response to the Warning: Playing Stairway to Heaven is Prohibited post asking if I was making up the part about playing in Memphis rock cover bands.  It’s true.  As dubious as the proposition sounds, law professors can actually rock (or at least we think we can).

Below is a sample from our most recently disbanded band, The Vynals, having fun playing surf music at a festival outside of Memphis (a medley of Surfin’ USA by the Beach Boys and Wipeout by the Safaris).  Wait, it gets even more incredulous.  Now we’re forming The World’s Oldest Punk Band. (Similar to The World’s Greatest Law Review Article, but with fewer footnotes.)

New Legal Humor: “Tales from the Courtroom”

Tales From the CourtroomA new book, Tales from the Courtroom, by English lawyer Brian Harris offers an interesting mix of historical, mysterious and humorous legal vignettes, mostly of UK origin, but also including a few American tales.

The book includes a fair share of dark legal humor, such as the tale of a Scottish judge named Kames who in 1780 found himself trying Matthew Hay, his former chess partner, for murder. When the verdict of guilty was returned, Kames chillingly remarked, “That’s checkmate to you, Matthew!” (Harris points out that the statement must be read in a Scottish accent for full effect.)

One of the best historical tales involves F.E. Smith’s (Lord Birkenhead) tiff with a sanctimonious judge:

F.E. had been briefed for a tramway company which had been sued for damages for injuries to a boy who had been run over. The judge was deeply moved. ‘Poor boy, poor boy’, he said. ‘Blind. Put him on a chair so that the jury can see him.’

F.E. said coldly: ‘Perhaps your honour would like to have the boy passed round the jury box.’

‘That is a most improper remark’, said Judge Willis angrily.

‘It was provoked’, said F.E., ‘by a most improper suggestion.’ There was a heavy pause, and the judge continued, ‘Mr. Smith, have you ever heard of a saying by Bacon—the great Bacon—that youth and discretion are ill-wed companions?’

‘Indeed I have, your Honour; and has your Honour ever heard of a saying by Bacon—the great Bacon—that a much talking judge is like an ill-tuned cymbal?’

The judge replied furiously, “You are extremely offensive, young man’; and F.E. added to his previous lapses by saying: ‘As a matter of fact we both are; the only difference between us is that I’m trying to be and you can’t help it.’

The book is available on Amazon. A review can be found on Harris’ TheAncientLawyer blog.

New Legal Cartoonist

Mark Purdy cartoonFor  funny and clever legally related cartoons, there is no beating Stu Rees and wife Maddy Dodson. But we always need more legal humor. Here’s a new sample from aspiring cartoonist, legal and otherwise, Mark Purdy. What do you think?

Insurance Humor: “50 Ways to Leave No Cover”

meteor damage

Meteor damage: Coverage exclusion reason 51?

Insurance law expert Randy Maniloff shows that insurance law doesn’t have to be dry. His insurance coverage newsletter Coverage Opinions takes a light-hearted look at insurance, recently celebrating Valentine’s Day with a funny parody of a Paul Simon classic: “50 Ways To Leave No Cover,” an inventory of the many ways insurance companies manage to deny coverage. Here’s a taste:

There must be fifty ways

To leave no cover

Your notice was late Kate

And then you didn’t cooperate

That’s not an occurrence Terrence

It’s impaired property Lee

You furnished alcohol Paul

You intended that Matt

We’re just excess Bess

We reserved on Buss Gus

Your claim relates back Jack …

Randy’s a funny guy.  Check him out.

Here’s my take on insurance coverage:  Harmless Error, Insurance Deterrence, A.B.A. Journal, Mar. 2001. Still funny after all these years (Paul Simon joke).

Career Shoes for Lawyers?

Career shoes for lawyersA first-year law student in Miami isn’t rushing out to buy these “career shoes.” As she explained in an email:

I am a member of a designer overstock/discount (and probably liquidation) club and was just browsing through today’s sales when I saw a heading that said “CAREER SHOES.” I clicked on it thinking I might find a pair of designer shoes suitable for pairing with a suit.

This photo shows their idea of career shoes for the modern woman. I do love a good pair of heels, but when I think of “career shoes,” I definitely don’t picture these styles … What’s the career they had in mind when they wrote the heading for this sale? Hooker?

–Thanks to Amy Holland.

It’s No Tattoo, But A Torts-Lover Nonetheless

torts license plateA former student from Golden Gate law school who lives and practices in Hawaii sent this picture of a true torts-loving person’s car.

We will engage in outrageous speculation that it belongs to a plaintiffs’ personal injury lawyer.  If you think about it, who else would get a “TORTS” license plate? Maybe geeky law professors with nicknames like Tortman or pattisiers who can’t spell, but really no one else. Insurance defense lawyers wouldn’t do it because it would violate the industry position that torts do not actually exist.

The car owner  obviously loves tort law, but any challenger to the “Most Crazy in Love with Torts” still has to contend with the guy who got Judge Learned Hand tattooed on his arm.  On the other hand, that guy may have simply loved Judge Hand or even barges.

–Thanks to Laura Ozak.

2012 Spot the Tort Contest

2012 Spot the Tort ContestYou thought “Risk” was a good game? Spotting risk is even more fun, and definitely more educational. As law students learn in Torts, the world is a dangerous place where the worst that can happen often does.

My 1Ls at the University of Memphis have been participating in a “Spot the Tort” Contest. Check out their photo entries. This is just one sample of the “accidents waiting to happen” they’ve documented in and around Memphis.

Dedicated Law Student Gets Judge Hand Tattoo

Judge Learned Hand tattooAre you in law school? Do you consider yourself to be a dedicated law student? Not sure? Measure yourself on McClurg’s simple 0-100 scale, with 0 being “I’m not totally thrilled with Judge Learned Hand” and 100 being “I aspire to be like the guy in this picture.”

Years ago, a student of mine at the University of Arkansas at Little Rock School of Law took a trip, to Philadelphia, I think. He struck up a conversation with a tattoo artist in a bar. When the artist learned he was in law school, she asked, “Have you ever heard of a judge named Learned Hand?”  “Of course!” the student replied.  All law students know and remember Judge Learned Hand.

The artist said the young man above came into her tattoo parlor with the accompanying picture of Judge Hand (the picture is from the famous Prosser, Wade & Schwartz Torts casebook used at 124 law schools) and asked to have Judge Hand, wearing a jester cap, tattooed on his arm. As proof, she followed up and sent this photograph to my student, who entrusted it to me.

For non-legals, Judge Hand was a famous judge who in a famous case–U.S. v. Carroll Towing–set forth a famous algebraic economic cost-benefit formula for determining whether injury-causing conduct was reasonable or unreasonable. If reasonable, the defendant is off the hook. If unreasonable, the defendant is liable for negligence and must pay damages. The formula is B < P x L. B stands for the burden of avoiding a risk of harm, P is the probability that the risk will actually cause harm, and L stands for the severity of the harm if it occurs. The formula states that if the burden of avoiding the harm is less than the probability of the harm occurring multiplied by the severity of the potential harm, the conduct is unreasonable (i.e., negligent). Conversely, if the burden of avoiding the risk outweighs the probability times the severity of harm, the conduct is reasonable (i.e., non-negligent).

The back of the picture is stamped with “Tattoo & Photo by Sherry Sears, Creative Images, Des Moines, IA.” So if you want to impress your professors and university’s counseling department, book a ticket to Des Moines.

New Casebook for Zombie Fans

zombie supreme courtGood news for legally inclined zombie lovers.  Joshua Warren has compiled a casebook that “include[s] case opinions from  the over 300 U.S. Federal Court opinions with the word “zombie” (and “zombies”, “zombi”, “zombis”, “zombified”, “zombism”, etc..).” These include cases from the zombified Supreme Court (available as postcards, along with zombie law teeshirts and zombie flashdrives).

Warren explains that this is a “serious” project. From his promotional website:

The “zombie” in federal courts are very  interesting.  Aside from the intellectual property cases that provide  some reflection on modern zombie fiction, there are also ample  metaphoric uses of the word in these judicial writings.  Judges have referred to “zombie precedents” and “zombie  litigation”. There  are zombie corporations, zombie  criminals, a significant number are  social security cases in which people describe themselves in zombie  condition and even a recent mentions of cybernetic zombies.

Unlike other works of zombie academia, the zombies in this book are all real.  Most zombie scholarship uses hypothetical zombies as tropes to create  entertaining and extreme fact patterns that can be used to explain  complex subject matters.  This has been used effectively for  neuroscience (Schlozman, Voytek), international policy analysis (Drezner), public health (Center for Disease Control), geography (Kickstarter project: Zombie-Based Learning), survival skills (Brooks) amongst other subjects (See Zombie Research Society) including also academics who focus on the fictional character itself (Mogk, Brooks).

This Zombie Law book is different because it does not use zombies as hypotheticals to teach law. It is not conjecture about what zombies are or might be. This book is a compendium of real usages of the actual word in American jurisprudence.  This book is a collection of real legal cases that literally include “zombies” (or similar word) in US Federal Court opinions..

The basic outline of the  book will separate most cases into issues of corporations, medications, criminals and, of course intellectual property.  Major sections will be  devoted to Social Security (disability) law, corporate fraud and issues of criminal intent. There are noteworthy cases referring to post traumatic stress disorder and many recent Social Security cases regarding of fibromyalgia.  The intellectual property cases are about popular zombie fiction and also so-called “vicious zombi” patents.  In general, the idea of zombies in a mall is public domain for copyright but particular forms of zombie products are protected by trademark.

Frequently there is a sort of double meaning in the word.  In Social Security cases, the word zombie is found as a symptom of pain, depression and anxiety but also the side effect of medications prescribed for those same symptoms.  In criminal law, zombie appear in victim’s description of their assailant’s behavior but also as defense argument against criminal intent. For corporations the ironic question of corporate-personhood begs the question, ‘what is a person?’, which is often the implied question of zombie studies.

For all you law professors and other legal authors who thought there was no niche left to write about, Warren shows you just have to think outside of the box, in this case, the ones buried six feet under.

A First: A Comic-Strip Brief

Comic Strip BriefThanks to friend Bob Van Voris of Bloomberg News for sending along a true first: an amicus brief filed in a complex intellectual property dispute in the U.S. District Court for the Southern District of New York comprising only comic strip panels.

(You can get a taste by clicking on the expandable thumbnail, but this gem deserves to be read in full.)

Limited by the court to filing a brief of five pages, Bob Kohn took out his frustration by deciding to simplify the complex arguments in comic book form.

The brief is made up largely of a cartoon-bubble conversation between a man and woman (Kohn and his daughter, according to other sources) in which the man starts out struggling “to explain why supply & demand does not operate normally in the pricing of e-books.” Fortunately–because remember he only has five pages–the woman catches on very quickly, becoming an instant expert in federal antitrust law.

Even so, and despite Kohn’s valiant, creative efforts, his principal concern proved accurate: it’s hard to articulate complex antitrust arguments such as horizontal, predatory and marginal pricing in five pages, regardless of the expression-medium. Maybe he should have just borrowed from Charles Schulz and expressed a simple “Good grief!”

The comic book/federal appellate brief ends with this colloquy:

“You should have been a lawyer,” says the male character.

“Nope. Not for me.”

“Why not?”

“I’m a novelist and it’s impossible to tell a complex story in only five pages.”

Excellent try though. Even if Kohn’s side loses, not all is lost. Maybe Marvel Comics will pick up the tale and create a new series, “Amici Man.”

More details about the underlying case and Kohn’s motivations can be found in this ABA Journal article.

Brief of Bob Kohn as Amicus Curiae, U.S. v. Apple, Inc., Civ. Action No. 12-CV-2826 (DLC), S.D.N.Y., Sept. 4, 2012. Thanks to Bob Van Voris.

Good Legal News for Fans of HBO’s Game of Thrones

A Lannister always pays his debts.

Legal research shows no Lannister has ever filed for bankruptcy.

Good legal news if you’re a fan of HBO’s Game of Thrones series, adapted from George R.R. Martin’s medieval fantasy novel series, A Song of Ice and Fire. The series centers around the struggles of several noble families, including the Lannisters, whose unoffical motto is that “A Lannister always pays his debts.”

Now comes breaking news out of South Florida. A former student at the Florida International College of Law, a really smart one named Michael Hirschkowitz, has, through painstaking legal research, confirmed the apparent truth of the Lannister motto.

He reports: “There are 0 cases in the United States in which any individual or organization named ‘Lannister’ has undergone Chapter 11 or Chapter 7 bankruptcy.  This is strong evidence that a Lannister does, in fact, ‘always pay his debts.'”

Good job, Michael.

Note to Law Students: Don’t Forget the Families

The Companion Text to Law School Flyer

Always read the fine print.

The start of another academic year is closing in quickly. If you’re going to be a new law student, you’re not the only one who needs to get ready for a wild ride.

Dozens of books have been written to prepare students for law school, but The “Companion Text” to Law School is the only book ever written to prepare the families and friends of law students for what to expect and how to deal with it.

Check out some review excerpts on this new flyer.

Intellectual Property Parody: Don’t Copy My Parental Nagging!

Thanks to Professor Laura Heymann, College of William & Mary-Marshall-Wythe School of Law, for sending along her funny parody of intellectual property law in the form of a cease and desist letter sent from one neighbor to another complaining about infringement of the offended neighbor’s parenting directive to “Eat your frisee salad.”

Laura’s satirization of overly aggressive assertions of intellectual property rights–all too common these days–brought back memories of my Harmless Error column in the ABA Journal, The© Controversy, in which the heirs of a Homo erectus Peking Man cave dweller sought to compel me to cease and desist in using the word “the.”

Handwritten Divorce Petition Shows Fine Line Between Love and Hate

A judge friend sent me this handwritten Texas divorce petition, apparently filed back in 1985 by a Texas lawyer proceeding pro se.  It’s one of those hand-scrawled pleadings that, at first blush, looks like it was written by an inmate or perhaps a crazy person; however, closer examination shows the writing to be quite clever and amusing in places.  And the drawings are priceless.

The petitioner seems uncertain of where his heart lies, as he alternates between insulting the wife and telling the court how much he loves her.

Read the original to appreciate it, but here are some re-typed uncorrected highlights (the respondent’s name and petitioner’s address are redacted on both the copy of the original pleading and below):


            This suit is brought by PAUL FRANK HENSLER, Petitioner who is Forty Six (46) years of age and who resides at XXXX.

             Respondent, XXXX, is a “Transient Person,” having her residence in a 1970 Chrysler. …


             These parties were joined together in Holy Matrimony by the Very Honorable Frances Porter, JUSTICE OF THE PEACE in Lampasus, Lampasas County, Texas on the 29th Day of March, in the year of our Lord, A.D. 1983.  They ceased living together as husband and wife on Monday January 21, 1984, when she got pissed off and hauled ass with the car, the Mastercard, $365.00 cash, her FEDERAL CIVIL RIGHTS NINE YEAR OLD EMPLOYMENT DISCRIMINATION CASE …, to which she is WELCOME, having BORED ME STIFF for 2 years about just how everybody picks on XXXX.


            This marriage has become very insupportable because of, ho-hum, conflict of personalities  between Petitioner and Respondent, but chiefly because of conflict of personalities between Respondent and Respondent that destroyed the legitimate ends of the marriage (good sex!) and prevents any reasonable expectation of reconciliation (unless she consents to having her mouth surgically closed).


             There is no child born or adopted of this marriage although Petitioner swears on oath that he did everything he could to KNOCK HER UP, but she isn’t pregnant and won’t have another CHILD, although Petitioner LOVES HER DEARLY and wants her to have his children, but she is LIBERATED now and “Feminists” don’t have children by “male chauvinist pig lawyers,” she so swears.


             Petitioner requests the Court to divide the estate of the parties by awarding their property to the party having POSSESION (in a legal sense, not the kind of “possession” by spirits you see in movies, although XXXX could pass muster for a stand-in for “Syble” or the girl in “The Exorcist.”)


             Petitioner, Paul Frank Hensler prays that CITATION and NOTICE issue as required by LAW and that the Court GRANT A DIVORCE and decree such other and further relief as requested herein, including changing Respondent’s name to BELLA ABZUG, JR. for costs of suit and for (see drawings of trumpet and drum roll).

             Stand back, its almost here – Ed McMahon on stage now — HEEEER’ES General Relief (see drawing of Rolaids man).

–Petition for Divorce, Hensler v. [Name redacted], Case No. 85-04521, Dist. Ct., Harris Cty, TX, Jan. 23, 1985.

Facebook Friend Suggestion Results in Bigamy Charges

Facebook’s computer algorithms do an amazing–if scary–job of connecting the dots by ferreting out people relevant to one’s life and recommending them as friends. A Washington man and his wife, er, wives, recently learned there are no degrees of separation in a Facebook-dominated world.

The man’s current wife found out he was still married to someone else when she clicked on a Facebook friend suggestion and saw a picture of her husband at his wedding to her new potential Facebook buddy.  This led to felony bigamy charges against the husband.  Wild stuff.

(Justia had the story, but the link is now broken.)

French Artist Specializes in Humorous Legal Paintings

humorous legal paintingsThanks to French artist, Cassou, for introducing herself to and sending along a sample of one of her paintings.

She said the world of justice inspired her to “create a judicial series of humorous paintings with tender irony” that she exhibits in courthouses throughout Europe, including, recently, in Antwerp, Bruges, Ghent, Breda, Middelburg, and Maastricht.  This year her work will be displayed at courthouses of The Hague and in Amsterdam.

The pictured painting is called “le juge, un singe?” (the judge, a monkey?).  She explains it this way: “The ape has the reputation of being a caricature of human being, a buffoon. The painting expresses the fear of a citizen that the judge be airy, unconcerned, carefree, thoughtless. But, after all, the ape symbolises wisdom and agility as well.”

the artist CassouShe adds that she is always looking for new hospitable courthouses and would be delighted to exhibit her work in America.  So if you’re a judge or otherwise work in a courthouse that might be interested in exhibiting her art, as we say in the South, give her a holler.

Ill-Placed Bottle Rockets Create a “Palsgraf” for a New Generation

bottle rockets in anus lead to injuryA former student sent along the complaint below, which a friend of his suggested might be “the new Palsgraf for our generation.” Hmm, this might not be a good generational sign given the allegations.

For non-legals, Palsgraf v. Long Island Railroad is a famous tort law case all law students read involving a bizarre accident at a train station, where the court ruled that a tort defendant owes a legal duty to act with reasonable care to another only if the other is a reasonably foreseeable victim of the defendant’s conduct. More posts involving Palsgraf are here, here, here, and here.

A national Greek fraternity, Alpha Tau Omega, apparently held a “house party” at their frat house at a West Virginia university. The complaint alleges that many of the participants consumed intoxicating beverages. No surprise so far. But one of the guests  surprised at least one person (the plaintiff, allegedly) when he decided to light up–literally–the party by shooting bottle rockets from … er, I’d rather let the Complaint explain it:

Warning: Allegations are Disgusting

8. Defendant Hughes was highly intoxicated on this date and time, and decided in his drunken stupor that it would be a good idea to shoot bottle rockets out of his anus on the ATO deck, located on the back of the ATO house.

9. Upon information and belief, there were several other ATO fraternity members on the deck at the time of this incident, including one or more officers of the fraternity. Plaintiff and his girlfriend were also present on the ATO deck.

10. Defendant Hughes placed a bottle rocket in his anus, ignited the fuse, but instead of launching, the bottle rocket blew up in Defendant’s rectum, and this startled plaintiff and caused him to jump back, at which time he fell off of the ATO deck, and he became lodged between the deck and an air conditioner unit adjacent to the deck.

11. There was no railing on said deck at the time of the incident. Upon information and belief, the lack of a railing had existed for at least several months, if not years, before the incident. Upon further information and belief, the deck never had a railing when it was installed, or any time thereafter. The subject deck was approximately 3-4 feet high.

12. The subject deck was in the exclusive custody, maintenance and control of the ATO fraternity at all times relevant hereto.

Here’s your Palsgraf test: Was the plaintiff within the zone of foreseeable danger of the bottle rocket-defendant’s alleged conduct? Probably, although perhaps with some contributory negligence thrown in. Assuming the plaintiff was standing close by he could have been injured in any number of ways from someone setting off fireworks in such a dangerous, uncontrolled manner.

The more interesting question is the fraterity’s liability. Was it foreseeable to the fraternity that an intoxicated fraternity member would ignite fireworks in such a bizarre manner and cause a startled bystander to fall off the deck?  Probably not, but it is foreseeable that during social or other gatherings on a deck with no railing (which the complaint alleges violated building codes, likely making it negligence per se) someone would fall off it. Generally speaking, the precise manner in which the harm occurred need not be foreseeable so long as the same general kind of harm was foreseeable.  The injury that occurred–falling off the deck-is the risk that makes it negligent to not have a railing on a raised deck.

Just an off-the-cuff analysis of the facts as alleged.  As always, it will come down to the facts as proved–or, more likely, to a settlement.

—Complaint, Helmburg v. Alpha Tau Omega Fraternity, Case No. 12-C-57, Circuit Ct., Cabell County, West Va., filed Jan. 23, 2012.

The “Companion Text” to Law School, Understanding and Surviving Life with a Law Student

The Companion Text to Law SchoolThe “Companion Text” to Law School: Understanding and Surviving Life with a Law Student (West 2012) listing

Table of Contents

As every lawyer and law student knows, law school is an adventure for the entire family. It’s a life-changing experience that affects everyone involved.

Dozens of books have been written to prepare students for law school, but what about all those other suffering souls–the relatives and friends who support and struggle right alongside the student on their wild and crazy journey toward a Juris Doctor degree? Who’s preparing them?

Named one of Amazon Editors’ Favorite Books of 2014.

Read interview with McClurg about the book on the Westlaw Insider Blog

The “Companion Text” to Law School is designed to equip loved ones of law students—parents, partners, and other friends and relatives—with all the information and tools needed to understand both law school and their stressed out, rapidly transforming student.


• Written by an award-winning professor with wide experience teaching thousands of law students at six law schools.

• Explains all the essentials of legal education, including the first-year curriculum, the Socratic Method of teaching, and the dreaded single-exam format.

• Explores the psyches of law students, including what they love to talk about, things you should never say to them, their sources of stress, and how law school can change their personalities.

• Addresses the impact of law school on outside relationships—and vice versa—and gives tips for navigating relationships with law students.

• Includes dozens of comments, anecdotes, and insights from real law students and their loved ones.

• Extras include a chapter on the types of jobs available to new law graduates, fun “legal” questions you can use to stump your student, a sample case, and a glossary.

• Backed up throughout by academic research.

• Written in a lively, reader-friendly voice, bolstered by humor.

Some Baby Names May Be Illegal

This article from Time Newsfeed about how some governments make certain baby names illegal is reminiscent of one of our Hall of Fame Strange Judicial Opinions: “Hello, My Name Is … Oh, Never Mind.”

Meanwhile, the article warns that the following baby names have been declared illegal in New Zealand:

“Yeah Detroit”

Twins named “89”

“Sex Fruit”

Good news though! New Zealand will still allow boys to be named “Number 16 Bus Shelter.”

Melodramatic Memorandum Livens Up “Chinese Drywall” Litigation

It’s almost impossible to imagine a case that sounds more boring than “In re: Chinese-Manufactured Drywall Products Liability Litigation.” In this multidistrict potboiler, the judge stayed an insurance coverage action, apparently hoping to facilitate a global settlement.

Unfortunately, nothing was moving forward, prompting the Trust to ask the court to lift the stay to get things moving. Counsel didn’t take any chances that the court might miss her point, punching up her memorandum in support of the motion to lift the stay with a dramatic journalistic touch:

Since this Court stayed the insurance coverage action ten months ago last March, no global mediation of the insurance coverage action has been held.

There is no global mediation of the insurance coverage action scheduled.

There is no global mediation of the insurance coverage action being set up.

No date. No location. No notification of participants. No contact of all global insurance coverage participants. Silence.

Since the Court stayed this insurance coverage action, policyholders have been left in a purgatory in the insurance coverage action with no action advancing a global resolution of the insurance coverage action whatsoever.

I can’t wait to see how this litigation ends … er, if it ends.

Chinese Drywall Litigation Memorandum, MDL 2047, E.D. La., Jan. 10, 2012. Thanks to Andrei Bogos. Cited in the Wall Street Journal

Nathan Koppel of the Wall Street Journal wrote an interesting front-page article about judges who use humor in their opinions, quoting McClurg and citing to

Koppel explored the ongoing debate of whether and to what extent judges should use their written products as avenues for amusement.

What do you think?

Meanwhile, in the article, U.S. Ninth Circuit Court of Appeals Judge Alex Kozinski, a Hall of Famer, opined that Canadian judges are too boring and staid. Koppel quoted Kozinski saying: “I like my Canadian colleagues, but, boy, when it comes to reading their opinions, it’s like wading through molasses.”

But that’s not always true.  Koppel cited one example of Canadian judicial humor and we have a couple other good ones here and here.

The Santa Claus Lawsuits

Old Saint NickTwo of the most popular Harmless Error columns, Santa Suit (Children of the world sue Santa Claus) and Santa Strikes Back (Santa files his own suit), are featured here for your holiday pleasure.

Caroline Kennedy selected Santa Suit for inclusion in her anthology, A Family Christmas, where it appears alongside works by the likes of Mark Twain, Robert Frost, and Shakespeare.


Patent: How About Some Tequila with that Lime and Heart Attack?

patent for lime juice to prevent heart attackThe subject—heart attacks—is not funny, but U.S. Patent No. 6,457,474, issued October 1, 2002, and described as a method of alleviating chest pain, especially from angina pectoris, is amusing or at least interesting. What’s the amazing heart-attack fighting invention? Drinking lime juice.

But, wait, maybe I’m not being fair. Maybe I’m oversimplifying it. Let’s check out the official patent abstract and see:

A method of alleviating chest pain that stems from the heart, which method comprises: (a) noticing a pain in the chest; and shortly thereafter (b) taking an effective amount of lime juice into the body to alleviate the chest pain.

Nope. Guess not. It really is a patent on drinking lime juice. Here’s how the invention works:

In accordance with this invention, a person takes in lime juice after noticing the onset of the chest pain.

Don’t worry if you don’t understand it. It’s a very complex scientific procedure. But let’s at least clear up one other confusing point. What exactly is this secret ingredient? The patent explains:

“[L]ime juice” means lime juice or limeade or any combination that includes the juice of a lime ….

Pucker up because the inventor recommends “drinking at least a glass daily [of lime juice] in non-concentrate form” as a preventative measure.

Sound inconvenient? It’s not. In fact, one of the primary advantages of lime juice as a remedy for angina pectoris over nitroglycerin is that:

Since the juice is regularly stored in the refrigerator or freezer, it can be quickly located by the patient, particularly at nighttime where the refrigerator light plays a helpful role.

U.S. Patent No. 6,457,474, Oct. 1, 2002. Thanks to David Barman.

Butterflies are Free in Pacific Grove, CA

monarch butterfly

In Pacific Grove, California, under a city ordinance, tourist monarch butterflies have a right to “peaceful occupancy” during their annual convention there.

Even if the butterflies are swarming one’s home, interfering with occupancy and use, they can only be removed to another location on application to the police. Here’s the ordinance:

11.48.010 Interference With Prohibited.

It is declared to be unlawful for any person to molest or interfere with, in any way, the peaceful occupancy of the monarch butterflies on their annual visit to the city of Pacific Grove, and during the entire time they remain within the corporate limits of the city, in whatever spot they may choose to stop in, provided, however, that if said butterflies should at any time swarm in, upon or near the private dwelling house or other buildings of a citizen of the city of Pacific Grove in such a way as to interfere with the occupancy and use of said dwelling and/or other buildings, that said butterflies may be removed, if possible, to another location upon the application of said citizen to the chief of police.

You can see it coming. A massive class action asserting equal protection claims on behalf of other bugs similarly situated under rapidly descending rolled-up newspapers and clouds of poison gas.

Seriously though, it’s a good law. Every year, monarch butterflies take up residence in Pacific Grove as part of their migration south. They winter in Mexico, after traveling 2500 miles, the only insect to accomplish such a feat. Pretty impressive.

— City of Pacific Grove, CA Ord. 210 N.S. §§ 8-3060, 1952. Thanks to Lihwei Lin.


McClurg Interviewed in National Jurist Article

The National Jurist, the Magazine for Law Students, interviewed McClurg for an article in the September 2011 issue called The First Year: One Wild Ride, offering tips and insights about that crazy first year of law school.  Check it out here.

Patent: Invention for Making a Sandwich


Old-school, uninventive sandwich.

U.S. Patent No. 6,599,545, issued July 29, 2003, is for the new and exciting invention of “Method for making a sandwich.”

To be patentable, an invention must be new, useful and nonobvious. Does this one qualify?

Because it’s such a technical subject, let’s first explore the “The Background Art” of the invention as described in the patent:

Sandwiches typically comprise two slices of bread, and a combination of sandwich fixings disposed between the bread slices.

That’s food for deep thought. Har har. Now that we understand the background art, let’s explore the invention itself, which is:

A method for inserting one foodstuff, such as sandwich fixings, into a second foodstuff, such as a bread bun, which includes forming a cavity in the second foodstuff.

Way over my head, but deconstructed, it appears that invention is: Drill a hole in a bun and jam some cold cuts in there.

U.S. Patent No. 6,599,545, issued July 29, 2003. Thanks to David Barman.

Patents: Balding Guys Beware — The “Comb-Over” is Patented


It appears this famous soccer player did not follow the patent instructions.

Apparently, it’s not as hard to get a patent as people think:

U.S. Patent 4,022,227 is a patent for a “Method of concealing partial baldness,” described more particularly in the abstract as “[a] method of styling hair to cover partial baldness using only the hair on a person’s head. The hair styling requires dividing a person’s hair into three sections and carefully folding one section over another.”

Comb-over patent imagesIt even comes with diagrams:



Yep. It’s a valid U.S. patent for the dreaded “comb-over.”  We’ve all witnessed the results of this amazing invention, which works so effectively that no one notices the baldness, provided they are sight-impaired and at a distance of more than 200 yards.

U.S. Patent 4,022,227, May 10, 1977. Thanks to David Barman.

Patent: Dog Clean-Up Made Easy (For Experienced Lacrosse Players)

lacrosse stick

Not the patented dog waste catcher, but will work in a pinch.

Do have a dog? Do you like to take it for walks? Do you feel it’s your moral and social responsibility to clean up after it? Are you skilled at playing lacrosse?

If your answer is yes to all of the above, then the invention protected by U.S. Patent 7,090,268, Aug. 16, 2006, is the perfect dog-walking accessory for you.

As described in the patent application, the invention is “a simple portable device which allows the dog’s owner to catch and hold the dog waste in a plastic bag before it comes in contact with the ground or grass without bending over.”

Basically, the invention sounds like kind of a lightweight lacrosse stick that you use to catch dog feces in. But just as in the real sport, you have to be quick on your toes to use this baby effectively. As the patent explains: “As soon as the dog shows a motion to excrete, this device is … placed underneath the dog’s bottom and catches the dog waste, thus preventing the soiling of the ground or grass.”

Is it a good invention? Darn right it is. As everyone knows, “[d]ogs tend to excrete while they are walked” and “[o]nce the droppings fall on the ground or grass, it is difficult to collect them completely, especially when they are loose.” Which, of course, is why many dog owners prefer to leave it to their neighbors to deal with.

This sounds like a good invention, although I’m not sure the dogs are going to sit still for it.

U.S. Patent 7,090,268, Aug. 16, 2006. Thanks to David Barman.

Patent: Humane Cock-Fighting?

roosterThat’s apparently what the inventors of the “non-lethal gamecock sparring match” and equipment are trying to sell. And they got a patent for it: U.S. Patent 6,928,960, Aug. 16, 2005.

With this invention, each fighting bird is fitted with a protective vest carrying sensors that send a signal to an electronic scoreboard each time they are pecked or clawed. The talons of each gamecock are also “covered with a protective device,” and their beaks are “taped shut.” Sounds very comfortable.

The “background” of the invention explains it was designed to remedy a “cultural clash of values” pitting aficionados of gamecock fighting (which the inventors assert is an accepted and enjoyable form of entertainment in Latin and Asian cultures and many U.S. states) against those who object to the birds being killed or injured.

The patent description reminded me of the Seinfeld episode where Kramer’s rooster, named “Little Jerry,” was about to become embroiled in cock-fighting because of a bad check Big Jerry wrote at the deli. Seinfeld’s explaining that cock-fighting is dangerous and that Little Jerry could get killed. Kramer says something like, “I thought they wore little gloves and helmets!” Well, now they might.

U.S. Patent 6,928,960, Aug. 16, 2005. Thanks to David Barman.

Lawyer Wanted to Protect Kids … and Consume Alcohol

beer bottleSpecial thanks to Senior Judge James Barlow, from San Antonio for all the classic stuff he has sent to Here’s a distinguished jurist who not only appreciates a good laugh, but possesses a lifetime collection of legal humor treasure. He’s sent along a lot of gems not available elsewhere. Here’s an interesting one:

Apparently because he was the only person in the family with a driver’s license, a man (a lawyer, apparently) was ordered by a Giles County, TN, chancery court to shuttle two kids of divorced parents back and forth during periods of visitation.

But the involuntary driver–“intervenor” in the pleading below–filed a petition to relieve him from the transportation duties in the best interests of the children on that basis that “Friday afternoon by 1700 hours, and particularly on Sundy [sic] by the same time, your intervenor, generally has consumed three or more beers,” and that, as a consequence, he will “register .15 or higher on any cop’s ‘Get’m’ scale.” (The copy of the petition bears the clerk’s file stamp (May 13, 2002), and appears to be authentic.)

Further, he said he didn’t know how to operate child seats or the seatbelts in his “pickity-up truck.” Children, he asserted, should not be subjected to such danger.

Whether or not you sympathize with the intervenor, it’s hard to deny his sincerity (original typos left in):



NO. 2196


Comes the petitioner, Wm. Travis Gobble, who professes to be greatly aggrieved by the order of this court … whereby your intervenor was ordered to provide transportation for Suzanna and ‘Log-Jam’ White, minor children of Derrell and Chrysty White, during periods of visitation between the said parties, in the following particulars:

1. Your intervenor is the only damn one in the family with drivers licenses.

2. He should not be required to risk losing his.

3. On Friday afternoon by 1700 hours, and particularly on Sundy by the same time, your intervenor, generally has consumed three or more beers.

4.  Three, or more, beers according to all the clients your intervenor has represented causes a driver to register .15 or higher on any cop’s “Get’m” scale.

5. According to MADD mothers, any driver who has consumed three beers, whatever he registers, is drunk and a menace to society.

6. Small children should not be subjected to such danger.

7. In addition thereto, your intervenor drives a small pickity-up truck with only two seat belts, neither of which he can make operable.

8. The two children are of such a size that both must be bundled inside a device resembling and over-sized football helmet. Your intervenor has tried, but has been unable to date, to secure said children into such a device.

9. In any event, he, two children and a fourth person would crowd his little truck.

10. In the event your intervenor elected to have a fourth, or a fifth beer enroute [sic] ith said kids, he would have no place to sit said cans and would have to drive one-handed.

11. The kids themselves would be a further distraction.

12. A distracted driver is a dangerous driver.

13. Without a fourth person to assist him, should minor children commence to cry, a common occurance [sic], your intervenor would surely drop his beer and wreck.

16. As the common carrier, your intervenor would be trown into regular contact with both parents and subjected to all the

allegations hurled from both sides. Your intervenor is too old to suffer such.

FOR ALL OF WHICH Wm. Travis Cobble respectfully moves this Honorable Court to assign said duties to some other caring soul.

— In the Matter of White v. White, Giles County, Tennessee, Chancery Court, No. 2196, filed May 13, 2002. Thanks to Senior Judge James Barlow.

Patent: Sorry Inventors, But “Head-Mounted Letter M” Already Taken


Get busy inventors. "M" is already taken.

U.S. Patent 6,834,453 is for a piece of foam in the shape of an “M” worn on the head.

The invention, cleverly and appropriately named the “Head Mounted Letter ‘M’ Display,” is designed for sports fans who want to support their teams that begin with the letter “M.”

The funniest aspect of this patent (other than that one can get a patent for a head-mounted letter of the alphabet) is all the complex diagrams of a guy wearing an “M” on his head.

U.S. Patent 6,834,453 , Dec. 28, 2004.

Patent: The Rockets’ Red Glare — And Nasty Odor

fireworksYou’ll be tempted to look this one up to be convinced it’s not made up.

The U.S. Patent and Trademark Office issued a patent for a toy rocket powered by flatulence.

That’s right. U.S. Patent No. 6,055,910 is for a “toy gas-fired missile” that is prepared for takeoff by the operator placing “the inlet tube with its valve open adjacent to his anal region from which a colonic gas is discharged.”

After being loaded, “[t]he ignitor is then activated to explode the mixture in the chamber and fire the missile into space.”

The “Status of the Prior Art” section of the patent offers a dissertation on flatulence, including way TMI in the form of revelations that a normal individual produces 400-600 ml of flatus per day and that the major components, in descending odor, er, order, are: nitrogen, hydrogen, carbon dioxide, methane, and oxygen. The odor-causing ingredients are sulfide, skatole, indole, volatile amines, and short-chain fatty acids.

Why is this invention needed? For consumer safety, of course.

The inventors offer the invention as a safer alternative to the “popular practice” of “ignition of one’s own flatus” by lit match or candle, or a cigarette lighter. Of course, “[a] major drawback” of this practice is the “hazardous coupling of fire, combustible gases and inebriated participants.” Serious burn reports are not uncommon, according to the patent application, “especially … when the participants remove their clothing.”

Accordingly, “[i]n view of the foregoing, the main object of this invention is to provide a safe toy which exploits combustible properties of flatus to fire a toy missile into space.”

U.S. Patent No. 6,055,910, May 2, 2000. Thanks to David Barman.


Most Candid Land Title Opinion in History

Law professors teach students that the law is full of gray with very few black or white answers. The most accurate answer to most legal questions is “It depends.”

But that’s not always the case. Senior Judge James Barlow, San Antonio, TX, sent the below land title opinion, reportedly written in 1928 by a title examiner in Prewitt, Texas named Kress Campel for a client named Alex Deanton. (Unfortunately, we have not been able to authenticate this entry. If you have any info on that point one way or another, please send it along).

The examiner’s opinion was sought concerning a title abstract covering “the South 238 plus acres of the Edmundson Survey.”

If only all legal advice were so sure-footed:

Don’t buy the G** D***** land.

It has been my sorrow and burden to look over several horrible examples of a title-examiner’s nightmare, but this alleged title takes the cutglass flyswatter. It is my private belief that you couldn’t cure the defects if you sued everybody from the Spanish Government (who started this mess) on down to the present possessor of the land, who is in there by virtue of a peculiar instrument optimistically designated by the abstractor as a “General Warranty Deed.” …

 [The lawyer then points out that the title defects probably cannot be cured by either limitations or laches.]

We might rely on limitation here except that I am reliably informed that nobody has succeeded in living on this land for a longer period than two years, before dying of malnutrition. Laches might help out, but anybody who undertakes to buy land under a title acquired by laches is (to paraphrase Mark Twain) setting out like the man who set out to carry the cat home by the tail–he is going to acquire experience that will be of great value to him and never grow dim or doubtful.

This land has been sold for taxes eight times in the last 40 years. Nobody has ever redeemed one of these tax sales–glad to be rid of it, no doubt. The last purchaser sued the tax collector a month after he bought it for cancellation of the sale for fraud and misrepresentation. He doubtless had grounds, but the incident will give you a rough idea of what kind of muzzle-loading smooth-bores have been fritzing with the title.

The next and most serious defect is a “quit-claim deed containing a general warranty” executed by Ellis Gretzberg (who just appears suddenly out of no where) in the chain of title to one Peter (Prolific) Perkinston. Unfortunately, Perkinston died, leaving two wives and 17 children, the legitimacy of two of them being severely contested. Fortunately, a shooting match between the two sets of claimants assisted the title slightly by reducing the original number to six and substituting eleven sets of descendants.

[He then takes up the deed held by the prospective vendor to his client.]

It is executed by a fair majority of one set of the offspring of Peter (Prolific) Perkinston, and is acknowledged in a manner sufficient to pass a County Clerk with his fee prepaid. Outside of the fact that it doesn’t exactly describe the property under search, the habendum clause is to the grantors, the covenant of general warranty doesn’t warrant a thing and it is acknowledged before it is dated, I suppose it is all right.

I would advise you to keep the abstracts, if you can. They are a speaking testimonial to the result of notaries public drawing instruments, county clerks who would put a menu on record if a fee was tendered, and jacklegged jugheads posing as lawyers.

You can buy the land if you so desire. There are 573 people who can give you as good a title as your prospective vendor has, not counting the heirs of the illegitimate son of Prather Linkon who died in the penitentiary in 1889 while serving a term for sodomy.

If this is authentic, it’s an all-time classic of funny legal writing. If it’s not, it’s not as great, but still amusing.

— Thanks to Judge James Barlow, Senior District Judge, San Antonio, Texas.

Best Law Review Article Title

It’s publish or perish in the law professor business, and most of that publishing occurs in law review articles.

Law professors strive mightily to make their law review articles stand out by coming up with clever titles for them. The trick is coming up with a title that is attention-getting, but also descriptive.  This, of course, requires use of the ubiquitous colon, which appears in the vast majority of law review titles. Some law professors look down on colons in law review titles (yes, this is part of the important stuff we actually spend time thinking and talking about) and eschew them, but the result is often a title that doesn’t give a clue what the article is about.

Here’s a top candidate for the best law review article title:

Erik S. Jaffe, “She’s Got Bette Davis[‘s] Eyes”: Assessing the Nonconsensual Removal of Cadaver Organs Under the Takings and Due Process Clauses, 90 Columbia Law Review 528 (1990).

Oldsters will recall that “She’s Got Bette Davis Eyes” was a smash hit for Kim Carnes in 1981. Originally written by Jackie DeShannon and Donna Weiss in 1974, Carnes took the song to number one on the Billboard charts where it held the top spot for nine weeks.

— Erik S. Jaffe, “She’s Got Bette Davis[‘s] Eyes”: Assessing the Nonconsensual Removal of Cadaver Organs Under the Takings and Due Process Clauses, 90 Columbia Law Review 528 (1990)

Famous Wacky Law Exposed as Not-So-Wacky


Don't tie a giraffe - or any other animal - to a lamp post in Vermont.

Have you ever read about that “bizarre” Vermont statute that prohibits tying giraffes to lamp posts? I’ve seen references to it in books and in far too many forwarded emails.

When David Tartter came across it, he had a novel idea: he actually looked it up. Guess what he found? The statute prohibits tying any animal to a lamp post. While giraffes technically are included, it’s doubtful the law would have assumed its legendary “wacky” status if it were reported as a statute that prohibited tying, say, dogs to lamp posts.

Here’s the actual statute:

A person who wilfully and maliciously breaks the glass about a street lamp or gaslight, or a lamp or gaslight in the grounds about a public building, or, without authority, lights such a lamp or gaslight or extinguishes the same when lighted, or in any manner interferes therewith, or injures any part of the fixtures supporting such lamp or gaslight, or defaces the same by painting or posting notices thereon, or fastens a horse or animal thereto, shall be imprisoned not more than three months or fined not more than $50.00, or both.

13 V.S.A. section 3785

If anyone discovers other legal humor mythbusters, please send them in.

— Thanks to David Tartter.


Plaintiff Sues for Loss of Psychic Powers

crystal ballA $600,000 jury verdict for losing psychic powers sounds ridiculous, and likely the grossly misunderstood McDonald’s coffee spill case, Haimes v. Temple University has been abused as a tool to whip up on trial lawyers and the tort system. But as with the McDonald’s case, Haimes got twisted in the telling.

Plaintiff Judith Richardson Haimes brought a medical malpractice action against defendant after a CT scan allegedly caused her chronic and disabling headaches and prevented her from practicing her occupation as a psychic. A jury awarded her $600,000 after a four-day trial.

Wow! But pro-tort reform accounts of the case omit two critical facts.  First, that the trial judge specifically instructed the jury it could NOT award damages for loss of her psychic abilities, and, second, that the court threw out the plaintiff’s verdict.

Having cleared that up, the most interesting part of the case was the testimony pertaining to her psychic abilities. The plaintiff presented several police officers as witnesses who testified that plaintiffs’ psychic abilities had helped them solve cases. One special agent testified that he sought plaintiff’s advice in solving five to seven homicide cases and that information provided by plaintiff proved to be 80-90 percent accurate. The opinion describes detailed information plaintiff provided to help solve a variety of cases. It’s interesting.

Haimes v. Temple University Hosp., 39 Pa. D. & C.3d 381 (Pa. Ct. Com. Pl. 1986). Thanks to Cynthia Cohan.

Deponent Freaks Out When Asked to State Name

A defendant, probably in a divorce case, lost it when asked to state his name for the record in answer to the first question of a deposition.

The deposition started out like this:


Q. State your name.

A. You know it.

MR. DORSEY: Answer the question.

THE WITNESS: Five f****** years and that’s the first thing–

Things went downhill swifly after that.  Above the Law has the full story and complete two-page deposition.

Take Me Out to the Ballgame, and Out of the Pretrial Conference

baseballA Texas lawyer is a big fan of the Texas Rangers baseball team. Make that a HUGE fan. So huge that he filed an “emergency motion for continuance” of a pretrial conference in a case that conflicted with Game 1 of the 2010 World Series between the Rangers and the San Francisco Giants. Here’s some of what he said:

1. The lawyer in charge of this matter for the defendant is Darrell W. Cook (hereinafter referred to as Darrell).

2. Since 1972, when Darrell was but a lad of thirteen, he has been a fan of the Texas Rangers Baseball Club (hereinafter referred to as “Rangers”)

3. As such he has developed a love of the Rangers that has gone generally unrequited for thirty-eight (38) years.

4. Darrell has been to more games than he can possibly recall, has been a season ticket holder in one form or another for over ten (l0) years and has either listened to or watched all or parts of thousands of baseball games played by the Rangers.

5. Everything between Darrell and the Rangers was business as usual this year:

a. Josh Hamilton was discovered drunken and covered in whip cream;

b. Ron Washington was discovered to have ingested a “controlled substance” during the 2009 All-Star break;

c. The top two starters for the Rangers at the beginning of the season, Rich Harden and Scott Feldman, looked like they were completely unfamiliar with the tasks assigned to them and made a mockery of their roles as leaders of the pitching staff; and

d. The team declared bankruptcy and was sold via an auction more befitting a used Buick than a major league baseball team.

6. So, when this setting was received Darrell was convinced he would be in attendance as it was unimaginable that anything the Rangers could do would interfere with such setting.

7. Then suddenly and without warning the Rangers began a steady march toward credibility. …

8. Thereafter the unthinkable occurred ….

The unthinkable, of course, was that the Rangers made it to the World Series. He concluded his motion by noting that “[t]he continuance is not sought merely for delay alone, but so that justice may be done.”

No denying the lawyer’s sincerity. I hope he got to go to the game.

— Emergency Motion for Continuance, City of Irving v. Villas of Irving, Ltd, Case No. T-01398471 01, Municipal Court, City of Irving, Texas, Oct. 25, 2010. Thanks to Thomas Samuel.

The Birth of Legal Mythbusters

Undocumented reports of weird laws, funny “real life” litigation transcripts, and outrageous lawsuits have been circulating for decades. Some of them are the same stories I read back as a practicing lawyer 30 years ago. People send them to all the time, but we never post them because they lack documentation.

Scott Martin’s email below prompted us to think more about the issue and to start a category for Legal Mythbusters. would love be the Annenberg Fact-Check center for legal humor, but we don’t have the resources. Actually, we won’t have any resouces.  So we’re depending, as always, on you, the loyal reader.

If you have any information about whether famous legal tales are “real” or just “tall,” let us know. Meanwhile, here’s Scott’s thoughtful email:

Dear Professor McClurg:

I would very much appreciate your take on two odd phenomena that have long plagued my sensibilities as a lawyer: strange legal transcript excerpts and strange laws.

As you likely know, the “transquips” are humorous sections taken from the transcripts of “real trials.” They vary from Henny Youngmanish one-liners:

Q. Doctor, did you say he was shot in the woods?

A. No, I said he was shot in the lumbar region.

To those with the long setup and stinging punch line:

Q: Doctor, before you performed the autopsy, did you check for a pulse?

A: No.

Q: Did you check for blood pressure?

A: No.

Q: Did you check for breathing?

A: No.

Q: So, then it is possible that the patient was alive when you began the autopsy?

A: No.

Q: How can you be so sure, Doctor?

A: Because his brain was sitting on my desk in a jar.

Q: But could the patient have still been alive nevertheless?

A: Yes, it is possible that he could have been alive and practicing law somewhere.

As to “Strange Laws” here are a few attributed to my home state of Florida:

If an elephant is left tied to a parking meter, the parking fee has to be paid just as it would for a vehicle. It is illegal to sing in a public place while attired in a swimsuit. Men may not be seen publicly in any kind of strapless gown. Having sexual relations with a porcupine is illegal.

You can find these things for all 50 states and countries throughout the globe.

The internet is rife with both of these forms of legal humor, and numerous books have been written on both subjects.

To me, these constitute legal humor—really humor of any kind—but only if they are true. However, I never, ever, ever see any accompanying citation to the cases or statutes from which these tidbits are taken. That really bugs me. While we don’t expect a joke to be traceable back to its creator, the very nature of these two types of humor suggests that they could be easily verified. If it’s from a transcript, there is a written record traceable to a particular case. If it is a law, there should be a citation (aside from common law, which I doubt speaks to securing pachyderms to parking meters).

… [W]hy do these claims persist? Is it the same explanation as for “urban legends”— i.e., the more ridiculous the claim, the more likely it is to be believed?


Scott Martin

I agree. If these come from official transcripts and laws, let’s see some proof.

— Thanks to Scott Martin for helping to keep legal humor honest.

Patent: Why Wait Until After Sex to Smoke?

patent for dangerous sex device

Why wait until after?

So you’re reading through the patent entries on the U.S. Patent & Trademark Office website, you know, just for fun, and come across a patent for an invention titled “Method of using a water pipe”:

Bor-ring. But wait. Not so fast. Turns out this inauspiciously titled invention is actually quite interesting:

A water pipe providing sexual stimulation includes a tube with an exit port at its upper end, an reservoir port at its lower end, and an inlet port. The inlet port is spaced from the lower end whereby the inlet port remains exposed when the lower end is inserted into a vagina. The lower end cooperates with the wall of the vagina to form a water reservoir holding water in the lower end and the vagina. A stem is received into the inlet port with an end opening submerged in the water reservoir. Suction applied at the exit port draws air through the stem to bubble through the water reservoir to generate stimulatory vibrations transmitted to the vagina. Optionally, a bowl holding combustible material communicates with the stem such that smoke bubbles through the water reservoir to simultaneously filter and cool the smoke and generate stimulatory vibrations.

 “Water pipe”? “Suction”? “Inlet port”? “Combustible material”? “Smoke”? All combined with a sensitive body part?

Is it just because I’m a Torts professor or does this sound like it fails Judge Hand’s risk-utility formula?

U.S. Patent No. 7,122,000, issued Oct. 17, 2006. Thanks to David Barman.

Patents: Drink, Drive, Get Arrested–All from the Comfort of Home

police car

These games are more fun - and much safer - to play at home.

Melanie Ware must have been in a partying mood when she did the patent research below. She’ll tell you about it:

What party would be complete without board games? Each of the priceless treasures below is a patented board game, though I’m not so sure that Milton Bradley is beating down many of the patent holders’ doors to put these things on the market. Let’s get this party started!

1. Here’s a “Board game and method for teaching responsible drinking.” U.S. Patent 6,276,686, August 21, 2001, provides in part: “Another objective is to provide a board game that teaches responsible drinking to a plurality of players.” (That’s it, share the love. Nobody wants to drink alone.) “A further objective is to provide a board game that is easy to learn and fun to play.”

2. When the “responsible drinking” goes too far, here’s a “Board game simulating drunk driving.” U.S. Patent 4,216,966, August 12, 1980. The title speaks for itself, but here is a basic overview: “The invention relates to a game board apparatus which correlates consumption of liquor and the time span during which the liquor is consumed. The game board includes a pathway of connected playing locations upon which a player token is progressed …. Adjacent some of the playing locations are stop locations where liquor and time can be obtained. With the roll of dice, the player moves toward a happening such as the theater and enroute can be moved into a liquor establishment wherein liquor is consumed over a stated period of time all evidenced on a card drawn by the player. The amount of liquor consumed and the time of consumption in the various liquor establishments are recorded on a display board. Information from the display board is transferred to a blood alcohol chart which indicates sobriety or drunkenness. If a player is shown to be drunk, the sober player token head is changed to a token head indicating drunkenness and a police car is put into play by use of a second pair of dice.”

3. Since you’ve been driving drunk, it’s only natural that you might get busted, in which case you’ll need the “Double-Standard DWI-Rules Game.” U.S. Patent 6,412,77, July 2, 2002, describes “A game for a multitude of players based on driving rules applied according to a player’s social status.” (Apparently, the game educates us on who’s most likely to get out of a DWI.) “The object of the game disclosed herein, is to provide amusement for the players while they acquaint themselves with the financial liability incurred by being arrested for driving drunk. It is also is an object of the game is to provide amusement for the players while they acquaint themselves with the behind the scene manipulations resulting in special treatment for drunk-driving offenders according to their social status.”

4. Finally, you can wend your way through the criminal justice system playing a “Board game apparatus involving criminal justice,” U.S. Patent 3,977,680, August 31, 1976. “This invention relates to an educational game which simulates the criminal justice procedure, from the initial police encounter, through Attorney selection, arraignment, the posting of bond and the selection of an appropriate jury.”

Thanks to Melanie Ware. The full text of these patents can be found by plugging in their numbers at the U.S. Trademark and Patent Office website here.

Patent: “Semen Taste-Enhancement Dietary Supplement”

Ever think being a “taste-tester” might be a good way to pick up a few extra bucks? Better read the fine print before signing up.

U.S. Patent No. 6,485,773 is a patent for an invention for a “semen taste-enhancement dietary supplement.”

This invention allegedly results in a “significant improvement to the taste of the male ejaculate by reducing its generally salty and/or bitter taste while also adding a pleasant flavor that is considered by 98.5% of all customers as very enjoyable.”

Marketing testing started with 27 couples of various lifestyles, all of who reported “significant semen-taste improvement.”

The secret ingredients include freeze-dried pineapple juice, broccoli powder, celery powder, strawberry powder and banana powder.

They’re not called Legal Oddities for nothing.

U.S. Patent No. 6,485,773, Nov. 26, 2002. Thanks to David Barman.

Law Professor Exposes Phony Tort Cases

Jonathan Turley

Professor Jonathan Turley exposed phony outlandish tort cases.

Although several years old, Professor Jonathan Turley’s USA Today article exposing phony tort cases remains must-reading for anyone concerned about the tort reform movement. Why? Because people are still circulating these tall tales.

You know those crazy tort lawsuits you read about, the ones that make people indignant about the tort sytem, the ones politicians and tort reformers use to build public support for the movement, the ones that get endlessly forwarded to email inboxes?

They’re crazy, to be sure. But, one problem. A lot of the most notorious cases are fabricated, as Turley explored in his article.

The notorious–but apparently fictitious winning-plaintiffs–and their outlandish “cases” include:

• Kathleen Robertson, a woman who–imagine this–received a $780,000 jury award against a furniture store after she tripped over her own son.

• Carl Truman, who won a $74,000 judgment after his hand was run over by a neighbor. The neighbor could not see Truman because he was kneeling down while in the process of stealing the neighbor’s hubcaps.

• Terrence Dickson of Bristol, Pa., a man who received a $500,000 award against a garage-door manufacturer after he almost starved while trapped in the garage of a house he was burglarizing while the family was on vacation.

• And my personal favorite, a Mr. Grazinski, who won more than $1,750,000 against Winnebago when the RV he was driving went off the road after he put it on cruise control at 70 mph to go into the back to fix a cup of coffee.

Turley was unable to track down records showing that any of these, or several other notorious crazy lawsuits, actually existed.

It should be more than a little troubling to people that state legislatures have passed thousands of tort reform statutes throwing out 200 years of carefully considered common law (judge-made law) in part based on sound-bite reporting of cases that never happened.

— Jonathan Turley, Legal Myths: Hardly the Whole Truth, USA Today, Jan. 30, 2005.

Inside a Real Juror’s Mind

funny jury storiesThis peek inside a real juror’s mind is hilarious. Below is a transcription of a handwritten letter from a juror to the judge during a civil trial (verified by seeing a scan of the handwritten letter). I deleted the juror’s name, left in typos, and inserted paragraph-spacing for reading convenience.

Your Honor

I am tired of spending day after day wasting my time listening to this bullcrap. This is cruel and unusual punishment. The plantif is an idiot. He has no case. Why are we here? I think my cat could better answer these questions . . . and he wouldn’t keep asking to see a document.

I’ve been patient. I’ve sat in these chairs for 7 days now. If I believed for a second this was going to end on Thursday I might not go crazy. This is going to last for another 4 weeks. I cannot take this. I hate these lawyers and prayed one would die so the case would end.

I shouldn’t be on this jury. I want to die. I want to die!! Well not die for real but that is how I feel sitting here. I am the judge, you’ve said that over and over, well I am not fair and balanced. I hate the plantif. His ignorance is driving me crazy. I know I’m writing this in vain but I have to do something . . . for my sanity. These jury chairs should come with a straight jacket.

An entire day today and we are still on the same witness. The defense hasn’t even started yet and we have 3 days left 3 days my ass. Not that the defense needs a turn considering the plantif and his lawyer (who looks like the Penquin) have no case!!!! Thanks for letting me get this off my chest. Please keep the disordelies nearby. I may need them.

Juror #5

— Thanks to Tom Slater

Joe Walsh Tells Joe Walsh to Cease and Desist

rock star joe walsh warns congressman joe walsh

Don't mistake Congressman Joe Walsh for Rock Star Joe Walsh, although life's been good to both of them so far.

A Los Angeles lawyer representing rocker Joe Walsh (James Gang, Eagles) sent a snide cease and desist letter to an Illinois Congressman of the same name for allegedly using the melody from Walsh’s classic song “Walk Away” to promote his campaign, retitled and with new lyrics. Here are some excerpts:

Dear Mr. Walsh:

We represent Joe Walsh—not you, but the musician who plays guitar with the Eagles. Joe wrote a song called “Walk Away.” A lot of people know this song. That’s why when they heard your campaign song, “Lead The Way,” they noticed it was the same song as “Walk Away,” but with peculiar lyrics.

As a candidate for Congress, you probably have a passing familiarity with many of the laws of this great country of ours. It’s possible, though, that laws governing intellectual property are a little too arcane and insufficiently populist for you to really have spent much time on. …

First, there’s the United States Copyright Act. It says a lot of things, but one of the things it says is that you can’t use someone else’s song for your political campaign promotions unless you get permission from the owner ….

Second, … you’re not allowed to take someone’s song and change the lyrics. … Now, I know why you used Joe’s music—it’s undoubtedly because it’s a lot better than any music you or your staff could have written. But that’s the point. Since Joe writes better songs than you do, the Copyright Act rewards him by letting him decide who gets to use the songs he writes.

You might also want to check out the trademark laws. They’re there to protect the public from being confused as to the source of goods or services or as to whether someone endorses particular goods or services. Given that your name is Joe Walsh, I’d think you’d want to be extra careful about using Joe’s music in case the public might think that Joe is endorsing your campaign or, God forbid, is you. …

I’m sure that when you take this letter to a lawyer with a passing knowledge of copyright and trademark law, he’ll give you some good lawyer words to put in a letter back to us – things like “First Amendment,” “fair use,” “parody” and “so’s your old man.” Having dealt with situations like this in past, we know that the first refuge of political scoundrels is the First Amendment. …

As a former Presidential candidate, Joe Walsh knows how tough it is to get elected. But he always played by the rules. And so should you. Therefore, we must insist that you discontinue using in your campaign any material that infringes the copyright in “Walk Away” (or any of Joe’s other songs).

We trust that you will promptly comply with this request so that we don’t have to go all Jackson Browne on you [referring to Jackson Browne suing John McCain for using his song “Running on Empty” during the 2008 campaign without permission]. …

Congressman Walsh responded in a letter asserting the song was performed as a parody, not for campaign promotion, and is protected under the fair use doctrine of U.S. copyright law.

— Letter from Peter T. Paterno to U.S. Rep. Joe Walsh (Ill.), 1/26/2010. Thanks to Professors Janet Richards and Jodi Wilson.

Justice Scalia Nineteen Times Funnier Than Justice Ginsburg

study shows Scalia is funniest supreme court justice

Justice Ruth Baeder Ginsburg – Not that funny according to study.

Boston University Law Professor Jay D. Wexler conducted a study of the relative funniness of U.S. Supreme Court Justices. His results were published in The Green Bag and reported in the New York Times.

Wexler’s methodology was to count and tabulate the insertions of “[Laughter]” in transcripts of oral arguments during the 2004 term, when argument transcripts began including the Justices’ names. The results include the conclusion that Justice Antonin Scalia is the Chief Comedian on the High Court, nineteen times funnier than Justice Ruth Bader Ginsburg. Scalia, the study showed, is good for at least one laugh per oral argument. On the other hand, Justice Clarence Thomas, who rarely speaks during oral arguments, received no laughs.

As the New York Times article pointed out, the baseline for laughter in the solemn Supreme Court is fairly low. It’s not likely the same comments would generate guffaws on Comedy Central.

Here are some Supreme Court rib-ticklers quoted in the New York Times article:

[After a lightbulb exploded in the courtroom:]”It’s a trick they play on new chief justices all the time,” Chief Justice John G. Roberts Jr., who joined the court that month, said of the explosion.


“Happy Halloween,” Justice Scalia retorted.


And then, the kicker. “We’re even more in the dark now than before,” Chief Justice Roberts said.


On the other hand, in a January argument in a statute-of-limitations case, Justice Anthony M. Kennedy made an amusing observation about the absurdity of modern life.

“Recently I lost my luggage,” Justice Kennedy said. “I had to go to the lost and found at the airline, and the lady said has my plane landed yet.”


That’s gold. Let’s see a sitcom based on the madcap lives of U.S. Supreme Court Justices.

— Adam Liptak, So, Guy Walks Up to the Bar, and Scalia Says …, N.Y. Times, Dec. 31, 2005.

Motion for Fist Fight

legal motion to fist fight

Lawyers at work?

A Montana criminal defense lawyer filed a motion for the court to order a fist fight between the defense team and the prosecutors in a case in which the lawyer’s client allegedly killed someone who was bullying him or his friend or both.

The motion is not exactly a model of clarity, but the lawyer apparently was trying to make the point that, in prosecuting his client for killing in apparent self-defense while being attacked with fists, the state was condoning fist fights. Here’s how the motion starts out:

COMES NOW counsel for Defendant, through his [sic] and respectfully requests this Court to Order a fist fight between Shaun Donovan and John Connor on one sided [sic] and Kirk Krutilla and Bill Buzzell on the other side.”

The lawyer then argues that the prosecutors had taken the position that it was “perfectly right, legal and moral” for the deceased to have attacked the defendant and states that the defense team would love to give Donovan and Conner a chance to stand up for the principle they stand for; i.e. the brutal humiliation and beating up of weaker human beings is the most cherished principle in life. Therefore, the defense moves that before the hearing April 17, 2006 that the state be given a chance on what they cherish in a resolution of dispute and that there be a fist fight [between the prosecutors and the defense lawyers].

Not surprisingly, the prosecutors took issue with the defense’s characterization of the state’s position in the State of Montana’s Response to ‘Motion for Fist Fight,’ and requested “that the Court deny the same.”

The prosecutors insisted they were not standing up for a legal and moral right to beat up people. Instead, “the State has asserted from the outset that the infliction of thirteen lethal stab wounds on an unarmed aggressor by [the defendant and his friend]” was an excessive use of force in self defense.

The prosecutors argued the defendant’s motion was “ill conceived” and that humor should not extend to filed court pleadings in a case which has lead to the death of one young man, serious and possibly permanent injury to others and the specter of long imprisonment and community strife for others.

After condemning the defense lawyer’s motion, the prosecutors puffed up and essentially insisted they could kick the defense lawyers’ butts if the proposed fight were to ensue, or as they put it in a more lawyerly fashion, they were “confident they could acquit themselves respectably if it were necessary to settle any part of this matter by means of a physical contest.”

— Motion for Fist Fight, Montana v. Mauher, Case No. D2005-8, Mont. 4th Judicial Dist. Ct., Mineral County, filed Mar. 27, 2006. Thanks to Donna Mustard.

Palsgraf Curse?

Palsgraf curse

Cardozo wrote the famous majority opinion in Palsgraf.

Several lawhaha visitors sent in Mark Fass’s article in the New York Law Journal about an alleged curse on the family of Helen Palsgraf, the most famous torts plaintiff in history. Every lawyer remembers Mrs. P from law school. To test this theory, visit an elderly, dying lawyer in a coma and shout “Palsgraf!” Immediately, he will recite: “A man carrying a box wrapped in newspaper boarded a train at the Long Island Railroad Station … cough, cough … ack.”

The box contained fireworks. When it was dislodged by employees of the Long Island Railroad trying to help the man on the train, the fireworks exploded, allegedly knocking a scale onto Mrs. P. Mrs. P’s saga led to the legendary, and incredibly confusing, opinions by Judge Benjamin Cardozo (that’s Cardozo in the picture–handsome fellow he was) and Judge William Andrews studied by students year in and year out at law schools great and small.

Now Fass reports that Mrs. P’s accident began a curse on the Palsgraf family, at least that’s what some of her descendants believe. One descendant fell off a ladder in 1965 and sued the manufacturer, but never made it to trial because the ladder was stolen. Another lost her thumb when a ping-pong table collapsed. A lawsuit led to a small settlement. Another descendent tripped while jogging over a broken curb, but was discouraged by lawyers from filing suit.

The most intriguing Palsfraf mishap reported by Fass involves a descendant who lost control of his truck on an icy hill in 1968. The truck slid towards the edge of cliff. Guess what saved the life of Mrs. P’s closest living relative? The truck’s wheels got caught on a track of … you guessed it, the Long Island Railroad. (Cue Twilight Zone theme.)

— Mark Fass, Palsgraf Railroad Injury Proximate Cause of Family Curse?, New York Law Journal, Dec. 10, 2004.

Mrs. Palsgraf is Alive, in the U.S. Supreme Court

PalsgrafAs a Torts prof, I loved this tidbit sent in by Elise Hendrick. Good old Mrs. Palsgraf. You can try, but you can’t keep her down.

Elise was listening to oral arguments before the U.S. Supreme Court in Exxon Co. USA v. Sofec, 116 S.Ct. 1813 (1996), and came across the following exchange between George Playdon, counsel for Sofec, and Justice Scalia. The two were engaged in a colloquy about the maritime supervening cause doctrine:

Scalia: I’m not sure that you need a “doctrine of supervening cause.” Is a doctrine of supervening cause anything other than Palsgraf? When you say, you know, that the negligence … the causality … had long since terminated. Once you say you’re out of the scope of the risk, what do you need a doctrine of supervening cause for? And isn’t that basically your case?

Playdon (chuckling): I smile—I never envisioned thirty years ago that I’d have the opportunity …

Scalia: Of arguing Palsgraf!

Playdon (stammering, laughing): Obviously, Palsgraf is a foreseeability doctrine, just like Hadley v. Baxendale is a foreseeability problem.

Elise speculates that this may have been the first time the implausible case of Mrs. P has been mentioned in court since Palsgraf was decided in 1928.

— Thanks to Elise Hendrick.

Patent: Breath of Fresh Air? Not!

patent for getting fresh air from a toiletU.S. Patent No. 4,320,756 appears to be a useful and quite ingenius invention that could prevent deaths from smoke inhalation in the event of fire by allowing trapped occupants in proximity to a toilet an alternative source of air.

The illustration shows a man with a tube in his mouth. The tube runs into a toilet and back into the toilet sewage pipe, where breathable air apparently exists. But the inventor oversells the invention a bit by naming it the “Fresh-Air Breathing Device and Method,” and repeatedly extolling the “fresh air” one can access while waiting for help from firefighters.

Fresh air? Not too sure about that. The breathing tube connects to “a sewer line or soil pipe for draining waste materials and water upon flushing of the toilet.” It does contain a filter to help deal with the “residual sewer gases.” I guess that would help.

By the way, an excellent part of the invention claimed is “the step of flushing said toilet” prior to inserting the breathing tube. Leave it to those inventors. They think of everything.

U.S. Patent No. 4,320,756, Mar. 23, 1982. Thanks to David Barman.

What’s Next? No Splitting Hairs?

law bans tongue splittingFrom University of Illinois law librarian Paul D. Callister came news of an Illinois law, House Bill 3086, that would amend the Illinois Criminal Code to ban the “splitting of tongues” except by licensed physicians or dentists and then “only if there is a therapeutic or clinical procedure for performing the procedure.”

What is “tongue-splitting”? Pretty much what it sounds and looks like. According to the statutory definition, it “means the cutting of a human tongue into 2 or more parts.” Why this procedure is so popular that legal sanctions are required to prevent its apparently rampant medically unnecessary use is mysterious. Seems understandable the legislature wouldn’t want people cutting other people’s tongues into parts unless there was a “therapeutic or clinical” need for it. On the other hand, citizens arguably have a constitutional liberty interest in splitting their tongues just for the heck of it (assuming they’re competent and sober when the procedure is performed).

Paul wryly observed that “[a]pparently, politicians may still speak with forked-tongues, but it is illegal to facilitate the practice among the general population without proper licensing and establishing medical necessity.”

— Illinois House Bill 3086.

Patent: Coitus Interuptus Via a Recording Vibrator

patent for audio recording vibratorGood old American ingenuity and entrepreneurship. Just when you think everything worth inventing has already been invented, someone comes up with a great invention like the one described in U.S. Patent No. 5,928,170: the “audio-enhanced sexual vibrator.”

The ultimate gift for multi-taskers, this is a vibrator with a built-in “audio signal processor for recording and playing back personalized messages, before or after sexual interplay for enhanced aural stimulation.”

The main object of the invention is “to enhance the pleasure or satisfaction of a person during sexual intercourse, sexual simulation, or orgasmic therapy by providing a vibrating device which can record intimate or personalized messages, music or other sound effects ….”

However, “a further object of the invention is to provide a vibrator that can capture spontaneous thoughts or ideas occurring during a sexual situation, whereby those thoughts or ideas may otherwise be lost or forgotten if not recorded during the emotional or passionate state of sexual arousal.”

Suppose, for example, in the middle of sex, the user remembers they forgot to pick up the dry cleaning.  Just make a quick memo to self and no worries.

If they could only build a smart phone into it, they’d really have something going.

U.S. Patent No. 5,928,170

Patent: A Talking Head of the Worst Kind

patent for talking toiletYou’d think the bathroom would be the one place you could escape to for some quiet time, but no.

U.S. Patent No. 6,417,773, issued July 9, 2002, is for a talking toilet. This invention allows one to record audio messages that are delivered to toilet users when a microphone hears the sound of the toilet flushing. The purpose of the invention is to promote good hygiene by reminding toilet users to wash their hands, but since users can record any message they want, there’s no reason the device couldn’t be put to other good uses like practical jokes or even political commentary. “There goes the economy” with every flush could have your guests in stitches.

For more toilet humor, check out U.S. Patent No. 5,829,068, issued Nov. 3, 1998, which could prove to be the greatest invention ever for promoting peace in the war between the sexes. The invention is a hydraulic toilet seat raising and lowering device. No more, “Honey, you didn’t put the seat down.” Let this baby do it for you.

— Thanks to David Barman, the Patent Man.


Patent: The Amazing Patented “Stick”

patent for dog toyOkay, maybe it’s a little fancier than a stick, but it’s still pretty funny that someone could get a patent for “[a]n apparatus for use as a toy by an animal, for example a dog, to either fetch, carry or chew; includes a main section with at least one protrusion extending therefrom that resembles a branch in appearance.” U.S. Patent No. 6,360,693.

Included in the invention are the “OBJECTS AND SUMMARY OF THE INVENTION,” such as: “It is an object of the present invention to provide an animal toy that a dog may carry in its mouth.” Wow, that is like, almost Edison-esque.

And this one: “It is also an important object of the invention to provide an animal toy that is easy for a dog to pick up off of the ground.” Well, of course, that’s important. Dogs have a rough enough life as it is without having to suffer the annoyance of fetching a toy that’s hard to pick up off the ground. Think how aggravating that must be.

This must-have toy for your canine friends also floats, glows in the dark and is flavored.  You can see how wistful the doggie in the picture looks, stuck with that large tree limb instead of a coveted patented stick.

U..S. Patent No. 6,360,693, issued Mar. 26, 2002. Thanks to David Barman.


California Ordinance Bans “Boobie Pillows”

California law banning boobie pillows

Not a "boobie pillow" ( is family friendly.)

Patrick Strader reports that he came upon this California ordinance banning “boobie pillows” accidentally, while searching under “B” in the code index for something more mundane–“Bills of Lading” or perhaps “Boards or Commissions.” Of course, he had to stop and look it up.

9.12.010 Public sales of articles depicting female breasts.

A. Finding of Fact Leading to Enactment.

Residents of the county have petitioned the board of supervisors of the county to prevent persons who display, sell or offer to sell upholstered or stuffed articles depicting, simulating or caricaturing female breasts from vending such articles at sites adjacent to and near county highways. …

The petitioners have represented, and the board of supervisors finds, that (unlike indecent and vulgar displays in movies, newspapers, television and other places, the offensiveness of which can be prevented or controlled by turning off the set, canceling a subscription, declining to purchase, or nonattendance) the hawking of those articles named by its vendor and sold as “boobies pillows” along the public highways is a species of indecency and vulgarity which cannot be ignored or controlled by passersby, which assails the eyes and minds of all who are required to use county highways, and which should be barred and controlled for the peace, safety and welfare of the unincorporated areas of the county.

B. Display and Sale Banned Within One Thousand (1,000) Feet of Highways.

No vendor shall vend stuffed articles depicting the female breasts (sold as “boobie pillows”) within one thousand (1,000) feet of any county highway.

C. Regulation of Display More Than One Thousand (1,000) Feet from Highways.

No vendor shall vend stuffed articles depicting the female breasts (sold as “boobie pillows”) anywhere in the unincorporated area of the county unless: [elaborate conditions are enumerated]

Violations are a misdemeanor punishable by a fine of not more than five hundred dollar ($500.00) or imprisonment in the county jail for not more than ninety (90) days, or both. Each day of violation constitutes a separate offense. Residents can now sleep easily.

Dam Those Beavers

beaver disputeCheck out this “cease and desist” letter sent by the Michigan Department of Environmental Quality regarding the unauthorized construction of two dams on some property, and the amusing reply (some paragraph breaks for reading ease).


December 17, 1997

Dear Mr. DeVries:

SUBJECT: DEQ File No. 97-59-0023-1 T11N, R10W, Sec. 20, Montcalm County

It has come to the attention of the Department of Environmental Quality that there has been recent unauthorized activity on the above referenced parcel of property. You have been certified as the legal landowner and/or contractor who did the following unauthorized activity:

Construction and maintenance of two wood debris dams across the outlet stream of Spring Pond. A permit must be issued prior to the start of this type of activity. A review of the Department’s files show that no permits have been issued.

Therefore, the Department has determined that this activity is in violation of Part 301, Inland Lakes and Streams, of the Natural Resource and Environmental Protection Act, … being sections 324.30101 to 324.30113 of the Michigan Compiled Laws annotated. The Department has been informed that one or both of the dams partially failed during a recent rain event, causing debris dams and flooding at downstream locations.

We find that dams of this nature are inherently hazardous and cannot be permitted. The Department therefore orders you to cease and desist all unauthorized activities at this location, and to restore the stream to a free-flow condition by removing all wood and brush forming the dams from the strewn channel. All restoration work shall be completed no later than January 31, 1998. Please notify this office when the restoration has been completed so that a follow-up site inspection may be scheduled by our staff. Failure to comply with this request, or any further unauthorized activity on the site, may result in this case being referred for elevated enforcement action. We anticipate and would appreciate your full cooperation in this matter.

Please feel free to contact me at this office if you have any questions.


David L. Price

District Representative Land and Water Management Division


Dear Mr. Price:

Re: DEQ File No. 97-59-0023; T11N, R10W, Sec 20; Montcalm County

Your certified letter dated 12/17/97 has been handed to me to respond to. …

First of all, Mr. Ryan DeVries is not the legal landowner and/or contractor at 2088 Dagget, Pierson, Michigan–I am the legal owner and a couple of beavers are in the (State unauthorized) process of constructing and maintaining two wood “debris” dams across the outlet stream of my Spring Pond. While I did not pay for, nor authorize, their dam project, I think they would be highly offended you call their skillful use of natural building materials “debris.”

I would like to challenge you to attempt to emulate their dam project any dam time and/or any dam place you choose. I believe I can safely state there is no dam way you could ever match their dam skills, their dam resourcefulness, their dam ingenuity, their dam persistence, their dam determination and/or their dam work ethic.

As to your dam request the beavers first must fill out a dam permit prior to the start of this type of dam activity, my first dam question to you is: are you trying to discriminate against my Spring Pond Beavers or do you require all dam beavers throughout this State to conform to said dam request? If you are not discriminating against these particular beavers, please send me completed copies of all those other applicable beaver dam permits. Perhaps we will see if there really is a dam violation of Part 301, Inland Lakes and Streams, of the Natural Resource and Environmental Protection Act, … being sections 324.30101 to 324.30113 of the Michigan Compiled Laws annotated.

My first concern is–aren’t the dam beavers entitled to dam legal representation? The Spring Pond Beavers are financially destitute and are unable to pay for said dam representation – so the State will have to provide them with a dam lawyer. The Department’s dam concern that either one or both of the dams failed during a recent rain event causing dam flooding is proof we should leave the dam Spring Pond Beavers alone rather than harassing them and calling them dam names. If you want the dam stream “restored” to a dam free-flow condition – contact the dam beavers – but if you are going to arrest them (they obviously did not pay any dam attention to your dam letter-being unable to read English) – be sure you read them their dam Miranda rights first. As for me, I am not going to cause more dam flooding or dam debris jams by interfering with these dam builders.

In my humble opinion, the Spring Pond Beavers have a right to build their dam unauthorized dams as long as the sky is blue, the grass is green, and water flows downstream. They have more dam right than I to live and enjoy Spring Pond. So, as far as I and the beavers are concerned, this dam case can be referred for more dam elevated enforcement action now. Why wait until 1/31/98?

The Spring Pond Beavers may be under the dam ice then, and there will be no dam way for you or your dam staff to contact/harass them then. In conclusion, I would like to bring to your attention a real environmental quality (health) problem: bears are actually defecating in our woods. I definitely believe you should be persecuting the defecating bears and leave the dam beavers alone. If you are going to investigate the beaver dam, watch your step! (The bears are not careful where they dump!) Being unable to comply with your dam request, and being unable to contact you on your dam answering machine, I am sending this response to your dam office.


Stephen L. Tvedten

— Thanks to Lihwei Lin. Lihwei’s sleuthing verified that the letters are authentic.

About Legal Oddities

Of the millions of strange events that occur every day in the world, an amazingly high percentage of them have some connection to the law. Why? Because the law permeates every aspect of human existence. The law’s intertwining with daily life is limited only by the ability of human beings to act properly, rationally, and legally. In other words, there are no limits at all.

The world is overflowing with weird legal news, way more, it turned out, than could handle. We decided to leave current legal news reporting to others. Legal Oddities focuses on legal curios with a longer shelf life, in these categories:

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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Funny Law School Stories
For all its terror and tedium, law school can be a hilarious place. Everyone has a funny law school story. What’s your story?

Strange Judicial Opinions
Large collection of oddball and off-the-wall judicial opinions and orders.

Product Warning Labels
A variety of warning labels, some good, some silly and some just really odd. If you come encounter a funny or interesting product warning label, please send it along.

Tortman! Andrew J McClurg
Tortland collects interesting tort cases, warning labels, and photos of potential torts. Raise risk awareness. Play "Spot the Tort."

Weird Patents
Think it’s really hard to get a patent? Think again.

Legal Oddities
From the simply curious to the downright bizarre, a collection of amusing law-related artifacts.

Spot the Tort
Have fun and make the world a safer place. Send in pictures of dangerous conditions you stumble upon (figuratively only, we hope) out there in Tortland.

Legal Education
Collecting any and all amusing tidbits related to legal education.

Harmless Error
McClurg's twisted legal humor column ran for more than four years in the American Bar Association Journal.