Wacky Personal Injury Sticker: Injured? Good!

Talk about a wacky sticker. We’ve all seen the billboards and city benches and bumper stickers, etc., bearing advertisements from plaintiffs’ personal injury lawyers along the lines of:

INJURED? You may be entitled to compensation. Call Tammy the Terminator today for a free consultation!

But walking to a gym last week, I passed a car with this sticker on the rear window:

INJURED? GOOD

Yikes! Surely it’s a joke … I hope. If anyone recognizes the two dudes pictured, let me know.

Praise for McClurg’s Newest Novel

McClurg’s fifth novel, Funeral Daze, under his pen name Dorian Box, is out  and getting terrific reviews. Check it out on Amazon.

Praise For McClurg’s (aka Dorian Box) Latest Novel

“FUNERAL DAZE by Dorian Box manages to be laugh-out-loud funny, heartwarmingly tender, and full of lively action and suspense, all at once—a thoroughly entertaining and engaging read.” — IndieReader (5 Stars; IR Seal of Approval)

Funeral Daze is a novel that takes both light and dark elements to present a fantastically engaging, emotionally resonant story in a deeply humorous and satirical fashion. Unmissable reading.” — 2023 Readers’ Favorite Silver Medal for Humor Fiction)

“A hilarious page-turner that effortlessly blends crime, humor and South Florida beach culture. … Award-winning author Dorian Box (Psycho Tropics, The Hiding Girl) has always employed brilliant doses of well-timed levity in crime fiction, but he pulls out all the stops for this laugh-out-loud caper.” — BestThrillers

“The story unfolds at a crisp and steady pace, with plenty of thought-provoking moments once 12-year-old Jessica enters the scene, offering Danny surprisingly mature reflections on tragedy and a knockout mystery to occupy his time. … Funeral Daze delivers an appealing spin on the mystery genre through rich characterization and an abundance of insight throughout.” — Publishers Weekly BookLife Prize Seminfinalist

“A perfect beach read, this zany mystery has the thrills, quirky characters, juicy plot twists, and gripping conclusion you’re looking for!” — Reedsy Discovery

“Time and again, Box has proven he can write a tense thriller that is funny, dark, and completely endearing. It’s the perfect combination of a smart storyline and characters that keep you reading well after bedtime. Fantastic!” — NetGalley

Funeral Daze is a macabre and hilarious novel that intersects the lives of several bizarre and oddly compelling characters. … Dorian Box masterfully directs the story into a series of unpredictable and uproarious events that are deliciously ironic, unexpectedly thought-provoking, and always edgy and dark.” — D. Donovan, Senior Reviewer, Midwest Book Review

And don’t forget McClurg’s (Box’s) other award-winning novels.

Forged License Plate Is Art for Art’s Sake

This effort to forge a license plate’s vehicle registration renewal sticker must have been art for art’s sake, because it surely had no chance of fooling anyone.

Bartlett is an incorporated suburb of Memphis. The Bartlett police recently posted this picture on their Facebook feed.

Give them credit for their sense of humor. “Nice try, but no,” they said.

McClurg Interviewed for “Criminal” Podcast Re “Mantraps”

“Criminal,” the highly rated podcast of true crime stories run by former NPR reporters, interviewed me for its newest episode called “Mantrap.” It addresses civil liability for harm caused by deadly booby traps set to protect uninhabited property. Here’s a link to the website podcast and here’s a link to all of the links where the podcast can be heard (e.g., Spotify, Google Play, iTunes, etc.).

My contribution involved one of my favorite tort law cases, Katko v. Briney, the infamous Iowa spring-gun case.

Plaintiff Marvin Katko broke into Ed and Bertha Briney’s uninhabited farmhouse in Eddyville, Iowa, in search of old jars and bottles he considered to be antiques, only to have his leg blown off by a shotgun wired to a bed in one of the bedrooms. The Brineys were fed up with people breaking into the house, which had stood empty for years, so they wired a shotgun to an inside door.

The court described the shotgun-trap as follows:

“After Mr. Briney cleaned and oiled his 20-gauge shotgun, the power of which he was well aware, defendants took it to the old house where they secured it to an iron bed with the barrel pointed at the bedroom door. It was rigged with wire from the doorknob to the gun’s trigger so it would fire when the door was opened. Briney first pointed the gun so an intruder would be hit in the stomach but at Mrs Briney’s suggestion it was lowered to hit the legs.” (Emphasis added.)

(In a previous post, I describe, image included, the amazing claim by the current property owner that he is in possession of the actual wire used for the trap.)

Katko sued the Brineys and—despite the fact that he broke into their farmhouse with an intent to steal—won a substantial jury verdict for both compensatory and punitive damages. Unable to pay it, the Brineys had to sell eighty acres of their farm to three neighbors who agreed to hold it in trust for the Brineys in the expectation that the Iowa Supreme Court would reverse the trial court’s judgment for Katko. But that didn’t happen. The judgment was affirmed on the ground that deadly force cannot be used to protect property only.

Criminal’s new podcast explores the Briney case along with a few other “mantrap” cases.

1L of a Ride Number One Bestseller … in Jurisprudence?

Karl Llewellyn, Roscoe Pound, Ronald Dworkin … McClurg?

And you thought 1L of a Ride was simply a helpful law school prep book, but it’s the number #1 Best Seller on Amazon in “Jurisprudence.”

Yale, Chicago, Harvard, I’ll be waiting for your calls.

The Eminent Domain Power Explained in a Child’s Drawing

“Eminent domain” is the power of federal and state governments to “take” private property for public use. In 1879, the U.S. Supreme Court held that the power “requires no constitutional recognition” because it is an inherent power of sovereign governments. But governments can’t just take your property without paying for it. The Fifth Amendment to the United States Constitution provides that no private property can be taken for “without just compensation.” Here’s a good history of it.

The Fifth Amendment eminent domain clause is often called “the taking clause,” for obvious reasons. While it only applies to federal actions, all states provide for the power of eminent domain in legislation and/or their state constitutions.

Through the years, lawyers and judges have spent untold hours litigating thousands of eminent domain cases. Many legal treatises addressing the doctrine exist, including the definitive Nichols on Eminent Domain.

But leave it a child to unravel this complex doctrine in a single illustration. This comes from the daughter of two former law students of mine, who gave me permission to post it. I love the expressions on the characters’ faces. Even the getaway horse looks slightly nefarious. And the constable’s words capture the doctrine beautifully: “Hold it right there! I have the right to borrow your horse! If I injure it I will pay a fair price for it. Hurry please! Before that escapee gets away!”

How To Know If You’re a Small-Town Lawyer

While many law students crave the riches and prestige of Biglaw, small-town lawyering is where the real action is at. But how do you know if you really are a small-town lawyer?

The answer came to me courtesy of former student Jim Jackson, who practices tort law in Arkansas (and generously says he was inspired to pursue that area after taking my Torts and Products Liability courses at the UALR School of Law).  He shared a quiz of sorts compiled by a friend named Michael who practices in Crossett, Arkansas. Crossett, on the Louisiana border,  is the county seat and has a population of about six thousand. It’s the very definition or small-town, rural law practice.

Michael’s small-town lawyer test (posted on a trial lawyer’s listserv) consists of a summary of various cases he handled in 2021 (I took the liberty of editing punctuation):

Hi all,

As we begin 2022 I thought I would take a moment and reflect back on some of my more memorable cases as a small town lawyer. So, without further ado …

You might be a small town lawyer if:

1. You have ever had to explain to a client that your “dignity” would not allow you to have a hearing to determine who gets the “Texas Instrument” calculator.

2. You have ever filed a petition seeking an “emergency order of custody” for a goat, because the husband had announced his intentions of having a barbeque, featuring your client’s beloved pet, Marvin.

3. You have ever settled a divorce case by virtue of an agreement with opposing counsel that the attorneys would pitch in $100 each and buy the horse since the parties could not agree on who was going to be awarded the horse.

4. You have ever been involved in a hearing for order of protection that began when the spouse/wife declared to your client that she was going to “take his two pet service squirrels and turn them into owl shit as soon as he left the house!!!!” … and that’s when the fight started.

5. You have ever defended “your secretary” in district court for delivering an “ass” whipping to her ex-boyfriend’s current girl friend in the middle of the Walmart parking lot.  Sigh. Unfortunately, the camera footage pretty well eliminated any hope of a defense. On the bright side, it was a hell of a video.

6. You have ever defended a man in district court over a battery charge that all began with a simple misunderstanding following the girlfriend’s announcement of her pregnancy.

My client took what he deemed to be the “high road” and promptly declared, “Well if it’s mine, I will help support it.” His view on this being that was an appropriate offer under the circumstances. To say that the young lady did not take his offer in the spirit with which it was intended would be a gross understatement. The best way to describe her response would be to say it was “volcanic.”

My 6-foot-tall, 250-pound client was chased out of the house in his boxers by an irate and irrational 5-foot-3, 135 pound female wielding a Ginsu kitchen knife. He lost the tip of his thumb in the scramble and had to sneak back later to get his clothes off the roof of the neighbor’s house (apparently his keys, wallet and cell phone were all in the clothes).

My argument to the court was that he had already suffered a punishment worse than anything the court could impose on him and we should let it go on a “time served” basis. The judge took the matter under advisement.

We are still awaiting a ruling. It has been 7 months.

May your 2022 be as much fun as 2021 was for me.

May you remember it’s not always about how much money we make. Sometimes it’s about how much of a difference we make in the lives of our clients who have trusted us with their problems in their times of need.

It is a blessing and an honor to be able to practice law.

Okay, Biglaw associates. The billable-hour clock is ticking. Time to get back to reviewing documents and doing due diligence. Me, I’m heading to Crossett for some excitement!

Experts Predict the Job Market in 20 Legal Specialties

Law students spend too much time reading cases and too little time thinking or learning about what kind of legal job would be the best fit for them. In the cover story for the Fall 2021 issue of The National Jurist Magazine, I and my co-authors of Law Jobs: The Complete Guide (West Academic Publishing 2019) seek to predict the job market in 20 legal specialties.

Read 20 Hottest Law Jobs for the Next Decade

Worthwhile reading for all law students. But it’s not enough. Your goal in choosing a legal career isn’t just to find a job, but find one that fits your values, personality, and overall goals in life. Is money the most important thing to you? Autonomy? Work-life balance? In more than six hundred pages, Law Jobs covers in detail the pros and cons of every major legal career type. Only by knowing these, will you be in a position to find your dream job. Check it out.

Meanwhile, enjoy reading our predictions for twenty legal specialties for the next decade!

The Grammar Judge Strikes Again

I have a judge friend who’s a stickler for grammar. Today, she sent this little gem along:

If you ever doubted the importance of the correct placement of prepositional phrases to the meaning of a sentence … The following is drawn from a motion sent to me today:

“More significantly, the Husband attempted to drive a vehicle with the minor children in a clearly intoxicated state ….”

Oh my, let’s hope not!

Man Shows Up for Divorce Hearing Bare-Chested and in a Bathing Suit

An important rule for young lawyers to know is that it’s essential to counsel clients to wear appropriate attire to court hearings.

Sometimes clients will come to court, for example, without wearing a suit or tie, but only in Zoom land, and possibly Florida, would a client show up bare-chested and wearing only a bathing suit.

A Florida judge friend received an abject apology from an attorney after her client “showed up” for his final divorce hearing (via Zoom) so attired. The lawyer assured the judge that they always go over with clients the appropriate attire for court hearings.

To her credit, the judge took it all in stride, responding to the attorney with this email (names omitted). The bolded part is pretty funny:

Ms. [deleted]:

I appreciate your emailed note, apologizing that your client was not properly attired for his Zoom dissolution of marriage hearing. Please be assured that I am entirely confident that you advise clients what to wear for their dissolution of marriage hearings. I am aware that some clients, especially those under stress in family law cases, simply do not hear or register the instructions.

Of course, given Mr. [deleted]’s attire (swim trunks, bare chest, and – I can’t remember which – either flip flops or bare feet) and location (beach), I’m not sure I would classify him as terribly stressed….

Have a good weekend!

[Judge ——-]

Hey, it is Florida, after all.

Satirical Legal Dictionary

NOT Black’s Law Dictionary

From the cold lands of Minnesota, comes lawyer Adam Johnson and his work-in-progress satirical legal dictionary found here, titled Deuce-Ace’s Law Dictionary.” It contains helpful definitions like this one:

adultery. 1. to act upon instinct. 2. a proximate cause of manslaughter.

Always happy to promote legal humor, I asked Adam to write an introduction to his work:

When one contemplates the idea of a legal dictionary – which one probably is not in the habit of doing of a quiet evening, but whatever – Black’s invariably comes to mind. That profuse work by Henry Campbell Black continues to dominate the legal lexicographical field. It is a seminal work, and this humble writer would not deny Professor Garner that claim. Black’s achievement is magnificent and its ubiquity is self-evident. It is relied on by the Alaskan judge, the weary Floridian student of law and the hack divorce lawyer in Billings. Thousands of copies fall from shelves yearly in all the blessed states of the union. We should rejoice in such an authoritative voice.

Yet there is a certain natural gloominess in the amalgamation of lexical authority in a single source: an almost inorganic limitation, if one may be so bold as to make such an unclear claim. At times it is necessary for the mutterings of another, if only to second or oppose a motion. Language is a thing argued over interminably by lawyers, and it is unfortunate that no Burrill, Kinney, Wharton, Bouvier or Mouldycastle has arisen in this century to add their say about words. True, there is Ballentine’s and Oran’s, both capable and extensive works, and Webster’s has made a go of it. But the field is wanting of something more.

A successful lexicographical work is sometimes that which arises from frank observation. It is simply candor at its truest, or not. It is the unfiltered examination of words by conventional understanding. It is stuff.

I reckon there are those pedants who won’t suffer Dr. Deuce-Ace’s work ab ante, but it is not for them he wrote. It adduces truth through farce, in a way, I suppose, perhaps, maybe. There are on the one hand mockeries and simple jests, while on the other serious relations of latent truths, or something. Scholarly square-toes will find much objectionable about the dictionary, as will the somber office drudge. This because the bloody thing wasn’t written for the serious type, but for your average mouth-breather, such as yours truly.

Dr. Deuce-Ace’s dictionary is a thing to be chuckled at over toilet-rites, not cited in a paper. It should sit on a ceramic tank – it should not rest on a cherry shelf. It is unconcerned with being authoritative simply because it is anti-authority and altogether brief. It needs no defenders because it is so patently in the wrong. It is a twaddling little bit of burlesque fit for the easy eyes of a man or woman at their leisure. It is, in fine, a bit of butter fat, nothing more. It is what it is, and it doesn’t pretend to be what it is not. And even if it were what it is not, it would still be what it is. At the very least, we may comfort ourselves with these final aspects of it.

Thanks, Adam!

New Artifact from Katko v. Briney, the Infamous Spring-Gun Case

The actual wire used to set up the shotgun trap in Katko v. Briney

Lawhaha.com has uncovered new details—and a Torts artifact—regarding the infamous “Iowa spring-gun case”: Katko v. Briney. Most law students read and remember this unusual case, in which plaintiff Marvin Katko broke into Ed and Bertha Briney’s abandoned farmhouse in Eddyville, Iowa, in search of old jars and bottles he considered to be antiques, only to have his leg blown off by a shotgun wired to a bed in one of the bedrooms.

(I once assigned my students to write poems about the case and collected them in an Oregon Law Review article, Poetry in Commotion: Katko v. Briney and the Bards of First-Year Torts.)

The court described the shotgun-trap as follows:

“After Mr. Briney cleaned and oiled his 20-gauge shotgun, the power of which he was well aware, defendants took it to the old house where they secured it to an iron bed with the barrel pointed at the bedroom door. It was rigged with wire from the doorknob to the gun’s trigger so it would fire when the door was opened. Briney first pointed the gun so an intruder would be hit in the stomach but at Mrs Briney’s suggestion it was lowered to hit the legs.” (Emphasis added.)

Now stop and take a look at the image. That’s right, it’s purportedly the actual wire used to rig the shotgun to the doorknob. How did I obtain this artifact (actually, only the picture of it)? Read on.

Katko sued the Brineys and—despite the fact that he broke into their farmhouse with an intent to steal—won a substantial jury verdict for both compensatory and punitive damages. Unable to pay it, the Brineys had to sell eighty acres of their farm to three neighbors who agreed to hold it in trust for the Brineys in the expectation that the Iowa Supreme Court would reverse the trial court’s judgment for Katko. But that didn’t happen. The judgment was affirmed on the ground that deadly force cannot be used to protect property only.

Last fall, teaching Katko to a class of 1Ls, a student raised her hand and volunteered that her boyfriend’s parents owned the Iowa property where the legendary farmhouse once stood and were in possession of the actual wire that was used in the shotgun trap.

The student arranged for me to interview “Jim,” her boyfriend’s father. (I’ll leave out last names for privacy reasons). Jim’s parents were one of the neighbors who bought the Briney’s property to hold in trust.

(Caveat: I have no way to confirm the following tidbits Jim shared with me, so take them as one observer’s memory of events that happened several decades ago).

I asked Jim what the Brineys were like.

“Well, they were a little strange,” he said. “They used to leave food in the house because they thought the ghosts of Mrs. Briney’s mother and father lived there. They left the house fully furnished, the table set, et cetera. They left food in the cupboard behind the table.”

If true, this may answer one of the questions students often have about the case. The Brineys set the shotgun trap because the abandoned house had been repeatedly broken into. Students commonly ask, “Why didn’t they just take anything of value out of the house?”

Seeking to establish the provenance of the purported Briney wire, I asked, “How did you know to keep the wire?”

“It was still attached to the bed,” Jim said. “My wife took it off and we kept it.” That was before they intentionally burned down the house, a barn, and a machine shed because they “weren’t worth anything.” (I suggested he consider donating the wire to the American Museum of Tort Law, but he said they wanted to keep it.)

As for Marvin Katko, Jim said he knew him from school. He said they were in the school band together. Marvin played saxophone and even had a local dance band at one point.

“It was after high school that he [Katko] started being known as a delinquent,” Jim said. “He had somewhat of a reputation around town.”

Jim claims Katko was suspected of stealing a marble-top dresser from the Briney’s house prior to the occasion where he was shot. He also asserted, “Ed Briney tried to shoot Katko himself. Many nights he laid on his stomach in the house with his gun waiting for Katko to come.”

After the Iowa Supreme Court affirmed the jury’s verdict, a dispute arose as to the land held in trust by the neighbors. According to the Prosser, Wade & Schwartz Torts casebook, the Brineys and Katko joined together to sue the neighbors and the lawsuit was settled for enough to pay the judgment against the Brineys. Jim says his father bought out the other two neighbors and handed the property down to him.

Jim said there was a great debate in Eddyville at the time of the case and for years after, with some people siding with Marvin Katko and others defending the Brineys. A niece of Marvin Katko once sent me an email affirming that it was very difficult for the Katko family to regain friends after the event.

Sadly, Marvin Katko committed suicide in 1994.

Tortious Intent? Girl Knocks Toddler Into Foam Pit

Yesterday I taught my first Torts class of the year and, as always, we began with Garratt v. Dailey, 279 P.2d 1091 (Wash. 1955), where an elderly woman sued a five-year-old boy for battery for pulling a chair out from under her as she was (allegedly) trying to sit in it.

The main issue was whether the Brian Dailey, the five-year-old, had what is called “belief intent” (aka “substantial certainty” intent) that the plaintiff would try to sit where the chair had been previously situated in the backyard.

But an interesting side issue was whether a five-year-old is capable of forming the requisite “intent” to commit an intentional tort.  Perhaps surprisingly to non-lawyers, the Garratt court, as have other courts, held that even young children have the mental capacity to form the intent to inflict a harmful or offensive bodily contact upon another.

Students often question this principle, arguing that five-year-olds lack the mental capacity to appreciate the consequences of their acts.  Importantly, the law of intent does not require that the child intended to “injure” the other or to appreciate all the ramifications of his or her acts (such as, in Garratt, that the elderly plaintiff would suffer a fractured hip when she fell to the ground).

But now a video clip of a young girl walloping her infant brother into a foam pit strongly suggests the courts got it right on this point:

The Danger of Using Humor in a Courtroom

No surprise, I’m a fan of humor.  One of my most reliable defense mechanisms to life’s dark moments is to find humor in the situation.  I’m also a big proponent of using humor in the arena of public speaking, although I’ve written about the risks of doing so.  (See Andrew J. McClurg, The Risks of Being Funny, GPSolo, Apr. 2003, at 60.)

Humor in a court proceeding, however, is a different ballgame.  Starting out my career as a law clerk to a federal district judge, I saw humor, usually unplanned and spontaneous, work well in court on several occasions.  But in an excellent ABA Journal article, Texas attorney John G. Browning makes a strong case for avoiding any effort to be funny in court, primarily by discussing a number of cringeworthy examples from real cases.

Such as when attorney Jay Floyd, arguing to defend Texas’s abortion laws before the U.S. Supreme Court in Roe v. Wade, made the decision to begin his oral argument with: “It’s an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word.”  Browning recounts that, not surprisingly, this “tone-deaf and sexist attempt at humor was met with an extended painful silence from the justices.”

Browning’s article is highly recommended reading.

All 50 Harmless Error Columns Right Here

Available for the first time in one place, below is the complete inventory of McClurg’s Harmless Error humor column in the American Bar Association Journal, which ran monthly from October 1997-December 2001.

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

Read Reader Praise for Harmless Error.

All fifty columns appear below.  Learn more about Harmless Error and get a clickable list of all fifty columns by title and date here.

Wet Baseball Field? No Problem. Set it on Fire.

People frequently ask me, What makes for a good lawyer?  “Problem-solving skills” is the first answer that comes to mind. Do you possess them? Take this test and see.

Problem: A high school baseball game is scheduled. Unfortunately, the field is wet from heavy rain. How do you solve this problem?

Answer choices:

(a) Play the game on the wet field because what’s the big deal with that?

(b) Recognizing that a wet field risks injury to players, make your best efforts to squeegee off or soak up the water.

(c) Recognizing that (b) would be too much freaking work, cancel the game and reschedule it for when the field is dry.

(d) Pour 24 gallons of gasoline on the field and set the damn thing on fire.

(d) was the choice made at a high school baseball field in Connecticut, turning the field into a toxic mess that will cost an estimated $50,000 to clean up. The town posted the news on its Facebook page, generously taking responsibility for the incident: “A poor decision was made … to ‘dry the field quicker’ and 24 gallons of gasoline was poured and set on fire.”

If you picked (d), congratulations! You should avoid law school (please), but have potentially positioned yourself to be an influencer for a major oil company.

No Cash Here, Just Blood and Urine

Not a legal warning, but an interesting notice posted on a lock box at a local medical facility: “No Drugs or Money Kept in Box; Blood and Urine Specimens Only.”

Probably effective unless, of course, it’s encountered by someone actually looking to steal blood or urine samples, in which case it’s an invitation.  Of course, that’s silly because no one would ever want to steal a blood or urine sample.

Or would they?  (Spoiler alert:  The link leads to an article about a man who stole his wife’s urine to submit as a sample, leading to the revelation the man was pregnant.)

 

The Amazing One-Day Warranty

“Hurry up and break!”

That’s what you might be saying to your new “Mini Garment Steamer” if you read the User’s Manual and come across this one-day warranty:

“If your product has a manufacture defect, we want to improve your using experience by giving you a replacement or refund.  For a minimum of 1 day after the date purchase, we promise to cover any manufacture defects your product may have.”  (Bold added.)

There are some other warranties in the manual, so this appears to be more a case of poor drafting than an effort to limit consumer remedies.  After all, it doesn’t say a “maximum” of one day; only a minimum.

For further evidence of that conclusion, we offer this warning, also found in the User’s Manual:

So if you’re weak, sluggish, mentally disabled, lack experience with mini garment steamers, or just don’t have any common sense, avoid this product.

Halloween Law

Not Randy Maniloff

Randy Maniloff has penned an interesting piece for the Wall Street Journal on what he calls the “Halloween Exception” to established legal principles.  Randy–a leading expert on Halloween law, the “baseball rule,” and other legal topics too numerous to list–discusses several instances where judges have departed from traditional legal principles to facilitate Halloween traditions.

In other words, on Halloween you can get away with mischief that would be criminal or tortious in other seasons.  Fascinating.

Here’s one of his examples:

It’s a great read!  Check it out.

In other Halloween-related legal news, a former student explored the legal implications of insurance coverage for decomposing bodies in a Facebook post.  His research led him to conclude that a decomposing body does not qualify as an “explosion” under an insurance policy, but–good news!–is not excluded from coverage under a “pollution exclusion” in a policy.

Happy Halloween from Lawhaha.com!

Publish or Perish: “Get Me Off Your F****** Mailing List”

After reading a rundown on the day’s latest depressing news, it was a true joy to come across this Vox article about this real article accepted for publication in an “academic journal.”

In academia, it’s publish or perish.  Good teaching is important, but it won’t get you promoted or tenured without publishing.  To assist academics on their climb up the steps of the ivory tower, professors in all disciplines are constantly bombarded with email from dubiously credentialed sources offering to publish their books and articles.

As the Vox article explains, this classic work, Get Me Off Your Fucking Mailing List, was actually accepted for publication by something called the “International Journal of Advanced Computer Technology.”  The ten-page article is nothing but the sentence, Get me off your fucking mailing list, repeated hundreds of times.

If it’s over your head, as much of the best academic stuff can be, no worries.  The authors included this helpful flow chart explaining the whole thing.

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

The 1L of a Ride Video Course is 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) at the West Academic Publishing Store.

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.

Santa Suit

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

Harmless Error - A Truly Minority View on the Law

Santa Suit

BY ANDREW J. McCLURG

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

Children of the World, Plaintiffs

vs.

Santa Claus, Defendant.

COMPLAINT

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

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

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

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

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

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

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

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

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, Lawhaha.com is happy to promote a new 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–Lawhaha.com 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)!

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 Lawhaha.com!

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 Lawhaha.com 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 Lawhaha.com (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.

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 Lawhaha.com 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.)

Plaintiffs Say “Boo!” to Haunted Halloween Tort Immunity

Randy Maniloff

Randy Maniloff explores Halloween tort cases.

Insurance expert, stand-up comic, and friend of Lawhaha.com, 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
v.
Edwards

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 on Zombie Law

zombie supreme courtGood news for legally inclined zombie lovers.  Joshua Warren has compiled a casebook  on Zombie Law 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.

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.”

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 Lawhaha.com 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.

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)

Amazon.com 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.

Highlights

• 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.”

Lawhaha.com 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 Lawhaha.com.

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 Lawhaha.com 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.

 

On Shelley’s Case

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

Harmless Error - A Truly Minority View on the Law

On Shelley’s Case

BY ANDREW J. McCLURG

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

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

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

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

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

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

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

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

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

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

Answer: What did we just say about looking?

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

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

100 % Guarantee

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

Harmless Error - A Truly Minority View on the Law

100 % Guarantee

BY ANDREW J. McCLURG

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

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

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

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

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

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

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

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

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

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

Please, Mr. Postman

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

Harmless Error - A Truly Minority View on the Law

Please, Mr. Postman

BY ANDREW J. McCLURG

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

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

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

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

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

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

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

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)

Sex and the Reasonable Person

lawsuit over fractured penis

Family friendly depiction of the injury.

Doe v. Moe, a May 2005 Massachusetts appellate case, gives a whole new meaning to the idea of safe sex. A guy sued his long-time girlfriend (ex-girlfriend?) for negligence when an ill-advised change in position during consensual intercourse resulted in him suffering a fractured penis. (The opinion gives details about how the accident occurred.)

In a case of first impression, the court struggled to arrive at an appropriate and workable standard of care to apply to private consensual sexual conduct. The court noted:

There are no comprehensive legal rules to regulate consensual sexual behavior, and there are not commonly accepted customs or values that determine parameters for the intensely private and widely diverse forms of such behavior.

Accordingly, the court concluded that the general negligence standard of reasonable care under the circumstances was inappropriate for consensual sex-physical injury cases.

Instead, the court said the plaintiff needed to show conduct rising to the level of “wanton or reckless.” The court opined that while the trial record might support a finding that the defendant’s conduct exposed plaintiff to a risk of harm, it did not support a finding of wanton or reckless conduct.

The case does raise an interesting legal issue. With so many different preferences and positions and idiosyncratic fantasies and fetishes, is there such a thing as a standard of “ordinary and reasonable care” for sex?

Doe v. Moe, 827 N.E.2d 240, 245 (Mass. Ct. App. 2005). Thanks to David Keller and Professor Howard Wasserman.

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.

“[Laughter.]”

“Happy Halloween,” Justice Scalia retorted.

“[Laughter.]”

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

“[Laughter.]”

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.”

“[Laughter.]”

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.

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.


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.

Tortland
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.