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.)

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

Santa Strikes Back

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

Santa Strikes Back

BY ANDREW J. McCLURG

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

Santa Claus, Plaintiff

vs.

Children of the World, Defendants.

Complaint

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

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

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

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

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

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

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

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

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

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

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

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

Santa Suit

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.

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.

On Shelley’s Case

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

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.

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.

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.

The Comma

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

The Comma

BY ANDREW J. McCLURG

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

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

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

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

Frieda: Accord.

Dan: Accord.

Wendy: Contra. Put down the gun, Irving.

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

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

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

Irving: What about you Wendy?

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

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

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

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

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

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

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

(Dan distributes the following draft of his proposal:)

,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,
,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,
,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

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

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

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

Sentencing Suzy

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

Sentencing Suzy

BY ANDREW J. McCLURG

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

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

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

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

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

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

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

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

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

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

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

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

Perpetually Clueless

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

Perpetually Clueless

BY ANDREW J. McCLURG

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

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

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

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

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

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

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

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

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

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

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

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

BUY PROPERTY FLASHCARDS!

IF CONFUSED, ASK THESE QUESTIONS:

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

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

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

4. … 21 YEARS 21 YEARS 21 YEARS …

[Three more pages of clarifying notes]

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

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

Matter of Form

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

Matter of Form

BY ANDREW J. McCLURG

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

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

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

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

TWO-MINUTE TAX FORM

1. Taxpayer Name(s):_______________________.

2. Total Tax Owed: ___________.

3. Additional Tax Owed ___________.

4. Remaining Amounts Owed ___________.*

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

5. Anything Leftover ____________.

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

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

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

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

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

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

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

13. Estimated tax for 2005

14. Estimated income for 2005.

15. Attach check for amount listed on line 14.

IMPORTANT INFORMATION FOR TAXPAYERS

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

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