Dog Daze

BY ANDREW J. McCLURG

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Canned Sincerity

BY ANDREW J. McCLURG

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

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

Form 269: Law Firm Resignation Letter

Dear ________:

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

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

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

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

[Warmly/Sincerely/I’m Outta Here!]

Your Name

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

Form 270: Reply to Resignation Letter

Dear _______:

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

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

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

[Warmly/Sincerely/Good Riddance]

Your Name

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

Hadley’s Reprise

BY ANDREW J. McCLURG

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

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

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

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

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

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

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

Meanwhile …

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

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

Meanwhile …

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

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

Agreeing to Disagree

BY ANDREW J. McCLURG

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

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

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

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

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

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

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

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

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

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

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

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

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

Conquering Renters’ Blues

BY ANDREW J. McCLURG

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

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

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

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

Covenants Running with the Land

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

Marketable Title

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

Fixtures

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

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

Easements by Prescription

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

Lateral Support Rights

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

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

Fowl Play

BY ANDREW J. McCLURG

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

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

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

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

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

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

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

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

Prosecutor: Do you deny this is your signature?

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

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

Defendant: No! I’m a rooster.

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

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

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

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

Defendant: Of course, I’m chicken.

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

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

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

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

Legal Hoopholes

BY ANDREW J. McCLURG

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

Q. Why do they call it a “lockout”?

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

Q. What is the crux of the dispute?

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

Q. Are they close to agreeing on a percentage?

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

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

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

Q. What about the Boston Celtics?

A. They’re terrible.

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

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

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

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

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

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

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

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

Hold Your Fire

BY ANDREW J. McCLURG

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

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

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

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

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

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

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

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

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

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

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

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

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