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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 (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.
(I borrowed this from the Facebook page of a former student of mine at the Florida International University College of Law.)
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.
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.
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 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!”
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!
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!
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.  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!  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.
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 Ohio State University has filed a patent application for the word “THE”. What THE … !! oops, sorry, don’t want to get a cease and desist letter. But it’s no joke. See Trademark application No. 88571984, filed Aug. 8, 2019. Here’s an article about it. I knew it would happen someday. Eighteen years ago, in a Harmless Error column in the American Bar Association Journal, I published an intellectual property parody titled The© Controversy, about a made-up cease and desist letter I received claiming a copyright in the word “the”. Here’s an excerpt from the column: The letter asserts that Mr. Ug—allegedly a Homo erectus Peking Man domiciled in a cave in China 500,000 years ago—was first to utter the word the. The heirs are claiming a copyright in the and want me to quit using it. They also seek damages for past infringement. I could use some legal advice. Here’s the letter: Dear Sir: We recently became aware of your meager attempts to achieve humor through the© deliberate and willful exploitation of our client’s property; to wit, the© word the©. Specifically, in the© past 48 months, we have documented more than 7000 copyright infringements of the© protected work in your humor columns, email, bathroom graffiti and other writings, all in violation The© Copyright Act of 1976, §101 et seq. Mr. Ug copyrighted the© in or about 498,000 B.C. when, as a result of an apparent misunderstanding of the properties of fire, he pressed tongue to palate while simultaneously exhaling, thereby authoring theeeeaaaaahhhhieeeee, one of the most enduring and highly-creative works of the 498th century, B.C. (Immediately thereafter, he authored another dramatic work — ump, ump, ump — while bludgeoning himself with a club to distract from the pain in his flaming foot.) As Mr. Ug’s lawful heirs, our clients assert a copyright in the© entire compilation work and a derivative right in each subpart: the, eee, aaaaa, hhhh, ieeeee, as well as ump (which we are currently disputing with Major League Baseball). As you may know, copyright law requires that the protected work be expressed in a tangible form. Fortunately, Mr. Ug was a Peking Man of great foresight. Enclosed is a photograph of the inside of Mr. Ug’s residence where you can clearly see the copyrighted works carved in the rock directly above the crude drawing of what appears to be a sabre-tooth tiger devouring Mr. Ug’s neighbor (we also assert a copyright in all pictures of tigers, neighbors and food products). According to our expert anthropologist, the chisel mark at the end is in fact a © symbol. We demand that you immediately cease and desist using the© either orally or in writing and that you compensate our clients for past use. Be advised that This Letter© is copyrighted and that copying, quoting or even reading it will subject you to additional legal action. Very truly yours, We Own It, the Macho IP Firm I received an email from a lawyer who took the column seriously (seriously?), arguing that “the” cannot be copyrighted. But can it be trademarked? We’ll wait and see.
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. 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.
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.
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.)
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.  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!
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.
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.”
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.)
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. 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.
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 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.
Complicating life at Lawhaha.com, where we love to post interesting warning labels and signs, is the proliferation of fake, Photoshopped samples. Sometimes it’s hard to tell. University of Memphis first-year law student George Scoville sent me the alligators picture. It looked a bit sketchy. Research led to a Reddit post detailing indicators that the picture is fake, including, for example, a Shutterstock watermark on the mushroom.
Determined not to be fooled twice, George, applying good legal research skills, wrote to the San Francisco Recreation and Park Department (the bison are in Golden Gate Park), receiving a reply that explained: “That sign was put up as a prank. We took it down as soon as we became aware of it.” So the sign is (was) actually real. Diabolical! On the other hand, it is Golden Gate Park in San Francisco, home of “Hippie Hill” and neighboring Haight-Ashbury, so it’s possible a sincerely motivated animal-lover posted the sign. Before posting anything on Facebook or otherwise, take a minute to check it out. A quick check over at SNOPES will usually expose widely disseminated fake news, such as the recent viral Facebook post that Mark Zuckerberg was giving away $4.5 million to Facebook users who shared a thank you message. In the meantime, signs or not, it’s not a good idea to give psychedelics to animals.  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.
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.
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 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.
How do you describe a book that is so original, creative and wacky that the best comparison to it is to MAD Magazine? (Fitting since Al Jaffee, the legendary MAD cartoonist and creator of the fold-in cover, wrote the forward to it.) We’re talking about Patent Illustrator Tom Giesler’s new book, “UnVentional,” an unhinged collection of bizarre free inventions to save the world. Watch his hilarious trailer for a clearer picture: Reviews: Adam Savage, co-host of Mythbusters: “Tom Giesler has the illustrator’s version of perfect pitch. His drawings perfectly capture the sense of strange adventure inherent in every patent drawing. This book is a virtuoso performance.” David Rees, author of How To Sharpen Pencils: “Brilliant, hilarious, and weirdly inspiring, unventional will forever change the way you look at objects that don’t actually exist.” Fernando Cota, former U.S. Patent Office examiner: “Mr. Giesler has, for better or worse, applied the principles of open sourcing to the patent process. His cavalier vision is a world free from patent attorneys, licensing, patent examining fees, and, unfortunately, regard for public safety.” This would make a perfect, unique gift. Order it on Amazon. 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, 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?
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.
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) Great job by both groups in creating these fun stress relievers for others. Long live Medico-Legal humor (new category I just made up)!
As bad as the title to this motion is, the content is even worse. I’m sure you can find the entire motion somewhere online, but Lawhaha.com, as we know, is a family friendly website. Gee, I wonder if the motion was granted. 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.  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.
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. 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.
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.
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!  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.  Justice Stephen Breyer Ryan A. Malphurs conducted an interesting study of laughter in proceedings before the U.S. Supreme Court, following up on the work of Jerry Wexler for the New York Times. His entire article is must-reading for fans of legal humor, but this attention-grabbing opening excerpt from an oral argument in Safford Unified School District v. Redding certainly stands out: Justice Breyer: In my experience when I was 8 or 10 or 12 years old, we did take our clothes off once a day, we changed for gym, okay? And in my experience, too, people did sometime stick things in my underwear– (Laughter.) Justice Breyer: Or not my underwear. Whatever. Whatever. I was the one who did it? I don’t know. Studying all notations of “(Laughter)” appearing in the Court’s oral argument transcripts during the 2006-2007 term, Malphurs found 131 instances of ha-ha outbursts. –Ryan A. Malphurs, “People Did Sometimes Stick Things in my Underwear”: The Function of Laughter at the U.S. Supreme Court, 10 Communication L. Rev. 48 (2010).  The “Companion Text” to Law School named 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.
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:
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.
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.
 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. 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.
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.
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.
–Thanks to Gary Golden.
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.
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.)  Franklin, TN Lawyer Drew Justice, aka Captain Justice This story has made the rounds but is worth repeating here if for no reason other than many of my current and former law students at the University of Memphis claim an association with Franklin, Tennessee lawyer Drew Justice, aka Captain Justice. In a criminal case in which Mr. Justice represents the defendant, the government filed a motion in limine to prohibit the defense from referring to the prosecution as “the government,” asserting it was prejudicial. Justice replied that such a ban would violate the first amendment, but went on to argue, that should the court agree with the government, er, the prosecution, what’s good for the goose should be good for the gander: Should this Court disagree, and feel inclined to let the parties basically pick their own designations and ban words, then the defense has a few additional suggestions for amending the speech code. First, the Defendant no longer wants to be called “the Defendant.” This rather archaic term of art, obviously has a fairly negative connotation. It unfairly demeans, and dehumanizes Mr. Donald Powell. The word “defendant” should be banned. At trial, Mr. Powell hereby demands be addressed only by his full name, preceded by the title “Mister.” Alternatively, he may be called simply “the Citizen Accused.” This latter title sounds more respectable than the criminal “Defendant.” The designation “That innocent man” would also be acceptable. Moreover, defense counsel does not wish to be referred to as a “lawyer,” or a “defense attorney.” Those terms are substantially more prejudicial than probative. See Tenn. R. Evid. 403. Rather, counsel for the Citizen Accused should be referred to primarily as the “Defender of the Innocent.” This title seems particularly appropriate, because every Citizen Accused is presumed innocent. Alternatively, counsel would also accept the designation “Guardian of the Realm.” Further, the Citizen Accused humbly requests an appropriate military title for his own representative, to match that of the opposing counsel. Whenever addressed by name, the name “Captain Justice” will be appropriate. While less impressive than “General,” still, the more humble term seems suitable. After all, the Captain represents only a Citizen Accused, whereas the General represents an entire State. Along these same lines, even the term “defense” does not sound very likeable. The whole idea of being defensive, comes across to most people as suspicious. So to prevent the jury from being unfairly misled by this ancient English terminology, the opposition to the Plaintiff hereby names itself “the Resistance.” Obviously, this terminology need only extend throughout the duration of the trial — not to any pre-trial motions. During its heroic struggle against the State, the Resistance goes on the attack, not just the defense. WHEREFORE, Captain Justice, Guardian of the Realm and Leader of the Resistance, primarily asks that the Court deny the State’s motion, as lacking legal basis. Alternatively, the Citizen Accused moves for an order in limine modifying the speech code as aforementioned, and requiring any other euphemisms and feel-good terms as the Court finds appropriate. Great stuff! —Captain Justice Responds to Government’s Motion to Not Be Called the Government, Tennessee v. Powell, Case No. I-CR-086639-B (Cir. Ct., Williamson County, Tenn., undated).
 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.
In the meantime, one can only imagine what the swimsuit issue would look like.
Question: What was the very first opinion issued in the U.S. Reports case reporter; that is, the opinion claiming that coveted number one slot of “1 U.S. 1” as a citation? Answer: Well, it’s a bit of a letdown. You’d think they’d want to start with a bang, something Marbury-esque. But no, here’s the first case in the U.S. Reports: The Lessee of Hyam and others April Term, 1759. 1 U.S. 1, 1 Dall. 1, 1759 WL 20 (Pa.), 1 L.Ed. 11 Copy of a Deed inrolled in the King’s Bench in England, proved before the Lord Mayor of London to be a true one; allowed to be given in Evidence to a Jury to support a Title to Lands in this Province.* *11 mod. 2 c. 2. Well, at least it had a footnote. 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
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. 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.)
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.
 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).
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.
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.
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.
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.
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.
(You can get a taste by clicking on the expandable thumbnail, but this gem deserves to be read in full.) Limited by the court to filing a brief of five pages, Bob Kohn took out his frustration by deciding to simplify the complex arguments in comic book form. The brief is made up largely of a cartoon-bubble conversation between a man and woman (Kohn and his daughter, according to other sources) in which the man starts out struggling “to explain why supply & demand does not operate normally in the pricing of e-books.” Fortunately–because remember he only has five pages–the woman catches on very quickly, becoming an instant expert in federal antitrust law. Even so, and despite Kohn’s valiant, creative efforts, his principal concern proved accurate: it’s hard to articulate complex antitrust arguments such as horizontal, predatory and marginal pricing in five pages, regardless of the expression-medium. Maybe he should have just borrowed from Charles Schulz and expressed a simple “Good grief!” The comic book/federal appellate brief ends with this colloquy: “You should have been a lawyer,” says the male character. “Nope. Not for me.” “Why not?” “I’m a novelist and it’s impossible to tell a complex story in only five pages.” Excellent try though. Even if Kohn’s side loses, not all is lost. Maybe Marvel Comics will pick up the tale and create a new series, “Amici Man.” More details about the underlying case and Kohn’s motivations can be found in this ABA Journal article. Brief of Bob Kohn as Amicus Curiae, U.S. v. Apple, Inc., Civ. Action No. 12-CV-2826 (DLC), S.D.N.Y., Sept. 4, 2012. Thanks to Bob Van Voris.  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.  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. 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.” A judge friend sent me this handwritten Texas divorce petition, apparently filed back in 1985 by a Texas lawyer proceeding pro se. It’s one of those hand-scrawled pleadings that, at first blush, looks like it was written by an inmate or perhaps a crazy person; however, closer examination shows the writing to be quite clever and amusing in places. And the drawings are priceless. The petitioner seems uncertain of where his heart lies, as he alternates between insulting the wife and telling the court how much he loves her. Read the original to appreciate it, but here are some re-typed uncorrected highlights (the respondent’s name and petitioner’s address are redacted on both the copy of the original pleading and below): I. This suit is brought by PAUL FRANK HENSLER, Petitioner who is Forty Six (46) years of age and who resides at XXXX. Respondent, XXXX, is a “Transient Person,” having her residence in a 1970 Chrysler. … IV. These parties were joined together in Holy Matrimony by the Very Honorable Frances Porter, JUSTICE OF THE PEACE in Lampasus, Lampasas County, Texas on the 29th Day of March, in the year of our Lord, A.D. 1983. They ceased living together as husband and wife on Monday January 21, 1984, when she got pissed off and hauled ass with the car, the Mastercard, $365.00 cash, her FEDERAL CIVIL RIGHTS NINE YEAR OLD EMPLOYMENT DISCRIMINATION CASE …, to which she is WELCOME, having BORED ME STIFF for 2 years about just how everybody picks on XXXX. IV. This marriage has become very insupportable because of, ho-hum, conflict of personalities between Petitioner and Respondent, but chiefly because of conflict of personalities between Respondent and Respondent that destroyed the legitimate ends of the marriage (good sex!) and prevents any reasonable expectation of reconciliation (unless she consents to having her mouth surgically closed). V. There is no child born or adopted of this marriage although Petitioner swears on oath that he did everything he could to KNOCK HER UP, but she isn’t pregnant and won’t have another CHILD, although Petitioner LOVES HER DEARLY and wants her to have his children, but she is LIBERATED now and “Feminists” don’t have children by “male chauvinist pig lawyers,” she so swears. VI. Petitioner requests the Court to divide the estate of the parties by awarding their property to the party having POSSESION (in a legal sense, not the kind of “possession” by spirits you see in movies, although XXXX could pass muster for a stand-in for “Syble” or the girl in “The Exorcist.”) VII. Petitioner, Paul Frank Hensler prays that CITATION and NOTICE issue as required by LAW and that the Court GRANT A DIVORCE and decree such other and further relief as requested herein, including changing Respondent’s name to BELLA ABZUG, JR. for costs of suit and for (see drawings of trumpet and drum roll). Stand back, its almost here – Ed McMahon on stage now — HEEEER’ES General Relief (see drawing of Rolaids man). –Petition for Divorce, Hensler v. [Name redacted], Case No. 85-04521, Dist. Ct., Harris Cty, TX, Jan. 23, 1985. Facebook’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.)
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.”  She 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.
For non-legals, Palsgraf v. Long Island Railroad is a famous tort law case all law students read involving a bizarre accident at a train station, where the court ruled that a tort defendant owes a legal duty to act with reasonable care to another only if the other is a reasonably foreseeable victim of the defendant’s conduct. More Lawhaha.com posts involving Palsgraf are here, here, here, and here. A national Greek fraternity, Alpha Tau Omega, apparently held a “house party” at their frat house at a West Virginia university. The complaint alleges that many of the participants consumed intoxicating beverages. No surprise so far. But one of the guests surprised at least one person (the plaintiff, allegedly) when he decided to light up–literally–the party by shooting bottle rockets from … er, I’d rather let the Complaint explain it: Warning: Allegations are Disgusting 8. Defendant Hughes was highly intoxicated on this date and time, and decided in his drunken stupor that it would be a good idea to shoot bottle rockets out of his anus on the ATO deck, located on the back of the ATO house. 9. Upon information and belief, there were several other ATO fraternity members on the deck at the time of this incident, including one or more officers of the fraternity. Plaintiff and his girlfriend were also present on the ATO deck. 10. Defendant Hughes placed a bottle rocket in his anus, ignited the fuse, but instead of launching, the bottle rocket blew up in Defendant’s rectum, and this startled plaintiff and caused him to jump back, at which time he fell off of the ATO deck, and he became lodged between the deck and an air conditioner unit adjacent to the deck. 11. There was no railing on said deck at the time of the incident. Upon information and belief, the lack of a railing had existed for at least several months, if not years, before the incident. Upon further information and belief, the deck never had a railing when it was installed, or any time thereafter. The subject deck was approximately 3-4 feet high. 12. The subject deck was in the exclusive custody, maintenance and control of the ATO fraternity at all times relevant hereto. Here’s your Palsgraf test: Was the plaintiff within the zone of foreseeable danger of the bottle rocket-defendant’s alleged conduct? Probably, although perhaps with some contributory negligence thrown in. Assuming the plaintiff was standing close by he could have been injured in any number of ways from someone setting off fireworks in such a dangerous, uncontrolled manner. The more interesting question is the fraterity’s liability. Was it foreseeable to the fraternity that an intoxicated fraternity member would ignite fireworks in such a bizarre manner and cause a startled bystander to fall off the deck? Probably not, but it is foreseeable that during social or other gatherings on a deck with no railing (which the complaint alleges violated building codes, likely making it negligence per se) someone would fall off it. Generally speaking, the precise manner in which the harm occurred need not be foreseeable so long as the same general kind of harm was foreseeable. The injury that occurred–falling off the deck-is the risk that makes it negligent to not have a railing on a raised deck. Just an off-the-cuff analysis of the facts as alleged. As always, it will come down to the facts as proved–or, more likely, to a settlement. —Complaint, Helmburg v. Alpha Tau Omega Fraternity, Case No. 12-C-57, Circuit Ct., Cabell County, West Va., filed Jan. 23, 2012.
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. 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.” It’s almost impossible to imagine a case that sounds more boring than “In re: Chinese-Manufactured Drywall Products Liability Litigation.” In this multidistrict potboiler, the judge stayed an insurance coverage action, apparently hoping to facilitate a global settlement. Unfortunately, nothing was moving forward, prompting the Trust to ask the court to lift the stay to get things moving. Counsel didn’t take any chances that the court might miss her point, punching up her memorandum in support of the motion to lift the stay with a dramatic journalistic touch: Since this Court stayed the insurance coverage action ten months ago last March, no global mediation of the insurance coverage action has been held. There is no global mediation of the insurance coverage action scheduled. There is no global mediation of the insurance coverage action being set up. No date. No location. No notification of participants. No contact of all global insurance coverage participants. Silence. Since the Court stayed this insurance coverage action, policyholders have been left in a purgatory in the insurance coverage action with no action advancing a global resolution of the insurance coverage action whatsoever. I can’t wait to see how this litigation ends … er, if it ends. —Chinese Drywall Litigation Memorandum, MDL 2047, E.D. La., Jan. 10, 2012. Thanks to Andrei Bogos. 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.
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.
But, wait, maybe I’m not being fair. Maybe I’m oversimplifying it. Let’s check out the official patent abstract and see: A method of alleviating chest pain that stems from the heart, which method comprises: (a) noticing a pain in the chest; and shortly thereafter (b) taking an effective amount of lime juice into the body to alleviate the chest pain. Nope. Guess not. It really is a patent on drinking lime juice. Here’s how the invention works: In accordance with this invention, a person takes in lime juice after noticing the onset of the chest pain. Don’t worry if you don’t understand it. It’s a very complex scientific procedure. But let’s at least clear up one other confusing point. What exactly is this secret ingredient? The patent explains: “[L]ime juice” means lime juice or limeade or any combination that includes the juice of a lime …. Pucker up because the inventor recommends “drinking at least a glass daily [of lime juice] in non-concentrate form” as a preventative measure. Sound inconvenient? It’s not. In fact, one of the primary advantages of lime juice as a remedy for angina pectoris over nitroglycerin is that: Since the juice is regularly stored in the refrigerator or freezer, it can be quickly located by the patient, particularly at nighttime where the refrigerator light plays a helpful role. — U.S. Patent No. 6,457,474, Oct. 1, 2002. Thanks to David Barman.
In Pacific Grove, California, under a city ordinance, tourist monarch butterflies have a right to “peaceful occupancy” during their annual convention there. Even if the butterflies are swarming one’s home, interfering with occupancy and use, they can only be removed to another location on application to the police. Here’s the ordinance: 11.48.010 Interference With Prohibited. It is declared to be unlawful for any person to molest or interfere with, in any way, the peaceful occupancy of the monarch butterflies on their annual visit to the city of Pacific Grove, and during the entire time they remain within the corporate limits of the city, in whatever spot they may choose to stop in, provided, however, that if said butterflies should at any time swarm in, upon or near the private dwelling house or other buildings of a citizen of the city of Pacific Grove in such a way as to interfere with the occupancy and use of said dwelling and/or other buildings, that said butterflies may be removed, if possible, to another location upon the application of said citizen to the chief of police. You can see it coming. A massive class action asserting equal protection claims on behalf of other bugs similarly situated under rapidly descending rolled-up newspapers and clouds of poison gas. Seriously though, it’s a good law. Every year, monarch butterflies take up residence in Pacific Grove as part of their migration south. They winter in Mexico, after traveling 2500 miles, the only insect to accomplish such a feat. Pretty impressive. — City of Pacific Grove, CA Ord. 210 N.S. §§ 8-3060, 1952. Thanks to Lihwei Lin.
 Old-school, uninventive sandwich. U.S. Patent No. 6,599,545, issued July 29, 2003, is for the new and exciting invention of “Method for making a sandwich.” To be patentable, an invention must be new, useful and nonobvious. Does this one qualify? Because it’s such a technical subject, let’s first explore the “The Background Art” of the invention as described in the patent: Sandwiches typically comprise two slices of bread, and a combination of sandwich fixings disposed between the bread slices. That’s food for deep thought. Har har. Now that we understand the background art, let’s explore the invention itself, which is: A method for inserting one foodstuff, such as sandwich fixings, into a second foodstuff, such as a bread bun, which includes forming a cavity in the second foodstuff. Way over my head, but deconstructed, it appears that invention is: Drill a hole in a bun and jam some cold cuts in there. — U.S. Patent No. 6,599,545, issued July 29, 2003. Thanks to David Barman.  It appears this famous soccer player did not follow the patent instructions. Apparently, it’s not as hard to get a patent as people think: U.S. Patent 4,022,227 is a patent for a “Method of concealing partial baldness,” described more particularly in the abstract as “[a] method of styling hair to cover partial baldness using only the hair on a person’s head. The hair styling requires dividing a person’s hair into three sections and carefully folding one section over another.”
Yep. It’s a valid U.S. patent for the dreaded “comb-over.” We’ve all witnessed the results of this amazing invention, which works so effectively that no one notices the baldness, provided they are sight-impaired and at a distance of more than 200 yards. — U.S. Patent 4,022,227, May 10, 1977. Thanks to David Barman.  Not the patented dog waste catcher, but will work in a pinch. Do have a dog? Do you like to take it for walks? Do you feel it’s your moral and social responsibility to clean up after it? Are you skilled at playing lacrosse? If your answer is yes to all of the above, then the invention protected by U.S. Patent 7,090,268, Aug. 16, 2006, is the perfect dog-walking accessory for you. As described in the patent application, the invention is “a simple portable device which allows the dog’s owner to catch and hold the dog waste in a plastic bag before it comes in contact with the ground or grass without bending over.” Basically, the invention sounds like kind of a lightweight lacrosse stick that you use to catch dog feces in. But just as in the real sport, you have to be quick on your toes to use this baby effectively. As the patent explains: “As soon as the dog shows a motion to excrete, this device is … placed underneath the dog’s bottom and catches the dog waste, thus preventing the soiling of the ground or grass.” Is it a good invention? Darn right it is. As everyone knows, “[d]ogs tend to excrete while they are walked” and “[o]nce the droppings fall on the ground or grass, it is difficult to collect them completely, especially when they are loose.” Which, of course, is why many dog owners prefer to leave it to their neighbors to deal with. This sounds like a good invention, although I’m not sure the dogs are going to sit still for it. — U.S. Patent 7,090,268, Aug. 16, 2006. Thanks to David Barman.
With this invention, each fighting bird is fitted with a protective vest carrying sensors that send a signal to an electronic scoreboard each time they are pecked or clawed. The talons of each gamecock are also “covered with a protective device,” and their beaks are “taped shut.” Sounds very comfortable. The “background” of the invention explains it was designed to remedy a “cultural clash of values” pitting aficionados of gamecock fighting (which the inventors assert is an accepted and enjoyable form of entertainment in Latin and Asian cultures and many U.S. states) against those who object to the birds being killed or injured. The patent description reminded me of the Seinfeld episode where Kramer’s rooster, named “Little Jerry,” was about to become embroiled in cock-fighting because of a bad check Big Jerry wrote at the deli. Seinfeld’s explaining that cock-fighting is dangerous and that Little Jerry could get killed. Kramer says something like, “I thought they wore little gloves and helmets!” Well, now they might. — U.S. Patent 6,928,960, Aug. 16, 2005. Thanks to David Barman.
Apparently because he was the only person in the family with a driver’s license, a man (a lawyer, apparently) was ordered by a Giles County, TN, chancery court to shuttle two kids of divorced parents back and forth during periods of visitation. But the involuntary driver–“intervenor” in the pleading below–filed a petition to relieve him from the transportation duties in the best interests of the children on that basis that “Friday afternoon by 1700 hours, and particularly on Sundy [sic] by the same time, your intervenor, generally has consumed three or more beers,” and that, as a consequence, he will “register .15 or higher on any cop’s ‘Get’m’ scale.” (The copy of the petition bears the clerk’s file stamp (May 13, 2002), and appears to be authentic.) Further, he said he didn’t know how to operate child seats or the seatbelts in his “pickity-up truck.” Children, he asserted, should not be subjected to such danger. Whether or not you sympathize with the intervenor, it’s hard to deny his sincerity (original typos left in): IN THE MATTER OF WHITE VS. WHITE IN GILES CHANCERY NO. 2196 INTERVENING PETITION Comes the petitioner, Wm. Travis Gobble, who professes to be greatly aggrieved by the order of this court … whereby your intervenor was ordered to provide transportation for Suzanna and ‘Log-Jam’ White, minor children of Derrell and Chrysty White, during periods of visitation between the said parties, in the following particulars: 1. Your intervenor is the only damn one in the family with drivers licenses. 2. He should not be required to risk losing his. 3. On Friday afternoon by 1700 hours, and particularly on Sundy by the same time, your intervenor, generally has consumed three or more beers. 4. Three, or more, beers according to all the clients your intervenor has represented causes a driver to register .15 or higher on any cop’s “Get’m” scale. 5. According to MADD mothers, any driver who has consumed three beers, whatever he registers, is drunk and a menace to society. 6. Small children should not be subjected to such danger. 7. In addition thereto, your intervenor drives a small pickity-up truck with only two seat belts, neither of which he can make operable. 8. The two children are of such a size that both must be bundled inside a device resembling and over-sized football helmet. Your intervenor has tried, but has been unable to date, to secure said children into such a device. 9. In any event, he, two children and a fourth person would crowd his little truck. 10. In the event your intervenor elected to have a fourth, or a fifth beer enroute [sic] ith said kids, he would have no place to sit said cans and would have to drive one-handed. 11. The kids themselves would be a further distraction. 12. A distracted driver is a dangerous driver. 13. Without a fourth person to assist him, should minor children commence to cry, a common occurance [sic], your intervenor would surely drop his beer and wreck. … 16. As the common carrier, your intervenor would be trown into regular contact with both parents and subjected to all the allegations hurled from both sides. Your intervenor is too old to suffer such. FOR ALL OF WHICH Wm. Travis Cobble respectfully moves this Honorable Court to assign said duties to some other caring soul. — In the Matter of White v. White, Giles County, Tennessee, Chancery Court, No. 2196, filed May 13, 2002. Thanks to Senior Judge James Barlow. Originally appeared in the October 1997 issue of the ABA Journal.
Originally appeared in the November 1997 issue of the ABA Journal.
Originally appeared in the December 1997 issue of the ABA Journal.
 Get busy inventors. "M" is already taken. U.S. Patent 6,834,453 is for a piece of foam in the shape of an “M” worn on the head. The invention, cleverly and appropriately named the “Head Mounted Letter ‘M’ Display,” is designed for sports fans who want to support their teams that begin with the letter “M.” The funniest aspect of this patent (other than that one can get a patent for a head-mounted letter of the alphabet) is all the complex diagrams of a guy wearing an “M” on his head. — U.S. Patent 6,834,453 , Dec. 28, 2004.
The U.S. Patent and Trademark Office issued a patent for a toy rocket powered by flatulence. That’s right. U.S. Patent No. 6,055,910 is for a “toy gas-fired missile” that is prepared for takeoff by the operator placing “the inlet tube with its valve open adjacent to his anal region from which a colonic gas is discharged.” After being loaded, “[t]he ignitor is then activated to explode the mixture in the chamber and fire the missile into space.” The “Status of the Prior Art” section of the patent offers a dissertation on flatulence, including way TMI in the form of revelations that a normal individual produces 400-600 ml of flatus per day and that the major components, in descending odor, er, order, are: nitrogen, hydrogen, carbon dioxide, methane, and oxygen. The odor-causing ingredients are sulfide, skatole, indole, volatile amines, and short-chain fatty acids. Why is this invention needed? For consumer safety, of course. The inventors offer the invention as a safer alternative to the “popular practice” of “ignition of one’s own flatus” by lit match or candle, or a cigarette lighter. Of course, “[a] major drawback” of this practice is the “hazardous coupling of fire, combustible gases and inebriated participants.” Serious burn reports are not uncommon, according to the patent application, “especially … when the participants remove their clothing.” Accordingly, “[i]n view of the foregoing, the main object of this invention is to provide a safe toy which exploits combustible properties of flatus to fire a toy missile into space.” — U.S. Patent No. 6,055,910, May 2, 2000. Thanks to David Barman.
Law professors teach students that the law is full of gray with very few black or white answers. The most accurate answer to most legal questions is “It depends.” But that’s not always the case. Senior Judge James Barlow, San Antonio, TX, sent the below land title opinion, reportedly written in 1928 by a title examiner in Prewitt, Texas named Kress Campel for a client named Alex Deanton. (Unfortunately, we have not been able to authenticate this entry. If you have any info on that point one way or another, please send it along). The examiner’s opinion was sought concerning a title abstract covering “the South 238 plus acres of the Edmundson Survey.” If only all legal advice were so sure-footed: Don’t buy the G** D***** land. It has been my sorrow and burden to look over several horrible examples of a title-examiner’s nightmare, but this alleged title takes the cutglass flyswatter. It is my private belief that you couldn’t cure the defects if you sued everybody from the Spanish Government (who started this mess) on down to the present possessor of the land, who is in there by virtue of a peculiar instrument optimistically designated by the abstractor as a “General Warranty Deed.” … [The lawyer then points out that the title defects probably cannot be cured by either limitations or laches.] We might rely on limitation here except that I am reliably informed that nobody has succeeded in living on this land for a longer period than two years, before dying of malnutrition. Laches might help out, but anybody who undertakes to buy land under a title acquired by laches is (to paraphrase Mark Twain) setting out like the man who set out to carry the cat home by the tail–he is going to acquire experience that will be of great value to him and never grow dim or doubtful. … This land has been sold for taxes eight times in the last 40 years. Nobody has ever redeemed one of these tax sales–glad to be rid of it, no doubt. The last purchaser sued the tax collector a month after he bought it for cancellation of the sale for fraud and misrepresentation. He doubtless had grounds, but the incident will give you a rough idea of what kind of muzzle-loading smooth-bores have been fritzing with the title. … The next and most serious defect is a “quit-claim deed containing a general warranty” executed by Ellis Gretzberg (who just appears suddenly out of no where) in the chain of title to one Peter (Prolific) Perkinston. Unfortunately, Perkinston died, leaving two wives and 17 children, the legitimacy of two of them being severely contested. Fortunately, a shooting match between the two sets of claimants assisted the title slightly by reducing the original number to six and substituting eleven sets of descendants. [He then takes up the deed held by the prospective vendor to his client.] It is executed by a fair majority of one set of the offspring of Peter (Prolific) Perkinston, and is acknowledged in a manner sufficient to pass a County Clerk with his fee prepaid. Outside of the fact that it doesn’t exactly describe the property under search, the habendum clause is to the grantors, the covenant of general warranty doesn’t warrant a thing and it is acknowledged before it is dated, I suppose it is all right. I would advise you to keep the abstracts, if you can. They are a speaking testimonial to the result of notaries public drawing instruments, county clerks who would put a menu on record if a fee was tendered, and jacklegged jugheads posing as lawyers. You can buy the land if you so desire. There are 573 people who can give you as good a title as your prospective vendor has, not counting the heirs of the illegitimate son of Prather Linkon who died in the penitentiary in 1889 while serving a term for sodomy. If this is authentic, it’s an all-time classic of funny legal writing. If it’s not, it’s not as great, but still amusing. — Thanks to Judge James Barlow, Senior District Judge, San Antonio, Texas.
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)  Don't tie a giraffe - or any other animal - to a lamp post in Vermont. Have you ever read about that “bizarre” Vermont statute that prohibits tying giraffes to lamp posts? I’ve seen references to it in books and in far too many forwarded emails. When David Tartter came across it, he had a novel idea: he actually looked it up. Guess what he found? The statute prohibits tying any animal to a lamp post. While giraffes technically are included, it’s doubtful the law would have assumed its legendary “wacky” status if it were reported as a statute that prohibited tying, say, dogs to lamp posts. Here’s the actual statute: A person who wilfully and maliciously breaks the glass about a street lamp or gaslight, or a lamp or gaslight in the grounds about a public building, or, without authority, lights such a lamp or gaslight or extinguishes the same when lighted, or in any manner interferes therewith, or injures any part of the fixtures supporting such lamp or gaslight, or defaces the same by painting or posting notices thereon, or fastens a horse or animal thereto, shall be imprisoned not more than three months or fined not more than $50.00, or both. 13 V.S.A. section 3785 If anyone discovers other legal humor mythbusters, please send them in. — Thanks to David Tartter.
Plaintiff Judith Richardson Haimes brought a medical malpractice action against defendant after a CT scan allegedly caused her chronic and disabling headaches and prevented her from practicing her occupation as a psychic. A jury awarded her $600,000 after a four-day trial. Wow! But pro-tort reform accounts of the case omit two critical facts. First, that the trial judge specifically instructed the jury it could NOT award damages for loss of her psychic abilities, and, second, that the court threw out the plaintiff’s verdict. Having cleared that up, the most interesting part of the case was the testimony pertaining to her psychic abilities. The plaintiff presented several police officers as witnesses who testified that plaintiffs’ psychic abilities had helped them solve cases. One special agent testified that he sought plaintiff’s advice in solving five to seven homicide cases and that information provided by plaintiff proved to be 80-90 percent accurate. The opinion describes detailed information plaintiff provided to help solve a variety of cases. It’s interesting. — Haimes v. Temple University Hosp., 39 Pa. D. & C.3d 381 (Pa. Ct. Com. Pl. 1986). Thanks to Cynthia Cohan. A defendant, probably in a divorce case, lost it when asked to state his name for the record in answer to the first question of a deposition. The deposition started out like this: BY MS. WATSON Q. State your name. A. You know it. MR. DORSEY: Answer the question. THE WITNESS: Five f****** years and that’s the first thing– Things went downhill swifly after that. Above the Law has the full story and complete two-page deposition. |
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Books  1L of a Ride: A Well-Traveled Professor's Roadmap to Success in the First Year of Law School  The 'Companion Text' to Law School: Understanding and Surviving Life with a Law Student  Practical Global Tort Litigation: United States, Germany and Argentina  Gun Control and Gun Rights  The Law School Trip: The Insider's Guide to Law School  Amicus Humoriae: An Anthology of Legal Humor Selected  Preying on the Graying: A Statutory Presumption to Prosecute Elder Financial Exploitation  Fight Club: Doctors vs. Lawyers - A Peace Plan Grounded in Self Interest  Neurotic, Paranoid Wimps - Nothing has Changed  Kiss and Tell: Protecting Intimate Relationship Privacy Through Implied Contracts of Confidentiality  Dead Sorrow: A Story About Loss and A New Theory of Wrongful Death Damages  A Thousand Words are Worth a Picture: A Privacy Tort Response to Consumer Data Profiling  The Public Health Case for the Safe Storage of Firearms: Adolescent Suicides Add One More 'Smoking Gun'  Armed and Dangerous: Tort Liability for the Negligent Storage of Firearms  Good Cop, Bad Cop: Using Cognitive Dissonance Theory to Reduce Police Lying  Poetry in Commotion: Katko v. Briney and the Bards of First-Year Torts  The Tortious Marketing of Handguns: Strict Liability is Dead, Long Live Negligence  Bringing Privacy Law Out of the Closet: A Tort Theory of Liability for Intrusions in Public Places  The Rhetoric of Gun Control  It’s a Wonderful Life: The Case for Hedonic Damages in Wrongful Death Cases  Your Money or Your Life: Interpreting the Federal Act Against Patient Dumping  Logical Fallacies and the Supreme Court: A Critical Analysis of Justice Rehnquist's Decisions In Criminal Procedure Cases  |
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McClurg’s fifth novel, Funeral Daze, under his pen name Dorian Box, is out and getting terrific reviews. 
When you come across a motion to file a box of crayons in a case seeking a writ of certiorari in the U.S. Court of Appeals for the Ninth Circuit, you just have to know more. Specifically, why are the lawyers asking “FOR LEAVE TO FILE ONE PACKET OF CRAYOLA COLORED PENCILS”?
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.
“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 
Karl Llewellyn, Roscoe Pound, Ronald Dworkin … McClurg?
“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.” 
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 
I have a judge friend who’s a stickler for grammar. Today, she sent this little gem along:
An important rule for young lawyers to know is that it’s essential to counsel clients to wear appropriate attire to court hearings.
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.”
It’s the season to reprise those two holiday favorites from the Harmless Error vault:
