Tax law is not known for its literary prose, but a U.S. Tax Court judge, in a case involving some challenged business deductions by a theater professor aiming to be a playwright, explained that tax law actually has a long literary history (interesting footnotes omitted):
It is a truth little remarked on by scholars that tax law has been a fount of literature for 5,000 years. The oldest literary work still extant–the Epic of Gilgamesh–is a long narrative of a friendship begun during a protest against government exactions. In more recent times, some of our language’s most notable authors have used fiction to delve into tax policy: consider Shakespeare’s criticism of the supply-side effects of a 16-percent tax rate; Swift’s precocious suggestion of a system of voluntary assessment; and Dickens’ trenchant observation on the problems of multijurisdictional taxing coordination ….
The prof didn’t fare too well before the court. In an opinion divided into a Prologue, Act I, Act II and Epilogue, the court agreed that the petitioner “approached his playwriting in a business-like manner,” but disallowed many of his business deductions, including, for example, approximately 100 expenditures for “Performances, Viewing.”
Petitioner testified at trial “that every time he listens to a CD or watches a movie, he is engaged in playwriting and not recreation.” The court found this to be a “less than candid” assessment of his business expenses.
— Calarco v. Comm’r of Internal Revenue, T.C. Summ. Op. 2004-94, Docket No. 1530-03S, (T.C. July 20, 2004). Thanks to Paul Scott and Cynthia Cohen.
–From Jerry E. Stephens, University of Kansas School of Law, Date of event: Spring 1975
I had labor law at the University of Kansas under Professor Ray Goetz in the mid 1970s. Goetz was a truly outstanding teacher. He was able to refer to some momentous labor arbitration—particularly involving major league baseball—to spice up his lectures. But Ray Goetz could also be intimidating, particularly when he would look over the top of his reading glasses at students giving inane answers and comments.
He did have one redeeming virtue: he would call students for class recitation in classroom seating order. That gave students a rough estimate of the likelihood of being called on that class day and the next, and saved on some class preparation at times.
As it happened one rainy Saturday morning, the majority of those ahead of me skipped class. That left only two classmates ahead of me for class recitation that day. Neither did very well and Goetz was getting particularly exasperated.
Then he called on unprepared me. Just as I opened my mouth to answer there was a huge clap of thunder. Goetz probably sensed that I was unprepared. He looked directly at me and said that the thunder might have been the best answer I was going to muster that day. So he skipped me and turned to the next student in the row, who was much better prepared than I was.
U.S. District Judge James C. Paine – A totally awesome dude.
[U.S. District Judge James C. Paine, Southern District of Florida, passed away in 2010 after 28 years of distinguished service on the federal bench.]
In a 1992 case, U.S. District Judge James Paine (or maybe a law clerk) took pains to spice up an order rejecting federal removal jurisdiction by managing to work in several references from the movie “Wayne’s World.”
These include subheadings like “Hurling Chunks” and “NOT!”, and the observation that the attempted removal of the case from state to federal court “is untimely and is a defect deemed ‘way’ improvident.”
He concluded his trip to Wayne’s World as follows: “In short, Prime Time’s most bogus attempt at removal is ‘not worthy’ and the Defendants must ‘party on’ in state court.”
To which we say, “WHOA, Judge Paine, was, like, a totally awesome judicial dude!”
— Noble v. Bradford Marine, Inc., 789 F. Supp. 395 (S.D. Fla. 1992). Thanks to Melissa Williamson.
The Federal Rules of Civil Procedure permit any electronic document to be e-filed until midnight on the due date. Microsoft electronically filed a motion for summary judgment 4 minutes and 27 seconds late on the night of June 26, 2003.
Microsoft’s adversary in the litigation, Hyperphase Technologies, Inc., incensed by this grievous rule breach, filed a motion to strike the motion for summary judgment as untimely.
U.S. Magistrate Stephen L. Crocker, clearly annoyed, blessed us with this sarcastic order:
In a scandalous affront to this court’s deadlines, Microsoft did not file its summary judgment motion until 12:04:27 a.m. … I don’t know this personally because I was home sleeping, but that’s what the court’s computer docketing program says, so I’ll accept it as true.
Microsoft’s insouciance so flustered Hyperphase that nine of its attorneys [names omitted] promptly filed a motion to strike …. Counsel used bolded italics to make their point, a clear sign of grievous inequity by one’s foe. True, this court did enter an order … ordering the parties not to flyspeck each other, but how could such an order apply to a motion filed almost five minutes later? Microsoft’s temerity was nothing short of a frontal assault on the precept of punctuality so cherished by and vital to this court.
Wounded though this court may be by Microsoft’s four minute and twenty-seven second dereliction in duty, it will transcend the affront and forgive the tardiness. Indeed, to demonstrate the evenhandedness of its magnanimity, the court will allow Hyperphase on some future occasion in this case to e-file a motion four minutes and thirty seconds late ….
— Hyperphrase Techs., Inc. v. Microsoft Corp., 56 Fed. R. Serv. 3d (Callaghan) 467 (W.D. Wis. 2003). Thanks to Cynthia Cohan.
U.S. Court of Appeals for the Third Circuit reversed a district judge in Pennsylvania, finding impropriety in the fact that the judge’s opinion dismissing plaintiff’s claims was “nearly identical” to a proposed order and opinion submitted by defendants’ lawyers.
The court had previously expressed its disapproval of trial courts adopting proposed “findings of fact and conclusions of law” submitted by the prevailing parties in litigation, although it said that such copying would not be ground for reversal unless the findings were clearly erroneous. This situation was different, according to the court, because it involved an “opinion”:
Here, however, we are not dealing with findings of fact. Instead, we are confronted with a District Court opinion that is essentially a verbatim copy of the appellees’ proposed opinion.
…
Judicial opinions are the core work-product of judges. They are more than findings of fact and conclusions of law; they constitute the logical and analytical explanations of why a judge arrived at a specific decision. They are tangible proof to the litigants that the judge actively wrestled with their claims and made a scholarly decision based on his or her own reason and logic. When a court adopts a party’s proposed opinion as its own, the court vitiates the vital purposes served by judicial opinions.
Certainly, the court seems correct in ruling that parties to litigation have a fair and reasonable expectation that the judge, not the parties, should be the one to articulate the reasons for the decision.
However, the court’s distinction between ghostwritten opinions and ghostwritten findings of fact and conclusions of law doesn’t hold up. Opinions and Findings of Fact and Conclusions of Law are the same thing, differing only in format. Both documents dispose of the losing party’s claims and give the reasons why.
And in fairness to the trial judge, it should be noted that he was following a common practice, as evidenced by the fact that the plaintiff’s lawyer devoted only one footnote of the appellate brief to the issue.
After my first trial as a young lawyer a million years ago, the trial judge–who was highly regarded and ultimately elevated to the Florida Supreme Court–called our firm, said our client had won, and asked us to draft an opinion to send to him. Ghostwriting for judges is as old as … well, ghostwriting.
— Bright v. Westmoreland County, 380 F.3d 729, 732 (3rd Cir. 2004).
Legalese embraces redundancy. Legalese embraces redundancy. Legalese … sorry, just getting in the spirit. In a convoluted dispute regarding a real estate conveyance, Judge Mark P. Painter, Ohio Court of Appeals, First District, offered his common sense take on the phrase “free and clear title” and other legal redundancies:
Free and clear mean the same thing. Using both is an unnecessary lawyerism. Free is English; clear is from the French clere. After the Norman Conquest, English courts were held in French. The Normans were originally Vikings, but after they conquered the region of Normandy, they became French; then they took over England. But most people in England, surprisingly enough, still spoke English. So lawyers started using two words for one and forgot to stop for the last nine hundred years.
So free and clear do not mean separate things; they mean, and were always meant to mean, exactly the same thing. Just as null and void and due and payable mean the same thing. All of these couplets are redundant and irritating lawyerisms. And they invite just what has happened here—an assertion that they somehow have different meanings.
The Norman Conquest was in 1066. We can safely eliminate the couplets now.
What’s your favorite legal redundancy?
— Kohlbrand v. Ranieri, 823 N.E.2d 76, 78 (Ohio Ct. App. 2005).
A large guy (280-90 pounds) ironically won a one-week trip to Hawaii as a reward for selling more than $20,000 in diet products. But in a lawsuit against Hanes, the underwear maker, he alleged his “dream trip” went awry due to allegedly defective briefs which “gaped open and acted like a sand belt on my privates,” causing injury.
We’ll let the court elaborate on this interesting products liability case:
Plaintiff testified that by the second day in Hawaii he was in debilitating pain. However, … he ignored the pain until he returned to Pensacola two weeks later. He explained he was able to ignore the pain because he was enjoying himself so much on this long anticipated vacation that he did not dwell on or focus on the pain to any degree.
Plaintiff testified he believed sand that he picked up in his swim trunks while enjoying the Hawaiian surf had irritated his penis. Over the next few days he and his wife “walked all over the place” until his condition worsened to the point that he “could hardly walk.” Plaintiff testified his inability to walk was caused by defendant’s defective manufacturing of his underwear which caused his “fly” to gap open. The gap resulted in his penis protruding from his underwear, whereupon the edges of the opening abraded his penis like “sandpaper belts.” …
Under cross examination plaintiff admitted he never examined his penis to assess the problem and/or treat the problem. He testified he is a “belly-man” and his “weight” prevents him from looking down and seeing his penis. He further testified he declined to use the hotel mirror to view the “injury” because that is “not something he would do.” He also testified he did not ask his wife to examine his penis because he would never ask her to do such a thing, nor would he want to let her know about his pain because it would have “ruined her vacation” as well. …
So how does one prove a complex products liability case like this one? How else? Bring on the experts! Nothing like an in-court reenactment to drive home a point (will resist the obvious “if they do not fit, you must acquit” joke):
Both the plaintiff and the defendant’s expert demonstrated the “tensions” that are placed on men’s underwear. This was done by holding the allegedly “defective” underwear and placing it under various “stresses” while comparing it with similar briefs made by other manufacturers, as well as other old, worn out Hanes brand briefs owned by plaintiff.
The uncontroverted expert testimony was that once a man’s genitalia are adjusted in his briefs, “vertical tension” is far greater than horizontal tension and there is no tendency for the fly to “gap.”
Based on the expert testimony, the judge concluded that “it was clear to the court that plaintiff’s underwear would not have ‘gaped’ open as contended by plaintiff because the tension load on men’s underwear is vertical and not horizontal.” The court speculated that it was more likely that plaintiff’s problems were caused by the “plaintiff’s manner of getting into his underwear,” which was to put them on at the same time as his pants.
The surprising legal lesson of this case is that expert testimony about tighty-whities fit can apparently pass scrutiny as scientifically valid under Daubert.
— Freed v. Hanes Brands, Inc., Case No. 2009 SC 003087 (Fla. Escambia County Ct. Oct. 12, 2009). Thanks to Cecile Mendizabel and others.
Thanks to Oregon Circuit Judge G. Philip Arnold for sending us Franklin v. Oregon. The opinion details the plight of Oregon federal district Judge James M. Burns and a unique prison inmate named Harry Franklin back in 1983. Their longterm relationship was on the rocks when Burns penned these opening words:
This is another chapter in the Harry Franklin saga. No longer am I tempted to call it the final chapter, as desirable as that would be to me. I mention mournfully that only the finality of death—his or mine—would enable the other of us to use the term “final” in that way. And, of course, if mine comes first, I have no doubt that another judge will someday express lamentations such as these.
Franklin was a prolific inmate litigator. Burns had already dismissed 37 cases he filed, only to receive two dozen more. These were on top of 45 other lawsuits filed by the inmate, which were dealt with by a different judge.
Here are some of the claims Judge Burns had to contend with:
– A claim for $3 million damages for mental frustration suffered by Franklin when a Portland television station allegedly misidentified a “14 wheeler tractor and trailer rig” as an “18 wheeler.”
– A claim for “Harassment by Water” arising from the Oregon State Prison’s sprinkling of the prison yard during summer months, which prevented Franklin from finding a dry place to lie down.
– A claim that the Oregon State Prison wrongfully bakes its desserts in aluminum rather than stainless steel pans.
How did the inmate decide which of his claims had merit? In his words:
FN1. “The Lord spoke to me, and he told me to file these lawsuits and said, ‘You will win big in your lawsuits,’” the heavy-set, white haired convict said. “He showed me an enormous elephant. He said that the elephant represents the big, gray courts, which is the government. Anyway, I was leading this elephant through every section of this penitentiary,” he said. “I was writing on a yellow legal pad. Each place we came to I’d jot something down and slap the sheet onto the elephant. And they all stuck. The Lord told me the sheets were suits. I never could get over that monstrous elephant.”
— Franklin v. Oregon, 563 F. Supp. 1310, 1316–17 & n.1 (D. Or. 1983). Thanks, Judge.
Originally appeared in the October 1997 issue of the ABA Journal.
On Shelley’s Case
BY ANDREW J. McCLURG
The Rule in Murray’s Case. The Rule in Rolanda’s Case. Who remembers those? Probably just Murray and Rolanda, their lawyers and a few close friends. But everyone remembers the Rule in Shelley’s Case. This is because the rule is vitally important to every lawyer until five minutes after completing the bar exam.
Who was Shelley and what made her so special? Next month, top property lawyers from around the world will gather in Hawaii to tackle this ancient riddle at the First International Conference on The Rule in Shelley’s Case and Jet-Ski Championships. For three days, these experts will present scholarly papers, engage in profound debate and do cannonballs off the highdive board.
You may qualify as such an expert. Take the following classic essay exam to find out:
A conveys Whiteacre to “B for life, then to C for life, then to B’s heirs” (Practice tip: The Rule in Shelley’s Case applies only to property called Whiteacre or Blackacre.) B, the life estate grantee and remainderwoman, is involved with C, an aging rock star who turns out to be a fertile octogenarian.
B gets pregnant and gives birth to little D, a delightful toddler when he is sedated. (C, the artist formerly known as Q, was a cad who already had nine children: H, I, J, K, L, M, N, O and P.)
You may be asking yourself, “Where does Shelley fit into all this?” It’s a good question, but questions aren’t allowed during a test.
A gets jealous and enfeoffs C with a backhoe. C is rushed to the ER by EMTs, gets CPR from and RN and an IV from an MD, but it’s too late. C is DOA.
If things weren’t bad enough, C’s HMO refuses to pay for his MRI. A, guilt-ridden, turns to drugs (you guessed it: LSD) and shoots himself with a BB gun. B, unable to find suitable daycare for little D, loses her scholarship at UCLA, flunks her LSAT and is hounded by her CD club.
C was last spotted by CNN hiding somewhere in the mountains of the former USSR.
Analyze D’s rights to Whiteacre. Don’t look at the answer until you have fully worked through the problem.
Answer: What did we just say about looking?
Real Answer: Under the Rule in Shelley’s Case, D gets nothing because if a life estate is conveyed to a grantee and a remainder to the grantee’s heirs, both the present estate and remainder are taken by the grantee (or maybe it’s the grantor, we always get those messed up).
If you’re still wondering about Shelley, you’ll have to attend the conference. Don’t forget to bring lots of legal pads and sunscreen.
