Agreeing to Disagree

BY ANDREW J. McCLURG

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

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

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

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

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

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

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

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

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

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

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

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

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

Conquering Renters’ Blues

BY ANDREW J. McCLURG

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

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

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

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

Covenants Running with the Land

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

Marketable Title

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

Fixtures

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

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

Easements by Prescription

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

Lateral Support Rights

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

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

Fowl Play

BY ANDREW J. McCLURG

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

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

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

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

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

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

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

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

Prosecutor: Do you deny this is your signature?

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

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

Defendant: No! I’m a rooster.

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

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

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

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

Defendant: Of course, I’m chicken.

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

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

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

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

Legal Hoopholes

BY ANDREW J. McCLURG

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

Q. Why do they call it a “lockout”?

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

Q. What is the crux of the dispute?

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

Q. Are they close to agreeing on a percentage?

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

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

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

Q. What about the Boston Celtics?

A. They’re terrible.

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

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

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

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

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

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

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

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

Hold Your Fire

BY ANDREW J. McCLURG

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

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

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

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

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

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

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

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

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

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

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

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

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

Accidents Happen

BY ANDREW J. McCLURG

As lawyers know better than anyone, every story has two sides. This can be frustrating when one is searching for the truth.

What should you do when two witnesses tell such completely opposite stories you can hardly believe they’re describing the same event? First, make sure they really are describing the same event and that you haven’t mixed up the case files.

If that’s not the problem, it’s possible the witnesses are lying. But be aware that conflicting eyewitness accounts can also result from honest differences in perception. Studies show people tend to perceive things in ways that best suit their needs.

This is especially true in relationships and automobile accidents. Since relationships would require more than 500 words to explain, we’ll focus on auto accidents.

Notice the different perceptions reflected in these insurance forms filed by two drivers involved in the same collision:

Describe How Accident Happened

Driver 1. I was minding my own business driving with my eyes glued to the road practically in slow motion when my neighbor’s death machine suddenly warped out of his driveway aimed straight at me.

Driver 2. With my head turned completely around looking for cars, I was backing out my driveway at approximately one-third of a mile per hour when my neighbor decided recklessly and without warning to launch an assault on the land speed record.

Describe Damage to Vehicles

Driver 1. My irreplaceable, vintage automobile is a total loss. Amazingly, despite the explosive force of the accident, my neighbor’s car has only a tiny dent in one fender.

Driver 2. After I pried myself loose from the twisted wreckage of my vehicle, I immediately inspected my neighbor’s rusted-out junkbox. Miraculously, the heap suffered only a minor, hardly noticeable scratch.

Describe Any Injury to Persons

Driver 1. My vertical leap and ability to enjoy life have been severely impaired. I’ve had to cancel my plans to quit my job as an accountant and become an NBA basketball player. The doctors say my case of PTCBLMSS (Post Traumatic Can’t “Be Like Mike” Stress Syndrome) is the worst they’ve ever seen. Fortunately, my neighbor was not hurt at all, except for a very slight bump on one arm.

Driver 2. It’s hard to write with my shattered elbow in this cast. I’ll submit an addendum when I get out of the hospital. As for that crock about my neighbor’s vertical leap, you should know that old Mrs. Merryweather (rest her soul) outrebounded him in last year’s neighborhood basketball tournament.

Other Comments

Driver 1. After reviewing the tragic circumstances of this horrible crash, I’m sure you will agree my neighbor is guilty as sin and does not deserve the great American privilege and responsibility of holding a driver’s license. If he doesn’t admit the accident was one hundred percent his fault, it’s only because he’s a pathological liar.

Driver 2. After you carefully investigate this terrible collision, I am confident you will come to the conclusion that I am as free from fault as a newborn baby. If my neighbor doesn’t confess all responsibility, it’s only because lying and bad driving are part of his devil-worshiping religion.

Short Subjects

BY ANDREW J. McCLURG

Millions have read Jonathan Harr’s bestseller, A Civil Action, the true tale of a labyrinthine toxic tort suit in Massachusetts that ground on for six years. Amazingly, Harr condensed 196 volumes of depositions, 78 days of trial testimony and 57 volumes of hearing transcripts into a taut legal thriller.

Simplifying the complex takes real talent. No one does it better than Hollywood, as Touchstone Pictures proved when it cut the six-year litigation down to only 118 minutes in a movie version of the book starring John Travolta.

But brevity has a cost – the loss of detail that made the original story so compelling. The real test comes this fall when Attention Deficit Productions brings A Civil Action to television.

The half hour special (retitled simply Action) strives to please today’s easily-distracted, channel-flipping audience while retaining all the important drama and characters from the original: Schlichtmann, the idealistic, obsessed plaintiffs’ lawyer; Conway, his stalwart partner; Facher, the formidable adversary; and Judge Skinner. Check out the complete script:

A spring day in 1982:

Schlichtmann: We gotta sue these guys.

Conway: Okay. [Commercial break]

Several years follow in which the plaintiffs ask defendants for a bunch of documents and stuff. [Commercial break]

At trial, young Schlichtmann gets guidance from the patriarchal Facher:

Facher: Objection! [LOOK SMUG]

Facher: Objection! [LOOK SUPERIOR]

Facher: Objection! [LOOK AT SCHLICHTMANN DRAW SWITCHBLADE]

[INSERT SCENE FOR TV: Schlichtmann attacks Facher. Facher reveals he’s Spiderman when he leaps to avoid thrust and sticks to ceiling. Sudden hurricane hits courtroom. Schlichtmann saves everyone. Falls in love with beautiful juror.] [Commercial break]

Captivating experts are called to untangle the complex evidence:

Schlichtmann: Please explain to the jury what the 12,000 pages of data [Commercial break] from the hydrogeological groundwater study [Commercial break] revealed, remembering that the producers have allotted your character only one second.

Expert: Defendants bad.

Heated settlement discussions continue (commercials woven in to save time):

Schlichtmann: That’s our offer. But that’s not all. You not only get the settlement and dismissal. Act now and we’ll send you the incredible Abdomenizer. A whole new you in three weeks. It’s a good deal, Facher.

Facher: Outrageous. If my ‘Original Club’ wasn’t securely protecting my auto from theft, I’d use it to knock some sense into you.

Closing argument finally arrives:

Schlichtmann: Ladies and gentlemen, I want to thank you for your attention and patience during these four grueling minutes of trial.

Judge Skinner: I will now instruct the jury. Run, don’t walk, back to that room and reach a verdict. Giddyup.

Juror: Aren’t you supposed to give us four convoluted questions that will later prove controversial?

Judge Skinner: No time for that. It’s thumbs up or down. [LOOK AT WATCH] Too late. Everyone shake hands and go home.

Frequent Crier Miles

BY ANDREW J. McCLURG

With complaints against airlines up 26 percent last year, Northwest picked a bad time to trap passengers in their seats for up to 11 hours during a January storm.

Things got worse when American’s pilots staged a “sick-out,” stranding thousands of angry fliers. (Official comment of the International Association of Pilots With Really Weak Immune Systems: “We were sick as dogs. No Kidding, Coughing, sneezing, scratchy throat, that aching feeling. It was awful.”)

Whatever the cause, both incidents were bad breaks for the airlines in light of recent marketing studies showing “vassalage” and “ruination of life” as two airline practices that annoy consumers.

Now Congress is getting into the act. Besieged with complaints about everything from getting no explanations for flight cancellations to being forced to hand babies over to security screeners at metal detectors, members of Congress have proposed a comprehensive Air Traveler’s Bill of Rights.

Not surprisingly, the airlines don’t like the proposal. Industry lobbyists have come up with an alternative bill of rights they assert is more balanced and fair to both sides. Here it is:

Air Traveler’s Bill of Rights (nonchangeable without penalty)

1. You have the right to remain silent. In fact, we prefer it that way. Please keep your trap shut the entire trip. If you choose to give up this right, anything you say can and will be used as an excuse to ram your head into the overhead compartment.

2. You have the right to arrive at the airport and find we canceled your flight. Why? You don’t really want to know. It was canceled two months before you made the reservation. Truthfully, we haven’t even looked into buying a plane for that flight. We’ve also canceled your credit cards, haircutting appointment and big date for this weekend. Right now, we’re towing your car.

3. You have the right to have an attorney present during check-in, provided she buys the most expensive business-class ticket on this week’s Hot 100 price list. If your attorney cannot afford one, you need a more successful attorney.

4. You have the right to have a drink cart parked between you and the bathroom at all times. Moving a drink cart with intent to urinate is a federal felony.

5. You have the right to be pepper-sprayed if you verbally abuse airline personnel with epithets such as, “Could you please help me? I’m begging you.”

6. You have the right of all Americans to be treated rudely and with contempt.

7. You have the right to a free radiological examination of your infant children. Since you whined so much about having to hand the totsters over to members of our crack security squad, just pop ‘em down on the X-ray machine belt and pick them up on the other side.

8. You have a right to have your knees surgically removed so you can fit in a seat designed for very tiny toy people with no knees.

9. You have the right to redeem the declining value of your frequent flier miles for selected bus travel in the Midwest, provided all travel be completed before the first date to fall on the date beginning on the date of travel.

10. You have no right to your luggage. Just forget about it.

Yeah, Yeah, Yeah

BY ANDREW J. McCLURG

Some people blamed Yoko Ono for the Beatles’ breakup, but now comes the discovery that the demise of the Fab Four was rooted in a bizarre artistic dispute over the recording of Sgt. Pepper’s Lonely Hearts Club Band.

John Lennon had a keen interest in legal matters, particularly those involving searches and seizures. His various legal run-ins gave him the idea to record a concept album about—you won’t believe this—the law. Unfortunately, the other moptops hated the idea. They rejected his proposed title of Sgt. Pepper & Associates, Limited Liability Partnership: If this Record Doesn’t Hit Number One, You Don’t Owe Us a Dime.

That was the beginning of the end. John was bitterly disappointed as he watched his idea being dismantled night after night during those famous recording sessions at Abbey Road. For the first time ever, here in John’s own words that I made up, are his original psychelegadelic versions of some of the greatest songs in rock history:

“Rumor had it this was some kind of drug song, but that wasn’t it at all. I wrote it about an admiralty case. Lucy was the name of a barge. The first verse went like this (strumming guitar):

Picture yourself in a boat on a river, with tangerine trees and marmalade skies, suddenly a submerged log rips through the hull, the navigable waters grow incredibly high.

It’s original title was Lucy Underwater With Multiple Liens and Judgments.“

“A negligence case, with a tricky charitable immunity issue included. For the benefit of Mr. Kite, the defendants staged a show one night—on trampolines of all things.”

“As if that wasn’t reckless enough, they induced plaintiff to jump over men and horses and, with conscious indifference to his welfare, through a hogshead of real fire. There weren’t even any warnings on the hogshead.”

“Paul wrote this one. He had this line going through his head (singing), I’m fixing a hole where the rain gets in and I told him to add to keep my tenant from suing me. I wanted it to be a tale of landlord-tenant oppression. When Paul sang the chorus line, Where it will go-oh-oh-oh, I said ‘Paul, yer daft. Change it to Implied warranty of habitabilitee-ee-ee-ee’ but he wouldn’t have it.”

“My favorite cut on the LP because it stays fairly true to my original idea, which was to track the thoughts of a down and out personal injury lawyer who starts each morning searching the newspaper for clients. The first version went like this (reading lyrics):

I read the news today.
Oh boy!
A wrongful death case. Victim didn’t notice that the lights had changed.
Eyewitnesses: A crowd of people stood and stared.
Economic damages: Victim may or may not be from House of Lords. Nobody is really sure.
I read the news today.
Oh boy!
Four thousand holes in Blackburn, Lancashire. The mother of all products liability cases.
Note to self: Will need expert witness. Holes are very small. Have to count them all.

Lest anyone think I’m showing disrespect to the Fab Four, I feel obliged to point out: I love you Beatles, oh yes I do, I love you Beatles, I love you true . . .