Lowering the Bar

Tree Robs Bank; Birnam Wood Suspected

According to police in Manchester, New Hampshire, a man robbed a bank Saturday morning after first disguising himself as a tree.

Let me address some questions you probably have right off the bat.  Yes, I have multiple sources for this story; yes, I have checked to make sure it isn't April 1st; and yes, I have a picture:

The robbery took place about 9 a.m. at a Citizens Bank branch in downtown Manchester.  Police said that a man, who they described as a 5-foot 8-inch white man with a thin build and dark hair, and wearing a blue T-shirt, blue jeans, and thick glasses, and also having "tree branches duct-taped on his person," entered the bank shortly after it opened.  He demanded money, but did not display any weapons.  That is, as the security camera footage shows, the man's branches, or more accurately, his leafy twigs, clearly were not large enough for potential use as a weapon and seemed instead to be intended to conceal his identity.  Detective Sgt. Ernie Goodno noted that the subject had used tree branches "as if he was trying to camouflage himself in the woods."

Well, let's not jump to conclusions, Detective.  He may have been trying to camouflage himself as a tall office plant; leafy shrub; or possibly as an actor in a local production of "Macbeth," playing one of the soldiers who shows up in Act V as part of "Birnam Wood" on the move, in my personal opinion Shakespeare's dumbest plot device:

[Act IV, scene 1.]

Third Apparition.  Be lion-mettled, proud; and take no care
  Who chafes, who frets, or where conspirers are:
  Macbeth shall never vanquish'd be until
  Great Birnam wood to high Dunsinane hill
  Shall come against him.

Macbeth.  Seriously?  That will never be.
  Who can impress the forest, bid the tree
  Unfix his earth-bound root?  Nobody, right?
  As this could not foreshadow some
  Lame plot device, high-placed Macbeth
  Shall live the lease of nature, pay his breath
  To time and mortal custom.

[Act V, scene 4.  The army of Malcolm.]

Siward. What wood is this before us?

Menteith.  By some strange coincidence,
  The wood of Birnam.
  Rolls eyes.

Malcolm.  Let every soldier hew him down a bough
  And bear't before him: thereby shall we shadow
  The numbers of our host and make discovery
  Err in report of us.

Soldiers. Hey, good idea.
  Now none of us will die.

  Exit one soldier, with boughs and duct tape.

[Act V, scene 5.  Dunsinane Castle.]

Messenger.  Gracious my lord,
  I should report that which I say I saw,
  But know not how to do it.

Macbeth.  Well, say, sir.

Messenger.  As I did stand my watch upon the hill,
  I look'd toward Birnam, and anon, methought,
  The wood began to move.

Macbeth.  Oh, come on!

Messenger.  Let me endure your wrath, if't be not so:
  'Tis writ upon the script this guy came up with;
  I say, a moving grove.

Macbeth.  If thou speak'st false,
  Upon the next tree shalt thou hang alive,
  Till famine cling thee: if thy speech be sooth,
  I care not if thou dost for me as much.
  I pull in resolution, and begin
  To doubt the equivocation of the fiend
  That lies like truth: 'Fear not, till Birnam wood
  Do come to Dunsinane:'  and now a wood
  Comes toward Dunsinane.
  It's the dumbest thing I've ever heard.

  Exeunt omnes.

I mean, a leader whose idea of clever strategy is to tell everybody to carry a tree branch so the other side can't count you very easily should probably be in charge of a Renaissance Fair someplace, not an army.  Hey, Shakespeare -- was that the best "prophecy" you could come up with?  Writing for a deadline is a real bitch, isn't it?

But, oddly enough, the tree-branch bank-robbing strategy has worked, at least for now.  In this version, Mr. Wood was able to escape with an undisclosed amount of cash, and as of Saturday evening he had not been captured.  The Union-Leader reported that police had deployed a K-9 unit to the scene, which is particularly bad news for a criminal disguised as a tree.

Link: WBZ TV (New Hampshire)
Link: Manchester Union-Leader
Link: Macbeth, text of
Link: Macbeth, Cliffs Notes to

Contract Held Not Binding Although Written in Blood

On Monday, a judge in Orange County Superior Court ruled against Kim Jin-Soo, refusing to enforce a contract to pay him over $140,000.  Judge Corey Cramin ruled after a bench trial that there was no consideration for the contract, despite Kim's argument that the contract was binding because the defendant had written it in blood (or, as the Daily Journal put it, "in the muddy ocher of his own blood").

Kim's lawsuit alleged that he had invested $140,000 in companies run by Mr. Son, but they all went out of business.  He said the two men met over drinks in 2004 to discuss the matter.  After apparently quite a few drinks, and some crying by one or both men (always a good time to consider drafting up a contract), Son allegedly agreed to repay the money Kim had lost, borrowed a safety pin from a waiter and wrote out a contract using his own blood.  "Sir, forgive me," Son wrote, according to a translation from the original blood-smeared Korean.  "Because of my deeds, you have suffered financially.  I will repay you to the best of my ability."

As attorneys will know (or recall), a contract isn't binding unless there was "consideration," meaning (roughly, because I don't really recall) both sides gave something in exchange for the promises by the other side.  For example, if you give someone a gift, don't expect to get your money back later if you decide you don't like them.  You would have to construe it as a loan with a promise to repay, and you need to have evidence of that up front or you can kiss that money goodbye.  (Yes, genius, I loaned money to my now-ex-girlfriend.  Attorneys make mistakes every day.)  This is rarely a determinative issue since it doesn't take much to constitute consideration.

It takes more than writing the contract in blood, though, Judge Cramin ruled.  He found the money had been lent to the companies, not Son personally; he wasn't required to guarantee those transactions and his tearful, bloody promise to do so was not a binding contract.  "The court will refuse to enforce a gratuitous contract," the judge wrote, "even when it's written in blood."

The opinion began with the saying, "Blood is the worst of all testimonies to the truth," which turns out to be a quote from The Anti-Christ by Friedrich Nietzsche.  I'm not a Nietzsche scholar, it may surprise you to know, but this does look like a fairly relevant quote and not just the result of a law clerk Googling the word "blood."  In the passage in question, Nietzsche is arguing that just because someone has been martyred for a cause doesn't necessarily prove there is any truth in that cause:

They made signs in blood along the way that they went, and their folly taught them that the truth is proved by blood.  But blood is the worst of all testimonies to the truth; blood poisoneth even the purest teaching and turneth it into madness and hatred in the heart. And when one goeth through fire for his teaching--what doth that prove? Verily, it is more when one's teaching cometh out of one's own burning!

Verily, it proveth also that somebody should probably get Friedrich's car keys from him at this point, but there is probably something to what he's saying.

Kim's attorney said his client may appeal.  "We think the blood speaks for itself," he said.

Link: Orange County Register
Link: Wikipedia: Friedrich Nietzsche
Link: Project Gutenberg: Friedrich Nietzsche

The Confession Machine (video)

Will Farrell's baby savagely coerces a confession out of a multiple murderer (played by Will Farrell).

Not for the squeamish.

Link:  Funny or Die

Indiana Man Attacks Lawyer in Courthouse; Another Lawyer Sort of Helps

In June 2007, prosecutors filed charges against a man who assaulted a lawyer in an Indiana courthouse and allegedly tried to push her over a fourth-floor railing.  According to the report, Russell Timmons attacked Linda Polley after a hearing in a case in which Timmons and his wife were plaintiffs and Polley represented an insurer.  The dispute was apparently over a binding mediation agreement that resulted in the couple getting $42,000.  Not happy with that, they tried to back out of the agreement.  A judge enforced the agreement and ordered them to pay $4200 in attorney fees.  Not happy with that, Timmons tried to throw Polley over a railing.

Under the common law, of course, one way to signal intent to appeal a court ruling was to throw your opponent off a cliff or to project him or her from another sufficiently high place.  Once lawyers were invented, throwing the lawyer sufficed.  But this has not been the law anywhere in the United States since at least 1978, so that Timmons' action was both unnecessary and legally ineffective.

Much more importantly, it would have resulted in a four-story drop and at least very serious injuries for Ms. Polley, so luckily others were nearby to help fend off the attack.  That sort of included attorney Theodore Hammond, who was walking along with Polley when Timmons came up behind them.  The report says that Hammond was "attempting to pull Timmons off Polley," and he was -- but as the security video below shows, he did it with just one hand, never letting go of the files he was holding under his other arm during the entire incident.

Now that's true attorney heroism -- save a life with one hand, keep your files in good order with the other.  You don't want to have to re-collate those.

Oddly enough, most of the comments to this story on the website where I found it were relatively supportive of Timmons, or at least they weren't sure from the video whether he should really be charged with attempted murder.  Here's a fairly representative example (posted under the heading "All be damned"):

If the prosecuters really think thats attempted murder. Where the heck was that charge when it's just a regular taxed person?  Whom got drug 3/4 mile or longer. Oh it's an attorney that's where they all stick together an kiss each others a$$. Like in my case i had many folk's see me getting drug underneath that pickup truck. But that doesn't consitute that harsh of a feloney. I'd bet the lady that got drug from the tavern. Would like to see that charge given to the a$$hole that done that to her. I tried like crazy to push that charge. I guess next time i'll video tape it. From all angles. That way everyone else can be a judge,jury and prosecuter. That my other two cents worth. And i'm running out. Anyone got a dime?

Evidently regular taxed people are gettin' drug thisaway and thataway in Indiana and the legal system treats these cases somewhat inconsistently.  More to come on that, I'm sure, but only one commenter made the point I'm interested in: "Drop the folder Hammond. . . . [W]as the folder handcuffed to you?"

[UPDATE: Timmons was later acquitted of attempted murder, but convicted of other charges and sentenced to jail.  What happened to Hammond and his files is still unknown.]

Link: WLFI.com (Lafayette, Indiana)

Court Reverses The Taster's $15-Million Award

On June 29, the California Court of Appeal reversed the judgment for Russell Christoff in his lawsuit against Nestle's.  As I've written about before, Christoff, a former model, happened to be in a store one day in 2002 and saw his own face gazing handsomely back at him from a jar of Taster's Choice.  This came as quite a surprise because, while he had "posed gazing at a cup of coffee, as if he enjoyed the aroma," for Nestle back in 1986, no one had ever told him that the picture had been used extensively as "The Taster" starting in 1997.  Nor had anyone ever paid him for it.

A jury awarded Christoff a total of $15 million, which to some seemed like a lot even if The Taster had been wronged.  The Court of Appeal heard oral argument last year (which by coincidence I happened to be present for), and on the 29th it reversed.  It held that Nestle had knowingly used Christoff's likeness without his consent, that it did not matter whether or not he was a "celebrity" for purposes of the applicable law, that Christoff had not shown that the bulk of the award was justified based on his expert's testimony, and also that Christoff's entire lawsuit may be barred by the statute of limitations.  The court remanded for further proceedings.

Christoff's expert, Peter Sealy, an adjunct professor of marketing at Berkeley and a visiting professor at Stanford, testified to the value of Christoff's face.  As the court summarized his testimony, Sealy, performing without a net, managed to opine that the face had accounted for no less than ten percent of Nestle's entire profits from the Taster's Choice brand, due to the importance of The Taster as an "icon":

The 'taster' [according to Sealy] 'is a key visual . . . that is a point of continuity for probably multiple variations of Taster’s Choice, decaffeinated, different flavors, et cetera.' The icon constitutes “a unique visual approximation of the promise of the brand. Great taste.' . . . 'It’s a visualization of a taster making a choice' and a 'validation that a taster would choose this particular instant coffee.'

You probably had no idea how much you respected the opinion of The Taster, but his validation of the sweet, sweet brew appears to have been determinative for at least ten percent of you.  In fact, Sealy continued, vaulting into the air and going for an increased difficulty score, The Taster's iconic value is hard-wired into our brains by the power of Evolution:

The picture of Christoff is a handsome male who 'is distinctive.' The use of a human face is important based on our history as 'hunter-gatherers, when we were looking for food in the plains of Africa. Our eye is attracted most immediately to two things - the human face or the shape of an animal.'

Seems to me that means Nestle should be using a leopard with a human face to sell coffee, not Mr. Christoff, but then I'm not a marketing expert.  (The reference to Christoff as "handsome" appears here to be the court's summary of Sealy's testimony, although as I pointed out last time Justice Cooper appeared to be quite taken with the plaintiff.)

My favorite part of the story continues to be Nestle's use of Christoff's face in the Mexican market.  That is, rather than use a different "icon," Nestle altered Christoff's image "to add sideburns and darken his complexion."  I guess Juan Valdez was not available.

Link (to PDF of opinion): Christoff v. Nestle USA, Inc., No. B182880 (Cal. Ct. App. June 29, 2007)

Six-Figure Award in Case of Golf Cart v. Chevy Cavalier

Madison County, Illinois, is not the lawsuit-lottery capital of the world like it used to be, but juries seem to still be pretty generous.  Last week, a jury awarded William Clawson over $111,000 for injuries he suffered after he drove a golf cart in front of a car.

If that seems odd, consider that it was also his own car he was hit by.

Apparently, there was someone else in it, although the facts were disputed and/or so poorly set out in the article that it's hard to figure out just what happened.  But Clawson admitted that he drove his golf cart into the path of his own car, when he saw it driving away.  Clawson claimed he thought it was being stolen, and so he may have been attempting a daring, Road-Warrior-style assault on the vehicle when he was injured.  (As seen here, except replace souped-up-feral-Wasteland-gang car with electric golf cart.)

In fact, it was being repossessed.  After Clawson was injured, his golf cart having surprisingly failed to bring the much heavier car to a halt, he sued the tow shop who employed the repo man who was driving the car.  He also sued GMAC, claiming that it never told him it was going to have the car repossessed, and also that it later failed to tell the tow shop it had changed its mind.  Among the things this article doesn't explain is why GMAC would have changed its mind about the repossession without any involvement or payment from Mr. Clawson.  Maybe the Ghosts of Christmas Past, Present, and Yet to Come appeared to GMAC and showed it the error of its heartless ways, and it decided to return the Clawson Cavalier with a big fat Christmas goose in the trunk.

Anyway, Clawson claimed he didn't know about any repossession, which explained his maneuver, and that the repo man had used an unreasonable amount of repo force in taking possession of the car.  GMAC claimed Clawson was the bad guy, saying he had  threatened Jack Turner, the repo man, and his wife with bodily injury -- Turner evidently having taken his wife along on a repossession date -- and then hit Turner with the golf cart, although Turner doesn't seem to have been injured.  GMAC also said Clawson wasn't really injured, and that if he was injured it was only because Turner was defending himself against an assault.  By hitting the assaulting golfer with a car.

I guess the facts in this article make about as much sense as the verdict.

Whatever really happened, the jury awarded Clawson $111,118.64.  The jury did find Clawson 48.35% responsible for his injuries, apportioning the remainder between the tow shop and GMAC (25.35% each), apparently having consulted Steven Hawking in order to determine causation down to two decimal places of precision (although he left before doing the addition because it doesn't add up to 100%).  Clawson thus received almost $57,000 for being hit by his own car after driving in front of it in a golf cart.

Link: Madison County Record