Lowering the Bar

Never Bring a Chainsaw to a Gunfight

As you probably know, it is difficult enough to chase somebody while waving a chainsaw without having to worry that the person is going to suddenly turn and pull a gun on you, but I guess this is something that we all need to watch out for during future chainsaw pursuits.

Mike Morrison learned this recently while chasing a group of people out of a haunted house on Monday, October 26, in Maryland.  Morrison works at the "House of Screams" in costume as Leatherface, the killer in "The Texas Chainsaw Massacre."  In the movie, Leatherface wears a mask and chases people around with a chainsaw, among other impolite activities.  Morrison does that, too, except that there is no chain on his chainsaw.

Morrison apparently decided to get "one last scream" out of a group of people who had just finished touring the haunted house, and so he pursued the group up a staircase and out into the parking lot.  This was probably great fun until one member of the group, who turned out to be an off-duty police officer, turned, drew his service handgun, and pointed it at his pursuer from less than 10 feet away.  Wisely, and very uncharacteristically, Leatherface dropped his chainsaw, raised his hands, and slowly backed away.

The officer, Sgt. Eric Janik, had allegedly been drinking, which had prompted a security guard to follow the group through the House of Screams to make sure everything went smoothly.  It apparently did, until the part where an employee dressed as a masked serial killer chased the group outside with a roaring chainsaw and was nearly shot to death.  Other than that, everything was under control.

Morrison admitted that he pursued the group for "one last scream" even though Janik's 9-year-old daughter, who Janik had brought with him to the House of Screams, was already crying from fear.  According to the report, "Morrison said Janik's daughter appeared to be disturbed by his act, in which he pretends to cut one woman in half and disembowel another with the chain saw."  You think?  Still, I guess Leatherface was just doing his job.  I'm no expert in parenting, but I do think kids should be at least 10 before they are allowed to witness a disemboweling, don't you?  Maybe I'm just old-fashioned.

Janik was suspended by the department and has also been charged with assault.  Leatherface remains at large, likely even more dangerous now that he is almost certainly sporting a new pair of underpants.

Happy Halloween.

Link: AP via FindLaw.com
Link: Baltimore Sun

Court Criticizes Everybody Involved in Briefing That Totaled 5,415 Pages

A while back, I made fun of a brief that was filed on behalf of Jeffrey Skilling (of Enron fame, or infamy), not because it was bad but because it was 239 pages long.  At the time, I thought that was a lot of pages.

On October 9, the California Court of Appeal ruled in a case involving what it described as "what may well be the most oppressive motion ever presented to a superior court," an eye-catching statement given all the oppression associated with superior courts anyway.  The oppressiveness in Nazir v. United Airlines was not due to the kind of arguments made, just the sheer number of pages involved.  Counting the required separate statements and appendices and other attachments as well as the briefs themselves, the parties apparently submitted 5,415 pieces of paper to the court for just this one summary judgment motion.

The briefs themselves were not the most remarkable thing about this.  While they were all way too long -- the opening brief, opposition, and reply were 85, 57, and 76 pages respectively -- all three put together still would not equal the incomparable monster brief filed in the Skilling appeal, which as I pointed out before was half the length of Huckleberry Finn.  But because summary judgment motions involve battles about the facts, they often involve lengthy attachments of exhibits and so forth.  "Lengthy" generally means maybe a couple hundred pages, though, not well over five thousand.  Depending on what kind of paper was being used and how many tabs there were, the stack of papers related to this one motion could have approached three feet in height.

It is especially odd for the defendants (who filed the motion) to have contributed so much to this pile, since the point of filing a summary judgment motion is to show that there are no genuinely disputed issues of fact that have to go to a jury.  The fewer facts you bring up, the better, so the fewer pages, the better (always a good rule anyway).  But here, the defendants' first set of papers was 1056 pages long, and (after more than 2000 pages from the plaintiff) they filed even more in reply (1150).  It was, the court said, "a record the likes of which we have never seen."

Not surprisingly, the court reversed most of the judgment, managing to find some disputed facts in the ginormous mass of paper that had been dumped into the record.  It managed also to criticize the trial judge, though, noting that "what apparently happened is that the trial court did not read all the papers."  No kidding?

Cite: Nazir v. United Airlines, Inc., 2009 WL 3235159 (Cal. App. Oct. 9, 2009).
Link: The UCL Practitioner

Experts Agree: Chances of Governor's Message Being Random Are Tiny

As you have probably heard, things are going just great in California, apart from the state being massively in debt, occasionally on fire, and thoroughly riddled with active fault lines.  Also, our bridges suck, but on the bright side, the state government is pretty much dysfunctional.  Maybe this is making everybody especially tense right now.  That doesn't really seem to justify trading childish insults, but at least this is providing some amusement as our burning state slowly sinks into the Pacific.

Not long ago, one of San Francisco's city supervisors, Tom Ammiano, told Governor Arnold Schwarzenegger to "kiss my gay ass" as Ammiano was walking out of a meeting that had gotten especially testy.  (Ammiano, who also works as a stand-up comic, could probably have come up with a better line, but time was short.)  Of course, it's his right to say whatever he wants to the Governor, but doing this probably does raise the odds of a veto if you have any legislation pending.

That's what happened with AB 1176, which Ammiano had sponsored and which the Governor vetoed recently.  He also sent along a veto message, something that governors often do, but this one had an interesting combination of letters along the left side of the two main paragraphs:

When this came to light (it didn't take long), a spokesman for the Governor said the arrangement of letters was just "coincidence."  I wondered how likely that really was, so I emailed my Internet friend Steve Kass, a math professor who I have Internet-known ever since he (correctly) mocked my math skills after I got something wrong in a prior post.  I asked him if he could figure out, using his math-professor abilities, what the odds were that these two words might actually appear at random.  He calculates that the chances of this would be about one in 2.1 billion, although it clearly depends a lot on the starting assumptions:

[Various calculations result in] various tiny chances, including a) 1 in 10 million, b) 1 in 100 million, and c) 1 in 2 billion. These are (using rough estimates of initial-letter frequencies in English words) the chances a) that seven randomly selected lines of English text begin with f, u, c, k, y, o, and u, in that order, b) that eight randomly selected lines of English text begin with i, f, u, c, k, y, o, and u, in that order, and c) that the first letters of eight randomly selected lines of English text and two blank lines separating those lines into three groups appear in the sequence i, blank, f, u, c, k, blank, y, o, u. The chances of c) are 1 in 2.1 billion, by my calculation, but no matter—only the order of magnitude is of interest here.

Turns out I was not the only one to have this idea yesterday, by any means.  Those wiseguys at NPR thought of it, too, and contacted a Prof. Robert Lewand from somewhere called Goucher College for the same purpose.  Lewand calculated that this would happen at random 5.5 times for every one trillion veto messages sent, or in other words (I think) that the odds would be something like one in 200 billion.  The difference may be due to what Lewand (who is also a cryptologist) said is the relative rarity of words that start with "k" in the English language, but he didn't explain in detail.

I would leave the "i" out of the calculations, mainly because I seriously doubt that was part of the message Schwarzenegger intended to send Ammiano.  That I do believe was a coincidence.

Other estimates floating around are all over the place.  I will stick with Steve's, mainly because I like the idea that if you asked all human beings to write down eight randomly selected lines of English text with two blank lines separating those lines into three groups, on average three of them would in fact write something that happened to spell out "F*CK YOU."  Now, what are the odds that (assuming we did this) one of those three would just happen to be the governor of California?  Hard to say, but as Steve notes, the one thing everyone agrees on is that it is really unlikely that this was not done on purpose.

By the way, there are no hidden messages of any kind in this post.  I just don't have the time to come up with something that spells out "AMMIANO AND SCHWARZENEGGER SHOULD BOTH GET BACK TO WORK BECAUSE OUR STATE IS FALLING APART," although I would dearly love to be able to give that a shot.

Link: Steve Kass
Link: National Public Radio (audio clip)

Gang Member to Get Makeover for Trial, Says Attorney

"Clothes make the man, and a mustache couldn't hurt either," will apparently be the trial theme in Richard Rodriguez's case against the city of El Monte, California.  Rodriguez sued the city in July, alleging that a police officer used excessive force against him at the end of a lengthy chase.  The official position is that the officer used a "distraction blow," though Rodriguez alleges that the officer kicked him in the head.  (Based on the YouTube video of the incident, he may have a point.)  I imagine that is probably an effective way to distract someone, but Rodriguez insists it was unnecessary.

Rodriguez now claims to suffer from headaches and blurred vision, among other things, and is suing the city for $5 million.  One possible problem: Rodriguez is a heavily tattooed gang member who, as one of his many decorations, has the name of his gang tattooed on his upper lip.  Not the sort of thing that goes down well with your average juror, probably, even in Los Angeles.

But Nick Pacheco, Rodriguez's attorney, has a solution: his client will be getting an extreme makeover before trial.  This idea makes a lot of sense, but what is a little puzzling is why Pacheco released a before-and-after picture in which he used Photoshop to project what his client will look like once the project is complete:

In addition to a conservative suit and tie, and some hair to cover the scalp tattoos, Rodriguez will be growing what the L.A. Times described as a "Magnum P.I." mustache to cover his gang-inscribed lip.  "People get past looks when you put on a suit and your hair is grown," said Pacheco, although that is probably not true.

Again, not a bad idea, but I think he may have fired this opening shot too soon.  If he can Photoshop his client, so can the DA.

Link: Los Angeles Times

State Assistant AG Fired After Inappropriate Cemetery Visit

A 66-year-old deputy assistant attorney general is now no longer employed by South Carolina after a police officer noticed him and another person engaging in an unspecified activity in a "secluded part of a downtown cemetery."

He and the 18-year-old woman with him, an employee of the Platinum Plus Gentleman's Club, gave conflicting stories about what they were doing in the cemetery, Officer Michael Wines wrote in his report, though he did not elaborate.

South Carolina's governor at least went to Argentina to conduct his shenanigans (although he first claimed he had been hiking the Appalachian Trail), but the state has apparently instituted a zero-tolerance policy for lower-ranking government officials.  Saying he had received further "credible information" about the incident, McMaster fired the assistant AG before the day was out.

Just to clarify official policy for his other subordinates, McMaster was quoted as saying that "such a trip to the cemetery 'would not be appropriate, at any time, for an assistant attorney general.'"  Please make a note of it.

Link: AP via SFGate.com

French Court Finds Church of Scientology Guilty of Fraud

On October 26, a French court held that the Church of Scientology and six of its members were guilty of fraud, sentenced the members to as much as two years in jail (suspended) and fined them up to $600,000 each.  It did not ban the church, but did order it to publish the verdict in national and international magazines.

Some people are skeptical of Scientology, just because it was founded by a science-fiction writer and teaches that humanity was brought to Earth 75 million years ago in spaceships that looked just like DC-8 airliners at the command of an alien space lord named Xenu, who stacked billions of people around volcanoes and then set off H-bombs inside the volcanoes in order to release the humans' souls (or "thetans") which then restuck to human bodies.  Scientologists are supposedly striving to recover a full understanding of their thetan selves, which in addition to being a long and difficult process also turns out to be fairly expensive.

The French case focused on the use of "electropsychometers," devices that are used to "audit" people and determine what "engrams" might be jacking up any individual Scientologist's mental state.  The "E-meter" itself is said to cost anywhere from $900 for the Mark V up to $4,650 for the "Mark VII Super Quantum E-meter," which is apparently similar to the Mark V but with super quantum abilities.  The plaintiffs said that after being audited they were led to believe they needed to buy a bunch of stuff, and the court agreed they had been defrauded.

"It's an empty case," said Eric Roux, described as a spokesman for the group and "an official representative of the organization's Celebrity Center."  He compared the case to the Inquisition, "[as] if some people did not wake up from the Inquisition time."  I don't think people were allowed to appeal during the Inquisition time, but Roux said that the defendants in this case definitely would.

Link: CNN
Link: Globe and Mail
Link: Scientology (Wikipedia)
Link: Operation Clambake

Pilots Who Forgot to Land No Longer Allowed to Fly

The Northwest Airlines pilots who failed to respond to air-traffic controllers for 90 minutes, missed their destination by 120 miles, and claimed they had "lost track of time" while using their laptops, have been stripped of their licenses by the FAA.

The pilots were said to have broken several federal regulations.  The report didn't say which ones, but most likely the ones that say pilots are supposed to respond to air-traffic controllers, land when they are supposed to land, and just generally fly the plane rather than dicking around on their laptops.

I'm paraphrasing.

The pilots told the NTSB that they had been using their laptops to practice using new scheduling software that is being phased in by Northwest.  Since these guys are in their mid-50s, they probably were not caught up in World of Warcraft or something like that, but there is still something odd about the software-practice excuse.  Even if a plane is on autopilot, 90 minutes seems like an awfully long time to stare into a laptop with that kind of single-minded concentration WHILE YOU HAPPEN TO BE IN CHARGE OF AN AIRPLANE.

According to the NYT report, the men admitted that during the 90 minutes in question, "they heard voices on their cockpit radio, but ignored them."  Attention, Northwest Airlines: if your scheduling software is really so complicated that it could cause two pilots to ignore the increasingly concerned voices of a dozen different air-traffic controllers for an hour and a half, you need new software.

Link: New York Times

Judge Reprimanded for Jailing Guy Who Gave Him the Raspberry

I think I'm with the judge on this one, even if the state supreme court said he screwed up.

Municipal Court Judge Emery Toth was reprimanded last month for violating the New Jersey Code of Judicial Conduct by "speaking disrespectfully and intemperately to a litigant" and for abusing his contempt power by throwing the litigant in jail after he responded.  The litigant had escalated matters, though, by using certain well-known gestures and that time-honored salute, the "raspberry."

The defendant, a cab driver named Esmanuel Buldoni (a.k.a., oddly, "Luis Martinez"), had been charged with three traffic violations.  He was in prison at the time of his arraignment, possibly because he had failed to show up for a prior court date, and so the exchange took place over a video link to the courtroom.  After Buldoni pleaded not guilty, he and the judge got into a dispute over why exactly Buldoni was in prison at the time.  After a short exchange, Judge Toth ended the argument.  "I don't want to have an Oprah Winfrey conversation with you," he said.  "All right? . . . I'll give you a trial date next week.  See you around.  Goodbye."

According to Toth, Buldoni then made the "raspberry" sound and gestured with his middle finger in a way that Toth said he interpreted as meaning "kiss off."  The kiss-off does not seem to have been a big deal, but the raspberry was not to be endured:

Toth: Let me explain something to you. . . . I’m a street guy. I didn't get offended when you gave me the old fist up in the air. That's OK. I didn't really care about that. But when you give me raspberries walking out and you give me some kind of disrespect like that, I'm just telling you that's contempt in the face of the court. You're going to jail. You're going to stay there for another 30 days.

Defendant: Appreciate it.

Toth: No, OK, I'm giving you 40 days, 45 days. I told you don't give me any attitude. You want to give me the (indiscernible [but possibly "the old fist up in the air"]) and you want to give me the lip. You want to disrespect ...

Defendant: (Indiscernible)

Toth: Sixty days. Get out of here. Sixty days. Give him 60 days.

Defendant: No, give me 70.

Toth: Seventy-five.

As the advisory committee correctly noted, Buldoni's sentencing thus "more closely resembled an auction than a judicial proceeding."  Buldoni's clever bidding against himself ultimately got his sentence up to 180 days.  He complained about the judge's conduct, but did not appeal the contempt finding.

Link: ABA Journal
Link: New Jersey Law Journal

Another Consumer Says He Was Duped by Froot Loops

As I wrote this past summer, a number of lawsuits have been filed in California over the past couple of years by people who say they were deceived by certain representations on cereal boxes.  Specifically, plaintiffs including Janine Sugawara, Mark McKinniss and Keith Videtto have alleged they were led to believe that "Crunch Berries" and/or "Froot Loops" are made with real fruit even though the "froot" mentioned in the products' names is obviously fictional.

I still think this is like claiming emotional distress because you just learned "The Hobbit" isn't a true story.

When Sugawara and Videtto were dismissed in May 2009, I thought the Cap'n might have gotten away with his heinous crimes (which according to Ms. Sugawara included lurking on grocery-store shelves and aggressively thrusting his Crunch Berries at unsuspecting consumers) but recently yet another person has surfaced, this time in San Francisco, who is willing to swear under oath that he was outsmarted by a cereal box.  Or boxes, actually, because Roy Werbel filed cases against the makers of Crunch Berries and Froot Loops, apparently having been baffled by both.

Although he is represented by a different attorney, Werbel's complaints are nearly identical to those in the earlier cases.  For example: "[Plaintiff] was misled by the packaging and marketing, which by design and intent convey the message that the Product contains real, nutritious fruit," alleges Werbel about a product named "Froot Loops."  The complaint continues, "[h]ad he known that 'Froot Loops' contained no fruit, he would not have purchased it."  This, of course, is pleaded as a class action, and Werbel alleges that the manufacturer's practices with regard to Froot Loops "present a threat to members of the general public . . . ."  Oh, the humanity.

By my count, these are the sixth and seventh lawsuits in California against the manufacturers of these two fictitiously named cereals.  But hey - just because you are 0-5 and your arguments have been openly mocked by judges as well as a large percentage of the nation's bloggers does not mean you shouldn't give it one or two more tries. It does mean that, presumably, PepsiCo and Kellogg's are highly unlikely to settle, and that in two or three months plaintiffs should be 0-7.

Attention, San Diego -- these guys have now tried the Northern, Eastern and Central Districts of California, so I would expect cereal suits eight and nine to be filed in your neck of the woods sometime early next year.

Link:  SF Weekly

Lowering the Bar at Microsoft

As I think I have mentioned before, I occasionally do presentations based on "Lowering the Bar" for law firms, in-house legal departments, bar associations, and/or anybody else who might be interested.  I gave one of these at Microsoft on October 22, and, as nothing especially dangerous was thrown at me during the presentation, I think it went reasonably well.  (This seemed to go much better than my last presentation, maybe because I remembered to wear pants this time.)  I talked about odd patents, unusual consumer-law cases and ridiculous warnings.  So that this post has some purpose other than self-promotion, here's one of the patents we discussed today:

 

This is Patent No. 7,465,235, "Combined Human Catapult and Safety Landing Apparatus."  Catapult rider (24) is propelled by arm (34), driven by falling counterweight (16), into air (30).  I think.  Basically, this is for people who like the idea of being a human cannonball, but would prefer something significantly more dangerous.  (I'm not an IP attorney, but I did read through this several times and am not sure how the "safety landing apparatus" works. Please do not construct and/or use Human Catapult without a full understanding of this feature.)

If you would be interested in having me speak to your group, and you think they would also be interested in hearing it, please let me know.  Thanks again to Microsoft.

Link: U.S. Patent and Trademark Office