Lowering the Bar

Trial Continued Due to Outbreak of Saintsmania

From today's ruling in Becnel v. Northrup Grumman Ship Systems, a case pending in Orleans Parish, Louisiana:

Considering the historic victory of the New Orleans Saints, the Court finds that the trial will not be able to proceed as originally scheduled.  The Court takes judicial notice that Saintsmania permeates the City of New Orleans.  Many prospective jurors for the Parish of Orleans, several attorneys involved in this litigation and Court personnel plan on traveling to the promised land - the Super Bowl in Miami, Florida.  The Court recognizes that this pilgrimage enhances the chances of the Who Dat Nation to acquire the long sought after Holy Grail -- the Vince Lombardi trophy.

THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that the jury trial scheduled for Monday, February 1, 2010 is continued to Tuesday, February 9, 2010 at 8:30 a.m.

The judge ruled on the matter sua sponte.  He later told a reporter that he would not be holding any jury trials during the entire week following the Super Bowl because, he said, after the Saints win, "everyone will be in a really good mood."

I am informed that the "Who Dat Nation" is a loosely affiliated organization of individuals, including but not limited to Louisiana residents, who are wont to express a general skepticism as to the chances of any football team opposing the New Orleans Saints, typically expressing said skepticism in a chant that was roughly translated for me as, "Who is that saying that they may be able to defeat the Saints in a game of football?  Whoever it may be, to us this seems quite unlikely."

The Colts are a great team, but I have to root for the Saints if only because Who Dat Nation has been through so much over the last few years.  Whatever happens, it is probably best not to schedule anything in New Orleans during the following week.

Link: New Orleans Times-Picayune

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

Motion Dismissed for "Negligent Stapling"

The ABA Journal reports today that a judge in New York dismissed a motion for default judgment partly because it had been so poorly stapled.

It appears that the staple or staples used were inadequately closed during the stapling process, causing one or more staple points to protrude.  According to Supreme Court Judge Charles Markey, the resulting brief posed a risk to court clerks, and did in fact cause injury:  "The poor stapling of the papers," he wrote, "was so negligent as to inflict, and did inflict repeatedly, physical injury to the court personnel handling them." (The court's order does not give any details of the staple-related injuries, which I hope means they were minor.)  "Such negligence on the part of counsel shows a lack of consideration."

The seemingly harsh result is probably also explained by the fact that the case had reportedly been separately filed as another type of action, so that the plaintiff would not be prejudiced by losing one of them on negligent-stapling grounds.

The plaintiff's lawyer told the New York Law Journal that this was an "isolated occurrence," and that he had successfully stapled and lodged more than 5,000 other filings without injuring anyone.

Link: ABA Journal
Link: New York Law Journal (registration required)
Link: Supreme Court Jester

Longest Known Judicial Oath

According to the people at Improbable Research, who collect interesting and completely ridiculous studies done in many scientific fields (including the social sciences), the longest known oath required of witnesses in a judicial proceeding was the oath required in Burmese courts until sometime in the 19th century.  The oath was 374 words long, at least in its English translation as recorded in Burmah and the Burmese, an 1853 book by Kenneth R.H. Mackenzie.

It goes into slightly greater detail than the more familiar "truth and nothing but the truth" formulation we boringly use today:

"I will speak the truth.  If I speak not the truth, may it be through the influence of the laws of demerit, viz., passion, anger, folly, pride, false opinion, immodesty, hard heartedness, and scepticism, so that when I and my relations are on land, land animals, as tigers, elephants, buffaloes, poisonous serpents, scorpions, &c, shall seize, crush, and bite us, so that we shall certainly die. Let the calamities occasioned by fire, water, rulers, thieves, and enemies oppress and destroy us, till we perish and come to utter destruction. Let us be subject to all the calamities that are within the body, and all that are without the body.

"May we be seized with madness, dumbness, blindness, deafness, leprosy and hydrophobia. May we be struck with thunderbolts and lightning, and come to sudden death. In the midst of not speaking truth, may I be taken with vomiting clotted black blood, and suddenly die before the assembled people.  When I am going by water, may the water Nats [spirits] assault me, the boat be upset, and the property lost; and may alligators, porpoises, sharks, or other sea monsters, seize and crush me to death; and when I change worlds, may I not arrive among men or Nats, but suffer unmixed punishment and regret, in the utmost wretchedness, among the four states of punishment, Hell, Prita, Beasts and Athurakai."

I would not be too concerned about the porpoises, but the rest of that seems fairly nasty.

Just in case the oath itself was not enough, the court also got into the act, praying that false witnesses "die of bad diseases, be bitten by crocodiles, [and] be drowned. . . . May they be killed with swords, lances and every sort of weapon.  May they be precipitated into the eight great hells and the 120 smaller ones . . . May they be changed into dogs," and, worst of all, "may everyone ill-treat them and raise lawsuits against them."

Link: The Guardian
Link: The Annals of Improbable Research
Link: Burmah and the Burmese (scanned at Archive.org)

Judge Finally Gets Around to Ruling on 26-Year-Old Case

Recently, District Judge Ronald McPhillips of Toole County, Montana, ruled that James Rubow had not breached his agreement with Milan Ayers, who contended that Rubow owed him millions of dollars for improperly taking his share of a natural-gas field.

This would not be news, except that the lawsuit was filed in March 1983.

In March 1983, Ronald Reagan was president, the last episode of "M*A*S*H" had just aired, the "moonwalk" was performed for the first time (the one by Michael Jackson, not Neil Armstrong), and the big hit at the Consumer Electronics Show in Las Vegas was Commodore's first portable computer, which offered buyers a full 64 kilobytes of RAM and a five-inch screen for only $995.00.

Also, Ayers v. Rubow was filed.  The last entry in the clerk's register for the case was in March 1985.  After that, the case languished and the court's file on it apparently disappeared.

Time passed.  The Soviet Union fell.  Ronald Reagan died.  Michael Jackson died.  People complained because the battery life of their $299 handheld phone/computer with 64 gigabytes of flash memory was not quite as long as advertised.  One day, Judge McPhillips, who had retired in 1994, was doing some spring cleaning and came across an old case file.  "I think he found it in an old briefcase he had at home," said his former administrative assistant, who was probably quite good but may have let things slip a bit with this particular file.

Judge McPhillips brought the file to the courthouse and asked its current occupant, District Judge Laurie McKinnon, what to do.  She, in turn, asked the Montana Supreme Court what to do.  The high court replied that, if the case was in "good shape," she should let Judge McPhillips go ahead and rule on it.

Was the case in good shape?  Well, it was 26 years old, but luckily Judge McPhillips had taken really good notes.  "He had taken very good, very copious notes on the case," said his assistant, "so it was good he was able to rule on it, and we were able to avoid a new hearing."  Good for Mr. Rubow, at least, who ended up winning.  Judge McPhillips ruled that he had not breached his agreement with Mr. Ayers, and the lawsuit was dismissed.

Ayers said he was not yet sure whether he would appeal.  If he does, he might want to have an explanation ready as to why he forgot about a multi-million-dollar lawsuit he filed in 1983.

Link: AP via Yahoo! News

Court Approves Serving Lawsuit Via Facebook

Better take a close look at all those "friend" requests you've been getting.  One of them might be a process server.

This week, an Australian court approved a lawyer's request to serve two defendants with a lawsuit by sending them a message through Facebook.  Mark McCormack said he had been trying for weeks to serve Gordon Poyser and Carmel Corbo with a foreclosure notice after they defaulted on a home loan.  Courts have previously approved service by email and even text messages, if a plaintiff can show that regular measures have not succeeded.  Having noticed that defendants had Facebook profiles, McCormack persuaded the court to authorize service that way.

The order attracted publicity immediately, however, and by the time McCormack's documents were ready to go, the Facebook profiles were no longer public.

An Associated Press reporter was able to find Poyser at home (and somehow get him to answer the door).  He declined to comment, except to say that the couple was despondent about possibly losing their home, and to insist that he had restricted the Facebook pages only because he knew media attention was likely.  Otherwise, he said, "I'd get every man and his dog having a look."

Facebook itself was quite pleased with the ruling.  "We're pleased to see the Australian court validate Facebook as a reliable, secure and private medium for communication," the company said, obviously through a trained spokesbot.  "The ruling is also an interesting indication of the increasing role that Facebook is playing in people's lives."  Yes indeed -- once Facebook was merely helping people stay in touch with friends, but now it's helping evict people from their homes during the Christmas season.

Happy Holidays, from Facebook!

Link: MSNBC.com

Another Football-Related Trial Continuance Granted

Last season, a judge agreed to continue a trial date after counsel pointed out that the date would impair the parties' ability to watch the New Orleans Saints play for the NFC championship.  Now a judge in Baton Rouge has granted a similar motion, this time based on a college bowl game.

Specifically, the national championship game, to be played this year in the Superdome between LSU and Ohio State.  Steven Babcock, who is defending an insurance company in the lawsuit, and who has tickets to the game, moved to continue the trial's start date because of the conflict.  The motion was unopposed.

"All counsel to this matter unequivocally agree that the presence of LSU in the aforementioned contest of pigskin skill unquestionably constitutes good grounds [for the continuance]," Babcock stated in his motion.  This unequivocal agreement may have been in part because plaintiff's counsel also have tickets to the game.

"We might disagree on the merits of the case," Babcock told reporters, "but everyone was in agreement on this, for sure."

Babcock said he didn't know if the judge who granted the motion, Judge Alvin Batiste of West Baton Rouge Parish, was an LSU fan.  "[M]ost people around here are," though, he said.  Even if he isn't, it seems unlikely there are many Ohio State fans in the area.

Link: CBS News
Link: Motion to Continue (and order granting same)

Hindu Gods Ignore Court Summons

The New York Times Magazine recently included "Suing God" in its "Year in Ideas" issue, and this story confirms that the trend is international.  And not new.

Last Friday, a judge in the Indian state of Jharkhand summoned two Hindu gods, Ram and Hanuman, asking them to testify in a property dispute involving a plot of land.  There are two temples on the 1.4 acre plot, and ownership of the land is being disputed between a temple priest, Manmohan Pathak, and local inhabitants who say the land belongs to Ram and Hanuman.  Given the latter claim, the need for testimony from the deities is obvious.

But hard to get.  The judge, Sunil Kumar Singh, has previously sent two notices for the gods to appear, but both apparently were returned after the addresses were found "incomplete."  That having failed, Judge Singh decided to try service by publication.  He placed ads in local newspapers demanding that Ram and Hanuman appear and chastising them for not showing up before now.  "You failed to appear in court despite notices sent by a peon and later through registered post," Judge Singh's ad said.  "You are hereby directed to appear before the court personally."  I admit it is sometimes hard to find dependable peons, but based on the picture above you would think Hanuman at least would not be that hard to find.

An initial court ruling awarded the land to the local population, but Mr. Pathak then challenged that verdict in what was described as a "fast-track court."

That was 20 years ago.

Link: BBC NEWS

Cartoon Characters Subpoenaed

Last Friday, a court in Naples, Italy, sent trial subpoenas to Mickey Mouse, Tweety, and Donald and Daisy Duck, in what appears to have been a clerical error.

The defendant awaiting trial there is charged with counterfeiting Disney and Warner Brothers products.  Apparently, court clerks included on the witness list not only the companies' legal representatives, but also their imaginary ones: "Topolino," "Paperino," "Paperina," and "Titti" (that's apparently Tweety in Italian).  A summons went out to each of those cartoon characters care of Disney Italia.

A Disney Italia representative said none of the characters would be appearing at trial.  "Unfortunately they cannot show up, as they are residents of Disneyland," said Fiorenza Sorotto, a vice-president of the company.  Hey, smart guy -- according to this website, the Disney characters can be easily located at Disneyland Paris, which should give a court in the European Union at least transient jurisdiction over these jokers.  If they don't want to get served, they shouldn't be walking down Main Street U.S.A. in broad daylight.

Also, I'm a little suspicious of "Goofy Father Christmas," but I guess he hasn't been indicted yet.

Sorotto continued, "It certainly pleased us that the characters were considered real, because that's what we try to do."  Really?  You try to convince Italians that a six-foot duck wearing a top hat is real?  Well, then, congratulations.

A Disney lawyer said that the summons would have to be reissued, delaying the trial.  She expressed confidence that none of the characters would be prosecuted for failure to appear.

Link: CBS News

Nebraska State Senator Sues God to Protest Frivolous Lawsuit

Angry about frivolous lawsuits, in particular one recently filed against a Nebraska judge, State Senator Ernie Chambers has decided to cut to the chase and take legal action against the source of all his irritation, namely God.

Chambers says he is making a point -- that anybody can sue anybody -- to protest what he says is a frivolous lawsuit against Lancaster County District Judge Jeffre Cheuvront.  Cheuvront was in the news himself not long ago for granting a motion in limine to exclude the word "rape" from a rape trial.  (He decided using that word would be unduly prejudicial.)  The case ended in a mistrial, and the accuser in that case has sued Cheuvront, which is what Chambers is mad about.  He filed his lawsuit even though the judge hearing that case has already suggested there is no legal basis for it.

Chambers called his lawsuit "appropriate," at least in comparison to the accuser's lawsuit.  "People might call it frivolous," he said, "but if they read it they'll see there are very serious issues I have raised."

Okay.

In the complaint, Chambers accuses Defendant of making "terroristic threats" and of directly and proximately causing "fearsome floods, egregious earthquakes, horrendous hurricanes, terrifying tornadoes," and otherwise offering a lot of alliteration in the crackpot complaint pursuing his ponderous point.

Chambers asks the court to waive the personal-service requirement on the grounds that Defendant and His agents are present throughout Douglas County, but Plaintiff cannot determine which agent to properly serve. He says he has tried to serve Defendant by publication (apparently by shouting, "Come out, come out, wherever you are") to no avail.  The court is asked to take judicial notice of the fact that Defendant is omnipresent, and has actual notice of the action by virtue of being omniscient.

Plaintiff seeks a permanent injunction against Defendant.

It is unlikely that Chambers will succeed, partly because there is already a fair amount of precedent rejecting this kind of a claim.  For example, in 1971, a federal court in Pennsylvania dismissed Gerald Mayo's civil-rights action against Satan and various unnamed servants, on the grounds that there was no jurisdiction over the defendants.  United States ex rel. Mayo v. Satan and his Staff, 54 F.R.D. 282 (W.D. Pa. 1971).

I found it comical that, in the Associated Press photo posted on CBS's site, Chambers is posed in front of a fan so that he looks like he's got a halo.

That probably makes him furious.

Ironically, and very probably making him even furiouser, Chambers also looks an awful lot like Morgan Freeman, who has actually portrayed God in at least one movie (Bruce Almighty).

I assume this is just another one of the Defendant's little jokes.

Link: CBS News
Link: Chambers v. God, Case No. 1075/462 (District Court for Douglas County, Neb., complaint filed Sept. 14, 2007).