Lowering the Bar

New Addition to Case Law Hall of Fame: The Case of the Stuffed-Bear Donation

Whatever you're working on right now, wouldn't you rather be working on a case where the only material issue was who owned the big stuffed bear?

Me too.  See Pardue v. Turnage, 383 So. 2d 804 (La. App. 1980).

The dispute arose in Tangipahoa Parish, in eastern Louisiana.  Mr. Turnage owed Mr. Pardue $3,000, and when Turnage could not pay the judgment Pardue had some of his property seized.  Said property included one "large stuffed bear."  Before the bear could be sold, however, Ronald and Celestine Lessard intervened, claiming the bear was theirs.  After a trial on the issue of bear ownership, the trial court found against them.  Apparently heartbroken, the Lessards appealed.

The appellate court reversed, citing evidence supporting the Lessards' claim.  At trial, apparently, "no less than six witnesses testified that Kenneth Turnage had, or they heard he had, given the bear to the Lessards."  Id. at 805 (emphasis added).  Setting aside the hearsay problems with that testimony, it seems that the bear's whereabouts were a topic of great interest in Tangipahoa.  Also, the Lessards had "dominion over the bear," as "evidenced by its display at the Sportsman, a sporting goods store in Ponchatoula."  Dominion is nine-tenths of the law of bear possession, as you know.  For those and other reasons, the court held, it was their bear.  "An exhaustive reading of the entire record convinces this court that Kenneth Turnage did give his stuffed bear to the Lessards.  For the trial court to find otherwise was manifest error."  Id. at 806.

The only remaining issue was whether the donation of the bear was fraudulent (to escape a creditor) or "omnium bonorum" (meaning "of all the goods").  The latter is a Louisiana provision intended to prevent someone from giving away all his or her belongings, something that I guess is or was not uncommon down there.  Personally, I think a man should be able to do with his bear what he will, even if it be his only remaining possession.  But In any event, the court found the transfer was neither fraudulent nor omnium bonorum, because there was evidence Turnage did have other assets besides the bear, namely a home up north (where he seems to have fled).

"While it is true," the court noted, "that he gave his household effects and the bear to the Lessards, these were simply things he could not conveniently take with him to Alaska."  That settled, the case was remanded.

The bear's current whereabouts are unknown.

Link: Pardue v. Turnage, 383 So. 2d 804 (La. App. 1980).

"Follow the Chicken"

Q:  Do you have a separate business that you have
     incorporated . . . or is this something you do
     just in your own name?

A.  Sir, I had a vision back when I was a child that
     nobody else in this world could recognize but myself.

     I know where Osama bin Laden is today.
     I know the cure for SARS today.  I know many, many
     things in this world that other people don't recognize
     and don't understand and don't know.

     Simply because I follow the chicken.

From a classic deposition transcript that I'm surprised to see I haven't posted yet.  To learn more about following the chicken, follow the link.

Link: Pittman v. Dykes Timber Co. (Simpson County, Miss., May 28, 2003) (transcript excerpt)

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)

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).

Tool Sued

The New Orleans bureau has alerted me to a new lawsuit against the rock band Tool, filed in federal court in Louisiana.  Tool, whose music is described as "heavy metal," "alternative metal," "art rock," "art metal," "progressive rock," "progressive metal," "post-metal," and "genre-transgressing" in their extremely detailed Wikipedia article, was founded in 1990 and remains active today.  The band is also known for its creativity and elaborate stage shows and even packaging (Tool's album 10,000 Days won the 2006 Grammy for "Best Recording Package").

Turns out, all this time Tool has been exploiting Jason Crowley from Shreveport.

Crowley sued the band (named in the suit only as "Tool") on September 5, alleging that Tool had used him "to base their music on."  Crowley alleges that Tool uses his name in their music and has used his "likeness in video on screens on stage in live performances."  (Maybe this is the guy in the video for "Sober.")

More troubling is the allegation that Tool "managed to get into my apartment and place a ring, that you would wear on your hand, inside."  Crowley claims to have recently found a picture of said ring in a CD booklet insert.  He does not explain what Tool's motive might have been for breaking into his apartment and planting a ring (the hand kind) inside.  According to the complaint, Crowley has been trying to get the Shreveport Police Department interested in Tool (or at least the ring story) since 2003, but they accepted his report only in May of this year.

Crowley demands ten million dollars for "invasion of privacy, the use of my name, the images, and the trespassing."

Link:  Crowley v. Tool, Case No. 5:07cv1475 (W.D. La. filed Sept. 5, 2007) (PDF).
Link:  Justia Docket Search

"American National" Sues All Nine Supreme Court Justices

Brave American citizen Jerry Brumbaugh struck a blow for freedom or something on Friday when he sued the nine current members of the United States Supreme Court for making rulings that have violated his constitutional rights.  Specifically, all of them (all the rulings and all the rights).

In the lawsuit, filed in the Springfield division of the Western District of Missouri, Brumbaugh takes issue with the Court's rulings that have "violated my constitutional rights . . . in all manners, ways, and areas of law."  These include:

• "Violation of civil liberties by allowing a granted clause of the Constitution to violate my rights in many manners and ways,"
• "Failing to correct violations of the Constitution which it is the duty of the Court to do," and
• "Allowing unlawfully the loss of civil liberties by contractual means into the sphere of the 14th Amendment."

We would probably all agree that there are lots of "violations of the Constitution" that the Court has been failing to correct, although we would probably all disagree about exactly what those violations are.  Perhaps hoping to save space, Brumbaugh does not allege any facts supporting his own personal claim.  It is refreshing to see a complaint limited to three pages (especially after last week's titanic 239-page "brief" on behalf of Jeff Skilling), but this one probably needed a little more detail.  And a little more research -- I know the liberal wing of the Court is in the minority these days, but it would still be polite to spell Justice Breyer's name correctly.

On the other hand, Brumbaugh's complaint is consistent with his position that, since he is "an American national citizen," those pesky Federal Rules of Procedure do not apply to him.  The argument seems to be that the Bill of Rights amended "every preceeding [sic] clause" of the Constitution, so that the 14th Amendment's Due Process Clause applies directly to the action, authorizing Jerry D. Brumbaugh to do whatever he wants: "Plaintiff hereby asserts that the rules may not be used to interfere with this case . . . nor its continuance before the courts."

That argument didn't fly in a previous case, Brumbaugh v. Tandy, to which Brumbaugh refers in this complaint in support of his request that counsel be appointed for him.  (In both cases, he has specifically requested Gerry Spence.)  The complaint in that case elaborated a bit on Brumbaugh's arguments, and made some more creative ones, such as the argument that the Privileges & Immunities Clause grants a "right to protection by the government," and "to allow a pro se litigant to flounder is a horrid violation of the right to protection."  Maybe so, but it can also be very entertaining.  I hereby assert the right to deny Mr. Brumbaugh counsel, as to appoint one would infringe upon my pursuit of happiness.

In Brumbaugh v. Thomas, et al., of course, plaintiff has taken a more direct approach, as his certificate of service indicates: "YOU ARE HEREBY GIVEN NOTICE THAT YOU NINE JUSTICES ARE BEING SUED FOR VIOLATIONS OF THE U.S. CONSTITUTION."  Should he prevail, he requests "a ruling that the judges [sic] of the U.S. Supreme Court have violated the Constitution," and as damages "the net worth of each justice as payment for their deriliction [sic] of duty."  You nine justices should take note.

Link:  Brumbaugh v. Thomas, et al., Case No. 07-CV-3295 (W.D. Mo. filed Sept. 7, 2007) (PDF).
Link: The Supreme Court (for now) of the United States

O'Melveny & Myers Shames Itself With 239-Page Brief

The Wall Street Journal's Law Blog reports this afternoon that lawyers at O'Melveny & Myers, the firm defending former Enron CEO Jeff Skilling on appeal from his criminal conviction, have filed an appellate brief with the Fifth Circuit that is 239 pages long.

To be fair, the Fifth Circuit does require a 14-point font.

Still, at 58,922 words, the brief is over four times the length allowed by the Federal Rules, which limit briefs to 14,000 words unless you get permission from the court.  The normal limit would permit a brief of about 50 pages (again, depending on the font), but I can't recall ever seeing a case where I thought the issues really justified anything close to that.  Let alone 239.

I admit that I once wrote a brief that ended up being more than 40 pages.  It wasn't really my fault, but I still hang my head in shame about it.  (Tip:  If you can't make your argument in 30 pages or less, you probably need a new argument.)  The last brief I saw that was long enough to mock was a 100+ page draft of a brief that featured a 17-page introduction (itself longer than most briefs), with eleven separate main arguments, the last of which was the Dormant Commerce Clause.  (Tip: If your argument even mentions the Dormant Commerce Clause, you probably need a new argument.)  O'Melveny's brief uses 239 pages to cover just five main points.  The brief includes:

• A 12-page introduction;
• Over 44 pages of facts;
• A two-page summary of argument;
• Beginning on page 61, a 175-page argument; and finally
• A two-sentence conclusion, for anyone who has not crumbled into dust, or evolved into some other type of lifeform that is above our petty human concepts of "justice," before actually reaching the end of the document.

Each and every page, of course, is deeply treasured by its author(s), who could no more delete one of these pages than you would push one of your own children in front of a bus to buy yourself a few extra seconds to dodge out of the way.

Of course, that's not the argument made in the accompanying Motion For Permission to File a Brief Exceeding the Word Limit Set Forth in Federal Rule of Appellate Procedure 32(a)(7)(B), which itself is eleven pages long.  In that motion, O'Melveny says that the case of their client (referred to as "appellant Jeffrey Skilling ('Skilling')" just in case you forget which "Skilling" they're talking about) are sufficiently "extraordinary and compelling" that the extra words are justified.  The brief will raise a "large number [five] of "serious legal issues" -- most briefs don't raise these, I guess -- each of which "could easily justify a full-length brief on [its] own."  And has gotten one.

Finally, the authors note that this is not the longest brief (yes, an oxymoron) ever written, pointing out that in U.S. v. Brown, the government used 69,370 words in its brief, and in U.S. v. Martha Stewart it used 56,078 words.  So you see, 58,922 words is really quite reasonable.  True, it is more than Hamlet (31,901) and Alice in Wonderland (26,698) put together, and over half of Huckleberry Finn (111,275).  But what's extraordinary about those?

In all fairness, I should say that the brief really is very well written.  Honestly, this is outstanding legal work.  It's just way too goddamn long.

And now, having written 595 words complaining that somebody's brief is too long, I'll stop.

Link: WSJ Law Blog
Link: Count words for yourself at Project Gutenberg

Man's Right to Fish Recognized; Violation Held Not Grounds for Divorce

One of my ongoing projects (in addition to trying to convince our managing partner to get us a helper monkey) is to collect and make available as many legal documents as possible that are truly funny (intentionally or not).  As I come across good ones I'm uploading copies to the site and updating the summary pages that you can find over to the right.

Here's the latest addition, sent in by a reader.  Moore v. Moore was a 1960 case arising in southern Missouri and involving a husband's petition for divorce based on "general indignities."  Obviously that term describes a lot of relationships but this turns out to be Missouri's term for "irreconcilable differences."  Mr. Moore alleged a laundry list of "indignities," including (the court's headings):

• The turkey shoot
• The houseboat incident
• Another anti-fishing incident
• Late return from Shrine parade
• The pasture incident
• The cow sales incidents
• The quail hunting incident
• The telephone incident

Also, Mrs. Moore called Mr. Moore's folks "hillbillies."

The trial court granted the divorce, but the Court of Appeals in Springfield reversed.  The whole thing is worth reading, but here are a couple of excerpts:

We will agree with respondent . . . that a husband has a right to go fishing. And we will go further and say that this right extends to fishing without the constant and ever-present impediment of female presence and participation, if such be against the will of the husband. . . . [B]ut two or three or four isolated instances of insistence upon going along, or insistence upon his not going (either fishing or turkey shooting), over a period of six years do not, in and of themselves, constitute a constant and studied course of conduct amounting to indignities which render life intolerable. . . . .

* * *

In respect to plaintiff's evidence that Minnie once referred to relatives of the plaintiff as hillbillies: We suggest that to refer to a person as a 'hillbilly,' or any other name, for that matter, might or might not be an insult . . . . [H]ere in Southern Missouri, the term is often given and accepted as a complimentary expression.

An Ozark hillbilly is an individual who has learned the real luxury of doing without the entangling complications of things which the dependent and over-pressured city dweller is required to consider as necessities. The hillbilly foregoes the hard grandeur of high buildings and canyon streets in exchange for wooded hills and verdant valleys. In place of creeping traffic he accepts the rippling flow of the wandering stream. He does not hear the snarl of exhaust, the raucous braying of horns, and the sharp, strident babble of many tense voices. For him instead is the measured beat of the katydid, the lonesome, far-off complaining of the whippoorwill, perhaps even the sound of a falling acorn in the infinite peace of the quiet woods. The hillbilly is often not familiar with new models, soirees, and office politics. But he does have the time and surroundings conducive to sober reflection and honest thought, the opportunity to get closer to his God. No, in Southern Missouri the appellation 'hillbilly' is not generally an insult or an indignity; it is an expression of envy.

Now that's good legal writing.

Link: Moore v. Moore, 337 S.W.2d 781 (Mo. Ct. App. 1960) (PDF copy of opinion).
Link: Lowering the Bar's Case Law Hall of Fame Page
Link: And the Pleading Archive

Order Directs Counsel Not to Mudsling, Fingerpoint

On Tuesday, Judge Davis of the Northern District of Florida entered an order that suggested a slight frustration with discovery disputes that may result merely from a lack of civility between counsel.  Put another way, he is %@#*ing sick of the "now all too common, but absolutely intolerable, take-no-prisoners, scorched earth arrogance exhibited by many present day self-styled 'litigators.'"

Somewhere, there is a partner backing slowly and quietly out of a courtroom, just out of visual range of an associate still standing at counsel table.

In the judge's opinion, "truly justiciable" good-faith discovery disputes are very rare.  Given his suspicion that this was not one of those, but rather the garden-variety type, he established some very specific procedures to govern its resolution.  Sadly, this did not include a rock-paper-scissors match between counsel, as a judge in the Middle District ordered last year, but lead counsel do have to meet personally if necessary according to a specific schedule, and the non-prevailing attorney will likely be the one to pay any costs if the court is actually forced to rule on the dispute.

Finally, the judge concluded with a list of things to cut out:

[C]ounsel are advised that in my thirty-three years as a civil trial lawyer and judge I have seen it all and have heard it all. . . . Consequently, I will not consider half-baked arguments, lame excuses, delays caused by the client, mud slinging, passing the buck, pointing fingers, blaming support staff, or particularly, lack of time.

Also no fishing expeditions, unlimited document requests, usual boilerplate, totally unsupported claims, or arguments that a "common English word is 'vague' or 'overbroad.'"

Boy, if that became common practice, it would probably leave a bunch of lawyers standing around wondering what to do.  I think we actually have billing codes for most of those categories.

Link:  Design-Build Concepts, Inc. v. Jenkins Brick Co. (N.D. Fla. June 26, 2007)

Burglar's Plea to "Let It Be" Backfires With Judge

Quality judicial work by Judge Gregory Todd of the Thirteenth Judicial District Court, Yellowstone County, Montana.  You can see a PDF of the memo itself at the link below, but here's an excerpt:

Mr. McCormack, you pled guilty to the charge of Burglary.  To aid me in sentencing, I review the pre-sentence investigation report.  I read with interest the section containing Defendant's statement.  To the question of "Give your recommendation as to what you think the Court should do in this case," you said, "Like the Beetles say, 'Let it Be.'"

Hey Jude, Do You Want to Know a Secret?  The greatest band in rock history spelled their name B-E-A-T-L-E-S.  I interpret the meaning of your response to suggest that . . . I should just Let It Be so that you could live in Strawberry Fields Forever. . . . [But as] a result of your Hard Day's Night, you are looking at a Ticket to Ride that Long and Winding Road to [jail].

You get the idea.

Link:  State of Montana v. McCormack, No. 06-0323 (Yellowstone County District Court, Feb. 26, 2007)

Law Student Claims Discrimination Against Unskilled Typists

I've been meaning to post this for a while -- it's not new, but worth having in the Hall of Pleading Shame.  Late last year, Adrian Zachariasewycz (or, as his complaint states in paragraph 1, "hereinafter Adrian Zack"), after not being hired by the law firm where he had been a summer associate, sued that firm, his law school (Michigan), and a bunch of employees of both entities, alleging that they had all conspired to deny him employment.

Not surprisingly, the conspiracy allegations are especially vague.  Plaintiff does allege that he "believe[s] there is some nexus between the actions" of everybody that is named or not named in the complaint (see para. 33), which I think means among other things that all of you reading this now, and everyone you know or don't know, are alleged to be participants in the Conspiracy Against Adrian Zack.

The heart of the complaint, however, is Zack's allegation that Michigan Law School implemented, as part of the conspiracy, a "system of course examination and grading [that] disadvantaged students that could not type at a sufficient speed to produce the volume of text required to produce competitive examination responses."  This diabolical scheme resulted, in certain exams, in "borderline failing grades by virtue of the low volume of prose Mr. Zack could type in the time allotted as compared with other students."

I make a lot of suggestions in my legal writing seminars, but "try to generate a higher volume of prose" is not one of them.

It is not clear whether Zack is claiming to have an actual disability, but he does charge the law school with failing to make an accommodation for bad typists "that would allow them to complete on a level playing field with their manually more dextrous peers with better-developed keyboarding skills."  Among the relief sought in the complaint in addition to money, is an injunction preventing defendants from (among other things) "voluntarily disclosing the existence of this action," which of course Zack had already done himself by filing the complaint (not under seal).

Ironically, Zack's complaint has been typed reasonably well, by a person or persons unknown.  Perhaps he tapped it out one painful stroke at a time, during the two-and-a-half years that he has been trying unsuccessfully to find a job.

Link: Zachariasewycz v. Morris, Nichols, Arsht & Tunnell, LLP., et al. (complaint filed Nov. 28, 2006).

German Lawyer Ends Brief With Punchy National Socialist Conclusion

I occasionally teach writing seminars for associates in our firm, and there are two or three rules I try to emphasize about the concluding section of a brief.

• First, always end a brief with a real conclusion and not just something lame like "For the reasons stated above, we should win."
• Second, the conclusion should be short, compelling and persuasive.
• Third, and most importantly, it should not include the phrase "Heil Hitler."

Admittedly, you rarely see a brief that ends that way, but it does happen, as we learned from charges filed this week against German lawyer Sylvia Stolz.  Stolz has defended Ernst Zundel against charges of incitement that stemmed from Zundel's insistence on denying that the Holocaust took place.  Zundel was convicted last month and sentenced to five years in prison, and this week prosecutors said they were going after Stolz too for her conduct in the first case.  Stolz is charged with incitement, obstruction of justice and using symbols of a banned organization (the Nazi Party).

Zundel had to be tried twice because Stolz got banned from the first trial for trying to sabotage the proceedings.   Her disfavored acts included repeated provocations, such as denouncing the court as a "tool of foreign domination" and describing the Jews as an "enemy people."  Though Stolz was banned, she refused to leave and had to be picked up and carried out of the courtroom, shouting, "Resistance!  The German people are rising up!"

Apparently, though, Stolz was the only German person who was rising up, and that was only because somebody picked her up and carried her out of the courtroom.

That case was also the one in which she added "Heil Hitler" to the conclusion of a legal document.  Stolz does not deny doing that or any of the other things she is charged with, but insists that they were legitimate tactics in her fight against an illegitimate government and occupying power (us, I guess).  "We are under foreign occupation," she said, "and this foreign occupation has portrayed Adolf Hitler as a devil for 60 years, but that is not true."  Actually, it's more like 68 years -- these Holocaust deniers can never get their facts straight.

Prosecutors said they hoped to prevent Stolz from working as a lawyer in the future.

Link: AP via FindLaw.com

Deer Season Cited As Basis for Motion to Continue Trial Date

To the list of possible reasons for seeking a continuance, you can now add the start of deer-hunting season, at least if you live in Arkansas.  John Hall, the attorney for Bobby Junior Cox (not "Bobby Cox, Jr.," but "Bobby Junior Cox"), argued in a motion filed this week that the trial of his client, currently scheduled for November 8, 2006, should be continued on the grounds that it will be impossible to get a jury to reflect a fair cross-section of the community on that date, as it is just before the start of deer season.

Based on Game and Fish Commission records and the 2000 census, Hall calculates that approximately "ten percent of the population of the State will be deer hunting when this trial is going on."  The motion concedes that "deer season" is not a statutorily recognized exemption from jury duty, but argues nonetheless that many deer hunters will make excuses or "just refuse to show up" because they "would rather be hunting than stuck in a courtroom in Cabot[, Arkansas]."  He says that means that any venire summoned during that time would not reflect a "fair cross-section of the community" as the Sixth Amendment requires. 

The copy of the motion I received was not signed, but local newspapers reported the story as well.  The reports noted that Cox would likely be on trial for several weeks, as he and his codefendants are accused of operating a "continuing criminal organization" involving "illegal drugs, illicit sex and abuse of an inmate-labor program," which sounds charming, as does the fact that the codefendants include the former police chief and his wife.  The long trial would cause jurors to miss deer season.  Still, court personnel in counties that have many more hunters than Lonoke County, where the motion was filed, said they had never heard of a trial being rescheduled because of deer season.  A Commission spokesperson said that people typically planned their vacations and even their weddings around it, but he had no idea whether a judge would postpone a trial.

Although Hall's percentage numbers are correct, one flaw in his argument may be that November 11-December 17 is only the season for hunters using modern guns.  My research team has learned that the season for hunting with muzzleloaders is entirely different (October 14-22 and December 29-31), so maybe an accommodation can be made that would allow the Cox jury to take advantage of that.  The use of muzzle-loading guns is actually pretty common in Arkansas, apparently, as the State's figures show that almost fourteen thousand deer were killed with them last year.  That number is down 24% from the year before, though, presumably due to the new breech-loading technology spreading throughout the state.

Link: Motion to Continue Due to Deer Season (PDF)
Link: Arkansas Democrat-Gazette
Link: Arkansas Game and Fish Commission

Letter Encouraging Mediation

Tired of lengthy letters from opposing counsel full of BS?  This one's refreshingly short:

Dear Counsel:

       What do I have to do to get you off your dead ass and schedule a mediation.  Let me know.

       We have been trying for months to get a date.

       Wars have lasted shorter than getting a commitment out of you.

               With kindest regards,

               E. Todd Tracy

Link:  Letter Encouraging Mediation

Motion for Extension of Time Due to Puppies

Hot off the fax machine is this new pleading, filed on August 28 in the Supreme Court of Florida by a plaintiffs' attorney in Miami.  Petitioner faced a deadline to file a response to Respondents' motion for rehearing, but events beyond her control had conspired to make meeting that deadline impossible.

First, Tropical Storm Ernesto was then bearing down on southern Florida, and the area was under a hurricane watch at the time.  Because of that threat, "undersigned counsel and their staff have prepared today and plan to prepare over the next two days for a possible Hurricane."  That seems reasonable.

Second, counsel informed the Supreme Court of the State of Florida, her dog just had puppies.

Therefore, "[i]n addition to the normal preparations for her family and office," she wrote, "undersigned counsel has seven puppies (born to her King Charles Cavalier) that are dependent upon her and additional preparations are needed for the possible Hurricane."

Ah, yes.  The King Charles Cavalier, or as it is actually known, the "Cavalier King Charles Spaniel."  An "active, graceful, well-balanced toy spaniel, very gay and free in action; fearless and sporting in character, yet at the same time gentle and affectionate," saith the American Kennel Club.  "Suffers from a number of severe genetic defects," says the slightly less sentimental Wikipedia.  Among these are mitral heart valve disease, from which virtually all Cavaliers suffer, so that it is not impossible that additional preparations would in fact be required to get seven Cavalier puppies into their iron lungs, ready to ride out a possible Hurricane.  Why the Florida Supreme Court would be inclined to care about any of this is another question.

Surprisingly, the brief did not go on to explain that the breed is named after King Charles II of England, who had a pet spaniel when he was young, and made it essentially the Breed of the Realm when he took the throne.  According to Wikipedia, he "went so far as to issue a decree that the King Charles Spaniel could not be forbidden entrance to any public place, including the Houses of Parliament."  I just hope plaintiffs' counsel reads this and that I can look forward to a "Motion to Admit Seven King Charles Spaniels to the Bar of the Florida Supreme Court Pursuant to Unrevoked Edict of King Charles II."

Link: Petitioners' Unopposed Motion for Extension of Time
Link: Wikipedia Article on the Cavalier King Charles
Link: American Kennel Club

Go Ahead and Hate Your Neighbor, Go Ahead and Cheat a Friend

Said hating and cheating, however, may get you sued.  That's what we learn from this complaint, filed in 2003 by Willie Anderson against Dennis Sweet and the rest of Langston, Frazier, Sweet & Freese, P.A., in Jefferson County, Mississippi.  Anderson alleged that he had been hired to "procure" clients who would "ultimately become plaintiffs in various tort cases litigated by the defendants."  He said he worked for two-and-a-half years to "procure" these clients for pharmaceutical and insurance cases, but was never paid for his efforts.

Anderson said he had been promised between $1.5 million and $4 million for this procurement work (which was not fully defined in the complaint).  He noted, however, that "his greatest loss by [sic] which no monetary compensation could ever address," was the loss of his friendship with Dennis Sweet and the loss of Mr. Sweet to the "abyss of decadent material gain, avarice, greed and the deceitfulness of riches."  Though no monetary compensation could ever fully address these losses, Anderson thought that something in the neighborhood of $95 million would be a good start.

Although Anderson was represented by counsel, his complaint was still full of the type of allegations that you generally see only from pro se plaintiffs.  For example, he alleged "[t]hat it is a crying shame that the defendants made tens of millions of dollars with regard to the aforementioned [cases] and are too trifling to pay the plaintiff."  (In Mississippi, I guess, the creation of a "crying shame" is a basis for punitive damages.)  He noted that his dedication to defendants "could be characterized as that of a happy black slave singing 'Dixie' in the defendants [sic] tort fields, feverishly pick'in [sic] clients with no idea that his masters and whipping boy had no intentions on [sic] giving him that kind of money 'to buy his freedom.'"  It is hard out here in the tort fields, I can tell you that, but still this is a bit exaggerated.

Finally, Anderson stated that legal action could have been avoided had the defendants "paid heed to the song that warned: 'Go ahead and hate your neighbor, go ahead and cheat a friend, do it in the name of heaven, you'll be justified in the end.  There won't be no trumpets blow'in on the judgement day, cause on the bloody morning after, one tin soldier rides away.' (emphasis added)."  This of course was a (misquoted and uncredited) reference to "One Tin Soldier," a 60s anti-war song that was later re-recorded by the rock group Coven for the soundtrack to the movie "Billy Jack."  Coven was apparently otherwise known for its use of Satanic imagery and lyrics, which makes it particularly odd for Anderson's attorney to think that a Satanic hippie folk song might provide appropriate legal rules binding in Mississippi.

You can see the complaint at the link on the right side of this page labeled "One Tin Soldier."

Order Granting Motion to Compel Lunch

Also circulating this week, some really excellent work by Judge Gaines of the Maricopa County (AZ) Superior Court.  This order resolves a dispute over the terms of a lunch meeting to discuss discovery issues by (among other things) ordering the parties to select a location from one of the listed restaurants, to pay the bill according to a pro rata share based on number of attorneys attending, and directing the parties to tip not less than twenty percent (20%) percent of the bill.

Order Granting Motion to Compel Lunch

Latest Handwritten Notice of Appeal

Presented for your approval, Mr. George Swinger, Jr., a man clearly unhappy with the ruling in the trial court, and one for whom an even less happy result awaits on appeal.

George Swinger's Notice of Appeal (language warning, for those who care)