Departure from: MOON
Arrival at: HONOLULU, HAWAII, U.S.A.
Flight No.: APOLLO 11
Cargo: MOON ROCK AND MOON DUST SAMPLES
Nothing else to declare, I guess. Except that they had just Walked on the F*#%ing Moon!
Departure from: MOON
Arrival at: HONOLULU, HAWAII, U.S.A.
Flight No.: APOLLO 11
Cargo: MOON ROCK AND MOON DUST SAMPLES
Nothing else to declare, I guess. Except that they had just Walked on the F*#%ing Moon!
When judges get fed up with discovery disputes, this might happen:
Greetings and Salutations!
You are invited to a kindergarten party on THURSDAY, SEPTEMBER 1, 2011, at 10:00 a.m. in Courtroom 2 of the United States Courthouse, 200 W. Eighth Street, Austin, Texas.
The party will feature many exciting and informative lessons, including...
- How to telephone and communicate with a lawyer
- How to enter into reasonable agreements about deposition dates
- How to limit depositions to reasonable subject matter
- Why it is neither cute nor clever to attempt to quash a subpoena for technical failures of service when notice is reasonably given; and
- An advanced seminar on not wasting the time of a busy federal judge and his staff because you are unable to practice law at the level of a first year law student.
Invitation to this exclusive event is not RSVP. Please remember to bring a sack lunch! The United States Marshals have beds available if necessary, so you may wish to bring a toothbrush in case the party runs late.
The Wall Street Journal reported on Thursday that the parties and their attorneys had taken the hint -- not only did they resolve the subpoena issues, they settled the entire case. The kindergarten party was therefore canceled.
Added to the Noteworthy Court Orders page, joining such other notable discovery rulings as the one ordering the parties to resolve a dispute by means of a rock-paper-scissors match. (They got the hint there as well.)
Ladies and gentlemen, over the years we have seen some horrifying examples of man's inhumanity to man. Also man's inhumanity to woman, woman's inhumanity to man, and woman's inhumanity to woman, plus at least some examples of man's inhumanity to multiple women, animals attacking humans, humans bothering ostriches, and then there was the guy whose ex-wife hit him in the head with a basket of pocketknives. The events I am about to relate are perhaps more disturbing than any of these, yet still I feel the story must be told.
In Miner v. Garrity, a case resolved recently by an Illinois appellate court, Steven and Kathryn Miner accused their mother, Kimberly Garrity, of "bad mothering." They alleged that said mothering was so extremely and outrageously bad that it constituted intentional and negligent infliction of emotional distress. Garrity and the plaintiffs' father (also named Steven Miner) were divorced in 1995 when plaintiffs were seven and four respectively. Ever since, they alleged, Garrity has been trying to retaliate and has taken her anger out on the children. "The complaint," said the court, "provides a lengthy list of the many ways in which Garrity allegedly inflicted emotional distress upon the plaintiffs," and this alleged abuse was so shocking and depraved that at this point I must ask that anyone with a delicate health condition seek a doctor's permission to proceed.
Plaintiffs alleged as follows:
As the trial judge put it, "[t]he allegations set forth here amount to a failure to buy dresses, failure to take them to the auto show, failure to provide financial assistance, failure to help with homework, failure to buy presents, and other petty grievances .... In essence, the Plaintiffs are suing their mother for bad mothering." She dismissed without leave to amend.
On appeal, Plaintiffs suggested that the requirement of "extreme and outrageous conduct" should be lowered in cases where a child is suing a parent. The panel said there was no such legal standard, nor should there be, citing a case holding that freely allowing actions for mental anguish "would encourage neurotic overreactions to trivial hurts." Plaintiffs had not alleged anything truly extreme or outrageous (despite the no-gift-in-card allegations). The court affirmed.
Coincidentally (or not), Plaintiffs' father, Steven Miner, was also one of their attorneys.
I'm a strong believer that in legal writing, an introduction should pretty much tell you everything you need to know. This one does.
The parties to this appeal, a partnership dispute, agree on one issue. They want us to assume a partnership can consist of one person. Having carefully studied the idea of a one-partner partnership in light of the Revised Uniform Partnership Act, we conclude that no such animal exists. If a partnership consists of only two persons, the partnership dissolves by operation of law when one of them departs.
The trial judge in this case had a truly unenviable task before him as he pondered his decision. He found none of the key witnesses credible and had virtually no independent corroboration on which to rely. He was confronted with partnership books and records kept, not by GAAP (generally accepted accounting principles), but by "winging it." He probably developed severe neck pain from constantly shaking his head over the way the participants ran their business.
The parties have now brought this matter to us, and we have reluctantly concluded it has to go back to the long-suffering judge.... Both parties seem to have proceeded on their assumption of the vitality of a one-person partnership, which we conclude cannot exist under California law. Since that assumption underlies the monetary portion of the judgment, we remand to allow the application of the correct dissolution procedure.
The best work of this kind seems to get done when a judge and/or clerk is sufficiently bored or exasperated, but apparently relief can have the same sort of effect:
[S]uch news of an amicable settlement having made this Court happier than a tick on a fat dog because it is otherwise busier than a one legged cat in a sand box and, quite frankly, would have rather jumped naked off of a twelve foot step ladder into a five gallon bucket of porcupines than have presided over a two week trial of the herein dispute, a trial which, no doubt, would have made the jury more confused than a hungry baby in a topless bar and made the parties and their attorneys madder than mosquitoes in a mannequin factory ...
The jury trial scheduled herein for July 13, 2011 is hereby CANCELED [and] ...
The Clerk shall engage the services of a structural engineer to ascertain if the return of this file to the Clerk's office will exceed the maximum structural load of the floors of said office.
Added to the Noteworthy Court Orders page.
I like opinions (and briefs) in which you get both a summary of the dispute and the writer's conclusion in the first paragraph. Like this one:
Reduced to its essentials, this is nothing more than a dispute, fueled by a disgruntled cheerleader mom, over whether her daughter should have made the squad. It is a petty squabble, masquerading as a civil rights matter, that has no place in federal court or any other court. We find no error and affirm.
The court was affirming the dismissal of Sanches v. Carrollton-Farmers Branch Independent School District, in which the high-school plaintiff (fueled by her disgruntled mom) alleged that she had been sexually harassed by other girls and that the district had not taken any action. I'll spare you the laundry list of actions that the plaintiff (or, her mom) claimed constituted "sexual harassment," because this one seems representative: "According to [the mom], J.H. publicly humiliated Sanches and her family by wearing a chef's hat similar to the ones in her inappropriate Facebook photos."
Basically, the court held, the allegations were all "more properly described as teasing or bullying than as sexual harassment," and even if that weren't true the conduct was not remotely severe and pervasive enough to be actionable. It was "the sort of unpleasant conflict that takes place every day in high school, and it is not the proper stuff of a federal harassment claim."
Just to confirm their complete lack of judgment, the plaintiff and her attorneys had moved to vacate the magistrate judge's decision against them, a motion that the Fifth Circuit held was unjustified and unprofessional. Although, to be fair, it may just have seemed disrespectful because it was so badly written. ("Because a magistrate is not an Article III judge, his incompetence in applying general principals of law are extraordinary." Huh?) Either way, the court was pissed:
Usually we do not comment on technical and grammatical errors, ... but here the miscues are so egregious and obvious that an average fourth grader would have avoided most of them. For example, the word "principals" should have been "principles." The word "vacatur" is misspelled. The subject and verb are not in agreement in one of the sentences, which has a singular subject ("incompetence") and a plural verb ("are"). Magistrate Judge Stickney is referred to as "it" instead of "he" and is called a "magistrate" instead of a "magistrate judge." And finally, the sentence containing the word "incompetence" makes no sense, ... so it is not reasonably possible to understand the thought, if any, that is being conveyed. It is ironic that the term "incompetence" is used here, because the only thing that is incompetent is the passage itself.
No "Billy Madison" quote as in the "Order Denying Motion for Incomprehensibility," but still a good footnote.
As you may recall, Texas was also the home of Wanda Holloway, who did jail time in 1997 for trying to hire a hit man to kill the mother of a cheerleader who was competing with Holloway's daughter. (Holloway was recorded saying the goal was to upset the girl sufficiently that she would drop out of the competition.) Two TV-movies were based on that incident, which, together with this latest episode, suggests that people in Texas need to lighten the #*&@ up about cheerleading.
Plaintiff: Plaintiff enters the Penny Pinchers grocery store in West Point, Mississippi, on August 16, 2006. She says hello. She walks down the aisle. Suddenly, the bark of a savage dog rings out! Plaintiff flees, terrified, with the clicking of the pursuing animal's claws echoing in her ears. When Plaintiff turns to see how close her pursuer is, she collides with a freezer at the back of the store. Frantically, she tries to claw her way up onto the freezer in a desperate attempt to survive!
Defendant: The dog is a four-pound Dachshund puppy.
Plaintiff: Plaintiff explains that she is terrified of all dogs, and was not initially aware of the size of her pursuer. She laughs. She continues to shop. She is able to pick up five pounds of catfish and four pounds of sugar before the terrible pain in her hip begins. She sobs. If only the store had not created a dangerous condition by failing to properly restrain the dog and/or warn customers of its presence. How different things would be now.
Defendant: Um, hold on a minute. Turns out Plaintiff has had hip problems for decades, beginning long before this or any Dachshund allegedly chased her into a freezer. Also, the dog is a four-pound Dachshund puppy, ergo, not a "dangerous condition."
The Jury: Justice is elusive in the case before us. Each party has made a number of points that we partly understand. In order that we may depart, let us assign some fault to each, say, 30 percent to the plaintiff and 70 percent to the defendant. Thusly, we award $130,000 to the woman who fled in terror from a Dachshund.
The Trial Judge: I agree that the evidence supports such a result.
The Mississippi Court of Appeals: It is now time to get serious. A business owner has a duty to warn of dangerous conditions that are not apparent. "[I]mplicit in that duty is that a dangerous condition must exist." Dogs are not dangerous per se, and no evidence showed that this one had exhibited dangerous propensities during the four months she had been alive. "We must also consider that Sophie was a four-pound puppy at the time of the incident," and that invitees must themselves use "that degree of care and prudence which a person of ordinary intelligence" would use under the circumstances. Plaintiff's decision to run headlong into a large object while fleeing from a four-pound dog must be viewed in this light.
The Result: Reversed.
In considering whether something could be the "worst legal brief" ever filed, we have to recognize that there are different kinds of badness.
The brief, which someone sent me directly but was apparently first posted here, was filed last March in the Montana Supreme Court. It seems to follow court rules. There are few if any typos. It even has a consistent theme, which many legal briefs do not have. That's a good thing. Depending on the theme.
Here's the theme of this brief, summarized in this beginning epigram:
"Don't worry about it . . . Like he said, we all do dumb sh*t when we're f*cked up."
(Asterisks added.) A footnote attributes this quote to the wisest of men: Mike Tyson. And not even the real Mike Tyson, but rather Mike Tyson playing himself in The Hangover. If you haven't seen that movie, here's a short summary - the one that comes next in the brief:
In the 2009 movie The Hangover, the ultimate Las Vegas bachelor party goes bad when the groomsmen wake up in their suite at Caesar's Palace with a tiger in the bathroom, a 6-month old baby in the closet, and the groom nowhere to be found. What's more, nobody can remember the previous night's events due to the effects of the alcohol they ingested together with a drug that suppresses memory. While attempting to find the missing groom, the groomsmen discover that they stole the tiger in their bathroom from former professional heavyweight boxer, Mike Tyson, during their drunken revelry. Being no stranger to the problems that can be caused by alcohol, Tyson understands how it can affect one's judgment and forgives them for stealing his tiger.
That is the essence of this appeal.
And that is the essence of this brief. The question presented: whether the jury should have been allowed to consider evidence of appellant's intoxication when evaluating his mental state during the crime. The brief argues that the answer must be yes, because a convicted rapist who once bit somebody's ear off later played himself in a movie and the script of that movie required him to forgive four fictional characters for stealing his tiger because they were drunk at the time.
You see why I'm thinking this gets its own category of bad.
The court was not pleased. Noting that the brief went on to describe the crime in a way that was "needlessly graphic and offensive," by paragraph three the court was already unanimously pissed off. "Appellate counsel's attempts to sugarcoat these shocking events," it wrote, "gives pulp fiction a bad name. His story is as delusional as it is unbelievable, and it is not surprising that the jury didn't buy it." Given the nature of the brief, the rest of the opinion is remarkably restrained. (Yes, it affirms the conviction.)
The brief is too bad to be fully described here. But consider whether you really want to read it, not only for the reasons above but also because, as the court noted, the facts are truly shocking. Because this brief, with its ridiculous theme and almost whimsical tone, was filed in a case in which the appellant had been sentenced to life in prison without parole for a vicious assault on his ex-girlfriend. This, too, is what I mean by "bad."
Again, having a theme is a good idea, and the brief does at least pursue this one consistently. It ends like this:
"Alcohol loosens your tongue, and makes you act, speak, and behave in a way that is not you." [The source for this one? Mel Gibson.] It is no secret that alcohol consumption ... has caused many people to do and say things that they later sorely regret.... Mike Tyson was aware of this in the Hangover and was able to forgive. Similarly, this is something that a jury should be able to consider ... in the courts of the State of Montana.
The court's opinion is here. The brief itself can only be accessed by clicking directly on the warning label above. I wish you luck.
"Pick your battles" is a phrase often used in this business, and it reflects the reality that fighting over everything wastes effort and hurts your credibility, and so just because you may have an argument to make doesn't always mean you should make it. The order shown here is an excellent lesson in why that's true.
"We need a continuance" is another common phrase, and we've seen some unusual reasons given, and accepted, for such a request. For example, several have been granted on the grounds that somebody's favorite team is in the playoffs. At least one has been granted on the grounds that deer season was about to start and there would likely be nobody left in town to serve on a jury. Then there was the motion for extension of time based in part on the grounds that "undersigned counsel has seven puppies (born to her King Charles Cavalier) that are dependent upon her" and a tropical storm was approaching. Also granted.
If somebody can get an extension based on the fact that her dog just had puppies, there is really no point in objecting to a similar request involving a human infant.
The motion here was based on the fact that one lawyer's wife was due to have a baby about two weeks after trial started, and that side asked for what the court called a "brief continuance." Counsel conferred, and then informed the court that they could not agree. "Well, every party is entitled to file an opposition to a motion," the court wrote in this order, saying it had been hoping that the rumors it had been hearing of said opposition were exaggerated. But the brief arrived on Monday, the court said, "and it was, sadly, as advertised."
The lowlights of the opposition: (1) it argued that "utilizing simple math," the due date should have been known some time ago (the court declined to speculate on the date of conception for "reasons of good taste which should be (though, apparently, are not) too obvious to explain"; and (2) it pointed out that the movant's side had five attorneys (and so could spare one), which would have been a better argument if the opposing side did not also have five attorneys.
The order (all of which is worth reading) concludes: "Defendants' Motion is GRANTED. The [new parents] are CONGRATULATED."
You probably don't want to be in a situation where a judge has not only ruled against you, but also congratulated the other side. That's a good sign you should have stayed out of that battle in the first place.
Update: Story makes the New York Times (citing LTB). Thanks, submitter person.
Occasionally you do come across things that seem just too good to be true, and like others I was suspicious of this correspondence that circulated recently. As you may recall, this purports to be (1) a 1974 letter from a lawyer and Cleveland Browns season-ticket holder threatening to sue the team if any person in his party sustained an injury from "the sailing of paper airplanes" by unruly fans, and (2) a rudely hilarious (or hilariously rude) response to this ridiculous threat, sent by the team's general counsel. (If you missed it, you should go read it right now.)
Turns out that the Cleveland Plain Dealer followed up on this, and managed to reach both of the people involved, who said that both the letters were real. This was good enough for the professional urban-legend checkers at snopes.com, so it's good enough for me.
The general counsel, James Bailey, now lives in San Diego. He confirmed he had written the response. Bailey's web page at the consulting firm where he now works says he was an executive VP for the team, but he had been a partner in a law firm and so it's plausible that he was general counsel too, as the letter states. (Although the letterhead is for the "Cleveland Stadium Corporation," not the team, according to the web page Bailey led an effort to get the team a new stadium, and so could have had separate letterhead for that purpose.) Bailey also confirmed he had copied Art Modell, the team's owner, on the letter, which might not have been the best idea. "I should have been more cautious," Bailey said. "After I wrote it, I heard about it right away from Art. He said something like, 'What the hell are you doing?' He was not a guy lacking passion."
The complainer, Dale Cox, has since moved to Idaho but is still practicing law (and, he says, is still a Browns season-ticket holder, which might show his judgment has not improved). He told the Plain Dealer he wasn't mad about the response and that in fact he "thought it was pretty cool." Whether he's remembering that correctly or just doesn't want to seem like a sore loser now, that's the right response. He also claimed to have "used that letter a couple times myself since," but if he did, he did not provide details.
I came across a couple of posts suggesting that Mark Twain originally came up with this idea, but if he did, I couldn't find it; and it would probably be public domain and/or fair use anyway, if like Mr. Cox you wanted to use this yourself.