Friday, December 31, 2004


By Stockton

This entry is largly concerned with Law Professors but from its pages the reader will learn little about this unique sub-species and much about the infantile mind of the writer.

The biggest drawback to attending law school is spending three years with 200+ people who want to be lawyers. The second biggest drawback is contending with that unique creature, the Law Professor.

Someone once said that there are only eight plots in fiction. This hold true for law professors. There are only eight law professors. Here are four of them.

Professor A

Professor A* spent too much time watching the 'Paper Chase'. He is always impeccably tailored and his facial muscles have atrophied into a perpetual frown that nothing short of surgery will correct. If Professor A ever laughs, it is at cocktail parties when a colleague utters a pun about the Erie Doctrine (so the first judge says, "I said Erie Doctrine, not eerie doctrine").

When Professor A is not lecturing, he is conducting research for his next law review article, 'Where to Place the Semi-Colon in Article 7(A)(1)(b) of the new Romanian Penal Code". Professor A is a tough grader, loves the Socratic method and is always male. Here's a typical exchange between Professor A and a 1L.

Professor A: Ms. Cooper! Is the decision in Hadley v. Baxendale essentially a product of historical circumstances, particularly the peculiar state of industry in the Britain of the 1850's?"

Ms. Cooper: Ummm...Yes.

Professor A: Then how do you reconcile the fact that the principles adopted in Hadley also appear in Pothier's Traite des obligations, first published in 1761?

Ms. Cooper: I need to poop.

Professor A's usual habitat is the Ivy League. However, scandal will cause Professor A to migrate to second and even third-tier schools.**

Professor B

Professor B is the young, hip professor who aches for tenure like a priest aches for an alter boy. He dresses casually, often has facial hair,*** ignores the Socratic method and will generally whore himself for good student evaluations. Initially, students love him, until they realize he's a dork. Professor B is invariably a male. In college, Professor B was an avowed Marxist until he learned there was no money in it.

Professor B has causes and not a class goes by that he doesn't drop hints about his political positions. Professor B's politics are almost always left of center. This annoys the clique of uptight ex-frat boys that are included in every law school class. Here's a typical exchange.

Professor B: The Clean Air Act was one of the most important and effective pieces of legislation to help safeguard our environment. Reagan and Bush have been dismantling it over the course of two decades. Mr. Scott, who hates clean air?

Mr. Scott: Reagan and Bush.

Professor B: Who else?

Mr. Scott: All Republicans?

Professor B: Exactly!

Professor C

Professor C is also an impeccable dresser. She looks stern but generally ends up being quite friendly. Professor C is always female and extremely classy and gracious. This professor has the rare ability to explain difficult legal concepts with clarity. She also speaks English when explaining those concepts. She conducts pre-exam reviews where the topics are spoon-fed to the students. She's a fair grader, and rare.

Professor D

Professor D is the spoon-feeding adjunct who actually works in the same field that he teaches. Professor D wants to get home, regrets having taken a teaching position that keeps him out until 9:00PM, and tells you exactly what will be covered on the exam. Professor D does not care about class participation. Professor D is popular and the class is always registered to capacity but rarely filled.

Professor D: That's all you'll need to know about stockholder derivative suits.

Mr. Jones: I have a question.

Professor D: You're kidding, right? You know I don't allow questions after 8:45PM

You will meet these professors, and four more, during your law school career. Many will seem hard and implacable during class and unapproachable outside of class. Keep contact to a minimum, study hard and obtain as many compromising photographs as possible and you'll be fine.

* Not his real name. Professor A merely represents a genus of law professor.

** Law schools are ranked by tiers in the United States and by height in Europe.

*** This is true even in the rare instance when Professor B is female.

Tuesday, December 21, 2004


By Tweed

The U.S. Constitution is rightly regarded as one of the greatest political documents the world has ever known. It is, after all, written on enormous crinkly parchment with a wonderfully fluid cursive print. It is the basis for many of our laws and a thorough knowledge of this document is a necessity for any serious law student. We begin with a little background.

The U.S. Constitution is written, distinguishing it from the British Constitution which is documented in a group of operettas by Gilbert & Sullivan. Americans decided on a written Constitution because the lack of a tradition of comic opera. Also, some of the founders wanted to show-off their great handwriting.

The story of the adoption of the Constitution is fascinating. After the American Colonists won their independence from Great Britain, they wondered what to do next. Some suggested joining with England. Others suggested forming a reunion committee. Finally, they decided to get down to the business of self-government.

At first, we tried a sort of loose confederation - kind of like a jazz quartet. But over time, it became like free-jazz, and everyone got bored and annoyed.* One of those who felt this sting was George Washington, known as "The Father of His Country," a nickname he acquired after asking Lord Cornwallis at the battle of Yorktown "Lord Cornwallis, sir. Please inform me of your paternity!" Another person anxious to see change was James Madison. Madison greatly desired the adoption of the Constitution so that his nickname, "The Father of the Constitution," would make sense.

At first, delegates from five states gathered in Annapolis, MD to talk about interstate commerce and nibble crab cakes. After a few beers and a half dozen soft-shells, Madison and Alexander Hamilton decided that the only way to get anything done was to have a convention at a city where there were no soft-shell crabs and beer.

A Constitutional Convention was convened in the City of Brotherly Love. No Republicans attended. Though billed as a gathering to goose the existing Articles of Confederation, Convention goers quickly realized that the organizers wanted much more - an entirely new document! This caused an uproar as the delegates figured out that they would likely miss every Phillies day game. Organizers placated the angry mob with free cheese-steaks and commemorative pens.

George Washington was the president of the Convention, primarily because he wanted to be President and it was the only presidency open. This looked great on his resume, but he didn't do all that much. Ben Franklin also attended, but he wanted nothing else than to have young ladies sit on his lap. Despite popular belief, neither Thomas Jefferson nor John Adams attended the Convention. Jefferson was too busy cataloging different types of ivy, and Adams didn't like anyone else who was attending.

The real movers and shakers of the Convention were Madison, Hamilton, Roger Sherman, Edmund Randolph, William Patterson, Henry Lee and Charles Pinckney. Pinckney was particularly brilliant as the Chair of the Refreshments Committee. Lee got off to a grand start until it was determined that he was not a delegate.

Due to a miscommunication in planning, nearly everyone brought their own Plan - Madison brought the Virginia Plan, Patterson brought the New Jersey Plan (which originally included only 1 mall in Passaic), Sherman brought the Connecticut Plan, etc. (Delegates from North Carolina left their plan in an inn near Raleigh but did bring a Scrabble board.)

It was the faux pas that changed the world.

Everyone wanted their own plan to be the adopted plan. Fortunately, some plans, like the Rhode Island Plan, turned out to be nothing more than seating arrangements. Nonetheless, the delegates were forced to negotiate what to finally adopt. This resulted in the Great Compromise: everyone agreed that because of Madison's nickname, his plan should at least form the basis of the plan adopted. Everyone also agreed that because Sherman had traveled so far (and because he bribed delagates with lucrative government contracts), portions of his plan should be adopted as well. Finally, everyone agreed that Franklin could eat as much pudding as he liked as long as he stopped quoting himself so much.

Everyone treated the New Jersey Plan nicely, but nobody really wanted to talk about it.

The delegates struggled with the great issues a nation of states must grapple with - the relative power of the states to the Federal government; the structure of the Federal government, the role of foreshadowing in contemporary novel. All of these issues were superbly handled and are all clearly and plainly settled by the text of the Constitution, so that every Constitutional question can be answered without reference to any other document or other material. Really.

After the convention, the delegates returned to their home states with their "Constitutional Convention" tote bags and "I Attended the Constitutional Convention and All I Got was This Lousy T-Shirt" t-shirts. Madison, Hamilton and John Jay decided that it would be a good idea if the Constitution were actually adopted, and so decided to convince as many people as they could to vote for adoption. They started drafting a series of essays (now known as The Federalist Papers) and threatened to keep writing these essays until the Constitution was adopted. The Federalist Papers so impressed everyone that all of the states ratified the Constitution and, to the relief of nearly everyone, Madison, Hamilton and Jay to stop writing their essays.

And that's how the Constitution was adopted.

* Further, Mr. Livingston of New Jersey hogged all the solos.

Tuesday, December 07, 2004


By Tweed

You think you'd like to work for a law firm, preferably a prestigious one. But, how do you know if law firm life is for you. A Summer Associate Program (or SAP) will help to determine whether a law firm is for you. A SAP will give you a first-hand look at what it's like to work at a firm. Meanwhile, you'll perform all the tasks that new associates perform. Wait - I can't believe I got through that without laughing.

Actually, summer associate programs are invaluable and give you the opportunity to experience and observe a lawyer's life and to flee before it is too late. Think of it like a combination sleep-away camp/root canal.

Here are some simple rules to remember about Summer Associate Programs:

Summer Associate Program Rule #1: If Satan is enticing you to hell and damnation, do you think he's going to show you the torture chambers?

This rule had greater application back in the heady days when associates were feverishly sought after by law firms suffering from internet boom dementia. Then, getting a job required something like a law degree and a pulse. These days, with a gimpy economy and too many lawyers, law firms are more picky. This difference can be seen in these examples of interview transcripts, one from the internet boom, and the other from 2002:

Internet Boom:

Hiring Partner: David Gorman?

Candidate: Could be.

Hiring Partner: Welcome aboard.


Hiring Partner: Phi Beta Kapp. . .

Candidate: I was president.

Hiring Partner: . . . B.A., London School of Economics, M.B.A., Harvard . . .

Candidate: I graduated cum laude and summa cum laude respectively.

Hiring Partner: . . . spent time at Coopers . . .

Candidate: I worked on the Price Waterhouse merger internally.

Hiring Partner: . . . currently ranked 3 at Columbia. . . law review. . . honor board. . . moot court. . .

Candidate: I may be able to graduate a semester early and teach for a semester at NYU

Hiring Partner: . . . considering clerking at the 5th Circuit Court of Appeals. Yeah. . . see. . . if it were the 4th Circuit Court of Appeals we might be able to work something out. . . but with the 5th. . . . Thanks for coming by.

These days, firms are a little more willing to show you the soft under-belly of firm life. So be prepared to bill, bill, bill.

Summer Associate Program Rule #2: In the eyes of the partners you serve almost no useful purpose 90% of the time. The remaining 10% of your time will be spent photocopying.

It's true. Sure, you may think that doing that 50 state survey of the rules on 'what constitutes transacting business in a state' or updating a partner's text on utility easements provides a valuable service. Well . . . in fact. . . it does provide a valuable service - but you'll never get a partner to admit it.*

There is a famous billing code that sees more use than Paris Hilton's headboard. It's called "Document Production and Distribution." It used to mean photocopying and mailing. It now means helping a partner figure out how to send an email with 27 PDF attachments.

Summer Associate Program Rule #3: Do everything you are asked to do well and on time. This is very important.

You shouldn't become a lawyer if you need this reminder.

Summer Associate Program Rule #5: Don't disturb the mid-level associates or the senior associates.

Mid-level and senior associates bite; and because they are subject to periodic mass-extinction level events, they are very aggressive, defensive and suspicious. Don't be alarmed by their presence; but don't make eye contact either. Move slowly, and show deference. They will usually leave you alone if you act in this way - although some have been known to assault summer associates seemingly without provocation. Generally, scientists believe that these assaults were actually provoked by behavior not previously known to be provocative to senior or mid-level associates (such as smiling or complaining about getting fat from all the liquor and food offered by the firm). On occasion, mid-level associates have been known to cull the herd of summer associates by separating the weak SA from the pack. Don't let this be you.

By following these rules, you can have an educational, fun and safe experience as a summer associate. Alternatively, you can spend the summer driving spikes through your head. Both options are equally enjoyable.

* Try and wear dark clothing, blacks or dark greys. It is difficult to get toner out of whites.

Sunday, November 28, 2004


By Stockton

A Will is a legal instrument designed to accomplish three things:

1- Disburse assets after death;
2- Anger children and spouse after death;
3- Provide lawyers with business (before and after death).

To gain a firm understanding of Wills, the student and practitioner must know the language of Wills and have nothing better to do with their time.

The "decedent" is the person who has died. The decedent is immediately recognizable as the person not having any fun. If a Will is contested, the decedent will not be in court. If there is a unwelcome odor in the courtroom don't assume the decedent is present. The odor most likely issues from your adversary, especially if he is a BP-BSGP (see below).

"Heirs" (pronounced 'Hairs') are people who have been left something in the Will - sometimes, the children of the decedent. Happy heirs receive more than what they expected. Heirs that frown did not get what they wanted. Some heirs are themselves parents, hence the phrase "heir apparent."

Wills are often drafted in arcane language. To this day, many Wills begin:

Foresooth! Be Ye All Presences Cometh. I, John Smith, being of sound mind, body and spirit do hereby, and with this instrument herewith, make and declare this instrument herein as my last Will and Testament and declare that all wills, testaments and declarations heretofore made, whether by my hand or another, shall be, and hereby are declared, null and void....
Practice Tip #1

Wills are generally quite boring to draft. I suggest using your imagination when drafting a Will. For instance, instead of using the arcane language above, I like to use the following:

If my lawyer is reading this Will I am already dead and someone in the room is responsible.

If the reading of the Will can be done in an creepy, isolated mansion, so much the better. Ideally, you should also arrange for a power outage and for the phones to go dead. Try and draft the Will in hard-to-read calligraphy. That's a nice touch and always appreciated.

Practice Tip #2

If the client has a large estate, he will have many decisions to make. How much does he leave to his wife? How much to the children? How much to the girlfriend(s) How much to the Cabana boy? Unfortunately, in most states, you cannot disinherit your spouse. In New York, a spouse left out of the Will is entitled to an Elective Share and a front row seat at the funeral. The Elective Share statute allows a spouse to elect to take 1/2 or 1/3 of the decedent's remaining assets, whichever is greater. So, always warn clients that if they want to cut their spouse out of the booty, begin disbursing assets while alive. Get rid of all the valuable assets first because 1/2 of a lawn mower and hibachi set isn't a great haul.

Practice Tip #3

Technically, you do not have to affirmatively disinherit someone. If someone is not named in the Will they will take nothing. However, I encourage clients to affirmatively disinherit people in their Will. For example, 'To my eldest son, Tom, I leave nothing, nada, zilch!' This is a great way for a client to express his disappointment in a child even after death.

The Practitoners

There are two types of Will practitioners and two only. First, the balding, pot-bellied, solo, general practitioner. The balding, pot-bellied, solo, general practitioner (or BP-BSGP) is easily recognizable as the man huffing and puffing his way up the courthouse steps, a large mustard stain prominently displayed on his clip-on tie.

There is also the older, dignified lawyer who is either British or gay. The older, dignified lawyer who is either British or gay (or ODLWIEBOG), is easily recognized as the lawyer wearing the three-piece, tweed suit and monocle. He is nervous and will visibly shake when he has to tell the widow that the decedent left half the estate to his (the decedent's) secretary.

Miscellaneous Issues

A Will can make a specific bequest, such as, 'To my youngest daughter, Emily, my collection of earwax'. Or, a Will can make general bequests, 'I leave all my estate, the remainder and residue to my surviving three children...'. While I don't consider it polite to leave anyone your residue, it seems to be a popular bequest.

Many states have a witness requirement. In New York, two witness are required*. In Alabama, three witnesses are required and they must sign in crayon. Always make sure you know how many witnesses are needed.

There have been many cases where a lawyer has not only made himself a beneficiary of a client, but has been a witness to that very same will. Ethics professors frown on such activities but don't listen to them. The best thing a young attorney can do is make friends with rich, lonely, elderly people. Just try and make sure they are very old. You'll want to spend as little time as possible with them.

Here's a script/template for young lawyers when dealing with wealthy, elderly clients.

Secretary: Mrs. Jones is here to see you. She doesn't have an appointment.

Young Lawyer: Tell her I'm busy.

Secretary: It's about a Will

YL: Send her in.

Jones: I have all this money, and no children.

YL: I'm sorry. I know what that's like.

Jones: Have your parents passed?

YL: Yes. I have no family (take out box of tissue).

Jones: None? No brothers or sisters or cousins? I thought I taught your five brothers and three sisters in high school. And didn't you have a host of cousins?

YL: Car crash. Took them all.

Jones: A car crash killed your entire family? Brothers, sisters, aunts, uncles, cousins?

YL: Ummm...yes. More like a Winnebago crash. Forty-three of my relations were killed.

Jones: You poor boy. Can I leave you my entire estate?

YL: If you insist.

Finally, if you actually make a living drafting Wills, congratulations. It is almost always a malpractice-free area of the law. When you draft a Will, your client is the pre-decedent, not the beneficiaries. If you mess up, it won't generally be known until the client is dead. Further, only the client will really know the true intent of the Will and he ain't talking. If the client discovers a gross error in the Will (obviously while he/she is still living), it can then be remedied. No harm, no foul. It is truly a wonderful set-up. So get going. Draft some Wills, and don't get bogged down in tiny little details.

* In New York, the witnesses may have to go into witness protection program prior to actually witnessing the Will.

Wednesday, November 17, 2004


By Tweed

Law school is inhabited by many different creatures. Most are similar to sheep, gazelle or other herd animals. Others are more unique, like slugs or stone fish. Described below are three unique inhabitants of law school.

Mr. Smarty-Pants

Mr. Smarty-Pants (Pantsi Smarticus) is a creature whose natural habitat is law school. Mr. Smarty-Pants knows the rule of law, how to apply it and how to avoid getting a rash when doing so. He's so smart and so perky that it's hard to tell whether you want to kick him because he's so smart or because he's so perky.

Regardless, kicking him would be fun.

But always remember: anyone that in tune with the law must be deficient in most other human attributes. Mr. Smarty-Pants, for example, doesn't recognize irony, unless it's in the form of Marbury v. Madison. Mr. Smarty-Pants may join you for a beer some night, but only for one; and there's no chance of watching him get shit-faced, and slammed by the out-of-his-league hottie from the other section as he comes on to her too strong, smelling of beer, highlighter ink and vomit - not that I know about that kind of thing from personal experience - I'm just saying.

Mr. Hand-Man

Another inhabitant of law school is Mr. Hand-Man (Homo Extremitius). Mr. Hand-Man suffers from one of two delusions: Mr. Hand-Man (a) thinks he is Mr. Smarty-Pants, and has a burning desire to prove it - particularly during class, or (b) thinks his class participation is helping others. Although Mr. Hand-Man usually does not have anything remotely interesting to say, he is sure to have read the required reading and worked up a rudimentary understanding of the material, usually with the aid of highlighters, briefs and Cliff Notes.

Usually, Mr. Hand-Man is not also Mr. Smarty-Pants - but cross-polination can occur(Tweed being a case in point). And it is often difficult for young law students to spot the difference, particularly if the Mr. Smarty-Pants (or Pantses - there are frequently more than one) exhibits some of the behaviors of Mr. Hand-Man (usually only one).

One trick to spotting Mr. Hand-Man is to observe the professor's reaction to a question or response from Mr. Hand-Man. If upon hearing a response from the person you suspect of being Mr. Hand-Man the professor's facial expression changes, it is likely you have not spotted Mr. Hand-Man. Rather, you may have spotted Mr. Smarty-Pants or the other denizen of law school hallways, discussed below.

Mr. Hand-Man is usually overly friendly, which counteracts the almost overriding desire to kick him for wasting so much class-time. Mr. Hand-Man usually will toast the morning sun with you, but expect to hear his life story in mind-numbing detail.

Mr. Dumb-Ass

Another person sometimes (at least initially) mistaken for Mr. Smarty-Pants is Mr. Dumb-Ass (Assininus Stupido). This case of mistaken identity usually arises when Mr. Dumb-Ass has many of the same attributes of Mr. Hand-Man (Tweed being a case in point). Mr. Dumb-Ass is dumb. I mean really dumb. So dumb, in fact, that if you come across him, you may begin to question whether law school was the right choice for you. And you should wonder; because Mr. Dumb-Ass is so dumb, he's likely to end up on The Bench.

Mr. Dumb-Ass is fond of saying things like: "It's a violation of his national rights," and "but there was no casual connection!" While Mr. Dumb-Ass could be the perfect foil for the classroom jester - led about by a professor with a good sense of humor - pity and urges toward job retention usually stay a professor's hand.

But with all of these creatures, and the possibility that each may share attributes at any given time, how do you know who is who?

Below is a scientifically created test to determine your abilities to distinguish between these law school fauna (and, to keep things interesting, like the bar exam, choose the best answer):

1. It's the third week of class. One of your professors asks a fairly simple question about some law subject and says: "Would anyone other than X like to answer this question?"

X is a likely candidate for being:

(a) Mr. Dumb-Ass,
(b) Mr. Hand-Man,
(c) Mr. Smarty-Pants or
(d) some chick the professor wants to pork.

2. The professor asks a question; X's answer results in the following response from the Professor: "no. . . No . . . NO. . . . NO!"*

X is a likely candidate for being:

(a) Mr. Dumb-Ass,
(b) Mr. Dumb-Ass's older brother,
(c) Ms. Dumb-Ass or
(d) you.

*Actual event witnessed by Tweed, with each 'no' being emphasized by a fist pounding a desk.

3. You are reading a dissenting opinion by Justice Sandra Day O'Connor.*

You are a likely candidate for being:

(a) Mr. Smarty-Pants,
(b) Mr. Hand-Man,
(c) Mr. Dumb-Ass,
(d) an eventual nominee to the US Supreme Court or
(e) the next candidate for Man of the Year of the American Masochist Association.

* Hint: the only dissenting opinions worth reading are those written by Justice Oliver Wendell Holmes (and some by Justice Brandeis).

4. Toward the end of the year, the person sitting next to you in Torts asks the professor whether the class will be tested on the state of tort law as it existed at the time of the Palsgraff case, some earlier time or some later time. The professor responds: "You will be tested on tort law as it will exist in the 24th century. All answers to your tort exam can be found in the next Star Trek movie."

(a) You realize you're sitting next to Mr. Dumb-Ass,
(b) You laugh,
(c) You laugh and realize you're sitting next to Mr. Dumb-Ass or
(d) You are Tweed.

5. You are outside sipping coffee from a styrofoam cup and having a cigarette before class on a cold winter morning. X, who you know only in passing, walks past you and comments, "those will kill you, you know."

X is a likely candidate for:

(a) being Mr. Dumb-Ass,
(b) being Mr. Hand-Man,
(c) an early grave or
(d) elective office.

6. You are waiting outside a professor's office listening to Mr. Smarty-Pants complain that the professor did not increase his grade for class participation, as the professor said he would do. You hear the professor say: "I increased some students' grades for the quality of their class participation, not the quantity of their class participation."

You realize:

(a) Mr. Smarty-Pants is really Mr. Hand-Man!
(b) Mr. Hand-Man had you fooled!
(c) You may be Mr. Dumb-Ass or
(d) You may actually be reliving portions of Tweed's law school career!

7. Everyone you ask to join your study group says no.

(a) You are Mr. Dumb-Ass,
(b) It is the week after exams,
(c) You realize you asked only janitors or
(d) Your fly is open.

Answers (Don't cheat - go back and take the test!)

1. (a), (b), (c) or (d) - most likely (d).
2. (b)
3. (b) or (c) - there is no such thing as the American Masochist Association
4. (b), (c) or (d)
5. (c)
6. (c) or (d)
7. (b)

If you answered:

7 out of 7 correctly, you're nuts.

6 out of 7 correctly, you're close to being nuts.

5 out of 7 correctly, you may be Mr. Smarty-Pants.

4 out of 7 correctly, you have a promising career as a bus driver.

3 out of 7 correctly, you may be Mr. Hand-Man.

2, 1 or 0 out of 7 correctly, you're Mr. Dumb-Ass.

Last point: Law school is the natural habitat of these creatures and like national preserves - no hunting.

Saturday, November 06, 2004


By Stockton

This is the first part of a two part series on briefing case law and reading case law.

A time honored law school tradition and one of the last pure delights on earth is briefing case law.

What is Case Law?

Case law is the law found in 'Case Books', those curvature of the spine-inducing texts lugged around by law students. Case Books are choked full of judicial opinions handed down by appellate courts. The losing side of a suit, angry at its loss, typically appeals a decision or jury finding. The winning side opposes that appeal, believing everything went fine. The two sides argue before an appellate court. The appellate court, having made up its mind weeks before, listens to the arguments and then issues a written decision months later. Some of these decisions find their way into Case Books and become known as case law.

Case law is studied because it either illuminates a difficult legal concept or obscures a simple legal concept, allowing future lawyers to feel vaguely confident of shadowy legal concepts. It is also used to show the student how dumb lower court judges can be. It is the students responsibility to read and digest these cases and to be ready to avoid all eye contact with the professor during class.

Because students generally have anywhere between ten and three hundred cases to read every night, the cases must be briefed.

What is a Brief?

A brief is a succinct summary of the salient points of a case and usually contains the following:

1) The issue;
2) The rule of law;
3) The application of the rule of law to the facts;
4) Doodles;
5) Primitive sketches of your professor and small furry animals.

Briefing Styles and Techniques

There are as many briefing styles and techniques as there are law students. In fact, there are more briefing styles and techniques than law students because a student's style tends to evolve over the first year (ultimately devolving into not reading anything but the local newspaper's sports page in the third year).

The Super-Sized Brief or Anti-Brief

The super-sized brief is longer than the actual case it purports to summarize. It's the favorite technique of the nervous, stressed-out over-achiever. In fact, one suspects that the super-sized brief is nothing more than the actual case re-written in the student's hand. For the super-sizer, no fact, no detail is irrelevant. The super-sizer will even draft a mini-super-sized brief for the dissenting opinion.

When called on in class, the Super-sizer will tell you the names of the judges, their favorite colors and the year of the decision.

This technique is traditionally short-lived due to a high incidence of carpal tunnel syndrome.

The Underline

This style is for those that do not like writing actual words. The underliner wants to streamline the process as much as possible so he merely underlines everything he would have written down in a traditional brief. During the course of your law school career you will eventually sit next to The Underliner. You will glance over at his text book to find almost every line of the decision underlined.

Naturally, when called upon, the Underliner will glance frantically at his 'Brief' and choke.

The Rainbow Brief

Personally, this is my favorite. Some student, typically an anxious female, will take it into her head to color code her textbook. For example, she will highlight the procedural history in yellow, the facts in green, the issue in orange, the analysis in blue, the rule in orange and dicta in red. This student has spent many hours perfecting her color code and will promptly forget it when the professor calls upon her ('Was red for facts? Green for the issue? I don't know...)*

The Brief, What is it Good For?

The main purpose of a brief is to help you not make a complete jack-ass out of yourself in front of the entire class. If done properly (ie. in brief) a brief will help jog your memory when called upon in class. That is, if you can read your own handwriting. Make it simple: issue; rule; application of the rule to the facts; obscene doodles. The brief should be no longer than one side of one piece of paper even if the case is seventy-three pages long. If you are not called upon, that day's briefs may be crumpled up and tossed at your friends or used to start a fire in your dorm room.

* Never look directly at a Rainbow Brief. Severe retinal damage may occur. If you have to look at a Rainbow Brief, poke a hole in a shoe box and view the brief through the hole.

Wednesday, October 20, 2004

ETHICS - 101

By Stockton

Yes, we have them, and we keep them in a secret, undisclosed location. Even so, they are sometimes violated.

An attorney's principle duty is to zealously advocate for his paycheck. If the client doesn't pay on time, the lawyer may be forced to fire the office manager, who typically makes sure the attorney is paid on time. It's a viscious cycle.

Secondly, the lawyer should always timely communicate to his client that nothing is going on with the client's case. Never, ever be late in giving a status report to the client. This alone keeps most of them happy. In New York, the number one complaint lodged against attorneys with the Office of Professional Conduct is, "He/She never returns my phone calls." The second most common complaint is that "the Office of Professional Conduct never returns my phone calls."

There are some grey areas in legal ethics. More than lay people may imagine. Case in point:

We grant petitioner's motion to confirm a Referee's report
which found respondent guilty of professional misconduct in
violation of the attorney disciplinary rules (see 22 NYCRR part
1200). During the course of representing his client in custody,
visitation and divorce proceedings in Columbia County Family
Court and then in Supreme Court, respondent left vulgar voice
mail messages on the answering machine of the Law Guardian
representing his client's children (see 22 NYCRR 1200.3 [a] [5],

[7]; 1200.33), communicated with his client's spouse directly by
telephone despite being advised by the spouse's attorney that all
communications should be directed to that attorney (see 22 NYCRR
1200.35 [a]), and entered into a sexual relationship with his
client during the course of his representation of her, failing to
discontinue employment after his professional judgment was
affected by his own personal interest (see 22 NYCRR 1200.20 [a];
1200.29-a [b] [3]).

Although it's a close call, I'd say the attorney in question made some errors. First, the vulgar phone messages; never, ever leave vulgar phone message on a law guardian's answering machine. Always hire someone else to do it. That was his first mistake.

Also, never make direct contact with the opposing party. That is always improper and rarely necessary. There are people in the world, very reputable people, who will provide this service to you. They're good and they get results.

As for sex with a client: such things happen. There are ways to deal with this issue that don't involve license revocation. First, you have a decision to make. You either have to refer the client to another lawyer for representation or refer the client to another lawyer for sex. This is a highly personal decision and will depend upon the client. If you do send the client to another attorney for sex, make sure you explain to the client, in detail, the reason for the referral. Also make sure the explanation is in writing.

If you cannot avoid sex with a client, never, ever bill the client for that time. In real-world legal practice, sex is like drafting a will; it's thrown in for free in order to keep the client happy.

Never mix your money with the client's money. Keep those funds entirely separate. If the thought even crosses your mind, look at the law school diploma on the wall of your office. If you mix money, that diploma will be worthless. Nothing disgusts me more than when I hear about a lawyer abusing the trust of his or her client. There's no place for that in the profession. If that's your style, run for public office.

Law School Ethics

Hopefully, your ethical training started well before law school. If a parent, or both parents, happen to be attorneys, you'll begin with a disadvantage. You can overcome that disadvantage by making friends with students whose parents are truckdrivers and waitresses. Your ethical training must begin no later than mid-way through your second semester. After that, it'll be too late and you'll be well on your way to a succesful career.

Tuesday, October 12, 2004


Property can be real or personal. Real property is land, earth, dirt and improvements, such as clean dirt - hence the term Real Estate. Personal property consists of things like underwear, diaries, feminine hygiene products, secret vices and the contents of the top drawer of every night stand in America - hence the phrase, "Hey, get out of there! That's personal!"

Property law is not about a person's relationship with land or items (that's really no one's business). It's about keeping land or items out of other people's hands and in yours - it is about a person's relationship with property relative to another person. Thus, the many property law cases involving leather straps and ball-gags.

In Property, you'll also learn very interesting things about people. For example, people like to name their real estate. And they don't name real estate normal names like "Reginald" or "Vespasian;" they name it, almost without exception, Blackacre. This makes for very confusing deeds and titles, but very busy lawyers. (This is not entirely true; some people name their property Whiteacre.)

People also never simply sell their estates or leave them to their children. Oh, no. They can't do that. Instead, they leave life estates to their spouse with remainders to various children.....For instance, "Whiteacre to my surviving spouse if she hasn't been murdered then to my second wife with a remainder to all the children from my third marriage, but only when they reach the age of 21 and have a job."

There are some pretty basic concepts in property law every student and lawyer should understand:

Adverse possession

Adverse possession occurs when the devil takes possession of a human being contrary to that human being's will. "Adverse Possession," then, should be distinguished from another well-known property concept, the "Faustian Bargain," which also involves Satan (which, if unscrambled, spells "Santa" - just think about how this discovery affected an eight-year old Tweed), but which is more properly associated with contract law.

Adverse possession also allows a human being to take title to real estate they don't own by virtue of the real owner's laziness. (Oddly enough, the devil rarely attempts adverse possession of real estate due to the negative tax consequences.) This can result in someone going to visit his or her property and discovering that the Clampett clan has settled down in a tar paper shack village smack-dab in the middle of his or her dirt (effecting a dis-improvement, by making the dirt even dirtier than it was). It can also arise after your neighbor puts a swimming pool in your backyard.

Remember, long ago, public policy dictated that land be "productive". The state wanted people to better their land and produce something. Thus, if you ignored your land and someone actually used it, the rule in Use It v. Lose It, 18 US 666 (1805) kicked in. This public policy is now embedded in much case law even though the government owns huge areas of unproductive land. See, Do as I Say v. Not As I Do, 122 US 812, 822 (1923).

Possession is Nine Points of the Law

Everyone's heard of this. But to be perfectly honest, we haven't a clue as to its actual meaning. Law is not generally divided into "points," and if it were; who's to say that nine of them is all that good? Nonetheless, the notion persists that if you possess something - a raging case of hemorrhoids, say - that you have more right to it than others. Sometimes this is a good thing - if, for example, you possess lots of gold. Sometimes it's not so good - if you have crabs. Oddly enough, however, if you possess someone else's property, he or she can usually take it back - making a mockery of the whole system.

Holders in Due Course

A holder in due course is what every kid in the suburbs wants to grow up to be. Indeed, I can recall many occasions when my father pulled me aside to say: "Son, what you want to be is a holder in due course." "Holders in due course" are beings that exist in the mystical world of the law of "negotiable instruments." As you might imagine, being a "holder in due course" of a "negotiable instrument" is the cat's pajamas.

And now, through the wonders of law school, we can tell you a very simple way to attain such a status: get someone to write you a check.

The Rule in Shelley's Case

This is extremely important, and you should understand it completely. Really, this is crucial. In its way, it's the whole ball game.

Eminent Domain

"Eminent Domain" is a concept that runs counter to the concept that a Man's Home is His Castle. The concept of Eminent Domain actually teaches us that it is not his castle, but his wife's. In addition, the principle of Eminent Domain teaches us that a man's home is not even his wife's castle either - it's actually their neighbor's, for certain purposes - and not for the fun, Commandment violating kind of purposes either. Eminent Domain entitles the government to limit what you can do with your dirt. For example, in most residential neighborhoods, you cannot build an oil refinery in your back yard - I know, I've tried. Similarly, in some neighborhoods, you're not allowed to have clothes lines, colored mailboxes, pets or last names ending in vowels.

Actually, Eminent Domain allows the government to take your dirt for public purposes - like expanding a highway or protecting frogs. Those other things are all related to what you can do with your dirt and not what the government can do with your dirt. And the rules can be imposed by the government, negative covenants that run with the land, special tax municipalities or Elvis' dog. Then there's favoritism. If you're confused, now you know why I don't practice property law.

The Dreaded Rule Against Perpetuities

Easily the most feared rule in Property, the Dreaded Rule Against Perpetuities is actually a simple concept:

"No interest is good unless it must vest, if at all, not later than twenty-one years after a life in being can figure out what the Dreaded Rule Against Perpetuities means."*

* Hint: The Dreaded Rule Against Perpetuities has something to do with an irrational fear of grandmothers.

Monday, October 04, 2004

Law Firm Life: Part 1, BigLaw

So, you survived law school and anxiously await your bar exam results. In the meantime, you begin your career at a huge law firm with an equally huge salary.
About the same time you receive your bar exam results (don't worry, you passed), you suddenly realize you don't want to be a lawyer. What do you do?

First, do not tell anyone you passed. This will give you options, and make your exit strategy, should you choose such a path, easier: "Gee, Mom, I didn't pass. Guess I'll have to take that job at Target." However, bar results tend to arrive right about the same time that your student loan deferment ends. Therefore. . .

Second, take a stiff drink and get back to the office.

Lawyer life-styles vary widely. Some, like Peter Angelos, get to own the Baltimore Orioles. Others, like Tweed, get to work their butts off for a pretty nice living (i.e. can afford to go see an Orioles game if time would allow and if Angelos weren't such a big jerk for stopping baseball's return to DC for so long, the bum!). It is important for lawyer-wannabes to understand what they are signing up for. Part 1 of this article examines the most dramatic and thrilling (in their eyes) lawyer life-style - life at BigLaw.

Joining BigLaw is a Faustian bargain except that you don't actually get anything out of it. Some say it's because even young lawyers give up so little in the bargain. Others figure that lawyers discover the hidden loophole. Regardless, you actually do get something - somewhat of a pyrhic something: you get lots of money and the respect of actuarials all across the country, but not of super models or starlets. Also, you'll discover that prior to being a lawyer you had lots of free time - even in law school.

The money will come in handy. You'll need it because (a) you're living in an expensive area; and (b) you will be paying alimony (if you're a female, you'll have to pay those vet bills for your numerous cats).

But I'm getting ahead of myself. Let's first note the great variety of BigLaw:

Tier 1. Really BigLaw (e.g. Skadden, Arps; Cravath Swaine & Moore; Latham & Watkins; Sullivan and Cromwell; Emerson, Lake & Palmer; Crosby, Stills & Nash): Forget about a life; forget about seeing the outside world (although some larger firms now allow conjugal visits and many have designed offices with windows); just count your money, if you have the time. These firms know how to make money, legally, if not ethically - and it involves you billing lots of hours. Lots of hours* (2,200, 2,400, 13,200 per year). If you're really smart, really lucky or know lots of rich people, or really lucky and really smart, or really rich and really lucky or know lots of rich people and really smart, you can make it at one of these places, make tons of money, divorce your spouse, marry a trophy spouse and fear retirement. It's the bomb.

Never forget however, that you're still going to die. Therefore, make certain to spend as much time in the office as possible. Also, I hear God is impressed with BMWs.

Now for some perspective. The hours sound daunting. In the office at first light, home by 9:00P.M., no lunch. But there is a reason for all this hard work. BigLaw lawyers (BLL's) work for Big, demanding clients (BDC's).** These clients want top-notch lawyers and are willing to spare no expense. Also, the senior partners receive tax bills on their second and third homes. These bills come annually and can cause significant hardship. It is up to you to make their lives just a bit easier. Your Benefactor's summer home on Nantucket is not without its downside.

Tier 2. BigLaw (e.g. Really BigLaw Wannabes): See above, but reduce salary from between 5% and 20%.

With such great variety, it is often difficult for a young lawyer to choose the right BigLaw. That's why I've designed this easy to use tool to assist young lawyers in choosing the right BigLaw for them.

Tweed's Handy-Dandy Guide to Choosing The Right BigLaw For You (a/k/a Tweed's Tool)

1. List Really BigLaw in alphabetical order.

2. List BigLaw in alphabetical order.

3. Have secretary type list - oops - you don't have a secretary yet. Have a drink instead.

4. Cross out the name of any firm that contains an Italian, Czech, Hispanic or Polish surname.

5. List cities you are willing to not see while you work.

6. List practice areas that don't make you physically ill (note: if you find that the prospect of specializing in 34' Act compliance; utility easements or tax-free reorganizations does not make you physically ill, you'll go far).

7. Have another drink, what the hell - you're about to be rich!

8. Match Really BigLaw and BigLaw to cities and practice area lists - be sure to cut along the dotted lines.

8 .Examine compensation structure of each Really BigLaw and BigLaw.

9. Have still another drink, you need the practice.

10. Examine partnership track information on each Really BigLaw and BigLaw.

11. Go with the one that actually hires you. If more than one makes an offer, go with the one with the Anglo-Saxon name on the letterhead. If more than one, you stink, I hate you and so do your classmates, despite how they congratulate you.

Being a part of BigLaw

Joining BigLaw is not the same as becoming a part of BigLaw. To be a part of BigLaw and not just a white-collar galley slave, you'll have to become a partner. To reach this vaunted position, you'll need to bill a ton of time and bring in some business. You will also need an initial preceding your first name and a Roman Numeral following your surname (ie. H. James Southworth III). If you possess the talent and bring in enough business, the firm might just pay for the initial and the Roman Numeral.

It is also advisable to develop a quirk if you become expert in some specialized area of the law, such as, for example, avoiding excess benefit transaction characterization when adopting deferred compensation arrangements for hospital adminstrators. Start referring to people as "old boy," always wear a flower in your lapel, grow your hair really long or go with the tried and trusted method of just being rude to everybody - you'll get lots of respect.


Despite the above, life at BigLaw does have its downside. BigLaw caters to Big Business. Your morals may be on the line. You clients may manufacture cigarettes, semi-automatic weapons or TV sitcoms. The morality of what you do may weigh on you. At times, you'll consider doing something more respected, like dope peddling or producing snuff porn. Don't worry. These feelings are common among young men and women at BigLaw. Time and experience will cause thick callouses to form on your heart and you'll look back at your doubts, pause, and get back to work.

*Law firm time sheets fascinate astrophysicists. Top Gun lawyers have sometimes billed 17 or 18 hours a day for several months in a row. It is not unheard of for an ethically flexible attorney to bill 26 or even 27 hours a day, prompting scientists to speculate that the earth spins slower for attorneys .

** Hence, the well known legal formula BDC + BLL=$$$

Tuesday, September 21, 2004


By Stockton

A contract (or K) is a promise enforceable at law. That means that if someone breaks their promise, you can take them to court.

Not all promises are enforceable at law. For instance, the following does not create a promise enforceable at law.

Her: Honey, does this dress make my ass look fat?

You: No.

Her: You promise?

You: Yes.

A breach of that promise (the dress does indeed make her ass look fat) is not enforceable. It is not enforceable for three reasons; 1) No consideration has been given by either party; 2) At early common law, almost all judges were men; and 3) She has no remedy except to diet (that is, you cannot make her ass look less fat in the dress).

A valid contract requires:

1- Mutual assent;
2- Consideration;
3- A Piece of Paper;
4- A Pen;
5- Two or more parties;
6- Reasonably specific terms.

Mutual Assent

The parties must be agreeing to the same thing. If one person is agreeing to buy "yellowcake" from Niger and Niger is agreeing to sell Rice Crispy Treats, there is no mutual assent.


Each party must have something of value on the line, whether time or money.

Piece of Paper, Pen and Two Parties

Most contracts should be in writing, so have paper and pens readily available. You cannot enter into a contract with yourself, so round-up another warm body if your just dying to go out contracting.

Contracts for political assassination and mob hits should never, ever be put in writing. The very suggestion is considered bad form. In these situations, never make the other party 'nervous' or 'jumpy'.

Further, illegal contracts are never enforceable, so make all you want. However, be forewarned, if you hire someone to 'off' your Contracts professor and that person does not perform, no remedy is available.

Reasonably Precise Terms

The terms of any contract must be reasonably precise. Not every detail need be memorialized but the major ones should be set forth for there to be a valid contract. Agreeing to sell the "watcha-ma-callit" for "a couple two-tree hunrid C' notes" to "what's-his-face" is probably not precise enough to be a valid agreement.*

*You may nevertheless want to go forward with the deal to avoid orthopedic surgery

The Statute of Frauds

Not all contracts need to be in writing. However, some contracts must be in writing, hence the Statute of Frauds. The Statute of Frauds requires certain contracts be reduced to writing, including;

1- Contracts for the sale of real property;
2- Fraudulent Contracts for the sale of real property the 'owner' doesn't really own.

A Wide Variety of Contracts

There are many types of contracts; quasi-contracts, contracts implied in law and contracts implied in fact. These contracts are typically found when a 'real' contract is absent but the judge is so disgusted with one of the parties that he wants to screw them over for being such assholes.

Court created contracts are my favorite type of contract because they are designed to stick-it to really cheap, sleazy bastards. Example:

A is a residential home painter who has a contract to paint B's house. A accidentally goes to C's house which needs a really bad paint job. A begins work believing that he is painting B's house. C, a real piece of shit, knows A is mistaken and doesn't say anything but only snickers. C allows A to paint his house and then denies him fair compensation. A is distressed because he doesn't know the other letters in C's name and believes he's out of luck.

In that example, the Court will tell C to pay up and to reveal the other letters in his name. There was no true contract but the court will apply equitable principles because C is a scum-bag.

That's about all you need to know about contracts for now.

Wednesday, September 15, 2004

Practice Tip #1 Another Perspective

By Tweed

Stockton and I could not have more different practices: he defends lawyers, architects and engineers from paying their fair share of the damage and misery they cause, while I negotiate lucrative business deals for them to make them richer (enabling them to continue to cause misery). And the legal markets in which we practice are vastly different: he works in a mid-size metropolitan area and most of his clients reside or exist within New York State, while my clients come from all over the country and world.

Despite these differences, Stockton's Practice Tip #1 applies with equal force to my practice - though for different reasons. I rarely negotiate deals against the same lawyer twice - it happens, but rarely. Nonetheless, I'm extremely conscious of how I'm perceived by my opponent; does he/she respect my analytical skills, am I treated with respect, does my new briefcase make my ass look fat. I want him or her to know that we can work together. There are times when client needs require me to be obtuse, mean or hard. But these times are few and far between.

Transactional work is tough. It is document intensive, detail oriented and extremely intense. Different styles of lawyer (I'm not talking about decorum here) can make transactional work even more tense. Time is almost always scarce, and timing is dictated by your client's business needs - real or ficticious. Days go by when I cannot download pornography. Yes, it's that bad.

A good working relationship with opposing counsel is essential to a smooth deal. Without it, you're in for a few weeks of torture (and not the good kind).

Sometimes, the lawyers play the bad guys. Unfortunately, lots of lawyers think that that is their job. More than anything, these folks just make a difficult process more of a pain in the ass. Simple points are turned into deal breakers and the client's interests get forgotten as the lawyers bicker.

The key to being a zealot advocate for your client, while making sure that the deal process does not kill you, is to not get too caught up in the process, which is intense and nearly all consuming. Always be able to take a step back and keep your, and your client's, perspective.

That's where a good mentor makes all the difference.

Transactional work is not something that anyone is immediately good at. It takes experience and understanding how business deals are negotiated and closed.

A good mentor will teach you how to work with opposing counsel while still being an advocate for your client. If your mentor is hot, that's an added bonus.

You will have hell days as a transactional lawyer - eleventh hour requests for something that will take 20 hours; your client changing the deal on you, etc. And there are appropriate times to lay into opposing counsel. But when you get that itch, make sure you're helping your client's position and not merely blowing off some steam. A lawyer should never tie his or her ego to the client's ultimate goals. They just might be incompatible.

Wednesday, September 08, 2004

Practice Tip - #1

By Stockton

Don't make your life more miserable than need be.

As a practicing attorney your feelings about the law will vary greatly from day to day. One day, you'll be filled with utter despair, the next, bitter hopelessness. Don't make your life more difficult than it has to be. There are little things you can do to help yourself.

I am a litigator. The population in the three or four surrounding counties is approximately 800,000+ people. If you open up the phone book there seems to be about 750,000 attorneys. This is misleading. I can't speak to other areas of practice but the litigation community is quite small. Six or seven firms (mine included) handle most of the tort defense work. There are three or four major plaintiffs attorneys and a healthy smattering of general practitioners that dabble in personal injury. It does not take long to gain a reputation, good or bad.

I speak not about a reputation for competence, but professional courtesy, which is the subject of Practice Tip #1.

My business is primarily done on paper; discovery, motions etc. I work within time frames for responding to demands and motions. When an adversary calls for an extension of time, I SAY YES, and so should you. You do not want a reputation as a hard ass; hard asses make life unnecessarily difficult for those around them and eventually for themselves.

Yes, you should be tough and competitive, but I am talking about something different. I speak to the day-to-day management of the reams of paper that flow out of, and into, your and other lawyer's (and their staff's) office. Don't be a prick if an adversary wants an extra two weeks to reply to discovery demands that you won't even get around to reviewing for three weeks.

Thus, we come to a tip I learned from a wise old adversary who made a fortune as a plaintiffs attorney and was later elevated to the bench. "Never use a law book when you can use a phone book."

Translation: Many intra-litigation issues can be resolved via a conversation rather than motion practice. If they can't, they can't; but judges and colleagues will soon come to find you a reasonable attorney who does not unnecessarily bombard opposing counsel and the courts with motions before even trying to work it out with the adversary. Picking up the phone can save you time and save the client money. Everyone will be happy.

Everyone is busy; lawyers, secretaries, judges, law clerks and claims representatives. You can make your life a bit easier by being reasonable and professional when an adversary calls for extra time or a favor. I don't even have to ask for more time from some adversaries. The cover letters I receive from these professionals usually reads: "If you need more time, let me know." It takes the pressure off.

Like everything else in law, there are exceptions to this general rule. An adversary may forget a date and fail to submit something. This omission could result in a dismissal of his or her case. If you can't agree to an extension, just say so. In many cases, the judge will not want to dismiss a case on anything other than the merits, and your adversary will probably receive an extension of time from the judge. Then you can say, "I can't stipulate to this but I won't vigorously oppose it." If the omission by the adversary is fatal to his case, then you have to swoop in for the kill. Also, if an attorney has been utterly obnoxious all through the litigation, especially towards you or your client, then go for the jugular. If he's been unbearably obnoxious with you, he's done it to others and no one really cares about extending him courtesies. Plus, it feels good.

I practice in an area where litigation is still a gentlemen/ladies game. If you will be practicing in an area where everything is a battle, where lawyers rarely meet the same adversary or judge twice, these tips may not help you. If you practice in a small or medium size market I think you'll find this tip useful as you progress through your career.

This may sound like mere commonsense. It is. Therefore it is doubly important to reinforce this rule in newer attorneys. Newer attorneys sometimes mistake being obnoxious for being tough. They sometimes get caught up in time-consuming fights that will have absolutely no impact on the ultimate resolution of the matter. Make your life easier and pick up that phone book before you draft that motion.

Thursday, September 02, 2004


Tort is Latin for "You fucked up". Torts can be broken down into two categories: civil wrongs and French pastries. We are concerned with the former.

Civil wrongs can be broken down into sub categories such as:

1) Negligence;
2) Intentional Torts;
3) Strict Liability;
4) Peach Newtons (which may also be a criminal offense).

We'll begin with negligence. The elements of a cause of action sounding in negligence are:

1) Duty
2) Breach of Duty
3) Proximate Cause
4) Injury
5) Damages
6) Settlement Check (always make sure it's divisible by 3)

Negligence is all about being careful. That's it. That's all you need to remember. Was the defendant careful enough when he plowed his car into the Plaintiff. Or, to be more accurate, would a reasonable person have plowed into the Plaintiff after blowing off a stop sign.

The reasonable person standard is the sine quo non of negligence and its greatest fiction. The law's reasonable person is very reasonable and very careful. Don't be surprised if you and your friends do not have the sensibilities of the law's reasonable person. In fact, Tweed successfully passed his torts classes using the George Costanza method - determining what he thought the law's reasonable person might do, and then using the opposite to answer questions.

Recent research indicates that the law's reasonable person would look something like one of the Easter Island statues. Others speculate that the law's reasonable person would look exactly the opposite of a composite of Ariel Sharon and Yasir Arafat.

Regardless, Stockton & Tweed suggest that if you ever come across the law's reasonable person, either kidnap him or her for your torts examine, or run shrieking.

Duty and Foreseeability

For some reason, law students get quite confused about these concepts. It may have to do with the atrocious writing that often graces judicial opinions. Duty and foreseeability are important concepts in negligence. Always remember, Duty is almost always a legal question. That is, for the judge to determine. Foreseeability is all wrapped up in determining whether an act is reasonable, a question for the jury.

If there is no legal duty, there can be no negligence. It does not matter how foreseeable an injury might be. Without a legal duty, you're off the hook.

Intentional Torts

Intentional Torts include assault, battery, false imprisonment, false arrest, all the really fun stuff.

This is where it gets tricky. In New York, the Statute of Limitations for negligence is three (3) years, with some exceptions. The Statute of Limitations for Intentional Torts is one (1) year. I'll assume most jurisdictions have a longer Statute of Limitations for negligence than for Intentional Torts. So, if you're going to commit a tortious act, say, against the asshole sitting next to you in Contracts, you have a decision to make. Go with the Intentional Tort when you punch him or feign a negligent act. This will all depend on how easy it will be for you to evade the Process Server. If you think you can get away with it, go with the negligent act. You'll have to lay low longer but there are generally no punitive damages. If it has to be an Intentional act, you'll only have to lay low for a year (+120 days, but that's another post). Also, try and avoid witnesses.

Sunday, August 29, 2004


The first days of law school can be filled with stress and anxiety. If you do not have ready access to certain recreational drugs, here are some useful tips:

1. Every entering class has a student or two who will always raise their hand when the professor poses a question. This person is engaged in some type of Socratic-Masochistic self-flagellation. Do not be that person. If you do not know who that person is, it's you.

2. Numerous companies publish subject aids akin to "Torts for Dummies" or "The Idiots Guide to Contracts." Do not bring those to class. If you do, do not display them prominently before the professor.

3. Never lament that a decision is "unfair". Case law is about consistency rather than fairness.

4. Never discuss exam questions immediately following an exam. Never discuss grades. Discussing grades is like discussing salary: it's just bad form.

5. Don't ask too many questions.

6. Finally, there are few "answers" in law school. Yes, occasionally you'll run across actual black letter law. For the most part, law school class time is about identifying issues and applying them to an often vague law or standard. It's about advocating people and a good lawyer can argue both sides. Indeed, a good lawyer will know not only the strengths of his or her case, but the strength of the opponents case.

Keep the sand out of your weapons. Keep those actions clear. I'll see you on the beach.

Saturday, August 28, 2004


John Marshall, Abraham Lincoln, Thomas Jefferson, John Adams, Clarence Darrow, Aaron Burr, Raymond Burr, Alexander Hamilton, Linda Hamilton, Hamilton Fish, Fish Cakes, Birthday Cakes, Jackie Chiles, Jackie Mason, Oliver Wendell Holmes, Sherlock Holmes, Tom Hagen; the inner circle of the country's greatest legal minds; your idols, your inspiration! And, of course, there's money too.

Welcome to the wonderful world of law and Dante's tenth Circle of Hell.

Stockton & Tweed, adolescent purveyors of mindless bantor that allegedly passes for humor, are, of course, lawyers. That's right, barristers, soliciters, attorneys at flaw we be. Don't expect to speak with us without getting a bill, and don't expect us to care about anything - because its all arguable or negotiable to us.

Having been through law school and practiced law (legally) for a number of years, we decided it was appropriate for us to give something back; to help those considering a career in law, about to attend law school, in the midst of law school or about to embark on a legal career. Also, we can claim this as pro bono work at our local bars.

So, if you're out practicing, about to start or just interested, come join us, Stockton, Esquire and Tweed, Esquire as we recollect our experiences and provide some advice for those that follow. Between us, as lawyers, interns or clerks, we have worked for judges, a prosecutor's office, legal aid, as practicing litigators, as a business lawyer and as a transactional lawyer. And neither of us has been sued yet!

Read on, so that you can understand why Stockton & Tweed say: "the law is like humidity."