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.