CHRISTMAS BREAK

It's the Holiday Season, the most wonderful time of year. Plaintiffs roasting in the witness box, motions nipping at your heels.

Many of you may not realize it, but Christmas controversies have enriched our legal heritage more than any other holiday with the exception of Robert E. Lee's Birthday. We're sure your family will hang on every word as you regale them with your knowledge of Christmas Jurisprudence during this, the most holiest of seasons.


Evil Magician v. Frosty et. al. 28 N.Pole 123 (1964)

Plaintiff brought suit in Chancery to recover a magical hat that he had voluntarily abandoned in a fit of pique. The court ruled that abandoned property, even of a magical nature, enures to the party that recovers said property. In dicta, the court also noted that it lacked jurisdiction over Defendant Frosty as he, "was not a natural person under the law but rather a precipitation-generated event."


Kringle et. al v Winter Warlock (Sombertown City Court)

Plaintiff sued for declaratory relief seeking an easement over property owned by Defendant in order to further his commercial endeavors. The court dismissed the suit noting it lacked subject matter jurisdiction over suits involving inter-state commerce and the issue was moot because defendant Warlock was now a "good guy".*

Rudolph v Clause, Individually and as President of Clause Co.

This suit tested the constitutionality of the Reindeer with Disability Act (hereinafter RDA). Plaintiff sought "reasonable accommodations" for his workplace where, he alleges, he was treated in a hostile manner do to the luminosity of his nose. The court decided, sua sponte, in favor of Plaintiff. In an uncharacteristically harsh ruling, the court stated:

"Defendants actions are inexplicable and they have failed to raise a question of fact on the issue of a non-discriminatory basis for their actions. Plaintiff's disability in no way interfered with his employment responsibilities. Indeed, Defendant himself begged Plaintiff for assistance when Plaintiff's disability proved useful during inclement weather."

Kringle v Burgermeister & Town of Sombertown

Plaintiff sought a writ of Habeas Corpus after being imprisoned for "distributing toys" in contravention of a local ordinance. The Court found that the Defendants ban on toys for health reasons was rational and designed to achieve a legitimate municipal interest. **

Herbie v Clause Enterprises and the United Toymakers Union

Plaintiff sued, challenging the North Pole's rigid closed shop laws, whereby elves could only seek employment in limited fields, all related to the toy-making industry. Plaintiff sought to open a dental practice but was denied a zoning variance. The court never reached the merits when it was established that Plaintiff lacked a dental license.

* In a separate proceeding, the Defendant Warlock was later arrested and convicted of possession of magical acorns with intent to distribute.

** Ironically, Defendant Burgermeister instituted the ban after tripping over a toy and fracturing his ankle, thereby establishing the legitimate, health-related interest.

OLIVER WENDELL HOLMES

By Stockton

This post is part of our continuing series on famous judges. For those of you entering law school, some background on the men and women who wrote the opinions you will soon be reading is essential. We hope you find this series educational, entertaining and useful as you embark upon your law school careers. Feel free to utilize the information presented to impress your professors.

Oliver Wendell Holmes is likely the single most famous Supreme Court Judge. His opinions are legion and many of his dissents would ultimately become the law of the land in later years.

Holmes is probably most famous for his mustache. Holmes detractors claim his facial hair lacked the robust jocularity of Stephen Johnson Field's beard but many saw a sly, sardonic intelligence in Holmes' finally coiffed and dangerously sharp mustache. Indeed, in later years, Holmes would shellaque the ends of his mustache to a razor-sharp point and continuously jab Justice Moody until the latter ran from the bench. Later in life, when palsy caused his hands to shake, Holmes would use his mustache to spear his food.

Holmes served in the Union Army during the Civil War. He was wounded three times but friends began to take the injuries less seriously when they noticed how his sling shifted from arm to arm depending on the day of the week.

Holmes opinions are a model of judicial clarity and economy. Holmes spent hours honing his opinions, trimming unnecessary words until the writing was clear, concise and as short as possible. Eventually, Holmes would actually draw his opinions, depicting facts by using stick figures. Holmes became so obsessed with the economical us of words that his last opinion was merely a blank sheet of paper which he proudly showed off to his bewildered brethren.*

Holmes most famous opinion is often misquoted, a constant source of frustration for the justice. In Schenck v United States (1919), a landmark First Amendment case, Holmes wrote, "You cannot falsely shout fire in a crowded theater." After a series of theater fire tragedies Holmes issued a press-release stating: "If there's a friggin' fire, shout fire all you want! If there's no fire, sit back and enjoy the show."

In later years, Holmes posed as a centerfold for Playjudge
Holmes died in a theater fire in 1933.



* Three other justices concurred in Holmes' final opinion

PRODUCT LIABILITY - 101

By Stockton

The field of Products Liability is a subset of the Tort, only lower in fat. Products Liability was developed in the 1950's and served a number of purposes:

1) Attorney employment;
2) Allows redistribution of wealth to the logic-challenged.

To understand Products liability a fact-pattern may be helpful:

P works for E, a corporation. P has worked for E for twenty-two years. P's job is to remove cream from stale cream donuts so the cream can be reused in fresh donuts. To perform his job duties P must operate a sophisticated piece of machinery weighing well over 500lbs. The machine is equipped with an hydraulic scalpel as well as siphoning equipment.

One day, P's car breaks down and he must take the bus to work. He arrives fifteen minutes late and is told he'll have to make up that time at the end of his shift. During the last ten minutes of his shift, the machine jams. P carefully reads the sign on the machine: "WARNING, if machine jams turn machine off and contact the manufacturer or distributor. DO NOT attempt to repair machine due to the potential for serious injury! For God's Sake, make sure you never soak your feet in water while attempting to repair machine!" P, having been on his feet all day, fills a bucket with warm water to soaks his feet. While soaking his feet, P sees a panel secured to the machine by 45 bolts. A sticker on the panel says, "DO NOT remove panel under any circumstances. Don't say we didn't warn you!" P reads the sticker four or five times. Additionally, P's employer has used duct tape to secure a note to Plaintiff's forehead. The note reads, "If machine breaks, don't do anything. And your wife called, something about the rash not being contagious."

P spends the next five hours soaking his feet and trying every method available to remove the panel. His co-workers tell him to go home and let the shift supervisor call the manufacturer. P ignores them and finally gets the panel off the machine. P immediately sees that a donut is jammed between two sharp, metal parts moving slightly faster than an airplane propeller at full throttle.

Hours later P is recovering in the hospital from a mangled left hand and severe electrical shock.

Determining what causes of action P has and against which defendants will help you grasp the theories underlying Products Liability. Under current Products Liability theories, P has approximately 276 causes of action against 93 potential defendants. Well discuss a few of those below.

Defendant(s) No. One & Two: Automobile Manufacturer and Seller

P has causes of action in Product Liability and Warranty against those who manufactured and sold his car. If the car had not broken down, P would have been on time and not present at his employment when the machine jammed.

Defendant(s) Three, Four & Five: The Designer, Manufacturer and Distributor of the machine

This is a no-brainer. P will sue all three for Product Liability, Failure to Warn, Strict Liability and simple negligence. The design defect allowed the machine to jam. The manufacturer did not place adequate safeguards on the machine. The access panel was not adequately secured against someone attempting to remove it as 70 or 80 bolts should have been used to secure the panel. Finally, the defendants should have placed more warning signs on the machine in less ambiguous language.

Defendant(s) Six: Employer

If P's State allows suits by employees against employers then P has a claim against his employer for negligent hiring practices. To wit: If the employer had not hired P then P would never have been hurt.

Defendant(s) Seven& Eight: Water Bucket Manufacturer & Seller

The manufacturer and seller of the bucket P used to soak his feet failed to place adequate warnings on the bucket advising P not to soak his feet in the bucket while using electrical equipment.

Defendant(s) Nine: P's School District

P has a claim for educational malpractice against his School District, which gave him a substandard education and failed to prepare him to deal with life.

We hope that this example has made the field of Products liability come to life so you can better understand the complexities surrounding this growing legal field.

THE CONSTITUTION PART II

By Tweed

In my last post on the Constitution, I briefly described the history of the adoption of the Constitution. In this post I will briefly describe how the Constitution found its biological parents.

The Constitution is chock full of nifty concepts and rules. There is the "balance of power" concept, the "checks and balances" concept and the "Great Sandini Balancing Act" concept. All of these concepts are buried deep within the text of the Constitution, which has guaranteed their departure into the world of irrelevance and obscurity.

Welcome to the World of Irrelevance and Obscurity.

Part I - The Executive Branch

The Executive Branch of the Federal government is described in Article II of the Constitution, but it has nicer bathrooms than the branch of government described in Article I. Article II provides that the executive power of the United States is vested in the President. This gives the President the authority to enforce the laws of the country, spare one Turkey from the oven each Thanksgiving and not get out of bed to go to work.

The President is empowered to make deals with foreigners, subject to Senate approval. This makes the United States a lot like that nerdy kid you grew up with who had to check with his mom before he could do anything (and she usually said no). Historically, presidents have attempted to circumvent Senate oversight, usually without much success. In 1852, for example, President Filmore tried to enter a trade pact with Spain by pretending to be sick and signing the pact when the Senate went to work that morning. But the Senate found out that evening, and punished the President by re-naming him Millard. Over time, presidents have gained the trust of the Senate, which has rewarded the president with greater freedom of action in foreign affairs under special circumstances, such as when Britney Spears is performing at the Albert Hall.

There's also a Vice President, who gets to bust prostitutes and gamblers.

Part II - The Legislative Branch

The Legislative Branch is described in Article I of the Constitution and consists of two houses, both alike in dignity, in swampy Washington, where we lay our scene. The House of Representatives is larger than the Senate, and consists of 439 representatives, 4,874 staffers and 25,773 interns. The House of Representatives is famous for being the only house of the Legislative Branch with the word "house" in its title. It also makes a great barbecue sauce.

The Senate, consisting of 97 Senators, 7,984 staffers and 487,933 interns, used to be the more dignified house, until the senior Senator from Ohio began making fart noises whenever his colleagues sat down. It is now considered to be closer alligned with the mood of the people.

The chief job of the legislative branch of government is to right the law - an important function, because the law is prone to frequent capsizing.

Part III - The Judicial Branch

The Judicial Branch of government is the Supreme Court and is described in Article III of the Constitution. The Supreme Court is the highest court in the land, which explains the massive orders for pizza and potato chips from the Supreme Court building. The Justices of the Supreme Court hold court in the their hands or in the Halls of Justice. The current members of the Supreme Court are Superman, Wonder Woman, Batman, Robin, Aqua Man, the Flash, the Green Lantern and the Wonder Twins.

The Supreme Court's function is to interpret the Constitution. This is a very difficult job, because there are many theories on how the Constitution should be interpreted. Conservatives generally prefer the Constitution with some fiddle and spoon slapping, while most liberals prefer a dance beat and some sythesizers. Strict constructionists prefer theirs with a strings and light woodwinds.

Part III - Make Law, Not War

Correct me if I'm wrong, but both houses of the Legislative Branch must vote to pass a law. Every law starts as a bill, only a bill, sitting there on capital hill. Bills usually end up in committee, along with everything else known to humanity. Occasionally, some things pop out of committee - like yesterday, when old Ms. Schuyler's shawl that she lost on her trip to Washington back in 87' popped out of the House Sub-Committee on Frozen Waffles and Urban Infrastructure.

Once out of committee, everyone gets to attach ryders to a bill. By law, each ryder must (a) be wholly unrelated to the bill to which it is attached, and (b) be designed to either (i) destroy any chance the bill has in being approved or (ii) give a congressman's girlfriend $400,000 to build a beutician museum in downtown Akron. Once a bill is sufficiently weighted down with ryders (the Constitution requires at least 36 ryders), the bill is thrown into a large body of water, traditionally, the Potomac river. If it floats, it passes; but if it sinks, it was never a good idea to begin with.

If the bill floats, it is immediately presented to the President for drying. If the President likes the bill, he signs it and it becomes law. If he doesn't like it, he throws it back into the Potomac.

But here's the big problem: we have to wait for a controversy before the Supreme Court weighs in on any law's constitutionality. Here's an idea - what if Congress or the President could just ask before hand and save everyone some time?

Part IV - The Great Sandini Balancing Act

The founders of the Constitution understood the importance of balance. Accordingly, laying in wait for the unwary are a series of balancing acts.

Until the adoption of the 17th Amendment, the principle of the "balance of power" required that, at all times, the weight of the President and his cabinet had to be within five pounds of 75% of the aggregate weight of the members of the Supreme Court and within 15 pounds of the combined weight of the members of congress divided by 13 - which explains why Grover Cleveland's cabinet consisted of two midgets and a slight gay British national and Howard Taft's cabinet was made of balsa wood.* But this concept became cumbersome (no pun intended).

With the advent of the 17th amendment, the "balance of power" was dropped and quickly replaced by the "checks and balances" concept before anyone could get a good look at the Constitution naked. The checks and balances concept requires that upon assuming the office of President, the President's wealth must be equal to or greater than 40% of the wealth of the aggregate wealth of the members of the Supreme Court and equal to or less than the combined wealth of the five richest members of Congress. In the event that this requirement is not met, the President, members of the Supreme Court or members of Congress, as the case may be, write a series of checks until the proper balance is achieved (hence the name of the concept).

Tune in next time, as we discuss the Consitution's first date - the Bill of Rights.

* During Taft's tenure on the Supreme Court there was a mad rush to create additional cabinet posts to achieve balance, which explains the short lived, but much sought after post of Secretary of Chocolate Ice Cream.

PRECEDENT

Precedent: it's a word First Year law students hear often. You may hear Second and Third year students say, "It's bad precedent," or a professor may say, "Will this decision make good precedent?"*

PRECEDENT: WHAT IS IT AND WHAT IS IT GOOD FOR?

When a court looks to precedent, it looks to see how other courts have decided the issue that is presently before them. If other courts have consistently held that certain contracts must be in crayon, then a precedent has been set and the court has to do little work in rendering a decision. They merely have to write, affirmed. It's judicial time saving at its finest.

Ideally, for precedent to be at its strongest, your case should be on "all fours" with the precedent case. This is not as fun as it sounds, even in mixed company. It simply means that the facts of your case are identical to the facts of the precedent case.

Precedent-setting cases generally stand for a particular rule of law. Often times, there is more going on in these cases than a mere legal dispute. The diligent student will study the more important precedents and know when to use them. The less diligent student will have a social life. Here are some of the more well-known precedents you'll need to know.


MARBURY V MADISON (1803)

Facts: Then Secretary of State James Madison refused to deliver certain commissions to their intended recipients because it was very late at night and he had a big day ahead of him, thereby denying the intended recipients their rightful patronage jobs and government pensions.

What it stands for: The Supreme Court can declare an act of Congress unconstitutional.

What it really stands for: John Marshall established the Judiciary as a co-equal branch of government and established judicial review over congressional acts while simultaneously annoying his cousin, President Jefferson.



UNITED STATES V BURR (1807)

Facts: The former Vice-President was arrested for treason for allegedly planning to separate the western states from the eastern states and then reattaching them with epoxy.

What it stands for: Treason requires two witnesses, an overt act and something to betray.

What it really stands for: Killing a former Treasury Secretary is one thing, pissing off Jefferson twice in one decade is a bad move.



PACKARD V PACKARD (1864)

Facts: Under Illinois Law a man could institutionalize his wife "without the evidence of insanity required in other cases."

What it stands for: No person can be restrained against their will absent some minimal level of evidence of incompetence. Not even a woman.**

What it really stands for: Officially ended "The Good Old Days" for men everywhere.



SCHENCK V US (1919)

Facts: The Socialist Party circulated pamphlets critical of U.S. conscription in violation of the 1917 Espionage Act.

What it stands for: You can't falsely shout fire in a crowded theater.

What it really stands for: Your right to yell theater in a crowded firehouse is absolute, absent a compelling state interest.



ROE V WADE (1973)

Facts: Roe*** challenged a Texas statute that criminalized abortion.

What it stands for: A woman's right to her body has some level of Constitutional protection. The viability of the fetus is also a factor as pointed out by Justice White: "A fetus is a fetus until it gets out of medical school."

What it really stands for: The President can deploy troops to any womb that poses a security threat to the United States but if the occupation is to exceed 90 days he must seek congressional approval.



CALIFORNIA V PETERSON (2005)

Facts: A husband is found guilty of murdering his wife despite the lack of any direct evidence linking him to the murder.

What it stands for: A criminal conviction may be upheld when based soley on circumstantial evidence.

What it really stands for: First time a California court finds a defendant guilty of murder.

Other precedent-setting cases the new law student should know about:

Spy v. Spy (also involves the 1917 Espionage Act);
Kramer v. Kramer (Stars Dustin Hoffman);
Ali v. Foreman
Joe v. The Volcano


* Precedent comes from the Latin, meaning "What he said."
** A woman is a person under Illinois law
***Roe was an alias. Roe's real name was Doe.

AN INSIDE LOOK AT THE SUPREME COURT

By Stockton

Most insider books and interviews are written by powerful people and give us an inside look at the world of the powerful. This holds true for the Supreme Court, where we are fed a constant diet of tell-all books, usually penned by clerks to the judges.

Fortunately, we recently unearthed an interview of Samuel "Chum" Hubbs, the Supreme Court Barber from 1899 to 1966. Mr. Hubbs comes across as a charming, loquacious man and proved to be a wealth of information. The interview was conducted in 1969, a few years after he resigned from his position. Mr. Hubbs died in 1978. The following are excerpts from that interview.

"Sure, I cut Holmes' hair. I cut them all, Holmes, Brandeis, Cardoza. Came from a long line of barbers. Dad was a barber, his father was and his grandfather was. My brother too. Old Nat cut hair for the Massachusetts Supreme Court. Got appointed to the 1st Circuit even, back in '31 or '32. Then the bottom fell out of the Barbisol market and he lost everything.

"McReynolds....sure, I cut his hair. Strange man, McReynolds. He had gone almost entirely white when he came to the court but still had some black strands. He insisted that I always separate the black hairs and white hairs. 'Make them equal lengths, Chum,' he'd say. "But make sure they're separated.' I remember McReynolds always got his hair cut on Sunday. Brandeis and Cardoza always came in on Saturday. That made McReynolds crazy. Said I should close up shop early on Saturdays and make them two go somewhere else.

"Brandeis was a good customer. Exacting, but good. Always came in with charts, studies and diagrams showing me why his hair grew like it did. That it was the environment he grew up in, that if he had grown up in different circumstances, his hair might be different. That's why Brandeis' hair style seems to change. I had to change it everytime there was a new study or poll.

Yeah, I was there through the War Years. Those were tough times for everyone and the court was no different. Black came in one day, sometime in '42 or late '43. He wanted me to cut certain hairs from his head and put them aside, in a special container. "Just until this is over, Chum," he said. "We can replace them after it's over." He asked me to keep an eye on those hairs until hostilities ceased. I shook my head. "But Judge, these are your hairs, grew right here out of your scalp." He smiled at me. "We're at war, Chum and good grooming habits aren't a suicide pact." That last part he stole from Justice Jackson.

"You heard of the Court Packing plan? I was instrumental in killing that idea. I was in my shop one day and who walks in? Franklin Delano Roosevelt himself. "Chum," he says, "I have an idea. You think you could handle four more appointments a week?" I just shook my head in disbelief. My appointment book was already filled up for an entire year. There was no way I could handle anymore. That's how the court packing plan got killed.

"My favorite customer? Justice Holmes. He was a charming man and a good tipper. We got to be pretty friendly too. Everytime Ollie walked in I'd shout, "Fire, fire!" He'd pretend to panic and we'd have a good laugh. Douglas was a favorite too. Willy O. would walk in and say, "I need a hair cut, Chum." I always replied, "Just one?" That was our little joke. Then he'd say, "No, cut the whole penumbra." Penumbra, never did understand that one.

"Regrets? Just one. I would have liked to get my hands on O'Connor or Ginsburgh. I think ol' Chum here could have helped them quite a bit."

YOUR DUTY TO THE COMMUNITY

By Stockton

Many professionals, including lawyers, are active in the community. A surprising number of firms are proud of their community involvement and urge their new associates to "give something back to the community." So, don't be surprised if during the first few weeks of your employment, you receive a knock on your door. It will be a partner and that partner will encourage you to become involved in some community related, charitable activity.

You will have one of two responses: "Give something back to the community? Sure! Great! Since the community is paying my student loans, since the community just spent three years in school, since the community is working this lousy, 12 hour a day, slave-wage job, I'll give something to the community. How about the finger?" Make sure that this response comes from your "inner" voice and your "inner" voice only.

Instead, muster all your energy into a feigned look of interest and say, "Great, I have two or three free hours every week. I'd love to help."

There is a wide variety of community groups, activities and projects you can participate in to keep your employers happy. Here are just a few.

Battered Women

Before you jump into this, make sure you know what you're dealing with. Despite the name, this has nothing to do with smearing pancake mix onto females. In this context battered means violence, not a pasty mixture used to make pancakes or fish fries. Battered women's advocacy groups can always use free legal counseling on a wide variety of issues. It is a worthy endeavor but proceed with caution when selecting a group. If you decide to do pro bono work for a battered women's group, make sure it's an anti-battered women's group. I learned that one the hard way.

Youth Groups

A partner at my firm was able to combine his love of basketball and his desire to work with inner-city street gangs. When he was finished, he had turned four inner-city youth basketball teams into street gangs. Quite a success rate. The street gangs are now 7-0 this season and are heading to the state finals.

Indigent Teens

Another partner spends his spare time working with indigent teens. He says many of those teens just need someone who will listen. He is very dedicated to this work. On weekend nights, when I'm out late, I often see his car parked in a disreputable neighborhood. He must be well-liked though, because I usually see young females leaning in his passenger window listening to his advice. Once, I even saw him give someone some money and a ride. He has a big heart and I still don't understand why he's been divorced four times.

Indigent Lawyers

It's a little known fact but some lawyers can fall on hard times. There's nothing more worthwhile than to aid the needy within your own profession. It's a heart-wrenching experience to see a lawyer that has lost his second Mercedes or the summer home on Lake Watchamacallit in Vermont. Others become overwhelmed by their success, suffering from anxiety when they have to choose a particular tax shelter to protect their money from the government. Alcohol is another problem area for some attorneys. Fulfilling your community service might be as simple as stopping at a liquor store every morning and picking up a few things for a fellow attorney whose family will not allow liquor in the house.

Catholic Defense League

For the athletes among you, this is a worthy endeavor. The CDL teaches the art of self-defense to Catholic Alter Boys. It also raises money to purchase and supply alter boys with pepper spray and whistles.

Don't forget, your charitable activities can begin in law school. However, you must never question the charitable event after the decision to host that event has been made. You may be labeled as insensitive. During my second year of school, our class hosted a "Day Out" for the homeless. This event included a cookout in a local park. I made the mistake of pointing out that the homeless are always out of doors and perhaps we should host a "Day In" for the homeless. The event planners were not amused.

Now go do some good!

BAR EXAM PART II - A Conversation with Stockton & Tweed

The following is a transcript of my conversation with Stockton and Tweed regarding their bar exam experiences. We hope the following exchange will be of benefit to all aspiring lawyers about to take the Bar Examination.

Reporter: Gentlemen, what are the first words that come to mind when I say, "bar exam."

Stockton: A challenge. A challenge that must be accepted and met and never discussed again!

Tweed: Tissue ripping anal probe.


Reporter: The day of the exam, what was it like?

Stockton: Sunny, pleasant, mid-70's. There was some traffic heading in, so the usual 10 minute drive took fifteen minutes. I didn't let that affect me though.

Tweed: There was a fire in the hotel where I was staying in mid-town Manhattan, so my day began about two in the morning. My recollection of the day is a bit hazy - which I attribute to the smoke inhalation.


Reporter: Where did you take the bar exam?

Stockton: At the New York State Museum. I was on a terrace overlooking the Hudson River. A very nice view. I had my own table and there were no lines at the bathroom. It wasn't as bad as it sounds.

Tweed: Bastard! Me and 4,500 of my closest friends were herded into the Jacob Javitz Center like cattle to the slaughter - except that a more bitter end loomed. We sat on what once were chairs at tables that were no larger than two LP records.


Reporter: Let's go back a little. Why did you want to become a lawyer?

Stockton: Growing up, all my heroes were lawyers - Aaron Burr, Alexander Hamilton, Abe Lincoln, Robert Kennedy . . . .

Reporter: So - people who were shot or who shot other people?

Stockton: Precisely.

Tweed: I wanted to become a lawyer, so I could reap vengeance against all those who crossed me as a youth.


Reporter: So, back to the bar exam. Tell me about the actual experience of sitting and taking the exam - what was it like?

Tweed: Well, as I said, I don't remember much of the first day because of my smoke inhalation. But I do remember birds defecating on test takers as they flew about the cavernous hall. I also remember the workers building a set for some future event in the next room - hammers, saws, southern rock. . .

Stockton: I was just in awe all during the exam. So many emotionally crippled people gathered in one location. I cried.


Reporter: What did you do during your lunch breaks?

Stockton: I went outside, had a few cigarettes by one of the sparkling, bubbling fountains on the mall and achieved complete consciousness.

Tweed: I pushed my way through the crowds, but saw from the line at the one hot dog vendor that I would not be able to get a hot dog. So I worked my way to the Hudson River and dined on sushi. That's when the hallucinations started.


Reporter: Do you believe that your bar review course adequately prepared you for the bar exam?

Stockton: Generally, yes; but I wish they had mentioned there would be essays.

Tweed: Overall, yes. And the weighty study material came in very handy in fending off the rats that shared my second hotel room with me after the first day of the exam.


Reporter: Any advice for those entering the profession?

Stockton: If you can loathe your job, you're lucky. Far to many people detest their job. Find something you loathe and do it. Don't settle for something you detest.

Tweed: Yes.

THE BAR EXAMINATION

***WARNING***
There is nothing funny about the bar exam or bar review courses.

For our friend, Jen

So, you've taken your last law school exam, packed your bags and eagerly await a relaxing summer by the pool sifting through job offers and forum shopping.* But the ribbon tied to your finger jolts your memory - you need to buy some eggs! And take the bar exam. Yes folks, there is a hitch to becoming a lawyer - and it's called the Bar Exam.**

Your law degree is useless without a law license, an index card-sized document listing your name, height, weight, date of birth, turn-ons and a series of random numbers. A law license allows you to practice law in the state of your choice. How do you get the law license? Many years ago, you could 'read the law' with a practicing attorney. This entailed stoking the stove, sharpening the quills and chasing away the street urchins loitering in front of the office, begging "For a twopence, guv'nor."*** Times have changed - now, only duly licensed lawyers can shoo-away street urchins.

Becoming a licensed attorney is easy: you simply have to pass what's called a Bar Exam. Relax, there is precious little math on the Bar Exam. The Bar exam is mostly English Comprehension, some physics and a smattering of American History. You might be asking, "Yes, but how do I pass this exam? I'm tired after three years of school and frankly, I'm not that bright." You pass the Bar Exam by taking a Bar Exam Review Course. A Bar Exam Review Course attempts to replace the meaningless information you've gathered during your law school tenure with even more meaningless information identified by anti-competitive cretins, who couldn't hack it as practicing lawyers, as things you should know for approximately the same amount of time it takes to complete a Major League ballgame.

Your bar review course will consist of approximately eight weeks of classes, Monday through Friday. The classes start out being three or four hours a day, then gradually increase to 4 1/2 to 51/2 hours a day as your tolerance grows and then back to 41/2 hours a day. Side effects can include shortness of breath, hair loss, oiley discharge, priapism and temporary blindness.

Passing the bar exam looks like a daunting task because it is a daunting task. Take solace though. Others have gone through the bar exam and survived. Here are some of their stories:

Steven "Skip" Masterson:

"I didn't go to Harvard but I took bar review there because when we saw action, I wanted the person next to me to be the best. I didn't want to be stuck at a table with some 2nd tier wannabe. I wanted a future senator or supreme court justice next to me. It didn't turn out the way I thought it would. When things got hot, all those Harvard guys knew was theory. At the break they were all talking about how the royal courts under James II influenced early common law more than those under Charles II. Hell, I just wanted to know the 4th element necessary for adverse possession. It was a nightmare."

John Capra:

"It was so calm when we first reached the testing area. People nodded to each other nervously but no one spoke. We were all lined up, ready to go in, but none of us really knew what was in store for us. We were so young, so idealistic. So many of us went in, but when lunch time came, I hardly saw anyone from my bar prep course. My best friend went to the bathroom two hours into the exam. I never saw him again. When we walked out the first day all I could think was, 'this is it? This is all that made it?"

Susan Bakalian:

"When the proctor said 'Begin', all hell broke loose. The sound of people desperately leafing through test booklets rang in my ears. I wear hearing aids to this day. The person next to me soiled himself, then broke and ran. I never even got to know his name. Because I sat at the same table with him, I was supposed to write the letter to his parents. But what could I say. Your son was a hero? I never wrote the letter and it's haunted me for seven years."

Henry McCarthy:

"I was at the Javitz center in the summer of '98. I went in with the first wave. I don't remember much. My training kicked in and I was on automatic pilot. That was the only way I was able to drown-out the anguished cries for help. They told us what to expect, they said not to expect any questions about mortgages or metes and bounds - yeah, they said. . . but they weren't there. When it was over, little bits of lead covered the floor along with baggies of half-eaten pretzels. Pencil sharpeners, used once, were callously tossed away without a thought. I promised myself right then and there that I would buy a peaceful little farm and never take another standardized test again."

Jill McCloskey:

"It wasn't really a big deal."

You feel, no doubt, immense pressure. Remember, this pressure is all in your mind, unless, of course, you begin to bleed out the eyes or ears. If that occurs it is probably more serious than the bar exam. Finish all your practice questions and then consult a physician on your study break. In the meantime, let Stockton & Tweed relieve some of that pressure with some helpful hints and tips and do's and don'ts for the bar exam.

SOME HELPFUL HINTS AND TIPS AND DO'S AND DON'TS FOR THE BAR EXAM

1. Cleverly, the bar exam is graded on a consensus of the answers given. Thus, if 90% of the test takers identify "the right to party-hearty" as the answer to the question, "which right is protected by the 9th Amendment to the US Constitution," then party-hearty my friends, cause' it's in the Constitution. Accordingly, all bar examinees should agree beforehand to answer all of the multiple choice questions as "A".

2. You will take numerous practice exams. You will know the answers to those practice questions. Cut out those questions and answers and then past them into your actual bar exam booklet.

3. DO do everything the bar review experts tell you (unless it involves going to the experts apartment, honey, a mule and listening to Iron Butterfly).

4. Do NOT smoke crack or crank, snort blow, shoot-up H, pop any uppers or downers, or do anything else involving pseudonym's before or during the bar exam - unless you have enough for everyone.

5. In order to maximize comfort during the exam, tell anyone wishing to sit next to you that the seat is saved for someone else.

6. Psychological warfare is the name of the game. During a break approach anyone close to a nervous breakdown and say, "Damn, I can't believe an entire essay was devoted to The Rule of Shelley's Case."****

* Bar-hopping

** Lawyer shorthand for Bar Examination

*** A twopence is half a fourpence or 3.2 mililiters

**** Alternatively, if an essay included a Res Ipsa Loquitur issue, tell the person, "I was almost going to write about Res Ipsa Loquitur and then I remembered it wasn't an Res Ipsa issue, it was a Res Judicata issue.

COMMENTS

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LEARNED HAND

By Stockton

All law students know and revere the name Learned Hand. Hand's name graces many of the opinions we all know and avoid today. Hand is probably the most well-known and respected judge never to have sat on the Supreme Court. He was a far thinking visionary whose meteoric career ended upon his death.

Hand was born in Albany, New York, in 1872, to a mother and father. He spent his first twelve years in childhood. Then, upon reaching age thirteen, he entered his teenage years. These years were clouded by choosing a name. Hand's Christian name was Billings, his middle name Learned. Why he chose to be known as Learned remains a mystery to his biographers.

Hand, along with his cousins Slow and Cool, attended Harvard University. Hand studied philosophy under George Santayana until Santayana gained too much weight and almost suffocated the future judge.

Hand eventually attended law school, worked on Wall Street and made his way to the bench. He served as a Federal District Court judge and ultimately found himself on the prestigious 2nd Circuit Court of Appeals.

Hand became one of the foremost thinkers in the economic interpretation of law. He is best known for his formula on duty and standard of care found in US. v. Carroll Towing Co. 159 F.2d 169 (2nd Cir. 1947). The issue: should a tow captain have finished off two pints of Wild Turkey before hitting the high seas. The formula provides the correct answer.


Learned Hand's most Famous Formula
Answer: No!*

Unfortunately, Hand soon found that his formula was inadequate for contractual issues (unless Wild Turkey was involved). He toiled for years on the formula, devoting almost every spare hour to adapting it to contract disputes.** He found the result satisfying.


Hand's Contract Formula (simplified version)
Hand's formulas were a hit in the legal community and calculator sales skyrocketed.

Hand's later years were clouded in disappointment. The success of his formulas drove him to reduce all human/legal behavior to formulas. Finally, in the last years of his life, he attempted to reduce his wife to a formula but a neighbor called the police and a restraining order was issued.

Mrs. Hand, in the Judge's final years
Hand died penniless and disappointed, bequeathing his protractor and slide rule to Harvard University.


* The formula also showed that the defendant had a 3.72 Earned Run Average in 1937.

** Hand's remaining spare hours were devoted to his other love, Parcheesi

YOUR FIRST INTERVIEW

Thousand of law students now await graduation. Many have never interviewed for a job. Have no fear, allow Stockton & Tweed to guide you through the often intimidating and frightful world of job interviews.

Lining up job interviews can be stressful. The only thing more stressful than trying to get a job interview is the interview itself. There are two keys to a successful job interview: 1) Preparation; 2) Jim Beam. Nothing will ease the stress and tension of being questioned by a person holding your potential future in their hands like preparation and a few good knocks of Jim Beam.*Other tips, include the following:

1-FOR GOD SAKE'S, DON'T TELL THE TRUTH

You can answer questions truthfully or correctly. Always opt for the correct response. Answering truthfully can only cause problems.

Example #1

Partner: Where do you see yourself in ten years?

Truthful Applicant: Probably fifteen pounds overweight, morosely unhappy, working on my second marriage, up to three packs a day and despising you.

Correct Applicant: My goal is that in ten years my dedication and legal talent will have brought this firm new clients, making me a valuable asset to Strunk & White.


Example#2

Partner: Why do you want to work at Strunk & White?

Truthful: My student loans are coming due and I'll work just about anywhere.

Correct: Strunk & White is a dynamic firm focused on the future. It's young, cutting-edge partners are universally recognized as leaders in the 21st Century legal community.


2-PUT THE IDEALISM ON HOLD

Today's legal market simply has no place for young, idealistic attorneys. They're looking for something a bit different.

Partner: So, why do you want to become a lawyer?

Wrong - "I wanted to help people."

Right - "I like to eat what I kill."

Wrong - "I wanted to do a lot of pro bono work."

Right - "Analyzing amortization rates gives me wood."



3- YOUR MOTHER WAS WRONG

Your mother was wrong. It's not what's on the inside that counts, it's not how you play the game. Appearances matter. If you're one of the beautiful people, flaunt that gift. Show some leg, perhaps some cleavage.**

It's also important to remember that lawyers, especially those that are in a position to interview people, value individuality. Men, don't hesitate to wear your hair long, or in a ponytail. Women, if you have a tattoo, make sure your interrogator knows about your body art. In some cases, you may dispense with wearing a suit, opting for something casual. Or be daring, a trait highly valued in the legal profession. Instead of casual, go in the opposite direction: dust off those tuxedos and prom gowns.


4- YOUR TURN

Be prepared for the final question: "So, do you have any questions?" That's usually the examiners hint that he or she is done with you. Make your questions short and insightful. Don't be afraid of adding some humor to the interview. As all associates know, the most stern and dignified of senior partners always enjoys twenty-something humor. What's that? You need examples? Sure!

1) Do you guys have a stalking policy or are you cool with that?
2) Which department has the hottest paralegals?
3) What's the average age of a partner? I like have, like zero patience?
4) That sexual harassment policy in the employee handbook? You're kidding, right?


5-THE FOLLOW-UP LETTER

Always send a follow-up letter to the hiring partner. It's only common courtesy. If you have decided to take another position, a follow-up letter is still in order.

Dear: Insert Name Here

It was a pleasure to meet with you to discuss employment opportunities. You have an impressive firm. As you probably know, I have received a variety of offers and cannot accept them all. Unfortunately, at this time your firm does not meet my needs.

I wish your firm every success in the future.

Sincerely,

Insert Name Here

* Johnny Walker is an adequate substitute for Jim Beam
** This goes for the women and well as the men

ADMIRALTY 101

By Stockton & Tweed

Admiralty law is a distinct body of law, not a branch, or subset, of general civil law. In fact, Admiralty has its own variations of the various subsets of law, including tort law, contract law, criminal law, labor law, etc. Admiralty law even has its own courts. Despite not being a large practice area, admiralty law can be a lucrative and fulfilling endeavor for a salty soul in a good port city, such as Chicago, New York or Fargo.

Although admiralty law has its own variations on substantive law, the primary challenge facing the young admiralty lawyer (beside keeping one's uniform tidy) is admiralty court procedure. Admiralty procedure, though seemingly complicated, arcane and unseemly, has its own beauty, like the sea itself. Set forth below is an intoductory guide for the young practitioner:

1. Addressing the Court: Admiralty court judges are never addressed as "your honor" or "judge," or even "sir." Rather, the proper title of a judge sitting in Admiralty is "Cap'n."

2. Entering the Courtroom: Admiralty lawyers must be careful not to board admiralty court before the bailiff (or "Boatswain") rings three strokes of the court bell.

3. Knowing the Players: Discipline is key in admiralty court. And knowing how to address others in admiralty court is crucial. Second chair co-counsel should be referred to as "first-mate." Opposing counsel must be referred to as "Scurvy Knave" or "Mr. Scurvy Knave".

4. Special Admiralty Terms of Art:

a) When raising an objection to a question posed by the Scurvy Knave, precede any statement with "Arghhhh."

b) If you wish to approach the bench, the correct phrase is, "Permission to come aboard, Cap'n."

c) You must always alert a witness before hostile cross-examination. The correct phrase is, "Prepare to be boarded."

d) Most addresses to the court should be preceded with "ahoy," unless another phrase is mandated, such as "Arghhhh."

e) A number of common words and phrases are replaced by special admiralty phrases. For example, "is" is usually converted to "be."

f) Admiralty lawyers are never sanctioned for unethical conduct. They may, however, be lashed to a yardarm and flogged.*

PUTTING IT ALL TOGETHER

An Admiralty Proceeding might go something like this (the Boatswain has already wrung three bells):

Judge: Gentlemen; is there any further evidentiary issue to report before we raise the topsail and get underway**?

Counsel A: Ahoy! Permission to come aboard, Cap'n.

Judge: Permission granted............Call your next hand***.

Counsel A: Aye, Cap'n. I'd be a-calling Ben Gunn...

Counsel B: Arghhh, Cap'n. I be objectin'. That blasted Scurvy Knave never named no Ben Gunn as a hand. Aye, and the crew**** may be prejudiced by me lack of abilities to question the lad, lest I be havin' a moment or two for preparation, and such.

Counsel A: Shiver me timbers, Cap'n. There be no prejudice if I be calling Ben Gunn. A better crewman has never sailed these seas.....

Judge: Gentlemen, gentlemen. This ship cannot long last the tempests of litigation with such conflict. Now; Mr. Gunn is a fine lad, and his integrity is not in question here. But the crew cannot be expected to properly perform its duty if Counsel has not had the opportunity to prepare.

Counsel A: Ahoy, Cap'n. But might the crew be due for a day in port*****? And might the time the crew be spending in quarters****** give the Scurvy Knave his precious time for preparation?

Counsel B: Arghhh! I be objectin' to that too, Cap'n. Why, I've sailed the seven seas but never with a scurvier knave than this here bloke*******, and . . .

Judge: Counsel B, your objection is noted and shall be recorded in the log book********. Boatswain, dismiss the crew to quarters with an extra ration of rum. Counsel B, you now have your opportunity. I suggest you use it wisely.

Counsel B: Aye, Cap'n. But we'll be havin' a mutiny********* on this point, Cap'n; mark my words.

Make sure you know this procedure inside and out before shipping out into a Maritime case.


*If a yardarm is unavailable, courts sometime lash the offending attorney to a copier or file cabinet.
** "Proceed with questioning."
*** "Witness"
**** "Jury"
***** "Recess"
****** "Sequestered"
******* "I have practiced the law for many years and have litigated many cases against numrous attorneys, none of whom has shown as much disrespect to the processes and procedures of this court, and of opposing counsel, than opposing counsel in this matter. "
******** "Record"
********* "Appeal"

THE SUPREME COURT

By Stockton

The third branch of government, the judicial branch, is headed by the Supreme Court. The average citizen knows little about the court's purpose or role in our democracy. The Court's history and traditions are shrouded in mystery; cloaked in darkness. Law students should have a basic understanding of the Supreme Court. However, by their third year, most law students are blissfully ignorant about the land's highest court. If you think you're different, take our test and find out what you know about the Supreme Court.

1. There are nine members of the Supreme Court. The number nine symbolizes:

a) The nine Nazgul;
b) The nine original colonies;
c) Beethoven's Ninth Symphony;
d) Nine innings in a baseball game.


2. The only female member of the Supreme Court is:

a) Sandra Day O'Connor;
b) Ruth Bader Ginsburg;
c) David Souter;
d) None of the above.


3. The Supreme Court was originally called:

a) The High Court;
b) The Court of Last Resort;
c) Bob;
d) Le Court Supreme


4. Which of the following was not a Justice of the Supreme Court:

a) David Davis
b) John Catron
c) Charles Taylor Westbury
d) Robert C. Grier


5. The Supreme Court knows pornography when....:

a) They see it;
b) Mr. Ginsburg seems tired for three or four days in a row;
c) Nino Scalia sports a woody;
d) Rehnquist insists on reviewing the record five times, in private.


6. Everytime the Supreme Court issues a unanimous decision:

a) They Hi-Five each other;
b) An angel gets his/her wings;
c) A kitten dies;
d) A lawyer gets into Heaven.


7. Jackie Robinson is to baseball as Thurgood Marshall is to:

a) Integration;
b) The American legal system;
c) The Supreme Court;
d) Jacki Robinson.


8. If the Supreme Court issued an opinion and no one was there to read it, then:
a) The opinion would not be binding precedent;
b) The opinion would be binding precedent;
c) It would be Obiter Dictum but not Ipsi Dixit;
d) It was written by Justice Kennedy.


9. Which Supreme Court Justice had the silliest name?

a) Mahlon Pitney;
b) Salmon P. Chase;
c) Brockholst Livingston;
d) Lucius Q.C. Lamar;
e) Melville W. Fuller;
f) Rufus Peckham.


10. Under President Franklin Roosevelt's 'Court Packing' plan the Justices would have been:

a) Packed into wooden crates and shipped to an undisclosed location;
b) Forced to hear cases in a really small room;
c) Shrink Wrapped;
d) Carried around Washington D.C. in small pouches by members of the Senate.

CRIMINAL LAW - 101

By Stockton

Criminal Law will teach you about the criminal justice system, the elements that define a crime and how to succesfully commit them.

Legal systems serve a purpose and the crimal justice system is no different. Action taken against law breakers is designed to serve three purposes:

1- Remove dangerous people from society;
2- Deter others;
3- Provide plot lines for television shows.

If our Criminal Justice system cannot accomplish these goals, society will become more dangerous and there will be nothing to watch on Thursday nights.

Unlike much of Tort and Contract Law, Criminal Law is codified (that is, written down, breaded, deep-fried and served with tartar sauce). Criminal Law is codified to put people on notice as to what behavior is illegal. For instance, in New York, a person who contemplates an act can go to his or her livingroom book case, pull out their copy of McKinney's Annotated Statutes and perform research to make sure what they plan to do is legal ("Damn! I guess it doesn't matter that I think she is eighteen").

Elements

Crimes consist of elements* and though each crime is unique, most share some some common elements.

1. Mens Rea;
2. Actus Reus;
3. Damaged Medulla Oblongata;**
4. Cynical detectives;
5. Getting caught.

A thorough criminal will keep a checklist to ensure he has succesfully included all elements in his crime. It is important that each element be performed. Many criminals look down on colleagues that talk of their intention to pull off big crimes but never go through with the crime. "He's all Mens Rea and no Actus Reus" is a common insult. If you are new to the Criminal Law field, consult your attorney to make sure you've hit all the right elements. You don't want to be arrested for Burglarly 2nd if you were shooting for Robbery One.

A State Matter

Criminal Law is largely a state matter. While there are Federal Criminal Statutes, states have a wide latitude in choosing what acts are legal and which are illegal. Therefore, an illegal act in one state, may be perfectly acceptable behavior in another state. For instance, acts that constitute Rape or Sexual Assault in New York or Minnesota might be considered mere wooing or goin' a courtin' in Mississippi or Oklahoma.

Name Concerns

One thing often overlooked by the new criminal is the choice of a good nickname. Some memorable nicknames have included, Machine Gun Jimmy, Bill the Butcher and Mike the Mortician. Unfortunately, most of the good nicknames have been chosen and registered by older criminals. To avoid copyright infringment, many new criminals wait until older criminals retire (thus freeing up the nickname) or purchase the nickname outright.***

Choosing the Right Crime for You

Crimes are usually committed for pleasure or for profit (ocassionally the two overlap). Either goal is acceptable but the young criminal should choose his crime carefully. A crime of pleasure will almost never bring profit and a crime for profit can many times be unenjoyable. For example, Sal "the Veternarian" repeatedly violated New York Penal Law 270.20 (nonconsensual sexual contact with an animal) over the course of three years until he was finally informed that there was no money in it.

Rare, but not unheard of, is the crime that is unenjoyable and profitless. For instance, plagarizing the collected works of Rod McKuen is downright painful and might actually cost you money for copying expenses.

Miscellaneous Tips

There are also certain unwritten rules that should be honored if you are to be considered a serious player in the Criminal Law field:

1) In a shoot-out, the criminal gets the first two shots. If the police do not return fire, the expert criminal will stop firing and make sure his adversary is OK or would like to reschedule;

2) If you are arrested (pinched) and interrogated, don't immediately ask for an attorney. That is considered bad form. Always allow police interrogators to ask a few questions before asking for counsel;

3) Feel free to aid a rookie officer if you are his first interrogation. Remember, you and the officer might have a long, professional relationship.

4) If you and a partner are both caught, don't fall for the old, "Your partner is about to talk and he'll be the one to get the deal." The police officer who says this is almost always lying.

5) If you are pulled over and asked: "How many drinks have you had tonight?", always say "Two". If you say one, they'll know you're lying. If you say three or more, now you're just bragging.


* Some jurists theorize that elements can be further broken down into nano-elements, undetectable by the human eye.

** A section of the human brain, not a Police album.

** This was how the infamous Tommy "the Dental Hygienist" became Tommy "the Restaurant Critic".

LAW LIBARIES AND LIBARIANS*

By Tweed

Law libaries** are suppositories of a great variety of legal works, such as judicial opinions, photo-copiers and the primary location for student research and nappy-time. Like any other libary, a law libary is filled with thousands of volumes that no one has ever opened, such as "Horker on Handtruck Liability" and many volumes written by Federal Reporter. Like general libaries, law libaries use the Dewey Decimal system - so bring your sextent and abacus.

Like their step-siblings, the general libarians, law libarians are a insular bunch. They congregate in mysterious offices behind reference desks or in the basement. They speak their own language, often incomprehenible to the new student:

Student: Could you please tell me....

Libarian: 2nd Floor, you want AD2 and Pacific Reporter, but you can also look in F3d or Fed. Sup2nd. The Key Number is 16 and 23 so cross reference that and don't forget to Shep.

Student: Where the bathroom is?

Though they frequently speak about themselves with self-deprecating humor, law libarians are crafty and clever. Underneath their false modesty lies the most remarkable encyclopedic knowledge of the great and indispensable resources that their library doesn't have. Constantly under pressure to discontinue such precious commodities as "Rouschefoch's Law of Fur Trading," law librarians greedily protect the limited resources their libary has to offer. Though proud of these prized texts and outwardly protective, law librarians have the annoying habit of lending out indispensable texts to people with the morals of wandering snake-oil salesmen.

Despite their many charming idiosyncrasies, law libarians are very helpful at finding information. But don't expect them to help you with an actual legal problem - law libarians know blessedly little about the law. Rather, they know how it is organized, catalogued and stacked. Thus, as actuarials are to social security, so law librarians are to the law.

Law libraries contain a number of great resources beside the actual law (statutes and regulations). They contain legal publications, like periodicals (e.g. the New York Law Journal, the National Law Journal, the Inlaw Journal), scholarly articles, usually in law reviews (e.g. Harvard Law Review, East Schenectady School of Criminal Justice Law Review and Broadside), and treatises (Corpus Juris Secundum, Merten's Federal Income Tax, Williston on Williston and Prosser On Prosser's Wife).

Law libraries have gone through an extraordinary transformation over the past fifteen years, not unlike Michael Jackson. Law libraries used to function as flop houses for law students - like MJ's Neverland. But now, through the power of the internet, they constitute the single largest profit source for internet pornography - just ahead of MJ's Neverland.

* Some of your more ignorant colleagues will pronounce it "library" and "librarian". Don't let them make fools of themselves. Correct them at every opportunity.

** One of the most prestigious law libaries can be found at 225 AD2d 545, Cambridge, Massachusetts.

CIVIL PROCEDURE - 101

By Stockton

Civil Procedure is a rich, complex legal tapestry that cannot be summarized in one, eight paragraph entry. Therefore, to gain a thorough understanding of this discipline, How To Law School will present two, eight paragraph entries on Civil Procedure.

Civil Procedure will teach you the rules that govern litigation in Federal Courts. Federal Civil Procedure can be found in The Federal Rules of Civil Procedure (FRCP). The FRCP contains all you'll need to litigate in Federal Court and comes complete with dice and two decks of game cards.

Almost every state in the union has adopted the Federal Rules of Civil Procedure for their own State Courts.* Thus, many students kill two birds with one stone, learning not only how to wrongly apply Federal Civil Procedure, but simultaneously learning to wrongly apply the procedure of their own state courts. One glaring exception is New York, which still holds fast to its own procedure.**

FRCP 4 - The Summons

A Summons is an invitation to come to court. It informs the recipient where to be, when to be there and what to wear ("You are cordially invited to present yourself at the Federal District Court for the Northern District of New York on Monday, May 11th at 12 O'clock in the forenoon to give me money...). The Answer is the RSVP. "Of course, I'd love to attend. And no, I won't be giving you anything."

Rule 4 also governs service of the pleadings. Service of process is extremely important and must be followed to the most insignificant detail. Improper service upon a defendant means that jurisdiction has not been obtained and therefore, the defendant is not subject to the jurisdiction of the court. Such a defect can often prove fatal to a suit.

The most common form of service is personal service. A process server must physically take the Summons and Complaint and whack the defendant over the head with it three times, while shouting, "You are served!" three times. Traditionally, the defendant is then supposed to tip the process server.

Pay particular attention to FRCP 4(g), service upon incompetents. This rule governs service upon children as well as adults who have guardians. It does not, I repeat, does not, apply to service upon government officials or your brother-in-law.

FRCP 11 - Signing of Pleadings, Papers and Sanctions

FRCP 11 is relatively new. It mandates that most papers in litigation be signed by the client or attorney of record. By signing, the attorney is attesting to the truth of what is contained in the papers. A violation of this rule can result in sanctions, or worse. Therefore, as much as you might want to, refrain from signing names like, I.P. Daily or U Fukkem Yung.***

FRCP 35 - Physical and Mental Exams

This Rule can be quite fun. If a Plaintiff places their physical or mental health in issue, opposing counsel can request that the Plaintiff be examined by a physician or mental health expert. Here's a fun thing to do: purchase a white lab jacket and schedule the physical or mental health examination at your office. When the Plaintiff arrives, and if she (or he) is good looking, You conduct the exam. If you have ever spotted a box of latex gloves in a law office, thank Rule 35.

FRCP 45 - Subpoenas

The Subpoena (pronounced sub-pony) comes from the Latin and literally translated means, 'under the pony'. In ancient Rome, people who ignored a court order to produce themselves or documents were punished by being thrown underneath a pony.

Advocate: Your Honor, Cicero refused the order to appear and testify.
Judge: Then it's under the pony for him!

Subpoenas can be great fun. They are typically used to ensure a non-party's attendance at trial or depositions. Also, they are used for the production of documents or other evidence. But don't limit the scope of what you do with a subpoena. Be creative. Use subpoenas to order lunch, make your spouse produce credit card bills and even have video stores deliver rentals straight to your house. They are also great for last-minute shopping.

Rule 47 - Jury Selection

Jury selection in Federal Court has been honed to a near perfect science and, unlike state court, the attorneys have little involvement. The Federal system of jury selection is known as 'One-Potato-Two-Potato' and ensures that only the least knowledgeable individuals too stupid to avoid jury duty are selected to try their peers.

* Before a State can formally adopt the FRCP, the state is thoroughly investigated to ensure it will provide a safe and nurturing home.

** New York Practice derives from the early procedures of the Anglo-Saxon Althing (cir. 581 AD) although it remains slightly more archaic than its predecessor.

*** Unless your name is I.P. Daily or U Fukkem Yung.

EXTRA ACTIVITIES + PRACTICE QUESTIONS

By Stockton

Activities

How many of you have wondered; "What type of extra activities can I do to make me a better law student?" Me neither. Still, here are a few projects that will keep you sharp over breaks and vacations and put you a step ahead of your colleagues.

1. Prepare a topographical map of Blackacre (be sure to include two easements, one improvement, an acre subject to adverse possession and a right-of-way).

2. Commit a crime (nothing greater than a misdemeanor) and then represent yourself. Move to have all charges dismissed based upon a violation of your 4th Amendment Rights. Before the Judge rules on your motion, make sure he knows that if he decides your motion in the unscholarly, amateurish way typical of lower court judges, you're prepared to go all the way to the Supreme Court.*

3. Create a life-size, talking doll of Justice Oliver Wendell Holmes out of paper mache. The doll should recite lines from Holmes' more memorable opinions ("Two generations of idiots are enough!" - The Carrie Buck Case)**

4. Cross Examine your spouse or significant other about their credit card bill. Get them to admit that half their purchases were unnecessary. Bonus points if you get them to cry.

5. Create a diorama depicting the states in which you and your friends may be subject to personal jurisdiction and the basis for such jurisdiction (be sure to remember Long Arm Jurisdiction).

6. Default on a debt to a bookie or loan shark. Explain that such activities are illegal and thus, they have no way to enforce your promise.

7. Write and produce a musical based on the Federal Rules of Civil Procedure.

8. Draft a quasi-contract, amend it into an implied-in-fact contract and then back into a quasi-contract.

Practice Questions

1. A contracts to sell B 1,000 ice cube trays. A then contracts with C for the manufacture of 1,000 ice cube trays. A is to deliver the trays to B on or before May 1. The trays are to be manufactured by C on or before April 15 and shipped to A no later than April 21. C is told that B, a restaurant owner, is relying upon the ice cube trays and that delivery after May 1 is will result in substantial monetary loss to B. Both contracts are reduced to writing with a clause stating, "This contract is whole and complete and its material terms cannot be altered except in writing, with written consent of both parties."C's factory burns down on April 12. The fire is ruled to be arson. Answer the following questions:

a) What was B going to do with 1,000 ice cube trays?

b) Was C involved in the fire? Why won't C's son speak to him?


2. A rare diamond is on display at the New State museum. It is valued at $1,788,245.22. On the first night of the exhibit, the diamond is found missing. Curator Smith suspects that John Doe, who catered the event, took the diamond. Smith tells the police that he has absolutely no evidence that Doe took the diamond but that Doe should be questioned. Police go to Doe's restaurant, arrest him and search the building. The diamond is found under a medium-rare porterhouse steak. Doe is arrested and convicted of the theft.

a) Can Doe's statement, "Boy, I sure could use $1,788,245.22 to help pay for those ice cube trays," made the night before the theft, be used against him?

b) Can the porterhouse steak be admitted into evidence? Can the baked potato? Can the fact that the steak was ordered medium rare but cooked well-done be used to impeach Doe?

* You may need to take a leave of absence from school for a semester or two.

** Also, the doll makes a great gift for a friend or relative expecting a child.