How To Law School

SUMMER IS OVER

2006-09-16T10:48:00.000-04:00

Editors

Summer is over and it's back to school.

It is not uncommon for law students to let their legal skills atrophy over the Summer. This is especially true if you're interning or clerking for a law firm. To help re-acclimate you to the new school year, How to Law School has put together the following materials to keep you sharp.

1. Two trains depart Pittsburgh at 10:00 A.M. Train A travels west at 55 mph, Train B travels northeast at 62 mph. Train A and Train B collide outside of Baltimore. Using the Erie Doctrine, explain how collision occurred, who is at fault? The law of which state should be applied? How did each train end up in the Baltimore-Metro area?

2. Using thirty-five words or less, explain how the Eleventh Amendment violates The Eleventh Amendment. How would Roscoe Pound draft a revised Eleventh Amendment? How would Ezra Pound? Show your work.

3. Using nothing but construction paper, glue, gauze pads, cotton balls and pipe cleaners, create a Federal Court personal jurisdiction board game.

4. Discuss and distinguish the differences between traditional Anglo-Saxon contract law and the theories underlying magical contracts in Harry Potter and the Goblet of Fire. Pay special attention to the elements of offer and acceptance.

5. Rent and view Bend over Babes I - VI. Which films meet Justice Stewart's definition of obscenity? Do the 'Bent over Babes' films (I through IV inclusive) constitute copyright infringement of the former works? Is that necessarily a bad thing?

BONUS QUESTION: Pursuant to Aztec custom, the losing side in an appeal was ceremonially put to death. Should the United States revive this custom? What about interlocatory appeals?

BLOG ADJOURNED!

2006-04-01T16:27:00.000-05:00

How To Law School has adjourned for Spring Break. We'll reconvene in a few weeks.

SAY HELLO TO YOUR NEW FRIEND

2006-01-27T06:43:00.000-05:00

The lifeblood of any law firm is the time sheet. The time sheet is where, you, the associate, will record your billable hours, thoughts and dreams. This is the single-most important function you have as an associate. You and your time sheet will become inseparable. Some overly obsessed associates have even been known to fabricate laminated pouches so the time sheet can accompany them into the shower.

Up until this point, you may have measured your day in 55 minute blocks (a class) or 30 to 60 minute blocks ( television shows). Now, you'll measure time in .1 (or 6 minute) blocks of time. Get ten .1's and you'll have an hour, get nine 1.0's and you'll have a day, reach 80000.00 and presto, a career!

Time sheets differ depending upon your employment. Some firms demand minute detail for every entry:

.1 letter to client re: OSHA documents needed for responding to Plaintiff's 11/7/05 Supplemental Demand for D&I;

Others may require only:

.1 letter to client re: documents.

For larger projects, time sheets can come very near equaling humanities finest, most beautiful works of art. For instance, a partner once described my time sheet on a motion for summary judgment as, "easily surpassing the heights attained by Michelangelo or Donatello. I actually cried when I read it and it still haunts me."

As a new associate, your time sheet will make or break you. Craftsmanship is important.

Sample time sheet for new associate, week 5:

.3 - Drank three large coffees

.1 - Urinate

.1 - Letter to client re: Deposition dates

.1 - Receive and review letter from Plaintiff's attorney re: extension to respond to discovery

.1 - Urinate

.2 - Renew senior partner's subscription to Juggs Magazine for Gentlemen

.1 - Urinate

.1 - Make pot of coffee

.7 - Review NYT's On-Line

.2 - Check box scores

.8 - Re-arrange office

1.3 - Phone call from college friend

.2 - Spill coffee/clean up spill

.2 - Conference with partner re: upping billable hours

1.1 - Internet search re: untraceable handguns/murder for hire

1.2 - Phone call to student loan company re: deferment (1.1 for hold time)

.1 - Phone call from student loan company/ no on deferment

.9 - Research help-wanted ads/part-time work

.1 - Resolve to bill more than required time in order to make partner

.8 - Get high score in on-line Tetrus tournament

.2 - Conf/ office manager re: bill for Big Beautiful Women downloads

.8 - Conf with other assoc re: how much work you have

CHRISTMAS BREAK

2005-12-22T21:50:00.000-05:00

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

2005-11-25T08:58:00.000-05:00

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

2005-10-02T14:29:00.000-04:00

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

2005-09-10T20:38:00.000-04:00

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

2005-08-28T21:14:00.000-04:00

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

2005-08-12T06:27:00.000-04:00

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

2005-08-01T05:55:00.000-04:00

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

2005-07-10T07:38:00.000-04:00

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

2005-06-24T16:42:00.000-04:00

***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

2005-06-09T17:07:00.000-04:00

Stockton & Tweed just realized that a reader could not comment unless they were registered with Blogger (which has to be a violation of some Amendment or Commandment). Comments are now available to everyone. Feel free to leave a comment.

LEARNED HAND

2005-05-31T20:06:00.000-04:00

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

2005-05-14T09:24:00.000-04:00

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

2005-03-14T21:09:00.000-05:00

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

2005-02-17T20:07:00.000-05:00

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

2005-02-07T20:29:00.000-05:00

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*

2005-01-28T21:39:00.000-05:00

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

2005-01-19T21:43:00.000-05:00

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

2005-01-08T14:23:00.000-05:00

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.

HERE THERE BE MONSTERS

2004-12-31T14:00:00.000-05:00

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.

CONSTITUTIONAL LAW I - THE CONSTITUTION

2004-12-21T15:33:00.000-05:00

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.

SUMMER ASSOCIATE PROGRAMS

2004-12-07T21:01:00.000-05:00

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.

2002:

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.

WILLS - I

2004-11-28T20:02:00.000-05:00

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: Ummm.....ur...no. 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.

MR. SMARTY-PANTS & CO.

2004-11-17T22:23:00.000-05:00

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.

GET YOUR NOSE BACK IN YOUR BRIEFS

2004-11-06T08:05:00.000-05:00

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.

ETHICS - 101

2004-10-20T07:02:00.000-04:00

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.

PROPERTY 101

2004-10-12T13:31:00.000-04:00

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.

Law Firm Life: Part 1, BigLaw

2004-10-04T15:52:00.000-04:00

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.

Conclusion

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=$$$

CONTRACTS - 101

2004-09-21T09:44:00.000-04:00

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.

Consideration

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.

Practice Tip #1 Another Perspective

2004-09-15T23:45:00.000-04:00

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.

Practice Tip - #1

2004-09-08T13:03:00.000-04:00

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.

TORTS

2004-09-02T06:37:00.000-04:00

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.

OPENING TIPS - Part I

2004-08-29T20:51:00.000-04:00

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.

SO YOU WANT TO BE A LAWYER

2004-08-28T20:17:00.000-04:00

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."