Ramblings of a Jackhole

A young couple were driving down the road one day, happily, deliriously in love and due to be married the next day. Suddenly, a large truck swerved from the oncoming lanes into their car! BOOM! And they both died.

At the Pearly Gates, the young couple confronted St. Peter. “Sir, you have to help us! We were to be married tomorrow. Is there any way we can be married in Heaven?” “Hmmm,” replied St. Peter, “I don’t recall there ever being a marriage in Heaven. Well, let’s take it up with God and see what he says.”

So they approached God with their plea. God sat for a moment, pondering the request. Then he looked down and said, “Come back in five years and ask me again.”

Five years later, the couple approached God again, even more in love than ever and pleading that he allow their marriage. God paused for quite a while, musing over their request. Then he spoke, “Come back in five years and ask me again.”

And once again, five years later, the couple was again in the presence of God, more in love than ever and begging God’s permission for the third time to marry.

This time God smiled broadly and thundered, “Yes my children, you may marry!”

Well, the wedding went off beautifully, the reception was huge, everyone thought the bride was simply breathtaking and the groom was soooo handsome, and everyone was happy! Until…

Two years later, the couple was back before God, and things were not looking so good. The couple had come to the realization almost immediately that marriage was not what they were made for, and in spite of their struggles to come to terms with the situation, they had decided there simply was no alternative but to get a divorce.

Black clouds fractured by lightening rolled across the sky, and the ground shook with explosive thunder.

God glared down at the tiny couple before him, his face becoming dark and angry, and he roared; “Divorce?! It took us ten years just to find a priest in Heaven! Do you have any idea how long it will take to find a LAWYER?!!”

Proofreading is to the practice of law what meeting your future in-laws is to marriage. It can be a pain in the butt, but if you screw it up, you’re out on your own.

However proofing shouldn’t be limited to only lawyers (and their assistants) but everyone should learn to proof.

Many say the simply act of proof shows how much you care about the reader. If this is true, my readers can clearly see how much I care about them.

Whereas, on or about the night prior to Christmas, there did occur at a certain improved piece of real property (hereinafter “the House”) a general lack of stirring by all creatures therein, including, but not limited to a mouse.

A variety of foot apparel, e.g., stocking, socks, etc., had been affixed by and around the chimney in said House in the hope and/or belief that St. Nick AKA/St. Nicholas AKA/Santa Claus (hereinafter “Claus”) would arrive at sometime thereafter.

The minor residents, i.e., the children, of the aforementioned House were located in their individual beds and were engaged in nocturnal hallucinations, i.e., dreams, wherein visions of confectionery treats, including, but not limited to, candies, nuts and/or sugar plums, did dance, cavort and otherwise appear in said dreams.

Whereupon the party of the first part (sometimes hereinafter referred to as “I”), being the joint-owner in fee simple of the House with the parts of the second part (hereinafter “Mamma”), and said Mamma had retired for a sustained period of sleep. (At such time, the parties were clad in various forms of headgear, e.g., kerchief and cap.)

Suddenly, and without prior notice or warning, there did occur upon the unimproved real property adjacent and appurtenant to said House, i.e., the lawn, a certain disruption of unknown nature, cause and/or circumstance. The party of the first part did immediately rush to a window in the House to investigate the cause of such disturbance.

At that time, the party of the first part did observe, with some degree of wonder and/or disbelief, a miniature sleigh (hereinafter “the Vehicle”) being pulled and/or drawn very rapidly through the air by approximately eight (8) reindeer. The driver of the Vehicle appeared to be and in fact was, the previously referenced Claus.

Said Claus was providing specific direction, instruction and guidance to the approximately eight (8) reindeer and specifically identified the animal co-conspirators by name: Dasher, Dancer, Prancer, Vixen, Comet, Cupid, Donner and Blitzen (hereinafter “the Deer”). (Upon information and belief, it is further asserted that an additional coconspirator named “Rudolph” may have been involved.)

The party of the first part witnessed Claus, the Vehicle and the Deer intentionally and willfully trespass upon the roofs of several residences located adjacent to and in the vicinity of the House, and noted that the Vehicle was heavily laden with packages, toys and other items of unknown origin or nature. Suddenly, without prior invitation or permission, either express or implied, the Vehicle arrived at the House, and Claus entered said House via the chimney.

Said Claus was clad in a red fur suit, which was partially covered with residue from the chimney, and he carried a large sack containing a portion of the aforementioned packages, toys, and other unknown items. He was smoking what appeared to be tobacco in a small pipe in blatant violation of local ordinances and health regulations.

Claus did not speak, but immediately began to fill the stocking of the minor children, which hung adjacent to the chimney, with toys and other small gifts. (Said items did not, however, constitute “gifts” to said minors pursuant to the applicable provisions of the US Tax Code.)

Upon completion of such task, Claus touched the side of his nose and flew, rose and/or ascended up the chimney of the House to the roof where the Vehicle and Deer waited and/or served as “lookouts.” Claus immediately departed for an unknown destination.

However, prior to the departure of the Vehicle, Deer and Claus from said House, the party of the first part did hear Claus state and/or exclaim:

“Merry Christmas to all and to all a good night!”

Or words to that effect.

NOTE TO THE READER: I wrote this during my final semester of law school. I hope you enjoy it.

I’m sitting here, avoiding finishing my bar application, wondering if I really learned enough to take it. While I realize I can graduate the bottom of my class and still become governor, or even Vice-President, I need to pass the bar to become a lawyer. As it’s never too early to start studying for the bar, I’d like to share what I’d like to call ” The Jackhole’s Legal Lines.”

Contracts
Contracts can be summed up in two words, offer and acceptance (I guess that’s actually three words). This is pretty easy.

For instance, when I ask an attractive woman, “So, would you like to join me for dinner tomorrow night?”, that is an offer. When she says, “Sure, it’s better than reading a Bennett opinion” — (Let me have my dreams, okay?) — that is an acceptance.

However, a meeting of the minds must occur for there to be a contract. Now, my “phantom” date assumes I’m asking her to join me for a dinner at 801 Steak and Chop. I assume we’ll have some left over Hometeam Pizza I got last week that’s starting to curl at the edges, located under the two cans of Miller Genuine Draft which Brian Bentler left in my fridge sometime last year. This would not be a meeting of the minds.

Consideration must also be present for a contract to exist. Not all promises are enforceable. For instance, when dropping off my date and she says; “If you ever call me again I’m going to knee you in the groin… Again…” would not be an enforceable contract. That would be a gift. (I take it where I can get it).

However, while dating me may be an act of charity, there is consideration, albeit minimal on my part. Heck, professors are found of saying a single peppercorn is sufficient consideration to buy the Empire State Building. Personally, considering property taxes in New York City, I think the one with the peppercorn is getting ripped off.

I think there’s some stuff about breach of contract, unenforceable contracts and extrinsic evidence we should know about, but I left those notes at Zimm’s or Welman’s or somewhere like that.

Property
Every lawyer should know about “real property.” This includes two main categories: 1) land, earth, soil, dirt. Essentially everything like this except for the stuff you find in your navel and the stuff in which several local discount stores pot their plants; and 2) “fixtures” (e.g., buildings and other immovable objects that are part of the land. This includes my old truck, Sally Struthers, and several law students at local bars). There are a lot of terms to memorize. If I buy some beach front property in Nevada (just wait until the “Big One”) it’s not just “my land”; but I “hold a fee simple absolute interest.” Now get this, if I decide to give my land to my brother and I want to ensure it then will go to his daugther, my niece, I wouldn’t just give him my land, I would give him a “fee tail interest” in the land. Terms like these continue on in perpetuity in property law.

Speaking of, the Rule Against Perpetuities was announced in 1681 by William of Notingham as; “A contingent future interest which, by any possibility, may not vest within twenty-one years after some life in being, is void in its inception.” After establish this nearly intelligible rule (the California Supreme Court has ruled that not knowing this Rule is NOT malpractice, but neither is a lot of things in California), the law students of that era promptly planted Notingham’s butt six feet into the ground. This is the first time a “fee tail simple” was “touched by the land.”

Torts
Torts provide a means for “quick” money in the minds of many law students. But the road to tort money tends to be lined with many ambulances, pictures of yourself on the back of phonebooks, and changing your name to Harley.

To sue for a tort, one must be able to recognize a tort. It’s been alleged going on a date with me constitutes a tort. TV shows like Beavis and Butthead, The Simpson’s, and South Park also provide great examples of torts. For instance, when Mr. Garrison shoots your client Kenny instead of Kathy Lee, he and Mr. Hat (I’ll ignore respondant superior for now) could get into trouble three different ways.

First, killing someone is a crime and prosecutable unless you’re a senator from Massachusetts, a star athlete, a rap musician, or the president.

Second, if Mr. Garrison made a contract with Kenny promising not to shoot him, you could sue him for breach of contract. (See supra, or is that infra? Heck, just look back a few of paragraphs.)

Third, you could sue Mr. Garrison for causing the death of Kenny, which lead to his decapitation and his head to be drug away by rats. This would be the tort of conversion of ones head.

Another tort commonly found in Des Moines is that of false imprisonment. Ask a customer of a major hardware retailer or one checking out a trunk at a local car dealership. Professors enjoy asking students if one can be falsely imprisoned if they don’t know they are being imprisoned falsely. It’s like the question; “If Helen Keller falls in the forest . . . .” For example,

“A law student enjoys himself too much at an FAC, passes out in a room. Another student locks him in that room but unlocks it six hours later, but before the first student comes to. Is it false imprisonment?”

Personally, I say sue. A jury very well might say; “What if he woke up and needed to pee?” and award the big bucks.

One last thing to think about is proximate cause. For example, if your parents buy you Rollerblades(tm) for Christmas and, while using them, you are injured. If the law teaches us only one thing, it’s that, most certainly, you are not to blame for your own injury. You need to look at who else or what else caused your injury. For instance, was it due to a defect in the Rollerblades? Was it due to the fact Des Moines only fills its potholes during full moons on the second Tuesday of each month? Was it due to the fact that a pizza delivery guy almost ran you over trying to deliver a pizza in 30 minutes or less? Was it due to the fact your parents never taught you how to tie your shoelaces? There could be a multitude of proximate causes, and each may be your next deep pocket victim, er, defendant. Only Jesus Christ, whose birth is the basis of Christmas, and the ultimate reason you received the gift, could not be sued. But that’s only due to the inability to gain service on Jesus. See U.S. ex rel. Mayo v. Satan and his Staff, 54 F.R.D. 282 (W.D. Pa. 1974) (finding service upon Satan was not possible). Personally, I think Mayo could have simply served an agent of Satan. Bill Gates comes to mind.

Civil Procedure
That, of course, brings us to Civil Procedure. “Civil” is really a misnomer procedures involving lawyers. Just watch an SBA meeting. For the most part, civil procedure is done simply by following the recipes in the legal cookbook. In the federal courts, this is called the Federal Rules of Civil Procedure. It tells you to do A when you want to sue, to do B when you want to resist a suit, and to do C when you want to get disbarred. One can make a motion for about anything. An inmate even made a “Motion to Kiss My Ass.” See Washington v. Alaimo, 934 F. Supp. 1395, 1396 (S.D. Ga. 1996). The prisoner moved for “all Americans at large and one corrupt Judge Smith [to] kiss my got [sic] damn ass sorry mother fucker you.” Id. This is a very good example of what receives Rule 11 sanctions. See id. at 1400. This is the judicial equivalent to the penalty box in hockey. There are four important aspects of civil procedure to consider.

Standing is an important aspect, even though you are allowed to sit down when in court. To have standing you need to have personal interest in a case. For instance, if Congress passed a law preventing anorexics from hearing music in their heads and seeing unicorns in their offices, Ally McBeal would have standing.

Jurisdiction is a second aspect. When I was a kid and I broke a window or set the house on fire, I was placed in Dad’s court. When I didn’t eat all my food or ripped the clothes I was wearing, I landed in Mom’s court. (Considering I was wearing Mom’s dress, it wasn’t surprising). Our court system is similar to that, but don’t ask me which is federal and state court in that example. You can only get into federal court if the case 1) involves a federal law, or 2) if the”parties” are from different states; this is a “diversity suit.” Another example of a diversity suit is the red, green, and purple plaid suit my Uncle Elmo wore at his funeral. Aunt Mary said; “That was the only way to get rid of that hideous thing.” I sure hope she was talking about the suit.

The good news for those of you practicing law in state court, is us patent geeks are forced to stay out of state court. This works out well, as federal judges are much better suited for sleeping during court proceedings.

Service of Process is the third aspect. While it may be fun to hire Guido to beat down an opponent’s door until they suffer a heart attack (See Torts, infra), simply using the U.S. Postal Service is a viable and cheaper option as they provide their own weapons for free.

Class Actions are the final aspect. However, “class” is not present in most legal proceedings. This is a good one to know about, as except for representing a 20-year old lottery “co-winner,” class actions can be one of the most lucrative endeavors for attorneys. For instance, you could sue a major airline for $30 million on “behalf of” the class of “persons using that airline,” make a phone settlement for $3 million a few days later and take $1 million home without leaving your office (well, $400, 000 after taxes). Well, that is only if you live at your office. But we can talk about being a first year associate next issue.

Good luck to all of you getting ready for the bar. (No, not Grounou’s Bentler). Like attorneys say; “I’ll see you in court!”