Ramblings of a Jackhole

Chicago attorney William P. Smith, of McDermott, Will & Emery, appeared in the Southern District of Florida bankruptcy case before Judge Laurel Isicoff. Apparently, Mr. Smith didn’t think too highly of the her understanding of the situation at hand and decided to tell the Judge that her thinking was “a few fries short of a happy meal.”

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Mr. Smith is to be back in Judge Isicoff’s court on June 28th explaining why he should not be suspended from practice before the court for violating the rules of professional conduct. If he doesn’t behave, the judge may just supersize her sanction.

Star Wars Kid Sues Those That Shared His Fighting Prowess on Kaaza

Candian Television first reported reports, and Wired reported the following day, that Ghyslain Raza, a/k/a “The Star Wars
Kid”, has sued the four students for $250,000 for uploading his video to the web, and creating him a sensation of mass proportions, even receiving press from the New York Times.
Raza, 15, reportedly shot a video of himself for a school project — a mock sword fight intended for viewing by a handful of people. The video has such a following that a mulitude of videos have been derived from the original video. The suit claims Raza has suffered “harassment,” “ridicule” and “persecution” at school and in the public at large. The suit alleges that the harm was so great, Raza was forced to leave high school and finish his year in the psychiatric wing of a local hospital. An employee of Raza’s old school says the pressure on the young man was intolerable. “When 500 people laugh at you every noon when you walk into the cafeteria, it can’t be easy,” says Rafael Jacob.

There’s an online petition asking Lucasfilm to give the Star Wars Kid a cameo in the next installment of the film. “… this poor kid is living the nightmare of having his private dorkiness projected across the world to giggling Web users,” it reads.

Of course, while my inner geek certainly feels for the kid, I believe his mental state has to be at least in part the fault of his parents. After all they named him Ghyslain. Such a name clearly would be a catalyst to ridicule by peers. We’ll see later whose fault it is for his wardrobe.

Man Sues U.S. Government for Documentation Proving They Developed AIDS to Kill African-Americans

Boyd Graves, an Annapolis graduate, who put himself through law school but has not yet passed the California bar, has filed suit against the United States government to force release of documents under the Freedom of Information Act which will “prove that the U.S. government is behind the AIDS pandemic.” Graves is convinced the U.S. government created AIDS in a secret program aimed at killing African-Americans, comparing it to the Nazi extermination of the Jews.

In addition to the conspiracy charges, Graves accuses the government of suppressing a cure that could save millions of lives. The remedy worked for him, he claims. In 1992, he found out that he was HIV-positive. Nineteen months ago, he says, he took a one-time “infusion” and has been symptom-free ever since, without any further medications.

In 1990, a poll conducted in NYC found that 10% of blacks survey believed that AIDS was “deliberately created in a laboratory in order to infect black people: and an additional 19 % said they believed the theory might be true.

Graves has prepared a flow chart showing the “creation” of AIDS, but is charging $7 to download it from his web site.

Nearly Two-Thirds of Americans Can’t Name Any U.S. Supreme Court Justice

A Findlaw survey found that 63% of American adults cannot recall the names of any of the nine justices currently serving on the U.S. Supreme Court, and only 1% could name all nine, with John Paul Stevens being the hardest to remember.

However in another unrelated survey, 84% of all American adults could name all of the castaways on Gilligan’s Island, with Ginger being the easiest.

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!”

My Take the on Pledge Case. The Dissent was Right

After reading the 9th Circuit’s Newdow v. U.S. Congress opinion, I find myself agreeing wholeheartedly with the dissenting opinion put forth by Judge Fernandez. The following is a brief summation of what he stated:

The clauses of the First Amendment require neutrality. In effect making these clauses one of the first “equal protection” provisions, which assure that the government does not discriminate against a religion or the religious. The argument that the phrase “under God” will bring about a theocracy that will repress someone�s belief to the point they’ll need to shout “Come and see the violence inherent in the system! Help! Help! I’m being repressed!” is “so miniscule to be de minimus.” Dissent in Newdow; “Holy Grail” by Monty Python. This is not arguing that there should be a “de minimus” constitutional violation. This is simply stating that the de minimus tendency of the Pledge to establish a religion or to interfere with its free exercise is no constitutional violation at all.

The Supremes have stated: “Our previous opinions have considered in dicta the motto and the pledge, characterizing them as consistent with the proposition that government may not communication an endorsement of religious belief.” County of Allegheny v. ACLU, 492 U.S. at 602-03, 109 S.Ct. at 3106 (1989).

The 7th Cir. found the clauses in the First Amendment “were not designed to drive religious expression out of public thought, they were written to avoid discrimination.” Sherman v. Cmty Consol. Sch. Dist. 21, 980 F.2d 437, 445-48 (7th Cir. 1992).

Many have been arguing that reciting the Pledge in front of others that will not recite it “makes them feel uncomfortable.” However, making someone uncomfortable is not unconstitutional. For example, when the Supremes found that Seventh Day Adventists did not have to recite the pledge, it did not say another could not recite it in front of others. See West Virginia Bd. of Edu. v. Barnette, 319 U.S. 624 (1943) (and don’t be a dumbass and get caught up in the fact that the phrase “under God” was not part of the pledge at the time this case was decided, that isn’t the point.) Their rights were protected by not allowing the government from stepping on their “sphere of intellect and spirit.” Barnette at 642 In fact the Court found that their religiously based refusal “to participate in the ceremony [would] not interfere with or deny rights of others to do so.” Barnette at 630 Therefore there is clearly not a “feel good” test that should be applied to the First Amendment.

For if this “feel good” test is utilized, then many patriotic songs will be forbidben to be played or performed in a public setting, including “God Bless America” and “America the Beautiful.” Additionally, the Star Spangled Banner will be cut short as we couldn’t dare sing the third verse. I won’t even talk about money. It is an abomination that some “do-gooders” feel the need the need to ensure everyone feels good about themselves “at the price of removing a vestige of awe we all must feel at the immenseness of the universe and our own small place within it, as well as the wonder we must feel at the good fortune of our country. That will cool the febrile nerves of a few at the cost of removing the healthy glow conferred upon many citizens when the forbidden verses, or even phrases, are uttered read or seen.” Newdow dissent at 9136.

In short we must recognize that the First Amendment was not written to avoid religious expression in public thought, but they were written to avoid discrimination.