Sometimes Lawyers Get It Right

Jeopardy time, everybody (regular jeopardy, not double jeopardy...that's unconstitutional).  Category: "All of these things are just like the other"

Answer: "Felons, atheists, infants, mental incompetents, spouses, and financially involved persons"



*****Sing yourself the jeopardy song now...********





















Question: Who are witnesses excluded from testifying at common law?  Obviously.  I hate it when opposing counsel calls my mentally incompetent atheist felon infant wife to testify about our financial holdings.

Losing

"Equitable waste consists of injury to the reversionary interest in land which is inconsistent with good husbandry and is recognized only by the equity courts, but it does not constitute legal waste."

I don't know what that means

WINNING!!!

One of these things is not like the other...

Hey all, just thought I would poke my head up to share this gem with you:

At common law, four elements must be established to prove the offense of "kidnapping": there must be the

1. unlawful
2. restraint of a person's liberty
3. by force or show of force
4. so as to take the victim to another country.

I'll let you dig the history of that one out on your own.

A Time Out for Reality

Contrary to popular belief among lawyers, admission to the bar is NOT the same as going to the bar (i.e. it's not a license to run around like an obnoxious asshole doing whatever you want).  One of the limitations is the dreaded Federal Rule of Civil Procedure #11, or "Rule 11."  Getting Rule 11-ed results in sanctions for bad lawyer conduct, like bringing a claim before the court that the lawyer knows has no factual basis and is only made to harass the defendant.  It's basically a judicial  kick in the groin.

Two other relevant but tangential points:

1. The unofficial rule of thumb for Rule 11 compliance is the "Straight Face Test."  In short, if you can make your argument without cracking your poker face, you're probably with the bounds of Rule 11.
2. Assault is the intentional creation in another person of the fear of imminent harmful physical contact.

That said, I would most certainly NOT want to be the prosecutor bringing this case:

Coor's Light Can Go To Hell

How many bars do you think are blue down there, you pretentious purveyors of potable poisons?  (Yes, I find that ad campaign incredibly irritating...)

Speaking of hell, the Rule Against Perpetuities...

Way back in the day, King Arthur got pissed off at his knights for writing wills that dictated who would get their seat at the round table after their deaths for hundreds and hundreds of years.  Arthur wasn't much for blind dates, so he decided to create the Rule Against Perpetuities.  Merlin foretold that every law student would curse his name for all eternity, but the idea of being forced to dine with girls with masters degrees in the Kardashians was sufficient motivation to ignore the warning.

The Rule Against Perpetuities reads something like this:

No transfer of an interest in land is valid unless that interest must vest, if at all, within 21 years of the end of a life in being at the time of the transfer.

Translated into English, it effectively means that if you try to control who owns your property, and it is POSSIBLE that by your efforts someone could potentially come into a right to the property more than 21 years after everyone you know is dead, your efforts are legally invalid.  As Arthur intended, the rule prevents inordinate "dead hand" control over land.  He may not have intended the other consequences, however.

If you know a law student, chances are he has a knee-jerk reaction to the words "fertile octogenarian" that includes murderous impulses.  Reactions to "unborn widow" tend to be equally vehement.  (As an aside, ponder the nature of "unborn widows" for a moment...)  Consider the following:

The Fertile Octogenarian
Irene Ihatemylife's husband dies, leaving a will describing how he would like his property in Hell, CA to be disposed of.  He instructs that the property is to be given to his 89-year-old wife, Irene, for the duration of her life, and upon her death to the first of her children to reach the age of 25.  In so many words, Irene is screwed.

Now imagine the possibilities for a moment if 89-year-old Irene has a child.  Sadly, immediately after the birth all of Irene's other children are murdered by invading alien hoards.  Overcome with grief, Irene herself expires, leaving her generational-gap-suffering infant behind, ostensibly to inherit her property in Hell when he turns 25.  However, Irene and all of her other children--the "lives in being" when the will was created--have all just died.  It will take the child more than 21 years to turn 25 and vest his right to the property, thus violating the Rule Against Perpetuities.  So because this ridiculous scenario is POSSIBLE (even though it is unlikely), Irene's husband's will is invalid and Irene does not inherit land in Hell.

The Unborn Widow
Danny Damnit decides to will his property to his son Dangit for the duration of his life, and upon Dangit's death to his widow, and thereafter to their descendants.  Danny then dies, and Dangit wants to inherit the property.  No dice, Dangit.

Suppose the day after Danny died, Little Debbie was born.  Although she is just an infant, Dangit is immediately enamored and arranges their marriage.  17 years and 364 days later on Little Debbie's 18th birthday they are wed.  Sadly, Dangit is (a legal illustration and thus) weakly constituted, and his overjoyed heart literally bursts at the reception, killing him instantly.  Little Debbie then joins the Russian Cosmonauts and departs on a manned mission around the sun that takes precisely 21 years and one day.  It goes well, but problems arise upon reentry and Little Debbie is incinerated.  Now her childrens' right to the property vests per Danny's original will...but this happens more than 21 years after Dangit (the last life in being when Danny's will was made) died.  Rule Against Perpetuities violated = Will Invalid.  Sorry kids.

The Precocious Toddler
Finally, consider the case of Fanny Fertile.  She leaves her property to her sister for life, and thereafter to her sister's grandchildren who are then living or are born within five years of her death that reach the age of 25.  Once again, this transfer is foiled by ridiculousness.

It is possible that the day after receiving Fanny's property, her 70-year-old sister has a baby.  Owing to a rare sliver of logic, complications due to late-life pregnancy purchase Fanny's sister a ticket for her last train ride.  Unfazed by her late mother's passing, however, and perhaps ruined by her lack of a strong female role model, the infant quickly becomes the trollop of the nursery.  Before she is even healthy enough to leave the hospital, she has been knocked up by the stud from the crib across the aisle (this is possible, I assure you...trust me, I'm a doctor).  Similar to its mother, the infant passes away during childbirth due to complications of babies having babies.  When the baby's baby is born (within five years fo Fanny's death), it will have the potential to vest its rights to Fanny's property by turning 25.  However, this too will occur more than 21 years after the deaths of the lives in being, and Fanny's will is invalid.

Now the rub:

In 1961, a San Francisco lawyer named Hamm was sued for malpractice.  The gist of the case was that he had written a will for one of his clients.  In writing the will, however, Hamm glazed over a few technicalities and violated the Rule Against Perpetuities, causing some of the will's intended beneficiaries to be disinherited.  Obviously upset, the disinherited beneficiaries filed suit against Hamm.

Despite Hamm's obvious fault, the case went all the way to California's Supreme Court.  In one of the most brilliant pieces of lawyering I've ever heard of, Hamm's attorney's articulated an elegant argument.  In adjudicating a malpractice action, a court can only find a lawyer liable if he acts in a manner inconsistent with the way a reasonable lawyer would act in a similar situation.  Hamm's attorney's argued --and the Supreme Court held--simply that no reasonable lawyer understands the Rule Against Perpetuities!  So although Hamm was at fault for writing the will that disinherited the plaintiffs, the rule the will violated was so complicated that he was excused from liability.

Slow clap here.  King Arthur, or whatever dope is responsible for the Rule Against Perpetuities, as well as every imbecile who continues to enforce it, has created a monster that even those who have studied it cannot comprehend.  This monster perpetually terrorizes colonies of law students and occasionally makes off with an inheritance or other interest in land...well done, ladies and gentlemen.

Pop Quiz

Didn't realize there was going to be a test, did you.  Don't worry, it's multiple guess, and only one question:

#1.) Which of the following is a tort?

A

B

C

If you answered "All of the Above," you're right!! (Sort of...technically "B" is a torte)  For those of you who have heard politicians tossing off talking points about "tort reform," you may have wondered what a tort was, and why we need to reform them.  Allow me to cast away the mystery with a quick breakdown of American law (or Common Law, generally).

"The law" is bifurcated into the categories "criminal" and "civil."  If you're in court because Uncle Sam is mad at you, you're involved with criminal law.  If you're in court because your neighbor is mad at you, you're in civil court.  

Civil law, in turn, is divided into two sections:  Contracts and Torts.  As my paying subscribers are aware, contracts are essentially agreements between parties giving rise to legal rights, and are used for hornswoggling.  For example, if LeBra James decides he's a big pouting sissyface and decides not to play the rest of the series because he's tired of Dirk beating up on him, most likely he's in breach of the terms of his contract with his South Beach posse.  They can therefore take him to court and sue for damages (unless the contract has an arbitration clause, but that's a different story...)

Torts, on the other hand, are everything you can sue somebody for that isn't a contract.  The silly-looking Asian gentleman above is handsomely demonstrating both Assault and Battery.  Answer choice C is a splendid specimen of Libel.  

Generally, analysis of torts involves four elements: A duty one person owes to another, a breach of that duty, damages must result from the breach, and the breach must have caused the damages.  If any one of those elements is wanting, a person is not liable for the tort in question.  For example, I owe Mr. Hixson a duty not to libel him, but I wish him well trying to prove my above statement caused him any damage.  Case dismissed.

Once again, lawyers have taken this opportunity to demonstrate their true colors.  In our cowboy republic, the rugged individualist ethos has manifested itself, or rather not done so, in the legal system by not imposing any duty on a person to rescue another.  To illustrate, consider Attorney Asshat, who is walking along a set of train tracks.  He happens to come across an infant lying on the tracks, and well aware of the local train schedule, decides to settle in for some cheap entertainment.  Although he is irritated that the train is behind schedule by nearly 20 minutes, after some delay his dastardly diversion occurs as one might imagine.  Upon learning what happened, the poor child's mother sues Asshat.  The case is dismissed, because Asshat owed the child no duty to rescue him.

            ***As a footnote, the townsfolk then dragged the lawyer to the train tracks, where he was repeatedly run over by lengthy trains.  No compliant was filed.

There are exceptions to the general rule that Americans have the right to be scum to their neighbors, however.  Some relationships are deemed "special," and give rise to a duty to rescue.  Common examples are parent and child, or husband and wife.  In one piece of brilliant lawyering, it was adjudged that drinking buddies, or rather "social co-adventurers" owe each other a mutual duty of rescue.  So while I can watch small children suffer horrendous injury for my own amusement, I am in trouble if I watch Mr. Hixson stumble drunkenly into the street for a nap and don't at least roll him onto the sidewalk.  Thank you, men of the bar, for protecting the men of the bar. 

Also, Joe, that means you have to get me off the railroad tracks.