Poor Jack…
Professor C: “Jack, what test does the court use?”
Jack: “Uh… restatement § 261, “Discharge By Supervening Impracticability” it says “Where, after a contract is made….” (starts reading it)
Professor C: (cutting Jack off) Okay, we get it. It’s on the page. So what part of the test isn’t satisfied?”
Jack: “Uh, what test are we talking about?”
Professor C: “JACK! YOU JUST READ THE TEST FOR US!”
(Class laughs)
Jack: “Oh, when I get called on I can’t even think…”
Re: the barren cow case…you know my notes had to reflect the silliness.
Mr. and Mrs. Pickles purchased an apartment complex and received a nasty surprise:
“Five or six days [after signing the contract], when the Pickleses went to introduce themselves to the tenants, they discovered raw sewage seeping out of the ground.”
Of course the apartment building is condemned by the county, the cost of fixing the defective sewage tank is prohibitive, and the court doesn’t rescind the contract.
Basically, the Pickles were screwed.
And our professor went there:
Professor C: “So we have a couple named the Pickles, and they find themselves in a pickle! Hah! I’ve been waiting ALL SEMESTER to tell that joke…”
Indeed.
In the decision the court mentions then discards the Barren Cow case. Complicated legal analysis? Not really…
Professor C: “The courts problem with the historical analysis is that it DOESN’T MAKE SENSE!”
I just imagine Mrs. Pickles with big Winehouse-beehive hairdo, all excited to meet her new tenants, stepping into the soggy, smelly grass…
Textbook editors must assume that no one reads the notes after cases. The notes contain the most random tangents – for example, from the contracts book:
“Like many law students, you may sometimes wear a sweatshirt quoting Shakespeare’s famous line from Henry VI, Part II: “The first thing we do, let’s kill all the lawyers.” You may be aware that in that speech, Shakespeare was not in fact damning lawyers; the line is spoken by one of a gang of villains, and was intended to express the idea that for evil to triumph, it would first be necessary to deprive society of the protection of the law. But most of your fellow citizens, sadly, probably take those words at face value—and perhaps agree with them.”*
I have never seen anyone wear this ‘sweatshirt’ at UMN. It may be Minnesota, but we aren’t that frumpy. The Shakespeare sweater would be the legal equivalent of Leslie Hall’s gem sweaters…or her octopus suit…
*(Problems in Contract Law, Knapp/Crystal/Prince, Aspen Publishers)
Today in Torts we had a lecture by a local attorney who worked on the Exxon-Valdez oil spill case.* The attorney was intense, yet funny. Here are some quotes:
Attorney: “I was the Barry Bonds of law, and let me tell you: it was sweet.”
Attorney: “We only settled it two years ago. So while you guys were having rich and full lives, I was going in and out of the court of appeals…”
Attorney: “The Supreme Court gave a survey of law. They started off with a quote from Hammurabi, but they might as well have started with the bible…”
Attorney: “If I hit you on purpose – because you’re the asshole I know you are – that’s a purposeful act.” **
Attorney: “If you come and work at Someone & Somebody with me, you’ll make so much money you’ll choke on it. Then, after five or six years, you’ll think “what am I doing with my life? What will make me happy and lead a fuller life?” and then your spouse hears you and screams “NO! GO BACK TO WORK!”
Attorney: “One of my hobbies is suing the federal government… (laughter from audience) for killing wolves and bears…”
The court writes:
“The criterion of “substantial” takes into account the role of punitive damages to induce legal action when pure compensation may not be enough to encourage suit, a concern addressed by the opportunity for a class action when large numbers of potential plaintiffs are involved: in such cases, individual awards are not the touchstone, for it is the class option that facilitates suit, and a class recovery of $500 million is substantial. In this case, then, the constitutional outer limit may well be 1:1.”
Exxon Shipping Co. v. Baker, 128 S. Ct. 2605, 2634 (U.S. 2008)
Attorney’s responds:
Attorney: “If you were working for me and you wrote something like this I’d fire you!”
A student asks a question, and then:
Attorney: “First off you’re wearing a packers outfit, and should be ashamed…”
* Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (U.S. 2008)
* The attorney used this analogy to explain the Supreme Court’s reasoning. The full quote is, “If I hit you on purpose – because you’re the asshole I know you are – that’s a purposeful act. But if I know you’re a drunk and put you in charge of a school bus and hope you will make it to the other side…that’s equally as blameworthy of an act, and probably worse than if I punched you.”
Apparently in Miami the ice cream man comes late…
Paul: “What gets me is the ice cream man.”
Mom: “Yeah, I haven’t seen in a while.”
Kevin: “I saw him last week I think…”
Me: “The ice cream man?”
Paul: “Yeah, there’s an ice cream man that comes around midnight.”
Me: “Midnight?”
Kevin: “Yeah, he’s selling drugs. It’s always on the other side of the river…”
*** clarification, “Ice Cream man” is not some clever nickname, there’s a guy in an actual ice cream truck, with the music and everything, who rolls around East Little Havana at night…even though all the kids are fast asleep.
It’s kind of like a scene from a Jackie Chan movie…except this fight happened at a Thai Restaurant*
The theme is assumption of risk, and the most bizarre case was (as always) in the notes…
As part of an advertising campaign for wrinkle-resistant slacks, the defendant was promoting “the National Lap Sitting Contest” on college campuses. The object of the contest was to stack co-eds on a contestant’s lap, with the winner having the lap which holds the most co-eds for a 10 second period. The prize was three or four pairs of slacks and a night on the town. Such a contest was held at the University of Texas at El Paso where plaintiff was a student…
When the plaintiff’s turn came to participate, 14 co-eds were placed on his lap, which would have broken the existing record. But the pressure of the contest became too great and the chair collapsed injuring plaintiff. Shortly after the contest began, a different and supposedly less sturdy chair had collapsed under a previous contestant and fewer co-eds.
Now picture this:
The record contained testimony that when the plaintiff went to the Student Union Building the program had not started; that he was present during the entire program until his accident; that one chair broke under the weight of one man and some girls; that the chair that was used thereafter was a typical wood armless office chair; that plaintiff knew he weighed 240 pounds and intended to hold fourteen girls who weighed about 100 pounds each; that the girls were to be picked up and laid across each other, on his lap, and that the weight was unstable and was ill-distributed; and that he intended to hold the weight, with none of the girls touching the floor, for a period that would be timed.
And of course. The chair gave way. He was hurt. And the judge said, “Uh, assumption of risk. Fail whale fail.”
Wyly v. Burlington Industries, Inc., 452 F.2d 807, 809 (5th Cir. Tex. 1971)
Congrats: pay up.
Professor T: “It just so happens that the employee goes out and does something tortuous and we congratulate the employer for their liability…”
Professor T is out of control
Professor T: “So when I’m driving home today I commit a tort. Can you sue the school?”
Jack: “No. The university isn’t exercising any control over you.”
Professor T: “And you’re suggesting they have any control of me NOW? PROFESSOR T IS OUT OF CONTROL!”
“Culminating Purposes”
Professor T: “So the store manager goes off and visits his girlfriend and commits a tort en route. Is his employer liable?”
Jack: “It depends on his intent.”
Professor T: “His intent was to visit his girlfriend for cumulating purposes.”
Reprints of Love
Professor T: “So at this conference there’s this really attractive criminologist that I’ve been eying for a while. So I offer to show her my reprints (reprints are a form of intellectual seduction)… so she’s upstairs in my hotel room looking at my reprints and I behave in an “ungentlemanly way”…can she sue the University?”
Professor T goes there…with Jill!
Professor T: “So Jill, what if I put the moves on you? Is the university liable for my intentional actions?”
(Jill makes heaving motion)
Professor T: “God, what a grotesque thought! It’s like an intentional infliction of emotional distress… are they liable?”
Jill: “I guess if you have a record of hitting on students…”
Besides that…
Professor T: “What’s the most dangerous part of running a newspaper business? I mean, besides getting your pressmen chopped up in the printing machines…”
Top chef:
Professor T: “What about a restaurant with a top chef? He runs the kitchen. No one controls him – If anyone even asks the chef a question he raises a knife. And let’s say he serves a salmonella salad…”
Supreme Court says NO.
Professor V: “Does protecting attorney-client privilege actually foster the communication? The Supreme Court’s answer is ‘we don’t know, we don’t care, we aren’t going to go there, and we don’t have to!”
Beware
Professor V: “Remember General Counsel is not your lawyer. They will sell you down the river!”
Conlaw is all about sex, scandal, and terrorism lately. We went from 9/11 Commissions, to Guantanamo, to Watergate, to Paula Jones…
And Professor L isn’t very charitable to the Nixons:
Professor L: “If you’re Nixon you’re like a fount of case law…”
Professor L: “…by pure coincidence, the federal judge impeached was also a Nixon. My guess is that if you’re born with the last name “Nixon” and you’re going into politics, it’s best just to change it.”
By the by…I wonder if Frost/Nixon will be any good…
Baby’s expensive:
Professor T: “Statistics say that to get your child from 0 to 18 costs about $200,000 – food, clothing, buying a larger house – every time your child looks at you it’s like looking at an endless money pit.”
Professor T & the Widow Makers:
Professor T: “I have the loggers clear trees on my property. The hanging limbs are dangerous. We call them Widow Makers. So I have the loggers sign a three page release. They sign it because they think “Professor T is crazy,” but I’m also the biggest target in the county because I’m the only one in the entire county that’s gainfully employed…”
Don’t piss off the officer:
Professor T: “the waiver form they have you sign before you get in a police car says: ‘not only are we not liable for any injuries that arise from a high speed chase, but our police officer can turn around and shoot you in the head and you can’t sue.’
Jill wants to know:
Jill: “Where do we draw the line?! Do I have to stay in bed for the rest of my life wearing a helmet in case I get in an accident or break a statute I’m unaware of?!”
Rush v. Commercial Realty Co. is an example of why I love law school: I just finished having a laughing fit at the Wilde Roast Café.
And yes, I cried.
The case for the plaintiffs was that they were tenants of the defendant, which controlled the house wherein they lived and also the adjoining house, and provided a detached privy (outhouse/toilet) for the use of both houses; that Mrs. Rush having occasion to use this privy, went into it and fell through the floor, or through some sort of trap door therein, descended about nine feet into the accumulation at the bottom, and had to be extricated by use of a ladder.
Now, it turns out that Mrs. Rush didn’t actually fall through the toilet. That’s how I read it the first time – and believe me the visual was pure hilarity. It appears Mrs. Rush fell through the floor of the outhouse, not the actual potty.
And the judge blamed the property owner, because:
In dealing with these, it should be observed that Mrs. Rush had no choice, when impelled by the calls of nature, but to use the facilities placed at her disposal by the landlord, to wit, a privy with a trap door in the floor, poorly maintained.
Mrs. Rush wins. Whether or not the fall was the only accident that happened is unclear.
* Rush v. Commercial Realty Co., 145 A. 476 (N.J. Sup. Ct. 1929)
Jill can tell.
Professor T: Are we going to let the kid sue mom?
Jill: I can tell the answer’s no, but I’m not sure why…
Professor T: How can you tell the answer is no?
Jill: I can tell because of the tone your voice…
Hill v. Jones* was assigned for contracts. The key question is whether a seller of a house has an obligation to tell the buyers about previous termite infestations.
At one point the sellers argue, essentially, “But we thought the termites were dead!”
The court responds:
“Although sellers have attempted to draw a distinction between live termites and past infestation, the concept of materiality is an elastic one which is not limited by the termites’ health.”
Pwned. The whole misrepresentation/non-disclosure doctrine appears similar to the “lies of omission” that gets so many of us in trouble in elementary school…
Parent: “I thought you did your homework!”
Child: “I only said that I did my English homework.”
Parent: “You’re so grounded. Shoo.”
* Hill v. Jones, 725 P.2d 1115 (Ariz. Ct. App. 1986)
Jill is suing regardless…
Professor T: “So you’re eating at Café X and you crunch into a crouton, which you find out is a roach. What do you do?”
Jill: “Sign up for Fear Factor!”
Professor T: “What’s that? I’m so disadvantaged for not watching TV…”
Jill: “Oh, it’s a show where they pay people to eat bugs.”
Professor T: “And can you get paid by Café X?”
Jill: “Sure.”
Professor T: “And why are they going to pay you?”
Jill: “Because they are scared of getting sued.”
Professor T: “And what if you just saw the roach in your salad and didn’t bite into it?”
Jill: “Well, then I bite into it and then sue.”
The fun in Constitutional Law continues…
Professor L: “Okay, Mr. Smith. We have the classic situation: you’re walking down the street and someone asks you to explain the doctrine of executive privilege in a nutshell. What do you say besides ‘get away from me’?”
Student: “Well, correct me if I’m wrong–“
Professor L: “Oh I will!”
We were assigned a hilarious case for Civil Procedure starring the one (and only) Diana Ross.
“You want to take me on? Briiiiing it!”
Diana Ross was sued by Gail Davis, a former personal-assistant for libel based on this letter from Ross:
To whom it may concern:
The following people are no longer in my employment:
If I let an employee go, it’s because either their work or their personal habits are not acceptable to me. I do not recommend these people. In fact, if you hear from these people, and they use my name as a reference, I wish to be contacted.
/s/ Diana Ross
Davis is suing for one million dollars in compensatory damages and one million dollars in punitive damages.
The district court granted Ross’s motion to dismiss on the ground that, as a matter of law, the text of the letter was not libelous because it only expressed Ross’s personal dissatisfaction with her former employees.
The appeals court reversed this decision because it found that the letter was susceptible to several interpretations.
The case came before the current court over discovery battle.
The assistant wants three things: 1) information about Ross’s net worth and annual income, 2) documents reflecting billings and payments Ross made to her lawyers, and 3) the names of other employees who have complained about the defendant, and the nature of their complaints.
The court gave a big-fat “DENIED” to each of the requests.
On the financial records:
Davis argues that the rule of Rupert v. Sellers should not govern this case because she entered into a confidentiality order which, she says, should eliminate any concern for privacy on defendant’s part. Defendant responds, quite rightly, that the existence of a confidentiality order does not undermine the rationale of Rupert v. Sellers. Ross should not be compelled to disclose private facts to anyone -even to someone who has agreed to keep the information confidential-until it is found that plaintiff is entitled to punitive damages.
“I’m not being shady (despite having 2 pairs)… my money’s just none of yo’business okay?”
On the attorneys fees:
Even where a witness’ entire livelihood derives from employment by the party for whom he testifies, courts have declined to infer bias from the mere fact of employment. In this case, the court is especially reluctant to pry into the details of the attorney-client relationship or to order burdensome discovery. Consequently, plaintiff’s motion to compel discovery of legal fees is denied.
On the employee records:
Whether Ross is a “good” or “bad” employer, popular or unpopular with employees, is not probative of whether Davis’ personal or work habits were objectively satisfactory. Even if other employees have complained about Ross, that would not affect a jury’s assessment of Davis’ personal or work habits one way or the other. The issue in this case is whether Ross libeled Davis, and the material plaintiff seeks to discover does not bear on that.
So Davis is 0-3. Now Ross pulls out her own discovery request: Ross wants Davis’s mental health records!
Davis saw a shrink during her employment, and is now asking for millions in pain and suffering. So Ross says (essentially), “Okay, you put your mental state out there, I want to see your crazy papers!”
“You want CRAZY? I’LL SHOW YOU CRAZY!”
And the court says:
Moreover, the amount of damages will always be in issue; plaintiff seeks one million dollars in compensatory damages, and evidence must be introduced to demonstrate that the award should be more than nominal. [cites a case] (it is assumed that defamation causes some damage though it be nominal). Plaintiff may not sue to recover for mental pain and anguish, only to deny the defendant the evidence she needs to argue that there was no damage, or that the amount of compensation sought is excessive. …
Accordingly, defendant’s motion to compel discovery of plaintiff’s treatment by a psychiatrist is granted.
IT IS SO ORDERED.
PWNED. Ross 4-0.
“Now I shall destroy, bring her to me! I’ll will demolish her instantly!”
* Davis v. Ross, 107 F.R.D. 326 (S.D.N.Y. 1985)
He’s not jaded at all…
Legal Writing Prof: “So you have to deal with idiots in the real world. Have fun.”
Watch em’ squirm
Professor C: “I love looking at the faces you guys make when I call on you.”
(Professors mimics shock)
FRCP
Professor V: “Dying people and dying cows are largely the limits of rule 27.”
You know it’s late in the day when you hear…
Saundra: “Hey Jill, want to hear a good roofie story?”
Jack doesn’t like Professor C…
Professor T: “So, Professor C and I go out to the wilderness to canoe on the river. Professor C is a city slicker, so when he catches a small fish he gets so excited that he stands up. (And you never stand up in a canoe – it’s a rule) And Professor C promptly falls out of the canoe. Do I have a duty to save Professor C?”
Jack: “Well, I’d like to say no…but…”
The Hypo Continues…
Professor T: “So after I pull Professor C out and stick him on the rocks…do I have any further duty? What if he gets hypothermic?”
(Jill starts laughing)
Professor T: “What?”
Jill: “The mental picture. It’s great.”
Professor T: “Why?”
Jill: “Because you’re going to need to provide him with your body heat!”
Professor T: “So I have to crawl into the sleeping bag with him?”
Jill: “Maybe. Or stick your dog in there with him!”
Jack: “Or you can just throw him back in water!”
I’m so horribly amused…
Professor C: “So, Daniel…”
Dan: “Oh, you can call me Dan. The only people who call me Daniel are my parents. Or you can call me JD-Baby.”
Professor C: “What? What did you say? JD…baby?”
Dan: “Yeah, you can call me either Dan or JD-Baby.”
Professor C: “Do you actually expect me to call you that?”
Dan: “I’m just giving you options.”