Beating the Rap

It's been said that bad facts make bad law, however it appears that bad rap makes even worse law.  This certainly seems to be true in the case of Gregory Royal, a Jazz trombonist who wrote a winning appellate brief that relied heavily upon rap lyrics.

Here is just one of his "dope" rhymes.

A domestic relations exception,

I was supposed to know. 

Appellee would know too,

So why did he spend so much doe?

Now, that's dope!  And by "dope," I mean that Royal might have actually been on drugs when he wrote this rhyme.

According to MC Incoherent, the appellee spent so much doe.  Really?  As in female deer?  Where was this case litigated -- Wasilla, Alaska?  Most of the courts in my home state of Arizona won't even take personal checks (at least not my personal checks).  I can't imagine trying to convince my local clerk into accepting, say, two elk, as payment for filing fees, although it wouldn't certainly make life at the filing window much more interesting.

Cashier:  "That will be $90.  How would you like to pay -- cash, check, money order or livestock?"

Lawyer: "Livestock, please.  By the way, you wouldn't happen to have change for a moose, would you?"

Cashier: "No, but we have an ABM (automatic butcher machine) down the hall.  Just come back to the front of the line when you're ready."

Lawyer: "Okay, and by the way, I'm going to need a receipt for my files.  Can I get that on butcher paper ... in triplicate?"

And if you think that is a scary scenario, please keep in mind that Royal has become so emboldened by his success in this case that he is anxiously looking forward to his next lawsuit against a Canadian rock band.   "I'm thinking about a rap scenario there," he told an AP reporter.  Royal then went on to say one of the scariest things not uttered by Mike Tyson.  "Imagine a real attorney who can actually capitalize and perfect that expression and throw some heavy stuff in there," he said.

No, Mr. Royal!  I don't want to imagine a real lawyer rapping her way through an appellate brief!  Our profession has enough image problems already.  The last thing we need is lawyers trying to get signed through their appellate writings.  After all, can you imagine the landmark briefs in our history being penned by rapping lawyers?  Take, for instance, the brief in Brown v. Board of Education:

Yo, yo, one-two,

What we're gonna do?

Hey, hey, three-four

What's the segregation for?

They say that justice can get messy

And that certainly was the case with Plessy

But now, it's time for a new sequel

Where the court strikes down separate but equal

So if you're tired of a discrimination,

And would like to build a better nation,

Then throw your #$%* hands in the air

And scream "Integration" like you just don't care!

Aren't you glad that this wasn't the NAACP's brief in the Brown case?  I am.  If it had been, I suspect that the closest Barack Obama would have come to the White House would have been when he drove his taxi cab passengers past it on the way to the Reagan Airport.  So for the sake of the future Barack Obamas out there, just say no to rap! 

 

Bank Error in Your Favor, Collect $175,000?

Here is your ethical quandary for the week:

You deposit a check in the amount of $1,772.50 into your bank account.  Yet, the bank loses track of the decimals and credits $177,250 into your account.  The dilemma is as follows: Do you and your spouse quit your jobs and move your family to Florida or do you fake your death and go alone?

Well, Randy Pratt from Bloomsburg, Pennsylvania chose the former option.  Upon discovering that he was a hundred thousandaire, Pratt came to the conclusion that he should move away from there.  Florida is the place he ought to be, so he quit his job, both he and Missy -- Melissa, that is, his 36-year-old wife.

Unfortunately, the Pratts didn't spend the rest of their days counting their fortune while lounging around the "cement pond."  Apparently, they weren't aware that Florida is part of the United States (an easy mistake to make if you happen to visit the northern part of the state ... or the southern part for that matter).  In any event, they must have mighty surprised when they were arrested and returned to Pennsylvania to stand trial on felony theft and conspiracy charges.

In his defense, Pratt is claiming that he initially tried to notify the bank about its error, but he was ignored.  He then came to the only logical conclusion: that the extra money in his account was ... and this is a direct quote ... "a gift from God."  Let's examine this claim in parts, shall we?

For one, Pratt could not have "tried" very hard to notify the bank about its mistake.  From my experience, banks tend to be particularly interested when large amounts of money are at issue, particularly when those amounts actually belong to the bank.  At my bank branch, they still tie down the pens.  I can guarantee that I would have my bank manager's full and undivided attention if I told her that one of her employees had just given me $175,000 in lieu of the traditional toaster.  After all, her bank isn't in the business of indiscriminately passing out large sums of money; that's what Congress does.

Second, how long did he think $175,000 would last?  After all, his wife is just 36 years old.  She could easily live another 50 years.  Therefore, even if they employed the most prudent investment strategy for today's turbulent markets -- burying the money in their backyard -- they would have to live off of $3,500 per year.  Unless they were willing to live like those people on the Feed the Children commercials (or worse, a certain legal humorist during the early days of his career), they would have run out of money faster than an American carmaker; except that the American public might have actually felt sorry for the Pratts.

Finally, I have to take issue with Randy's claim that he thought he was receiving a gift from God.  Of course, I must confess that I'm not exactly a Bible scholar (or even exactly literate, as evidenced from the numerous typos and grammatical errors on this blog).  Nevertheless, I don't remember a single line from scripture that reads: "And I shall pour ye out a bank error that ye shall not have room enough to receive."  And even if I did miss such a verse in, say, the book of Numbers, this "gift" might be a little more than the Pratts bargained for, as it is the gift that will keep on giving, at least for say, the next 5-7 years.

In closing, the next time you receive a bank error in your favor, go directly to the bank and give the money back.  Do not pass Go and, by all means, do not quit your job and take the B&O Railroad to Florida.  As the good book says, "The bank shall know the truth and the truth shall give the legal humorist a blog entry." 

What Generation Gap?

Much is made of the generation gap, but there is one thing that the young and old can agree upon – no indignity is too small to make a federal case out of … literally. How else can you possibly describe the continuing legal battle between 88-year-old Edna Jester and a junior high schooler by the last name of Tanis.

The next door neighbors’ troubles started innocently enough. Tanis’ footballs, basketballs and probably the occasional brick or two, kept winding up on Jester’s property. In the time honored practice of old people everywhere, she refused to return Tanis’ football last October.

However, rather than just accepting Edna’s stubbornness as being the price of living next door to a “mean, old lady”, Tanis’ father took the extraordinary step of calling the police, who … and this really blew my mind … actually responded to the call. I’ve lived in neighborhoods where the police wouldn’t respond to a murder call, but I digress.

At the “crime scene,” the officers asked Jester to return the ball, but she refused. This is despite several warnings that she would be cited for failing to cooperate. Eventually, the officers were forced to write out a citation, which … get this … she refused to sign. I suspect that she pulled a Fred G. Sanford and said, “I can’t sign that on the account of my arthritis.” Then she probably grabbed her chest, staggered backwards and yelled, “This is the big one, Elizabeth! I’m coming to join you, holding a citation in one hand and this football in the other!”

In any event, left with no other choice, the officers arrested Jester. However, the ordeal wasn’t a total loss for Jester because … and this is my favorite part … the ball has still not been returned to the Tanis boy, as it has been submitted into evidence as part of the petty theft case pending against Jester.

Nor is this ordeal over; not by a long shot. This week, Jester launched the second offensive in this legal battle by filing a civil suit against the Tanis parents for infliction of emotional distress. According to her complaint, the continual “barrage” of foreign objects onto her property has caused her health to deteriorate (I’m sure that being 88 years old has nothing to do with it).

The irony here is that a dispute over a $15 football might result in thousands of dollars of costs for each party. For her part, Jester may be subjected to a fine of up to $1,000 if she is convicted of petty theft, not to mention the legal fees she will incur in getting Clarence Darrow to defend her (I hear they went to high school together). Likewise, the Tanis family must now hire a lawyer to defend themselves in the civil action. Finally, I suspect that the authorities in their home state of Ohio can’t be very happy about expending scarce resources to try an octogenarian, even one as “dangerous” as Jester.

In fact, about the only winner in this situation is yours truly. After all, without people like this, I would have to get a real job. Even the thought of gainful employment makes me clutch my chest, stagger backwards and yell, “This is the big one, Elizabeth! I’m coming to join you, holding a briefcase in one hand and a resume in the other!”

Don't Feed the Inmates!

An Arizona lawyer has been arrested for … get this … feeding his shackled client a piece of candy in court. I’m not sure which I find more disturbing:

1) This poor lawyer trying to make his crime look tough enough to survive lockup. “What am I in for? I fed Jo Jo over there a piece of candy; not just any piece of candy though. It was a mini Snickers bar. And you know what? I’d do it again!”

2) A hardened criminal being so desperate for candy that he would allow a grown man to feed him as if he was an infant. “Open up, prisonee poo! Daddy has a Hershey’s kiss for his little shanker!”

Amazingly, the lawyer in this case asked if he could feed his client the candy before doing so. When told that he could not, he did it anyway, saying to the detention officers, “What are you going to do, -- arrest me?” He received his answer a few days later when he was arrested at his home and booked into county jail on … get this … on a felony count of providing contraband to an inmate. He was released on his own recognizance, provided that he agrees to bring enough candy for everyone at his trial.

Hell Hath No Fury

When Shakespeare penned, “Hell hath no fury like a woman scorned,” he failed to take into account the fury of an ex-husband, or precisely, the two ex-husbands who have made the news recently for taking vindictiveness to a whole new level.

By now, you’ve certainly heard about the New York surgeon who is suing his ex-wife for the return of the kidney he apparently “lent” to her during their marriage. After providing a kidney to his ailing wife during the marriage, the good doctor would like to have his kidney back (“What made her think she could keep it?”). Failing that, he is asking for the sum of $1.5 million to compensate him for the loss of his kidney (and a shred of human decency).

Our other example of male compassion and decency is a man who successfully sued to have his ex-wife’s alimony terminated on the grounds that she was cohabiting with another person – specifically, her prison cellmate. After his ex-wife was sentenced to prison for injuring another motorist while driving under the influence, a Florida man went to court to have her alimony suspended. He argued that her current living conditions constitute “cohabitation” under their alimony agreement and therefore, he was freed from the obligation. And although the trial court found the ex-husband’s argument to be about as valid as his former wife’s driver’s license, an appellate court reversed, ruling that sharing a cell is another form of “shacking up.”

You can’t make this stuff up!

The Next Bailout?

The current economic recession has claimed its latest victims -- the nation's executioners.  According to a recent National Law Journal story, executions nationwide hit a 14-year low in 2008.  Just 38 prisoners were executed in 2008, continuing a decade long decline in executions from the high of 98 executions in 1999.

The reduction in executions can partly be attributed to a moratorium during the early part of the year while the Supreme Court heard a case challenging the constitutionality of lethal injection.  However, when the Supreme Court gave the thumbs up (or perhaps, it's thumbs down) to lethal injection, the lethal cocktails did not "flow" as expected.  Even normally prolific Texas suffered a severe slowdown in executions with just 18, almost half of the nation's total.

In addition to the slowdown sparked by the moratorium, execution production was further slowed by activists judges.  For instance, four inmates were exonerated and four others had their sentences commuted to life in prison.  In addition, more than 25 executions were stayed.

Legal ambiguities and petty concerns over innocence or guilt has decimated the execution industry, which had previously been one of America's few growth industries (and one that is impervious to outsourcing).  As a result, executions across the country have been laid off or had their hours greatly reduced.  Before long, we may see them appearing before Congress asking for an execution "stimulus package," which removes, say, the right to confront witnesses or the presumption of innocence.

And while this may seem drastic, we must do something.  Otherwise, we run the risk of becoming a country without an execution industry.  How would we ever maintain our superpower status?

Tax My Clients ... Please!

In an effort to meet a $5.4 billion budget shortfall, the Wisconsin legislature is considering a tax on services, including legal services.  And with just about every state suffering from similar fiscal woes, this might be the wave of the future.  And I couldn't be happier about it!  This is just the opportunity that we've been waiting for!  Let me explain.

As you know, sales taxes aren't imposed on the seller.  They are imposed on the buyer.  Likewise, a tax on legal services won't be borne by attorneys.  It will be borne by our clients.  We will simply add an entry on the bill adding an additional 5% (or whatever the tax rate will be).  But here's the good part ... A tax line will provide us the perfect opportunity to add a gratuity line as well.

Now, I know what you're thinking.  "A gratuity?  For legal services?  That's unprofessional!"  Says who?

Think about it.  Just about every other service provider in America is accepting tips these days, even those who provide very little (if anything) in the way of service.  For example, several times a week, I tip a taxi driver for driving recklessly in circles through the streets of his city while talking on a cell phone, smoking a cigarette and listening to what I can only guess is called "music" in his land of native origin.

And, by comparison, tipping the cab driver seems reasonable because he only insists on ripping me off once.  At the hotel, they charge me a room service charge plus an 18% gratuity and still have the nerve to include a gratuity line, just in case I feel that paying $32.95 for a cheeseburger and Diet Coke is too much of a bargain.

As lawyers, we actually provide real service to our clients.  We ... we ... we ... Well, I'll get back to you on this one.  Besides, what's service got to do with it ... got to do with it?  Most people have a Pavlovian response to gratuities.  They simply multiply the tax line by 2 or 3 and add it as a tip, regardless of whether the service was good, bad or nonexistent.  And since we will be spending thousands of dollars in unearned tips over the next year, we might as well earn a few.  After all, as the old expression goes: "If you can't beat 'em (and in the case of my last cab driver, I really want to), join him."

1, 2, 3 ... 109 Strikes and You're Out?

W.C. Fields once said, "If at first you don't succeed, try, try again.  Then quit.  It's no use being a damn fool about it."  If only Norman Holmes had heeded these words of wisdom, he wouldn't have faced the ire of Cincinnati judge Ted Berry after receiving his 109th misdemeanor conviction.  And yes, you read that correctly!  109 convictions.

At 41 years old, Holmes' adult criminal career is, at most, 23 years long.  Yet, in this time, he has been able to amass 109 convictions, or almost five convictions each and every year (except for leap years when he took it easy and only got popped four times ... do the math, it works).  And while this rate of conviction might not be impressive for, say, a governor of Illinois, it is pretty darn impressive for an indigent man with few political connections (and apparently, even fewer functioning brain cells).  And if you think I'm being harsh in my assessment of Holmes, please keep in mind that, at the time of his latest conviction, he was wanted for ... get this ... stealing vodka, a screwdriver, and an air freshener from a convenience store.  I guess he figured that he might be a habitual thief and even an alcoholic, but he wasn't going to have a musty home in need of repair (thus, the screwdriver and air freshener).

However, even more strange than Holmes' crime sprees has been the Ohio courts reception to them.  While many jurisdictions have moved to a three-strikes paradigm for violent offenders, Ohio seems to be taken a more lenient approach -- the Otis approach.  This approach seems to be modeled after the way in which Sheriff Andy Taylor and Deputy Barney Fife treated Otis Campbell, the town drunk.  In short, they allowed Otis to use the town jail as if it were a hotel.  Whenever Otis needed a place to sleep off his latest drinking binge, he would be brought to the jail and after a good night's sleep, he would be released.  In fact, in several episodes, Otis showed up to the jail on his own volition and stumbled his way into a cell, closing the door behind him and leaving a wake-up time.

Holmes seems to have a similar arrangement with the Hamilton County authorities.  For his 109th offense, Judge Ted Berry "threw the book at him" by imposing a whopping 90-day jail sentence.  Assuming this punishment stands up on Eighth Amendment grounds, Holmes will be free just in time for spring, which will be the perfect time for him to get convicted for shoplifting, say, a wrench, a barbecue grill and, of course, more vodka.   Assuming that he can remain healthy (and the town merchants don't run out of vodka), Holmes may just have a shot at losing more than anyone in Ohio state history.  And given the fact that Ohio is home to the Cleveland Browns, Cincinnati Bengals and Ohio State Buckeyes, that would be quite a feat.

Celebrity Justices

If I live to be 300 years old (i.e., almost as old as Justice Stevens), I will never understand the Supreme Court's vehement opposition to cameras in the courtroom, particularly in light of the recent live broadcast of oral arguments before the 2nd Circuit Court of Appeals.  After all, for hardcore appellate argument fans (all four of us), this is backwards ... to say the least.  It's like banning televised Ultimate Fighting Championship events and putting on sorority girl pillow fights in its place, except that I'm slightly less likely to get divorced when my wife sees the 2nd Circuit pay-per-view charges on our cable bill. 

I just don't get why the justices find the idea of being on television so repugnant.  For example, Justice Souter is on record saying that, "The day you see a camera come into our courtroom, it's going to roll over my dead body."  Many commentators, myself included, have asked, "How could we tell?"

Seriously, with the exception of Justice Thomas, most Supreme Court justices are completely anonymous.  In fact, Justice Breyer walked into a Massachusetts court room to report for jury duty a few years back and wasn't recognized by a single person -- including the court staff and ... get this ... the presiding judge.  At one point, the judge looked down at Breyer and said, "Breyer?  Breyer?  Boy, that name sounds familiar.  I know!  You're the ice cream guy, right?"

Would that happen to a key member of any other branch of government?  For instance, is there anyone in America who doesn't recognize Barack Obama or John McCain on sight?  Or can you imagine, say, Hillary Clinton walking into a clothing store and having the salesperson show her a dress or a skirt?  Likewise, can you imagine Senator Larry Craig walking into a public restroom and not having people racing for the door?  Of course not!  We often know these people better than we know our own family members and certainly better than we know the justices.  Why?  Because they are on TV!

Likewise, our Supreme Court justices need to be on TV as well.  For one, the misperception of the Court as a collection of Ivy League elitists will be shattered once and for all when the public learns that only eight of the nine justices graduated from Ivy League law schools.  Second, with budget cuts affecting the administration of justice on all levels, the justices could use their celebrity to bring in much-needed revenue to the federal court system.

For example, the Olympic Committee brings in millions and millions of dollars in additional revenue each games by designating, say, Coke as the official soft drink of the Olympics or Snickers as the official candy bar or Dianabol as the official steroid, etc.  Why couldn't the Supreme Court obtain sponsors as well for its broadcasts?  "Tonight's oral arguments are brought to you by WestLaw, the official electronic research tool of the Supreme Court.  WestLaw, when making stuff up just won't do."

Also, the justices could use their newfound celebrity to supplement their meager salaries.  It should be an embarrassment to all of us that Supreme Court justices make less than partners in large law firms, associates in large law firms and, in New York City, receptionists at large law firms.

However, as the hosts of their own reality TV show, they will be able to cash in like never before.  For example, normally when a justice writes his memoirs, they sell about as well as the Elliott Spitzer Guide to Love and Monogamy.  But all of that will change when the justices have the opportunity to incessantly plug their latest book right from the bench.  "So, is it your contention that the dormant Commerce Clause, something covered extensively in my new book, If You Do Not Rehearse, We Must Reverse: 10 Keys to Effective Oral Argument Before the Supreme Court, which will be in stores on Tuesday but you can pre-order right now on Amazon.com ... what was I saying again?"

And if their show is a hit, the sky is the limit.  Celebrities like Paris Hilton make millions of dollars in personal appearance fees by appearing at night clubs and other "hip" venues.  Certainly, the justices could do likewise by appearing at say, hip-replacement centers or Hometown Buffet grand openings.  In fact, if they hire a certain legal humorist turned Supreme Court Justice publicist, they won't even have to attend these events to make out like bandits.  For example, instead of having Justice Ginsburg attend the Annual Appellate Expo and taking pictures with the attendees for $10 a pop, we could rent out this cardboard cut-out instead.

Or maybe not ...

Happy, Happy, Happy New Year!

I must confess that I entered the new year with a sense of  dread.  Let me explain.  Last year was an incredible year for me as a legal humorist.  It was so incredible that I didn't see how this year could possibly top it.  And with the news filled with stories of layoffs, foreclosures and bankruptcies, humor was going to be in short supply.

However, it appears that I was worried for nothing.  In less than 24 hours, I have been proven wrong.  After all, I had not taken into account the X factor -- ex-professional athletes.

Time and again, former professional athletes have come to the comedic rescue.  And true to form, Charles Barkley began 2009 with a bang by being arrested for DUI (Driving while Utterly Ignorant).  Not only did Sir Charles fail his field sobriety test, but he made my new year by making the dumbest statements to the police since Robert Blake's infamous "I left my gun in the restaurant" alibi.

After running a stop sign, Barkley tried to explain his behavior by telling the officers ... oh, you're going to love this one ... that he was in a hurry to pick up a woman who was waiting on a street corner for him at that very moment.  Barkley went further to explain that he was particularly anxious to pick up this woman because she was, shall we say, linguistically skilled.  In fact, according to Barkley, she had given him a "private concert" that qualified as ... and these are his words, not mine ... "the best one I have ever had in his life."

That's right!  This man who has aspirations of being the next governor of Alabama attempted to employ the "really good orally sex" defense as an excuse for running a stop sign and drunk driving.   Needless to say, the police were not convinced.  I also suspect that the soon-to-be-ex Mrs. Barkley won't be impressed either.  If his wife is anything like mine (and the fact that he is still alive, seems to indicate that she is nothing like my wife), her divorce attorney will be the only person delighted with Sir Stupid's simultaneous admissions to adultery and presumably solicitation as well (look at the mugshot above and you tell me if there are women out there looking to pleasure Sir Chunky for free).

And here is the truly amazing part ... The "I was in a hurry to cheat on my wife" statement was not Barkley's most ridiculous statement of the night.  That distinction belongs to his attempt at bribing a civilian police employee into forgetting about the whole thing with a promise to ... you're really going to love this one ... "tattoo your name on my ass."  Is that supposed to be some kind of perk?

Think about it.  Is this going to be the sentiment chiseled onto his tombstone by his friends and family -- "Here lies Billy -- loyal husband, dedicated father and the person referred to on Charles Barkley's butt."  And assuming that he always dreamed of achieving this rather unusual form of immortality, how would he manage to bring up this "accomplishment" in casual conversation?

"Oh, so you just got back from Mount Rushmore, huh?  Well, did I ever tell you that my name is tattooed on an equally large mound -- Charles Barkley's butt?  I did, huh?  Several times?  Well, never mind.  How was the weather in South Dakota?"

If the news for the next 364 days is anything like the news on January 1st, this is going to be a very, very good year; at least, for me (and lawyers specializing in representing the wives of ex-professional athletes).  In fact, if the big firms start practice groups in this thriving area, they might just be able to stem the tide of layoffs and most importantly, keep hiring humorists for their events.  Oh yes, 2009 is going to be the best year yet!