Tuesday, October 29, 2013

Petrifying Precedent

Law practice is scary—the devil is in the details, and it’s easy to overlook a local rule, deadline, or statutory requirement and kill your client’s case.  But courts around the country have dealt with some hair-raising issues that don’t generally haunt most lawyers. 
In my favorite spooky case, a New York court held that a house was haunted as a matter of law.  In Stambovsky v. Ackley, 169 A.D.2d 254 (1991), the court held that a buyer was entitled to rescind his contract to purchase a house because of the existence of ghosts in the house.  The court held that the seller, having reported ghostly activities in Reader’s Digest and numerous local publications, was estopped to deny the existence of ghosts and therefore, as a matter of law, the house was haunted. Id. at 256.
There may be a general duty not to scare others—but, according to the Louisiana Court of Appeals, that duty vanishes on Halloween: The “general duty not to scare” is modified on Halloween, when society “encourages children to transform themselves into witches, demons, and ghosts and play a game of threatening neighbors into giving them candy.”  Bouton v. Allstate Insurance Co., 491 So.2d 56, 58 (La. Ct. App. 1986).    
As one might expect, cases involving haunted house attractions have scared up litigation across the country.  Generally, the courts have held that injuries sustained by frightened haunted house patrons are not actionable.  For example, the Louisiana Court of Appeals held that a plaintiff who was injured at a haunted house assumed the risk of injury.  The court held that the plaintiff “had to realize the very nature of the attraction was to cause patrons to react in bizarre, frightened, and unpredictable ways,” and she could not recover when she was injured from “being frightened, precisely the effect that the ‘Haunted House’ was calculated to produce.” Bonnano v. Continental Cas. Co., 285 So.2d 591, 592 (La. Ct. App. 1973).

The infamous Michael Myers mask from the Halloween movies has even haunted one court.  In Don Post Studios, Inc. v. Cinema Secrets, Inc., 124 F. Supp. 2d 311 (E.D. Pa. 2000), a court considered whether the creator of the Michael Myers mask could state claims for copyright and trade dress infringement against a party that had been given a non-exclusive license to produce the mask by the Halloween filmmaker.

And, in an opinion issued—appropriately—on October 31, the Court of Appeals of Kentucky upheld a trial court’s dismissal of a contract action against Spooky Hollow Realty Company. Langley v. Spooky Hollow Realty Co., 64 S.W.2d 459 (Ky. Ct. App. 1933).

Happy Halloween! 

Thursday, October 24, 2013

Tweet Me

I’ve joined Twitter and will be tweeting on all things relevant to legal writing—Riveting might not be the right word, but you’ll definitely learn something! 

Please consider following me @LadyLegalWriter

Tuesday, October 22, 2013


The Sixth Circuit Court of Appeals recently issued this gem of an opinion in my former area of practice—insurance coverage work.  The plaintiff was injured when she was struck by and thrown onto the hood of a vehicle insured by the defendant.  The defendant’s policy provided coverage for an “occupant” of a vehicle, but defined that term broadly to include anyone “in, on, entering, or alighting from” a vehicle.  The plaintiff argued she was occupant.  The defendant argued the plaintiff was not an occupant and called the plaintiff’s position “ridiculous.” 

The Sixth Circuit didn’t take kindly to the defendant’s name-calling, noting that there are good reasons not to call another party’s argument ridiculous, including common civility and the likelihood that the hyperbole will make the court dislike the party making it.  And, the biggest reason, according to the Sixth Circuit, was because “the argument that [the defendant] deride[d] as ridiculous [was] instead correct.”

The court noted that while the plaintiff might not have been an “occupant” of the vehicle under the ordinary definition of that term, the policy specifically defined “occupant” to include someone “on” the car.  The parties did not dispute that the plaintiff was thrown “on” the hood of the car during the accident, so the policy provided coverage for the plaintiff’s injuries.

The statement attacking the plaintiff was completely unnecessary to the defendant’s argument and came back to haunt the defendant’s lawyers.  As the Sixth Circuit pointed out, even if the plaintiff’s position had been ridiculous, the defendant would have been better served to “lay out the facts and let the court reach its own conclusion.”  Instead, its words backfired in a big way. 

Lesson Learned: Use words like ridiculous, ludicrous, preposterous, absurd, nonsensical and the like at your own risk.

Tuesday, October 15, 2013

Email Errors: One Attorney in Trouble, the Other Embarrassed

The Indiana Discipline Commission has recommended that a lawyer who privately criticized a judge should be suspended from practice for a year.  The lawyer sent an email to another lawyer involved in an estate case and stated, among other things, that the judge “should be turned in to the disciplinary commission for how he handled th[e] case.”  What’s not clear, however, is how the judge received a copy of the email. 

The commission recommended the suspension based on its conclusions that the attorney believes he is above the courts and the law and that his criticism of the judge was “filled with inaccurate claims and slanderous innuendo.”  The lawyer has responded that his speech was private and protected by the First Amendment.  In an interesting twist, the commission apparently would have dropped the matter had the attorney apologized to the judge, but the attorney refused to do so.

The Indiana Supreme Court’s disciplinary decision will be forthcoming.  An article about the case can be found here.

In another case, a Nebraska lawyer accidentally copied a Nebraska Supreme Court justice on an email about a case that had just been heard by that court.  The lawyer (who was not involved in the case) sent the email to two attorneys involved in the case to congratulate them on their oral arguments in the case and the way they “dealt with some ill-conceived and uninformed questions.”  Unfortunately for the lawyer, he accidentally copied twenty-four other people on the email, including the chief justice.

The email came to light after the justice filed a disclosure to let the parties know about the email and to assure them that it would not impact his ruling, though he did give them the option to seek to recuse him if they felt it necessary. 

Unlike the Indiana lawyer, however, the Nebraska lawyer promptly apologized and indicated he intended no disrespect.  The Lincoln Journal Star article is here.     

Attorneys walk a fine line with email communications.  Email is a great, quick way to communicate, but it has risks (e.g. copying unintended recipients).  Always double check the recipient list and think twice before making disparaging comments.  For other email tips, see my earlier post about email etiquette.

Monday, October 7, 2013

Metaphors Be With You

I’m developing a short, fun article on metaphors in the law, and my research got me thinking about the prevalence of legal metaphors.  So many of our legal concepts are metaphors, similes, and the like.  Consider the “fruit of the poisonous tree” concept so important to criminal law.  And Constitutional concepts such as the “wall of separation” between church and state, the “chilling” effect on free speech, and the requirement that the exercise of personal jurisdiction comport with concepts of “fair play.”
Contracts often contain “boilerplate” language; a party may seek to pierce the “corporate veil;” an attorney may object to discovery as a “fishing expedition;” many contracts and statues contain “safe harbor” provisions; and a party may argue that a particular holding would create a “slippery slope.”
Some folks believe legal metaphors are bad—those people argue that metaphors muddle already confusing concepts and are often inaccurate.  Others, like me, see legal metaphors as indispensable.  After all, metaphors are an essential part of everyday life and rhetoric.  A person might be described as having a sunny disposition or a cloud hanging over her head; a crafty person is a sly fox, whereas a glutton makes a pig of himself; an intelligent person is sharp as a tack, while an uneducated person is described as “not very bright.” 
Since metaphors abound elsewhere, I don’t see how they can be avoided in the law.  Or why they should be.
What do you think? Are legal metaphors helpful or harmful?