Let’s face it: how you choose to express yourself matters.The words you choose, the tone you take—it’s all critical to how your message is received.This is especially true in the law and in the disputes that find their way into the legal system.Take quarrels between feuding neighbors, for example.Depending on how one neighbor chooses to express himself, a garden-variety argument could escalate into the Hatfields and the McCoys in no time.52 year-old Brian Malta of Kiantone, New York apparently has both an ongoing beef with his neighbors in the rural western New York village and an appreciation for military history.He’s been charged with repeatedly firing his historic Civil War cannon at his neighbors, and has been charged with harassment and menacing.Malta, who’s out on bail, fired the cannon only with a powder charge and wadding (no cannonball), but that didn’t stop the police from confiscating it.And Alan Markovitz, a Detroit-area strip club entrepreneur, had perhaps the ultimate expression of disdain for his ex-wife after their divorce.He bought the house next door to her and erected a 12 foot-high, $7,000 bronze sculpture of a hand with its middle digit raised in the direction of his ex-wife’s house.Markovitz even had a spotlight installed so that night and day, the sculpture can be clearly seen from his former spouse’s window.It’s as if he was hoping for a Mastercard commercial: “Buying the house next door to your ex – $300,000; having a giant sculpture installed – $7,000; flipping the bird at your ex-wife for eternity – priceless.”
At the same time, we have to be careful about the words we use.Energy drink giant Monster recently learned that lesson the hard way.It all started when the drink company hired D.J. Z-Trip (a/k/a Zach Sciacca) to perform at its annual “Ruckus in the Rockies” snowboarding competition.Following the event, Monster put together a highlight video, sound tracking it with a “megamix” that D.J. Z-Trip had assembled of Beastie Boys songs.A Monster representative named Phillips then emailed the finished product to Z-Trip, asking the D.J. “Please have a look at the video from this past weekend and let me know if you approve.”According to legal documents that were later filed, the D.J. responded “Dope!”
Monster went ahead and released the video—complete with Beasties songs—to YouTube, prompting a copyright infringement lawsuit brought by the Beastie Boys in August 2012.Monster’s “defense” was to blame Z-Trip, saying that the D.J. had authorized the use and that he had breached a contract and committed fraud by posing as someone who could issue a copyright license on behalf of the Beastie Boys—all by virtue of using the word “Dope.”Not surprisingly, a federal judge had no problem tossing out the claims against D.J. Z-Trip, saying no reasonable person could understand the “sparse communications” to constitute a granting of such rights.The court even administered a benchslap, saying: “It would take a heroic effort of explication to derive such a conclusion from their words and informal email exchanges.And to read Phillips’s or Z-Trip’s words to convey a contract to cede Monster such rights would flout common sense.”
OUCH!But my favorite recent reminder that words matter comes from a recent response to the prosecution’s motion in State of Tennessee v. Donald Powell, a criminal case pending in Williamson County, Tennessee.When prosecutors filed a pre-trial motion seeking not to be referred to as “the government” (evidently, they were worried about anti-government feelings and wanted to be addressed as “the People” or “the State”), defense attorney Drew Justice filed a hilarious response (that has since gone viral) making sarcastic fun of the government’s silly position.
After pointing out that granting the prosecution’s motion would not only be inaccurate but would also violate the First Amendment, Drew Justice got down to snarky business.He stated that if the government was allowed to choose what it would be called, then the defendant was entitled to similar treatment, proposing that Mr. Powell be addressed by only his full name, or simply “the Citizen Accused.”Also, said Justice, “the designation ‘That Innocent Man’ would also be acceptable.”And, since being referred to as a defense attorney or lawyer could be “prejudicial,” Mr. Justice suggested that he be referred to as the “Defender of the Innocent . . . Alternatively, counsel would also accept the designation ‘Guardian of the Realm.’”Moreover, he argued, since the state was represented by the attorney general, it seemed only fitting that “the Citizen Accused” have “an appropriate military title for his own representative” and so he humbly suggested that “the name ‘Captain Justice’ will be appropriate.”In addition, because the “whole idea of being defensive comes across to most people as suspicious” and “to prevent the jury from being misled,” Mr. Justice proposed renaming it “the Resistance.”That would make him “Captain Justice, Guardian of the Realm and Leader of the Resistance.”
I like that.But even if you or I never get to be called “Captain Justice, Guardian of the Realm and Leader of the Resistance,” remember that how you express yourself really does matter.
The legal system isn’t always about high-minded serious notions about justice, empowering the powerless, punishing the guilty, and righting wrongs.It has its lighter moments, too, as the following examples illustrate.
It’s a pretty basic concept, drilled into us from the very first church raffle (where you “must be present to win”) to the wisdom of Woody Allen (who said “90% of life is showing up”) to basics of litigation, which dictate that to recover money damages for being in an accident, you had to have actually been there (for starters).But that concept was lost on attorney John Bruster Lloyd and his clients, Luke Cash and Ami “Summer” Gallagher.Lloyd filed suit on behalf of Cash and Gallagher against Carnival Cruise Lines alleging that they were among the roughly 3,000 passengers stranded at sea amidst challenging sanitary conditions and limited food in February 2013 when the Carnival Triumph lost power.There’s just one problem: the couple was never on board.Lloyd admits that he “screwed up,” and has since filed an amended pleading in which the couple is still asserting claims against the cruise line for breach of contract, but which omits all that “suffering on board” stuff.Carnival representative Jennifer de la Cruz stated “That this lawsuit was even filed, alleging the plaintiffs suffered injury and mental anguish during a cruise they weren’t even on, is truly shameful and reprehensible.Further, the fact that the suit also alleges misrepresentation and fraud is quite ironic.”
The Dallas Cowboys are still embroiled in litigation over the Super Bowl ticket fiasco, but even the wins come with a drawback.After seeking nearly $200,000 for the costs of having to produce documents in the pending federal lawsuit, Cowboys owner Jerry Jones came away with only $25,025.Then the plaintiffs’ attorney, Michael Avenatti, added insult to injury when he stated that “Hopefully, Jerry will take the $25,000 and hire a G.M. so the Cowboys have a shot at playing in the Super Bowl for the first time in nearly 20 years.”Ouch!Flag on the play for unnecessary roughness.
I’ve written before about “trademark bullies”—the companies and their lawyers who send overzealous, heavy-handed letters to small businesses accusing them of trademark infringement.One recent example is CH Distillery, a popular bar/restaurant/micro-distillery in Downtown Chicago’s West Loop.After their popular “OxyContin Cocktail” (a mix of London dry gin infused with Lapsang Souchong tea, ginger, honey, and lemon—no pharmaceuticals included) began attracting buzz, the distillery received a cease and desist letter from lawyers for Purdue Pharma, the Stamford, Connecticut-based drug company that makes the potent painkiller.Choosing to make lemonade with the lemons they received, CH Distillery has renamed the drink the “Cease and Desist” cocktail.And apparently, with all the publicity, the drink and the bar are more popular than ever.Thanks, big impersonal pharmaceutical company and your humorless legal toadies!
I’ve also written before about unusual case names, many of which are derived from government seizure cases, where the practice is to name the item or animal seized as the “defendant”—see, for example, U.S. v. Article Consisting of 50,000 Cardboard Boxes, More or Less, Each Containing One Pair of Clacker Balls, 413 F. Supp. 1281 (D. Wisc. 1976).One recent one, which went all the way to the South Dakota Supreme Court, involved an officer’s decision to impound a bunch of cats he found roaming around the car in which a woman had been living.The officer, noting “a strong pet odor emanating from the vehicle,” impounded the felines, resulting in a case that now lives on in the annals of justice: South Dakota v. Fifteen Impounded Cats, 785 N.W.2d 272 (S.D. 2010).
From crazy cat ladies, we move to another figure many of us have encountered—the lunchroom food thief.The bane of any workplace, the person who steals the food of others from a communal workplace refrigerator has a special place in Hell reserved for him.While some of us deal with such a problem in one way (say, lacing a “bait” dish with liberal amounts of laxatives, placing it in the fridge, and waiting for hilarity to ensue), others take it very seriously.Like “calling the cops” seriously.On October 11, 2013, a Pennsylvania warehouse employee of Wakefern Food Corporation called police to the scene of a crime—the theft of his strawberry Jell-O snack by “a person or persons unknown.”According to Pennsylvania police, “the incident remains under investigation.”What, no CSI team?
Romanian Radu Dogaru, one of six individuals on trial for a 2012 $24 million art heist from the Kunsthal Museum in Rotterdam, has admitted his guilt in the theft.But Dogaru and his defense lawyer now want to pin the blame on the Dutch art museum itself.They are threatening to sue the museum for negligence and failing to adequately protect the works by Monet, Picasso, and Gauguin, saying the museum made the robbery “too easy.”Now I’ve seen everything.
Finally, it’s time to revisit the topic of judges who like to include humorous references in their judicial opinions.The latest is U.S. District Judge James Boasberg in Washington, D.C., who recently ruled on whether a nonprofit group, Scenic America, could challenge the Federal Highway Administration’s authority to issue guidance on the construction of digital billboards.Ruling that Scenic America did have standing, Judge Boasberg decided to have fun writing the opinion, peppering it heavily with roadway references.He pointed out that the FHA “shifted gears” and “gave the green light” for issuing guidance that “paved the way” for digital signs, while Scenic America “bypassed” some legal routes before it “collided head-on” with federal law.The judge noted that the nonprofit group wanted “to put the brakes” on certain sign regulations, while critical motions were “throwing up roadblocks” to it efforts.Although the case was “at a crossroads,” the court ruled that Scenic America’s arguments were “fueled by concrete harm,” bringing an “end of the road” for federal highway decision making.Accordingly, Judge Boasberg ruled, the Court “declines to take either exit proposed by [the government] and orders that the case should speed on to its next turn.”
I guess this case got Judge Boasberg’s motor running.
In case the government shutdown has you worried about missing out on all the strange happenings at our nation’s courthouses, fear not; there’ enough weirdness going on in the legal system to keep you happy for quite some time.Consider the following strange tales from our justice system:
David Holton is a district judge in Jefferson County, Kentucky.By day he calls the shots in his courtroom, presiding over a wide variety of legal disputes.But on most Friday nights this time of year, you can find Judge Holton in the press box at local high school football games, where he serves as the stadium announcer calling the contests.While that may not be all that unusual, consider this—Holton is blind.That’s right: Kentucky’s only blind judge (who played football as a boy until a tumor caused him to lose his sight) is up in the press box for Western High School in Louisville, announcing the plays and keeping the stadium crowd excited.Judge Holton is always accompanied by his guide dog Buddy as well as his “spotter,” Louisville attorney and friend Thomas Patteson, who acts as Holton’s “eyes” and whispers the play by play into his ears.The result is seamless, and most people attending the games have no idea that Holton can’t actually see the game.Judge Holton says, “I can’t see anything at all.I try to get across what I would need to know, if I were there in the stadium.”When you think about it, it’s not strange to have a blind judge acting as a stadium announcer for football games; after all, judging by some of the calls I’ve seen lately in college and pro football games, blind men have been serving as referees for years.
In New York, the state’s Joint Commission on Public Ethics fines lawyers for ethical lapses like not renewing their law licenses.The Commission’s director of ethics and special counsel, Robert S. Cohen, should be more aware of this than most lawyers.Yet that didn’t keep him from the very embarrassing mistake of letting his own law license lapse in 2012—oops!As soon as the oversight was pointed out, Mr. Cohen promptly renewed his license like everybody else.Leadership by example is apparently a concept they’re still struggling with in New York.
Oscar-winning actor Tom Hanks is a very down-to-earth guy.He recently showed up for jury duty in Los Angeles, serving out his civic obligation by serving on the jury of a domestic violence case.But during a break, a recent law school graduate serving as a volunteer prosecutor with the L.A. City Attorney’s Office (but who was prosecuting the case Hanks’ panel was considering) approached the actor in a stairwell and gushed over what a great guy he was for serving on the jury.Oops—lawyers aren’t supposed to have contact with jurors outside the courtroom.The defense lawyer sought a mistrial, the judge wasn’t happy, and the case ended with a plea deal for the defendant.The L.A. City Attorney’s Office is “reviewing the incident,” and maybe they’ll realize that by using free labor fresh out of law school, sometimes you get exactly what you pay for.
A woman in Washington state recently had to stop by the local courthouse before continuing on to her child’s birthday party, and decided that the cake would be safer with her than left in the car with her dog.As it turns out, that was a bad move.After entering the Cowlitz County courthouse, the woman put the chocolate cake down on a table while she went through the metal detector.Unfortunately, the cake proved to be too big a temptation for 50 year-old Robert Fredrickson, who was on his way to a court appearance.Fredrickson attacked the cake, grabbing handfuls of cake and frosting before sheriff’s deputies grabbed him and forced him to the ground.All’s well that end’s well—a local grocery store provided a replacement cake, and “cake molester” Fredrickson has added an arrest for 3rd-degree theft to his growing criminal body of work.
There are a lot of ways to resolve business disputes, and the legal system provides many of them.But Seattle-area business owner Mike Hanson is proposing a novel way to settle things between his company and San Francisco-based classifieds website Craigslist.org—put it all on the upcoming showdown between the Seattle Seahawks and the San Francisco 49ers.Lawyers for Craigslist have issued a cease and desist notice to Hanson, claiming his business Craigstruck.com (a Seattle-based company that connects people who need a truck with someone who has one so they can pick up or deliver items purchased off Craigslist) infringes upon trademarks owned by Craigslist.Hanson issued his novel challenge to the classifieds giant in a recent video posted to YouTube: he’ll hand over everything—his trademark, the company’s phone number, even the Craigstruck shirt off his back—f the Seahawks lose to the 49ers on December 8 in Candlestick Park.But if the Seahawks win, Craigslist has to drop the lawsuit, as well as fly Hanson to San Francisco for dinner on it.There’s been no work on whether Craigslist will accept the unusual challenge, but imagine how the legal system would change if everyone adopted an approach like this.
Get your minds out of the gutter, folks.I’m talking about the recent lawsuit filed by Stan Michelman against Blue Man Group, claiming that he was grievously injured by a “large blue plastic or rubber ball” that was allegedly thrown into the audience at a June 2011 San Francisco performance by the comedy/musical troupe.The Novato, California man alleges that he was not warned in advance that “items would be thrown into the audience,” and that he suffered “great mental, physical, and nervous pain and suffering” and incurred over $40,000 in medical bills.I’m not particularly a fan of Blue Man Group, but this seems pretty silly to me—especially since the group’s website features footage from performances where they do a lot of strange stuff, like throw blue rubber balls into the audience.
Let the buyer beware, and duck when those blue balls come hurtling toward you.
We’ve been deluged lately with weighty, thought-provoking cases in the legal system: the George Zimmerman trial over the shooting death of Trayvon Martin and what it says about race relations in America; the fight over abortion legislation in Texas; and a series of potentially far-reaching U.S. Supreme Court decisions on everything from voting rights to affirmative action to same-sex marriage.At some point, the mind practically begs for some relief—isn’t there anything out there to lighten things up just a bit?Well, search no more, faithful readers: here is a roundup of the cute, the funny, and the just plain odd of the legal system.
In June, the Center for America selected their finalists for the Wackiest Warning Label of the Year.My favorites include the label on a common indoor extension cord—“Wash hands after using” (for those of us for whom the interaction between water and electrical outlets is still a mystery); the warning on a package of rubber worms made for fishing—“Not for human consumption” (thanks for the tip—I thought they were like Gummi Worms, just chewier and without flavor); and the warning on a bottle of spray-on anti-fog cleaner—“Not for contact lenses or direct use in the eyes.”
Perhaps the best way to get back at angry lawyers is to do what Chris Shepherd recently did.The Houston chef operates Underbelly, a local restaurant that until recently offered a burger called the “UB Double Double.”When lawyers for California-based fast food chain In-N-Out sent him a letter threatening litigation over the similarity to In-N-Out’s “Double Double,” Shepherd decided not to play David and try to fight Goliath and his army of humorless lawyers.Instead, he complied with the cease and desist letter by re-naming the burger the “Cease and Desist Burger.”It consists of two hamburger patties (all of Underbelly’s meat is butchered on-site at the restaurant), two slices of cheese, lettuce, tomatoes, and pickles (Underbelly’s vegetables are locally grown), and just a bit of wry (humor, that is).Since the controversy, the Cease and Desist burger has become one of the most popular items on the menu.
A family court judge in Arizona recently found the best way to deal with an ex-husband who opposed his ex-wife’s request to take their children out of state to Disneyland.In granting the mother’s request, the judge wrote “The Court cannot think of any good reason why any parent would refuse to agree in writing for his or her children to go to Disneyland . . . . If in fact Father has refused Mother’s travel requests, then Father’s refusal for the sake of refusal is nothing more than a Mickey Mouse litigation tactic, and just plain Goofy.”Well said, judge!
Self-professed psychic Jennifer Williams and her Los Angeles company Psychic Readings by Yana have been sued.The lawsuit by Klarissa Castro claims that the self-styled medium fraudulently took $11,000 from Castro, promising to lift a “love curse.”The purported psychic was the one who alerted Castro to the “curse” on her love life, and offered to fix it with a series of psychic sessions and the commissioning of a $5,000 painting (to be done by Williams) that would aid in lifting the curse.Unfortunately, according to the lawsuit, the only thing that got lifted was money from Ms. Castro’s wallet.
There are entrance exams for a lot of jobs, setting a minimum standard of proficiency.Maybe there needs to be one for would-be criminals as well.Zachary Tentoni of Southington, Connecticut was recently arrested for the theft of a woman’s wallet in Dorchester, Massachusetts.How did the police track down the alleged thief—forensic investigation like “CSI,” old-fashioned detective work, or an anonymous informant?Nope.It seems that in snatching the wallet, the thief dropped a bag he was holding; in it was the birth certificate of 26 year-old Tentoni and a letter addressed to him from his mother.Don’t worry, Zachary; you may be too stupid to be a thief, but there’s always the TSA.
Have you ever needed to get legal advice, but also needed to stop by a barbershop?Then search no more, my friends, “Legal Cuts” is open for business as a combination barbershop/law office in New Britain, Connecticut.Attorney Don Howard, who does criminal defense and personal injury law, has an office in the back of the shop.The Chicago native went to barber school in Illinois before his studies took him to Mississippi State and Wyoming, where he cut hair while studying.After relocating to Connecticut, he decided to combine his two passions.Howard says “I love cutting hair and people often talk about their problems in a barbershop.I think the barbershop is the perfect place to marry law with hair cutting.”Good luck, Mr. Howard—hopefully no clients will ask you to trim back your legal fees.
The stereotype of the sleazy lawyer is the one who chases ambulances and shows up at accident scenes, pressing business cards into the hands of victims.But what if the accidents keep coming to you?For the seventh time (over the past 10 years), the small Iowa City, Iowa law firm of Bray & Klockau has been the victim of a traffic accident.In the latest incident, an errant taxi cab swerved onto the law firm’s property and crashed into its front porch, damaging it and the foundation.Previous incidents have resulted in pedestrian injuries and power outages.The building itself was built in 1902, and sits at what has become a busy intersection.While the law firm partners have asked the city to put in a four-way stop sign, the city to date has declined.
How far would a lawyer go to make sure he doesn’t miss a crucial hearing where his client’s interests are at stake.?Well, if you’re Toronto attorney Howard Levitt, the answer is “pretty far.”The prominent Canadian employment lawyer was on his way to catch a flight for an important hearing in Ottawa in early July.Driving through heavy rain that quickly led to a freak storm and flooding, Levitt tried to follow several other cars through an area that looked like a puddle.Unfortunately, because his $200,000 Ferrari California rides extremely close to the ground, it took just a few inches of water to stop the beautiful machine dead in its tracks.As the flood water rose, and realizing the tow truck he’d called wasn’t going to arrive in time, Levitt abandoned the vehicle and took a cab to the airport.After finding out that all flights had been cancelled, Levitt went to a different airport where he got “the last seat of the day” to Ottawa.He won the next morning in court, though.Levitt said, “It’s a good ending, except for my poor car.I guess that’s what insurance companies are for.But the bottom line was, I had a case to get to.You can’t let the client down, no matter what personal emergencies you might have.”