Communiqué Past Articles Communiqué - April 2007 | Communiqué - April 2007 |
|
Also featured in the latest edition:
Regular features in the printed edition include:
Not Enough Sand: Humor in the ProfessionBy Tami Cowden The lawyer joke phenomenon was something of which I was unaware until I entered law school some twenty-odd years ago. Decades later, I still remember the very first lawyer joke I ever heard. Well, okay. Actually, I don't remember all the details of the joke, but I do remember the punch line: "We decided we'd rather have a bastard in the family than a lawyer." At roughly the same time, I also heard the jokes that decried a lack of sand and noted the professional courtesy sharks extend to lawyers. I suspect, dear readers, you recognize the stories. I'm sure we all agree that law is a learned profession with a long and noble history. After all, millennia ago, advocates represented their clients in Roman courts. Of course, until the reign of the Emperor Claudius, a fee could not be taken for such work—at least, not legally. Instead, advocates were required to pretend they were motivated to speak on behalf of the litigant out of friendship and/or a desire to see justice done, rather than for the sake of a fee paid under the table. Even after Claudius abolished the prohibition of a fee, a limit on fees was imposed, beginning the custom of complaints of being underpaid. Meanwhile, those who practiced notaries, another forebear of the modern lawyer, began a time honored tradition of infusing legal documents such as contracts and wills with extensive legal jargon. They really were paid by the line, you see. But despite this dignified history, lawyers have been the frequent target of jokes. Even the immortal Shakespeare went for the cheap laugh by having a character—who, by the way, was a traitor whose rebellion was soundly defeated—eagerly envision the triumphant day in which the first act of the new regime would be to "kill all the lawyers." Molière, Sheridan and Dickens also took potshots at lawyers. The practice continues today, with one-liners spewing from late night comedians, stand-up comics, sitcoms and even comic strips. A search at an online bookseller reveals hundreds of books offering lawyer jokes. Making fun of lawyers has become a cottage industry. There is even a page a day calendar devoted to humor about the legal profession. As lawyers, we can react to this abuse in assorted ways. We can stubbornly refuse to acknowledge the jokes, at all. We can wax indignant and whine about prejudice. We can hold symposiums seeking complex psychological and sociological explanations for the abuse. We can pretend it is a recent phenomenon, and look for reasons it is suddenly occurring, such as attorney advertising or scandals involving the profession. Or we can acknowledge that a profession that requires a specialized education, yields a relatively high income and, at times, even offers extensive power and influence, is a natural target of satire. Simply put, being the target of humor is a consequence of being in an enviable situation. It's a con to balance out the pros. Lawyers do not simmer alone in their stew of satire. Doctors gnash their teeth over jokes about delusions of godhood, quackery and golfing afternoons. Politicians must pretend to smile in the face of jokes about absenteeism, vote grubbing and bribery. IT experts may be aware of the jokes about their social skills and Star Trek enthusiasm. Even plumbers are forced to turn the other cheek when the joke is on them. In truth, I have never been bothered by lawyer jokes, always viewing them as what they were: jokes, rather than an indictment of a profession. Perhaps one thing that helped me to keep my perspective was a certain pattern I came to recognize over the years: whenever I heard a lawyer joke from a nonlawyer who wasn't a professional comic, it came from a layman who followed the joke up with a request for free legal advice. Irony always amuses me, even if the accompanying joke isn't that funny. Just as fire is often fought with fire, humor can be faced with humor. Laughing along with the tormenters is the surest way to take the fun out of it for them. So please enjoy this issue, with all its variety of legal humor. Tami Cowden received her first kiss from the man she later married while wearing a T-shirt bearing the suggestion "The first thing we do, let's kiss all the lawyers." Of Counsel with Kummer Kaempfer, she struggles constantly to keep jokes out of her appellate briefs. Check Tami's blog, Appealing in Nevada, at www.NevadaAppellateLaw.com. Jury Learning the Hard WayBy Dorothy J. Chambers One of my first jury trials was defending a car dealer in a "car lemon" case. I was a "baby" lawyer; this was my first real jury trial in state circuit court. I had tried a few routine matters, dependency or guardianship cases, just to get some trial experience. The type of cases where, for example, my client, an 85 year old woman wanted her 87 year old husband to have to lock up, give away, or otherwise dispose of his firearms. The husband, so far, had yet not shot his wife. "Yet" being the operative word. But he had killed the refrigerator, the back door, and wounded several pieces of furniture in attempts to protect his home from aliens. And the aliens at whom the elderly gentleman had been aiming were not from another country but another planet. While the attorney appointed to represent the elderly owner of the firearms provided excellent representation of her client's right to keep and bear arms, I knew it would take something akin to malpractice for me to lose the case. On the other hand, the car lemon suit was complex, with multiple parties and contested facts. Moreover, the plaintiff and the car manufacturer entered into a settlement by stealth the night before trial, leaving my client, the dealer, alone at the defense table. Well, actually not alone, since I, an inexperienced, new lawyer, was sitting at the dealer's side. The car lemon case was tried for several days, as plaintiff complained, or rather testified, at length about all the repairs required to be made to his car. My cross-examination consisted of a detailed review of the repair tickets and discussion of plaintiff's driving habits, including his multiple collisions with curbs, small poles and other immovable objects. I considered asking the plaintiff whether he planned to aim for moving objects to give them a chance to get away. At the last moment, good judgment, rather than attempted humor at the plaintiff's expense, prevailed. After my client's motion for directed verdict was granted, the judge allowed counsel, both of us young female attorneys, to talk with the just-dismissed jurors. My real legal education began with that discussion. One juror confided that he was incapable of believing anything my client, the car dealer, would have said, if he had had a chance to testify. As the dismissed juror succinctly put it, "After all, who would believe a car dealer?" Most of the other jurors nodded their heads in apparent agreement. So much for the commitments I had extracted, or so I thought, in voir dire, from the jurors to give a fair and impartial hearing to each witness. But the most surprising discovery I made in interviewing the former jurors was their apparent evaluation of plaintiff's counsel and me. The jurors asked the plaintiff's attorney numerous questions about the law during our discussion. As I was feeling a bit left out that no questions were directed to me, several of the jurors turned and started asking me questions too. I was queried as to how often they should change their oil. One juror asked me what she should do about the "funny knock" her car was making. Another juror asked what type of car he should purchase. I still am not sure what it means when jurors think your opponent knows the law but you know about cars. I do know now I would rather sell used cars than again defend a car lemon case before a jury. Dorothy J. Chambers recently retired from the position of General Counsel-Kentucky for BellSouth Telecommunications, Inc. Ms. Chambers practiced law for over twenty-five years, starting as law clerk to the Honorable Thomas A. Ballantine, Jr., Judge, United States District Court for the Western District of Kentucky. Ms. Chambers practiced law with the firm of Stites & Harbison in Louisville, Kentucky, concentrating in civil litigation and also has held various in-house positions. Ms Chambers has been admitted to practice before the U.S. Supreme Court, the U.S. Courts of Appeal for the Fifth and Sixth Circuits, the Federal District Courts for the Eastern and Western Districts of Kentucky and the highest Court in the Commonwealth of Kentucky. Ms. Chambers is a Magna Cum Laude graduate of Georgetown University Law School, and was a member of the editorial staff of the Georgetown Law Review. Cold Case Files: Suing the Ice Cream MakersBy Barry Levenson Given the choice between a bowl of homemade ice cream and a bowl of factory-made ice cream, which would you choose? That's right, it's no contest. The homemade stuff wins every time. Here's the rub: there are several brands of factory-made ice cream that also happen to be homemade. I'll explain that apparent contradiction (read on!). But that is where the eternally vigilant lawyers of the Clark County Bar will come in. Brothers and sisters of the bar, I bring you glad tidings and more. I bring you a gazillion dollar lawsuit ready to file, plead and win. This isn't your run-of-the-mill E. coli burger or salmonella-tainted peanut butter case. No, ma'am, this food case has national implications. This is fraud at the highest levels and only a lawyer—preferably an eager Clark County barrister—can save our nation from the ravages of chilled deceit that have come down upon us like an avalanche of whipped cream with a maraschino cherry on top. We start with the basics. The word "homemade" means "made in the home." It is quite the opposite of "factory-made." So when ice cream that is produced in a facility the size of the MGM Grand declares itself to be "homemade," something does not compute. I have found no fewer than four frozen offenders over the last six years. Check out Ice Cream Lover's Exhibit A, the front panel from a carton of Wells Blue Bunny Premium HOMEMADE Ice Cream. Is it homemade? We read on the other side of the carton: "PLANT # STAMPED ON CONTAINER." Ingredients: milk, cream, high fructose corn syrup, cocoa processed with alkali, egg yolks, carob bean gum, artificial vanilla flavor, guar gum, soy lecithin, carrageenan, caramel color. That is textbook mislabeling/misbranding. In every jurisdiction. Outrageous! And when anything is outrageous, we sue, don't we? Think of the millions of ice cream lovers, who have been duped by this brazen scheme of lies. I wrote to the Blue Bunny and they responded with a feeble explanation of how they use the term "homemade" only to describe the flavor of the ice cream (strangely, I did not make the connection) and not to mislead. Oh, they sent me a coupon for some more of their not-really-homemade ice cream. Then we have Exhibit B, "Homemade" ice cream from Ben & Jerry's. How could the warm and fuzzy eco-friendly B&J possibly mislead their loyal consumers? I emailed and asked: "In whose home was this made? Was it Ben's home? Jerry's?" They did not take me seriously. "Thank you for letting us know about a less than euphoric experience with our product." Okay, I followed up with some phone calls, finally mentioning the fact that I was a lawyer. That got a response from George in Consumer Affairs. His first defense was to tell me that the name of the company is "Ben & Jerry's Homemade Holdings." Very cute. But that doesn't make your ice cream homemade if it's made in a factory, a fact that George readily conceded. If your company name is "Made on the Planet Neptune," it doesn't mean your ice cream is made on the far away planet. George will have to get back to me. Or maybe we can hurry things along with a giant class-action lawsuit. So what if only a total nitwit would believe that ice cream labeled "homemade" but sold in a grocery store is really homemade. Lawyers have been feeding off the stupidity of nitwits for decades. Besides, nitwits need to be protected, too. Let's turn up the heat on those shameless merchants of Rocky Road, Mocha Almond Fudge, and French Vanilla (another example of unspeakable fraud - leading people to believe it's made under the Eiffel Tower). SUE! SUE! SUE! I have drafted the complaint and it's yours for the asking. And a small percentage of the take. The complaint is brilliant, not your ordinary form book pleading. No, sir, it truly is . . . homemade. Barry Levenson is the author of Habeas Codfish: Reflections on Food and the Law (University of Wisconsin Press, 2001). He is also founder, curator, and CMO ("Chief Mustard Officer") of the Mount Horeb Mustard Museum in Mount Horeb, WI. You can get your own signed copy of Habeas Codfish by calling the Mustard Museum at (800) 438-6878 or going online to www.mustardmuseum.com. Barry once argued a case at the United States Supreme Court with a jar of mustard in his pocket. (The mustard was not homemade.) |
© Originally published in COMMUNIQUÉ (April, Vol. 28, No. 4), the official journal of the Clark County Bar Association. All rights reserved.