August 2001

A Little Summer Diversion

by Jan Eric Peterson, WSBA President

Well, it’s August, and as they say in baseball, the dog days of summer are upon us. It’s hot — actually only warm on the coast. Bodies of water and the pleasures they offer, from Puget Sound sailing to the backyard pool, are really inviting. School’s out, and the kids or grandkids want you to come out and play. The Mariners are still in first place. There are outdoor concerts for warm summer nights at the Gorge or on the Pier. There are tall cool ones to go with Walla Walla sweet onions, ripening tomatoes, and sweet corn that’s just arrived. Yup, summer is just too much fun for me to be very serious and concentrate on this article. The reality is I don’t have anything much to say; I’d rather be teeing it up.

I have a friend who found the secret to legal life. He finally admitted that the places he most likes to be are the beach and the golf course. Did he quit the law and become a beach bum or a tour caddy, forsaking family, career and a productive purposeful life? No, he made a legal career of his pleasures. He moved to Florida, which has more beaches and golf courses than anywhere on earth, and began a teaching career at Nova Southeastern University School of Law. Publish or perish, hah! He has become the world’s leading legal authority on beach and golf law. M. Flynn, "Cart 54, Where Are You? The Liability of Golf Course Operators for Golf Cart Injuries," 14 U. Miami Ent. & Sports L. Rev. 127 (1997); "Lightning: A Double Hit for Golf Course Operators," 6 Marq. Sports L.J. 132 (1995); "Principles of Aquatic Law: From the Beach to the Lifeguard," Aquatica Acad. Mag., Summer 1995; "The Application of Recreational Use Statutes to Beaches: Trap for the Unwary," 40 Depaul L. Rev. 743 (1991); "Beach Hazards: An Overview of the Legal Liability for Dangerous Beach Conditions," J. Aquatic Safety & Educ. (1989). He is now the respected professor, loves teaching, has a great family, and all his time and travel to beaches and courses are research or consulting! His whole life is summer — and deductible.

So how does one cope with a summer life? Joseph Conrad described life as birth and death separated by struggle. Humor relieves the struggle’s constant pressure, so my friend handed me the humor edition of his law school’s law review. No wonder he’s so happy. So let’s have some summer fun with legal foolishness.

Law school is not the funniest experience, but there was the great day when the legendary Larry Finegold (UW, ’68) handled the embarrassment and harassment of the Socratic teaching method being applied to the unprepared by responding to being called upon with: "Well, I should think that that comes under the extended-arm doctrine," to which the imperious professor smugly inquired, "Would you care to enlighten the rest of us with further elucidation?" Finegold, packing his books for a quick exit, replied, "Well, yes. That means call on someone with their hand raised!"

Being a new associate is generally no fun at all, confined primarily to the drudgery of research and memorandum writing. I am grateful to Tim Willette for these 10 principles of such legal writing:

1. Never use one word when 10 will do.

2. Never use a small word where a big one will suffice.

3. Never use a simple statement where it appears that one of substantially greater complexity will achieve comparable goals.

4. Never use English where Latin, mutatis mutandis, will do.

5. Qualify virtually everything.

6. Do not be embarrassed about repeating yourself. Do not be embarrassed about repeating yourself.

7. Worry about the difference between "which" and "that."

8. In pleadings and briefs, that which is defensible should be stated; that which is indefensible but which you wish were true should merely be suggested.

9. Never refer to your opponent’s "argument"; he only makes "assertions" and his "assertions" are always "bald."

10. If a lay person can read a document from beginning to end without falling asleep, it needs work.

 

Courtrooms are usually fraught with such tension and serious business that there is no room for much humor. The late Preston Niemi was an exception. In defending a negligence case, his primary point was the plaintiff driver’s own intoxication, and with a twinkle in his eye, he pounded it home to the jury: "Ladies and gentlemen, if you feel you must give the plaintiff some damages, I hope you award it to him in six-packs."

Then there was the criminal defense lawyer who argued: 

"Your Honor, if you believe my client’s story, then you must find him not guilty." 

The court replied: "Counsel, there isn’t a person in the county with an IQ over 50 who would believe a word your client says." 

Counsel rejoined: "That’s true, Your Honor, but since you were hearing the case, we thought we’d give it a try."

And then there was the counsel who interrupted the examination: 

"May I interrupt for a moment? There seems to be a member of our audience who is mouthing obscenities and other things at our witness, and I would like that she be admonished." 

The court: "All obscenities may be directed to the court. You may proceed." 

"Thank you, Your Honor."

And the jury whose verdict read: 

"We find the defense incompetent, the prosecution arrogant, the food inedible, the accommodations insufferable, and the defendant guilty as hell."

My favorite appellate decision is Denny vs. Radar Industries Inc., Court of Appeals of Michigan, 28 Mich. App. 294; 184 NW 2d. 289 (1970): 

"John H. Gillis, judge. The appellant has attempted to distinguish the factual situation in this case from that in Renfro v. Higgins Rack Coating and Manufacturing Co., Inc. (1969), 17 Mich. App. 259, 169 NW 2d. 326. He didn’t. We couldn’t. Affirmed. Costs to appellee."

Because it’s summer, one is inclined to ponder the ramifications of Tom Boswell’s title How Life Imitates the World Series. Baseball and law are the two professions that wear pinstripes. They are so intertwined these days that the National Law Journal should have a sports section. Both have highly technical and arcane rules to play by that are still curiously subject to on-the-spot interpretation. Surely he who can explain when a relief pitcher gets a save could also enlighten us as to the current relevance of the dead man’s statute. 

Here is Patric M. Verrone’s all-Supreme-Court-opinion baseball team:

I was asked to write about the new disciplinary diversion rules for minor misconduct. I decided we could use a little diversion instead. Go find a wide fairway and have a good laugh this summer. Now, where is that potato salad…?

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