Wanna bet? Could Sammy Lose Cheers to Kramer?

By

-

October 1, 2012

Cheers is a great sitcom that stands the test of time. It’s still funny now, thirty years after it began (I’ve verified that by watching the first season again on Netflix this past week). Coach, Diane, Norm, Carla, Cliff (as a legal geek I was always a fan of him and his trivia), Woody, Lilith, Nick…every character was great. And that theme song is still fantastic…

In honor of its thirtieth anniversary (and the great oral history done by GQ), I had to go back and watch an episode with legal significance. During the third season, Kramer shows up (pre-Seinfeld fame and onstage infamy), going by the name Eddie Gordon. Eddie is an old drinking buddy of Sam’s who had been out drinking with Sam almost exactly a year ago. While drinking tequila (he always wants Jacqueline Bisset when drinking tequila), Sam made a bet with Eddie that he’d be able to marry Jacqueline within a year or he’d give the bar to Eddie. Sam even wrote the bet down, signing in front of witnesses.

Tom, a bar patron (and a wannabe lawyer who could never pass the bar), said the bet couldn’t be enforced because Sam was drunk when he signed it and it was a wager, not a contract. Despite the legal advice from a wannabe lawyer (a no-no), Sam didn’t want to go to court and testify that he had been drinking again. So Carla came up with another plan: find somebody else named Jacqueline Bisset and marry her instead. Carla and Tom were both wrong on the law, as often happens on TV, but it still made for a great story.

So what can Tom and other wannabe lawyers learn from this episode?

(1) Can a bar bet be enforced? Courts will not enforce transactions involving prohibited gambling games (because they conflict with the welfare and morals of society). See Schur v. Johnson, 38 P.2d 844 (Cal. App. 3 Dist. 1934). The Cheers bet, however, did not involve a illegal game of poker or other prohibited gambling activity so presumably could be enforced if it was otherwise a valid contract. (Speaking of bar bets, I’d never before heard the rumor that one of my favorite authors, Robert Heinlein, had a role in the beginning of Scientology). The problem with this wager, however, is that there is no mutual consideration (Sam loses the bar if he doesn’t marry JB, but what consideration does Eddie bring to the table?). Without consideration, there’s no contract. (It would be difficult to argue that the bar bet was an unilateral contract because Sam had to make both the promise [he’d give up the bar] and do the required act [marry Jacqueline Bisset], which violates the principles of unilateral contracts.)

(2) Can you sign a contract when you’re drunk? The law requires that a party to a contract have the mental capacity to enter into the agreement. As Tom pointed out, the general rule is that intoxicated people don’t have the capacity to sign a contract. See RESTATEMENT (SECOND) OF THE LAW OF CONTRACTSS § 12(2) (1981) (limiting lack of capacity to those who are under guardianship, minors, mentally ill, or intoxicated). However, intoxication does not always mean that a party can’t enter into an agreement. Instead, the court needs to determine the effect of the intoxication upon the party to the contract, with intoxication only being a defense if it’s so severe that the party couldn’t understand the terms and conditions of the agreement when the agreement was signed. See D.M. v. K.M., 2006 WL 3742801 (N.Y.Sup. 2006).

(3) Does a contract to buy a bar need to be in writing? Eddie was smart – he wrote down the bet with Sam and had it signed by Sam and other witnesses. While many contracts can be oral, contracts to buy real property (such as a bar) must be in writing to comply with the statute of frauds. See Del Pozo v. Impressive Homes, Inc., 95 A.D.3d 1268, 1270-1271 (N.Y.A.D. 2 Dept. 2012).

(4) Could Sam marry just any Jacqueline Bisset or did he need to marry the actress? The bet said Sam had to marry Jacqueline Bisset, but what did that mean? When a contract includes an ambiguous provision (which means that the term could have more than one meaning), the court will look to the parties’ intent to determine what the provision should mean. See Banco Esprito Santo, S.A. v. Concessionria Do Rodoanel Oeste S.A., 2012 WL 4069808 (N.Y.A.D. 1 Dept.,2012). In this case, it’s clear that both parties intended the term to mean Jacqueline Bisset the actress, so Carla’s suggestion would not have held up in court. Thank goodness it was enough to outsmart Eddie!

The Legal Geeks Discuss Firefly

By

Josh Gilliland

-

September 28, 2012

0

Jessica Mederson and Josh Gilliland discuss the contract issues in Firefly.

No part of this discuss should be considered legal advice.

Firefly & Lessons in Contract Law

By

Josh Gilliland

-

September 27, 2012

25

Firefly was wickedly creative, well-written and had fantastic humor. Spaceships and wardrobe that ranged from Western to Steampunk to Chinese aside, Firefly presented excellent Contract formation issues.

Contract formation consists of 1) Offer; 2) Acceptance; 3) Consideration; and 4) Performance.

In the world of Firefly, it was often 1) Offer 2) Acceptance 3) Gunfight (also known as breach). Let’s review three episodes to examine these contract issues.

Shindig

Consideration in Contract Law involves something of “value” being given up by a promissor to a promisee in exchange for something of value given by a promisee to a promissor (Nice summary in Wikipedia). In Shindig, the consideration for earning Warrick Harrow’s cattle shipment job was surviving a sword fight with one of Inara’s clients (it also could be a condition precedent, because Mal did have to survive the fight).

Since the old idea that consideration can be a peppercorn, a sword fight does not seem too crazy in a future with space cowboys fighting an oppressive regime.

The Train Job

The Train Job was the second episode in the series. Malcolm Reynolds formed an oral contract with a crime boss named Adelei Niska to steal medical supplies from a train. Niska made a payment for the work to be performed, which involves extracting cargo from a fast-moving train with Alliance soldiers onboard.

The heist was a success, with the exception the Captain and Zoe were stuck on the train and ultimately needed to be “rescued” by Inara after being detained in town.

However, once Mal and Zoe reached the destination of the cargo, they learned the medicine was vital for the survival of a mining town where everyone was suffering from the effects of mining.

Mal’s following actions are best described as contract rescission, which is the unwinding of an agreement. Mal decided to return the stolen medicine to the town and the money back to Niska. Granted, since this was an action show, there was a gunfight and someone sucked through a jet intake before Niska’s men accepted the rescission (non-traditional contract remedies were later sought by Niska in War Stories).

Out of Gas

The contract issues in Out of Gas focused on a salvage ship that found the crippled Serenity with only Mal onboard.

Serenity was heavily damaged from an engine room fire and needed a new compression coil.

The salvage captain boarded Serenity and shot Mal after seeing Mal was telling the truth about Serenity’s damage (this was after Mal offered anything of value in the ship’s hold).

The actions up until the shooting showed the parties went beyond offer and acceptance to performance, because the salvage captain boarded Serenity with the compression coil in hand.

Given the fact payment had not been determined, there was an uncertain term to the contract. However, there was sufficient evidence to show a contract had been formed based upon the conduct of the parties (boarding Serenity with the part Mal requested from the salvage captain).

After being shot, Mal armed himself with the gun from the “Mule” and ordered the captain and crew off his ship. While there was no payment made for the compression coil, the salvage captain breached his agreement when he shot Mal. Keeping the compression coil would have been the proper damage recovery (sure, there is a separate cause of action for shooting someone).

Curse Your Sudden But Inevitable Betrayal

The remedy for a breach of contract is either money damages or equitable remedies. Gunfights in the series aside, Out of Gas focused more on the equitable remedy of specific performance. In the instance of The Train Job, returning Niska’s money was designed to put him in the same place as he was before the contract with Malcolm Renyolds.

So let me make this abundantly clear. I do the job and then I get paid.

Captain Malcolm Reynolds

Firefly essentially was about engaging in contract work for payment. Each episode has different themes on issues of formation, breach or remedies. While the show was certainly not a transactional space adventure with cowboys, the contract issues are very prevalent.

The Legal Issues of The Doctor Letting the Bad Guy Die

By

Josh Gilliland

-

September 21, 2012

0

Doctor Who. From the first episode on November 23, 1963 to present date, it is one of the best science fiction series of all time (despite first airing the day after the Kennedy assassination).

The 11th Doctor, played by Matt Smith, has had the great fortune of excellent storytelling and acting. More importantly, Smith has helped with a significant bow tie Renascence.

Who Doesn’t Love Dinosaurs & Spaceships?

The episode Dinosaurs on a Spaceship also provides an opportunity to discuss issues in criminal law.

On a simple matter of principle, many geeks have dreamed of saying “dinosaurs” and “spaceship” in the same sentence for decades.

The legal issues involve the Doctor not just leaving the villain die, but outright causing his death. In short, the Doctor left a tracking device for incoming missiles on the villain’s spaceship to blow up the villain’s ship.

What did the bad guy do to deserve such a fate?

First, the villain’s name was Solomon. He came across a “Space Ark” that advanced reptiles (the Silurians or homo reptilia) used to escape Earth 65 million years ago before the mass extinction event killed off nearly all life on Earth (which in Dr. Who was caused by Cyberman controlled space freighter crashing into Earth, killing the 5th Doctor’s companion Adric in Earthshock). The Ark contained many species of dinosaurs and Silurians in suspended animation.

Recognizing the profit he could make from the dinosaurs, Solomon had his two robots wake up a limited number of Silurians at a time and then execute them by ejecting them into space.

The two words that best describe Solomon are “greed” and “cruelty.”

In the penultimate face-off with the Doctor, Solomon had one of his robots kill a triceratops to prove his intentions to escape with Queen Nefertiti (longer story on how she was there). There is a very sweet scene with the Doctor gently comforting the dying creature as it closes its eyes for the last time.

Brutally gunning down a triceratops is the moral equivalent of murdering a golden retriever. Whoever pulls the trigger only makes enemies in either case.

Juris Doctor Who

From a legal perspective, was the Doctor justified in 1) leaving a tracking device on Solomon’s spaceship and 2) leaving Solomon to die?

The tracking device would have been justified under the “Necessity Defense.” The “Necessity Defense” under Common Law generally requires the following:

(1) the defendant acted to avoid a significant risk of harm;

(2) no adequate lawful means could have been used to escape the harm; and

(3) the harm avoided was greater than that caused by breaking the law.

Additionally, California (and other states) allow the use of force under the following circumstances:

Any necessary force may be used to protect from wrongful injury the person or property of oneself, or of a wife, husband, child, parent, or other relative, or member of one’s family, or of a ward, servant, master, or guest.

Cal Civ Code § 50

Applying Common Law and the California Civil Code, we can establish the following:

The Doctor acted to avoid the “Space Ark” from being destroyed by missiles by placing the tracking device on Solomon’s ship. The alternative was for everyone, including the dinosaurs, to be destroyed.

There was no other lawful means to escape the incoming missiles. While the TARDIS is bigger on the inside, fitting nearly 50 species of dinosaurs onboard in a matter of minutes would not be possible.

Placing the tracking device on Solomon’s ship avoided the greater harm of the Ark with everyone onboard from being killed.

The trickier issue is leaving Solomon to die. Solomon had murdered hundreds, if not thousands, of Silurians in cold blood. He has also threatened the Doctor and his traveling companions, including having one shot by a robot and the attempted kidnapping of another. Looking at California’s law permitting a person to protect themselves or a “guest” from wrongful injury with any necessary force, would the law allow leaving Solomon to die?

Given the timing of the incoming missiles and the danger Solomon had posed, the answer is likely yes. However, there is grey area, since Solomon was defeated and knocked to the deck when the Doctor transported off Solomon’s ship to use it as a decoy.

Furthermore, while there is no duty to rescue, there is an exception for when a person creates a hazardous situation.

Missiles being directed to Solomon’s ship thanks to a tracking device likely would count in the world of torts, but given the necessity of the situation (could the Doctor carry the evil man who liked to murder Silurians in under 5 seconds?), leaving him was justified.

However, if Solomon could be saved, wouldn’t it be better to convict him for his crimes instead of an instant execution?

Regardless of the legal issues presented, it highlights two important lessons for villains:

1) Never fight a man in a bow tie;

2) Never kill a triceratops and think you will escape.

Revolution Review: Where are all the lawyers?

By

Jessica_alegalgeek

-

September 20, 2012

0

JJ Abrams has made some incredible television (in addition to a fantastic reboot of the Star Trek movies), even if those series don’t always have strong endings (I’m looking at you, Lost). And Revolution could be the latest in his string of great shows. Of course, watching this show requires me to get over my dislike of post-apocalyptic shows and books, a dislike that may be based in part on the fact that sci fi references to apocalypses often refer to all the lawyers being killed. (On the plus side, io9 just had an encouraging piece on nine predicted disasters that never came to pass…thank goodness.)

Below are my initial impressions of the show and where it could go.

First, JJ clearly has a thing for attractive, young female leads with long, brown hair. Charlie is no exception. While I appreciate her use of a crossbow (and the possible nod to Hunger Games), I’m reserving judgment on whether she’s going to be closer to a Kate (so close but her potential was never realized) or a Sydney (only slightly less cool than Spy Mom and Spy Dad). [Side complaint: Jennifer Garner was so awesome as a bad-ass secret agent. Why does she only play saccharine-sweet characters now?]

Second, Miles is really good at killing people, but apparently a poor judge of character (given his previous connection to the mysterious General Monroe).

Third, watching Grace use a computer (while possessing an inhaler) was certainly intriguing. It was very reminiscent of Lost, but if this foreshadows another dive into the muddled mix of science versus religion with no good answers, I am not sticking around for another cop-out ending. Plus, if she’s part of a some super-secret group who can still use computers, is she really dumb enough to so easily get caught in a lie? Or did she want Danny to be recaptured?

Fourth, and finally, are there any lawyers left? This first episode obviously set up a world in which much of what we take for granted in today’s world is gone and everyone is living a life more familiar to Laura Ingalls Wilder than most Americans living today. But there were lawyers in Laura’s day – and for many centuries before that. Criminal rights, property rights, the resolution of many disputes among adults and businesses…these are all reasons why lawyers are needed, with or without electricity.

Of course, lawyers need a stable system in which to operate and the impression I got from most of the episode was that there was very little government structure left. But by the end of the episode it was clear that the mysterious General Monroe clearly controlled a large organization and, bad or good, he could still use the assistance of lawyers. Plus, Miles made reference to other republics, which implies that there were still ruling structures in place.

Revolution is obviously a mystery. What caused the blackout? Why was there a blackout? Why can Grace (and mysterious “others“) still use electricity and access computers? But part of the attraction is also imagining what would happen if we all instantly regressed a hundred years, give or take a decade. Would we still keep some of the principles that have always been so important to this country – the ideas behind the constition; the belief that we are a nation of laws, not of men? And, if there were still laws, would we recognize them? We’re only one episode in, so I’m sure the questions will continue to build, but I’m interested to see how they answer some of these questions (especially about how the societies are governed). And they’d better not wait too long to give us some answers!

Star Trek: The Best Legal Issues from Each Generation

By

Josh Gilliland

-

September 17, 2012

0

Joshua Gilliland (@bowtielaw) and Jessica Mederson (@eDiscMatters) review the top legal issues from Star Trek, The Next Generation, Deep Space 9, Voyager, and Enterprise.

An ode to footnotes

By

Jessica_alegalgeek

-

September 13, 2012

0

One of the surest signs that I’m a lawyer is that I’m conditioned to look for footnotes – and I love them! Any time I read a statement of fact I automatically glance down to the bottom of the page and am disappointed if there’s nothing there. So, in honor of my deep feelings for footnotes, I give you the following three reasons footnotes rule:

(1) It’s time to put up or shut up. The great thing about legal footnotes is that if you state a fact in a brief, you’d better have a footnote to back it up. If you try to claim something (“It is well-established that courts can sanction parties after cases have been dismissed”), you’d better cite some cases or no one is going to pay much attention. Think of how great that would be if the same standard was imposed on other professions – especially politicians! What if a politician couldn’t make a claim (“Subsidizing the making of science fiction movies has been shown to increase the number of children interested in math and science”) without a footnote showing the support for their claim (See The George Lucas Foundation)?

(2) CYA. I first learned this handy-dandy tool when I was working on a never-ending research memo for a partner as a young associate. The question I’d originally been given had led me down several rabbit holes and it was a senior associate who told me the secret to ending the madness: just add a footnote cutting off the questions (“Issues X, Y, and Z are beyond the scope of the current research memo but that I would be happy to be research those issues separately”). The same idea works in briefing filed with the court, where you can use footnotes to make sure you don’t make waive an argument (“Plaintiff does not intend to waive any arguments regarding scope of the contract”).

(3) Funny and snarky asides: One of my favorite quotes is by Alice Roosevelt Longworth, who said, “If you haven’t got anything nice to say about anybody, come sit next to me.” That’s footnotes, which can be used by parties for bitchy asides (“It is not apparent to Defendants why the plaintiff made this claim, as it is irrelevant, but Defendants will address it nevertheless”). And even judges can use them to smack down parties (or their lawyers) for improper behavior or arguments. Even better, as discussed in my post on judges and Star Trek, judges can use footnotes to be funny (my favorite is the Romulan footnote).