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The Ghosts of Real Property: A Discussion of The Selling

My younger brother Gabriel Diani wrote and starred in a film named The Selling. The premise of the film is that an honest real estate agent has to sell a haunted house to pay for his mother’s cancer treatment.

The film has won multiple awards at film festivals, including the Friars Club Comedy Film Festival, L.A. Comedy Film Festival, Idyllwild International Festival of Cinema, and the Tall Grass Film Festival. My brother recently launched a Kickstarter project for a limited release of the film.

As a big brother, I am very proud of the way Gabe racked up Best Actor awards like they were billable hours on document review.

The legal issues in The Selling included the disclosure of the multiple ghosts in the house (plus murders and demonic possession). The story involved an open house with bleeding walls and other issues that would significantly decease property value.

Let’s review the limited “body” of case law pertaining to haunted home sales in the United States.

They’re Here

When I first saw The Selling, I was instantly haunted by memories of Property in my first year of law school. The specific apparition was the strange case of Stambovsky v. Ackley. The case might be the only time is United States legal history where a Court actually stated, “…as a matter of law, the house is haunted.” Stambovsky v. Ackley, 169 A.D.2d 254, 256 (N.Y. App. Div. 1st Dep’t 1991).

Stambovsky centered on a home buyer who brought an action for contract rescission because the seller did not disclose the house was haunted by poltergeists. Stambovsky, at *255-256. The seller’s family had “encountered” the spirits for nine years. Adding to the failed disclosure was that the fact that the haunted house had been featured in local and national publications, including a walking tour of haunted houses in the area.  Id.

The Plaintiffs lost at the trial level, based on the doctrine of caveat emptor. The appellate Court rejected caveat emptor under the facts of the case, because it conjured “up visions of a psychic or medium routinely accompanying the structural engineer and Terminix man on an inspection of every home subject to a contract of sale.” Stambovsky, at *257.

The Court held the following:

In the case at bar, defendant seller deliberately fostered the public belief that her home was possessed. Having undertaken to inform the public-at-large, to whom she has no legal relationship, about the supernatural occurrences on her property, she may be said to owe no less a duty to her contract vendee. It has been remarked that the occasional modern cases which permit a seller to take unfair advantage of a buyer’s ignorance so long as he is not actively misled are “singularly unappetizing” (Prosser, Torts § 106, at 696 [4th ed 1971]). Where, as here, the seller not only takes unfair advantage of the buyer’s ignorance but has created and perpetuated a condition about which he is unlikely to even inquire, enforcement of the contract (in whole or in part) is offensive to the court’s sense of equity. Application of the remedy of rescission, within the bounds of the narrow exception to the doctrine of caveat emptor set forth herein, is entirely appropriate to relieve the unwitting purchaser from the consequences of a most unnatural bargain.

Stambovsky, at *260.

I See Dead People

The 1914 case of De Souza v. Soares from Hawaii is part of the small body of US case law involving haunted houses and property sales.

From The Selling (Photo Courtesy of Gabriel Diani)

In De Souza, the Plaintiff claimed that when she sold her house to her brother-in-law, she executed the sale of her property based on the Defendant’s “misrepresentation that plaintiff’s house was haunted by ghosts and that she could not recover her health while living there.” De Souza v. Soares, 22 Haw. 17, 18-19 (Haw. 1914).

The Court sided with the Defendant in De Souza, finding that the Plaintiff was not credible, because she “was evasive and lacked in frankness.”  De Souza, at *19.

De Souza is a 98-year-old case from before Hawaii was even a state. However, there was no equitable relief as in Stambovsky, because it was not a seller who failed to disclose the “existence” of ghosts haunting the property, but a seller claiming she was tricked into selling because the buyer allegedly said house was haunted. In De Souza, the Defendant was more credible on the facts and the Plaintiff failed to show any fraud.

Grab Her?! That Was Your Plan?!

Barry Bostwick as Father Jimmy in The Selling (Photo Courtesy of Gabriel Diani).

There is very little “ghost law” in the United States, to the point where we cannot even say it is a body of law, but a spectre of cases. This is because of the unavailability of living witnesses, judicial resistance to seances in court and the entire question of proving beyond a preponderance of the evidence the existence an afterlife. It would also give new meaning to ghosting a hard drive.

With that said, we do have clear case law on disclosing a known defect in a house. If you have had TV coverage of ghosts reorganizing your closet or additional lifeless faces in mirrors besides your own, you may need both an old priest and a young priest at your open house.

The Legal Geeks Review John Carter of Mars

Attorneys Jessica Mederson and Joshua Gilliland discussing the John Carter of Mars series, the film and science fiction history.

A Man Goes to Mars: John Carter Reviewed

Not only did the John Carter of Mars series introduce me to science fiction, it also played an important role in my legal education.  Before every exam throughout law school, as well as before the bar, I read one of the first four books in the series (they were always my favorites).  John Carter was so strong, so brave, and so heroic that each time I’d wish – fervently – that I could be a fighting swordsman from Virginia instead of a law student in Texas.  Unfortunately, based on my one semester of college fencing, I was pretty certain that I’d be a horrible swordsman (on the plus side, my fencing master did give me the name “Wonder Woman” as my official fencing nickname, which was awesome).

As a result of my lifelong love affair with John Carter (and Tars Tarkas), I was very excited to hear that they were going to make a movie out of the series (or at least the first book, A Princess of Mars).  The trailers looked exciting but then the reviews began to pour in and I decided that I couldn’t handle the disappointment of seeing Hollywood butcher one of my favorite books.  I skipped seeing the movie in the theaters but this past week, on vacation visiting family, I decided it was time to watch the DVD.

Overall, my expectations for the movie were so low that I was pleasantly surprised by what I saw.  The plotline was closer to the book then I thought (after traveling to Mars through a movie-made twist) – John Carter met the Tharks first, Sola was placed in charge of him, Woola became his devoted and ferocious pooch, Zodanga and Helium were at war and only by agreeing to marry Sab Than could Dejah Thoris save her people.  I didn’t mind the twist on how John Carter was transported to Mars, or the changed role of the Therns.  They were clearly setting it up for a sequel and I am curious to know whether they planned to follow the lines of the second and third books in the series.

The biggest disappointment I had with the plot was that they didn’t focus much on John Carter’s time with the Tharks.  Not only was that where he received much of his education on the ways of Mars, but the book also devotes a great deal of time to his friendship with Tars Tarkas.  Tars Tarkas is one of the best characters in the series – he’s a great leader, compassionate, intelligent, courageous – and his friendship with John is the backbone of the early books.

On the other hand, I appreciated the fact that they changed Dejah Thoris.  As a woman, reading old science fiction is always a bit frustrating because, while authors such as Burroughs and Alex Raymond (of Flash Gordon fame) would try to create strong woman, it was within the context of a different time.  As a result, these women just aren’t strong enough for 21st Century sensibilities.  By making Dejah a brilliant inventor who was also physically able to defend herself, they made a female lead that I could enjoy without hesitation.

That leaves only John Carter himself – Taylor Kitsch.  Taylor’s had a rough year, with his two big action leads (John Carter and Battleship) doing poorly at the box office.  In the trailers for John Carter I didn’t like Taylor Kitsch in the lead role at all.  By the end of the actual movie, I decided he wasn’t objectionable but in no way could he fill John Carter’s metal – and not just because he wasn’t physically large enough (a problem Tom Cruise will also have in the Jack Reacher film).  No, the biggest problem with Taylor’s portrayal of John Carter was that he didn’t capture John Carter’s love of a good fight and respect for courage.  In a world in which warriors were revered, he was also the best warrior by leaps and bounds.  But Taylor’s portrayal of John Carter conveyed none of that, although that may not have been his fault.  The movie told a story of a Man of Mars who was sad, disillusioned, and out only for himself.  What made the books so special, on the other hand, was that John Carter never shirked a fight,  was always willing to jump to the aid of any brave soul fighting overwhelming odds, and fought with steel in his hand and in his eyes.  That’s the John Carter I love – the reason I read his books every semester before exams, and without that John Carter there is no reason to make a movie about the books, which is why the movie failed.

[Geek Note: Edgar Rice Burroughs’s portrayal of Mars as a planet filled with canals was based on a view popularized by the astronomer Percival Lowell, who also founded the Lowell Observatory and began the effort that led to the discovery of Pluto.  You can read more about him and the search for Pluto in Bill Bryson’s fantastic and funny book, A Short History of Nearly Everything.]

 

Top Ten Reasons I’d Rather Be a TV Lawyer

I loved legal shows even before I knew I was going to be a lawyer.  Now, after more than a decade in the profession, I still enjoy legal shows, even as they drive me nuts with their inaccurate representations of a lawyer’s life.  Of course, the shows have to be inaccurate – nobody would voluntarily watch someone in drab business casual attire stare at a computer, type an email, or anxiously check their Blackberry during family dinners and vacations.   Most real attorneys have pretty dull jobs, punctuated by brief periods of intense stress and action (although said action isn’t very active either).  That’s why TV lawyers can’t be like real lawyers, of course, and it’s also why I’d rather be a TV lawyer.  Here, in no particular order, are the top 10 reasons I’d rather be a TV lawyer:

  1. The sex.  The hot, awesome, crazy sex they always seem to have time for – in a partner’s office, in a judge’s chambers, in a restaurant bathroom.  I’ve heard some stories of hanky panky in law firms, but the people involved usually aren’t very attractive and the stories are pretty infrequent.
  2. No document review!  Or, if there is document review, it only takes a few hours and then you find the most incriminating words ever written on paper.  Ever.  Then you get to run down the hall, waving the sheet above your head as you burst into the office where the senior partners were just about to give up on the case entirely.  I’ve done a lot of doc reviews and that’s never happened.
  3. Young associates are both seen and heard.  In big law, young associates are relegated to their offices, interacting primarily with paralegals and the mid-level or senior associates who assign them research projects and document review tasks.  On TV shows, baby attorneys who have never seen the inside of a courtroom are given the crucial task of crossing the opposition’s key witness or making closing arguments.
  4. Fabulous clothes.  Okay, it’s not Gossip Girl, but TV lawyers still have some pretty awesome suits and dresses.  And, if you’re a legal investigator, you get to wear leather coats and bad-ass boots.  (I’ve changed my mind – I don’t want to be a TV lawyer either – I want to be Kalinda.)
  5. Detective work.  Forget hours on Westlaw researching cases and legislative history and weeks writing research memos and briefs.  Instead, I’d be out on the streets, knocking on doors, spying on people, figuring out the shady dealings behind the opposing party’s case (although I’d need Kalinda if I really wanted to get it done right).
  6. No ethical concerns.  The Practice was the greatest abuser of legal ethics – I was taking my professional responsibility class when it was on and Bobby broke every rule I learned.  Of course, being a lawyer would be a lot more fun if you could break the professional responsibility rules (see Item #1 above).
  7. Right to a speedy trial.  I haven’t done a statistical analysis, but on TV there’s about 3-4 days between the time lawyers get the case and the time it has to go to trial.  I’ve known actual cases, on the other hand, that drag on for years.  In one case, it took nearly a year just to get to the temporary injunction hearing!  Most cases can get pretty old after a while, so knowing that your current case will be over in about a week would make it much easier to deal with difficult clients and obnoxious opposing counsel.
  8. They have trials!  Yes, they actually go to trial – a lot.  That’s something that doesn’t happen much anymore (at least in big law), which is a major bummer for all of us who dreamed of pounding on a table some day while cross examining a hostile witness.
  9. Theatrics.  It’s Hollywood, so it’s obvious that TV lawyers have to be theatrical and, apparently, the judges are pretty cool with it (although there are many threats of contempt that the lawyers bravely ignore).  In real life, even court’s pretty boring most of the time.
  10. The sex.  After trial is over and they’ve won the biggest judgment ever (or they’ve been unjustly robbed), they all have fabulous sex again.  It’s really awesome and completely unrealistic, but definitely worthy of two mentions.

The Greatest Comic Book Sagas (For a Lawyer) Issue 1

One of the most interesting comic book mini-series for a lawyer is DC’s Cry for Justice. The story was a 7-part series that touched on many legal and ethical issues for lawyers.

Let’s review the series from a lawyer’s point of view.

Cry For Justice

DC’s “Cry for Justice” was written by James Robinson and art by Mauro Cascioli.  The story begins after the highly confusing “Final Crisis.” What was not difficult to understand about “Final Crisis,” was it ends with Batman and the Martin Manhunter dead [apparently in Batman’s case, who had been thrown back in time, and Martin Manhunter was brought back to life in Blackest Night] after planet Earth went through a reality-bending-cosmic-meat-grinder.

Green Lantern (Hal Jordan) does not take this well. The series opens with Green Lantern debating Superman, Wonder Woman and other members of the Justice League. Green Lantern no longer wants to wait for villains to do harm, but to track down evil before they can do harm.

Hal Jordan reasons that modern villains were no longer simply scared into the shadows because the good guys were good. Waiting for the bad guys to simply show up to cause problems had cost too many lives. It also had enslaved almost the entire human race and nearly destroyed all of reality in Final Crisis. It was time to take preventative action.

It does not take someone with a Political Science degree to see the first few pages of Cry For Justice are a debate on the Bush Doctrine.

Super Heroes & Preventive War

Most of the members of the Justice League do not agree with Green Lantern. The debate ends with Hal Jordan and Green Arrow leaving the Justice League’s space station saying, “You want a league. I want justice.”

There are other heroes who felt the same as Hal Jordan across the planet. Virtually all were inspired to find “justice” based off the deaths of others.

There are even some “enhanced interrogations” of villains by heroes to get answers.

And all roads eventually led to a villain named Prometheus stealing advanced technology.

Unfortunately for our heroes, seeking justice did not go according to plan.

A Smart & Well-Armed Bad Guy

The villain Prometheus had a suit of armor programed with how to defeat virtually all known super heroes.  His cruelty knew few limits, including making a throw rug out of a dead super hero’s body. After a long con, we learn Prometheus impersonated Captain Marvel (Shazam!) and gained access to the Justice League space station with the rest of the heroes [the real Captain Marvel was found as his mortal self, tied up with his lips sewn shut with wire so he could not say Shazam. Yes, wire.].

Prometheus managed to defeat almost everyone in the Justice League, including ripping off Red Arrow’s arm (Green Arrow’s son).

During the traditional bad guy monologue outlining his plans, we learn there are devices across the planet that would encase cities in force fields and launch them across time and space. The goal was for a fate worse than death knowing that loved ones were forever missing.

Prometheus demanded to be set free in exchange for the codes to stop the devices. And just to prove he was really evil, the attack had already begun in Green Arrow’s home Star City during the fight with the heroes and his capture. However, Star City was not launched across time and space; it was destroyed with 90,000 dead, including Green Arrow’s granddaughter.

Realizing they could not stop the devices from killing more, Green Arrow convinces the rest of the Justice League to let Prometheus go free in exchange for the codes to stop the doomsday weapons. The heroes stop a massive death toll in the millions. The cost of “victory” was letting the bad guy get away.

Is It Justice? 

It looks like evil won, with the bad guy safely gloating and plotting in his fortress between worlds and dimensions.

Much to Prometheus’s surprise, Green Arrow appears and puts one arrow through Prometheus’s skull.

Only one word is said by Green Arrow after killing Prometheus: Justice.

 

What Lawyers Think About When Reading A Cry for Justice

Cry For Justice has wonderful legal issues. It was extremely well written with excellent artwork. James Robinson was masterful at incorporating thoughtful ethical issues in a very timely story.

The first obvious ethical issue is that heroes do not normally kill bad guys. Those upholding the law do not normally execute the villains. It looks more like “revenge” less like “justice.” The entire concept of “due process” is a chalk outline on the floor when the good guys go around killing criminals.

However, there are the threats to a country that exceed any formal court proceeding. Someone who can destroy cities, leave 90,000 dead, and hide outside of reality as we know it, falls into that group without question.

Let’s take a look at history for anything close to a precedent.

Japanese Admiral Isoroku Yamamoto planned the attack on Pearl Harbor.

He was the commander-in-chief of the combined fleet of the Japanese Navy.

And after Pearl Harbor, we wanted him dead.

 

When the US learned of a flight Yamamoto was going to be on, the Air Force shot down Yamamoto’s plane.

The mission was code named “Operation Vengeance.”

The military planners were not shy in how they felt about Admiral Yamamoto.

It was not even a remote idea to somehow capture the Admiral to convict him in a US Court for the attack on Pearl Harbor. Such an idea was totally unrealistic. A marshal would have  a difficult time serving an arrest warrant on the Admiral’s battleship, also surrounded by a well-armed navy.

Moreover, Yamamoto was a brilliant officer who was in charge of the Japanese Navy. His targeted killing historically made sense as a decapitation strike given his skill and popularity within the fleet.

We were also at war. Something that cannot be over looked or understated. Targeting leaders is what armies and navies do to each other.

The same can be said for Bin Ladin.

As for the War on Terror (or Overseas Contingency Operation) the killing of Bin Ladin and other “targeted killing” is based off the Congressional Authorization for Use of Military Force passed shortly after the September 11, 2001 attacks.

There are many pronounced differences differences between the War on Terror and World War II. When battles are fought in shadows by SEALs, special forces and Drones, the successful operations do not make the news. It will likely be years before it is publicly known the secret battles that have taken place since 2001 and two US Presidents.

However, there is a very different view to outright ordering the deaths of “war criminals” or threats against the country. These were best articulated in Justice Jackson’s opening statement at the Nuremberg Trials:

The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.

////

In the prisoners’ dock sit twenty-odd broken men. Reproached by the humiliation of those they have led almost as bitterly as by the desolation of those they have attacked, their personal capacity for evil is forever past. It is hard now to perceive in these men as captives the power by which as Nazi leaders they once dominated much of the world and terrified most of it. Merely as individuals their fate is of little consequence to the world.

What makes this inquest significant is that these prisoners represent sinister influences that will lurk in the world long after their bodies have returned to dust. We will show them to be living symbols of racial hatreds, of terrorism and violence, and of the arrogance and cruelty of power. They are symbols of fierce nationalisms and of militarism, of intrigue and war- making which have embroiled Europe generation after generation, crushing its manhood, destroying its homes, and impoverishing its life. They have so identified themselves with the philosophies they conceived and with the forces they directed that any tenderness to them is a victory and an encouragement to all the evils which are attached to their names. Civilization can afford no compromise with the social forces which would gain renewed strength if we deal ambiguously or indecisively With the men in whom those forces now precariously survive.

For the complete text, please see transcript available on the University of Missouri-Kansas City, School of Law “Famous Trials” website.

While a war crimes trial lacks the impressive physical display of power of a SEAL team, the solemnness of the proceedings deters dancing in the streets like victory at a sporting event.

So, did Green Arrow make the right decision in killing Prometheus?

Was killing the villain who caused the deaths of 90,000 justified?

Would capturing Prometheus for trial have been a better example?

Is Justice Jackson’s “The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated, a goal that can be lived up to (even if only in comics) or simply lofty rhetoric in the face of Realpolitik?

Prometheus was a highly intelligent villain who defeated the Justice League in minutes. Supergirl down in one shot. Other heroes maimed. The villain’s powers favor it would be safer to kill instead of capture.

However, Green Arrow was acting solely on his own, not under orders from a President or at least the color of authority from a Congressional Resolution authorizing force (Congress would likely pass a force bill similar to combating the Barbary Pirates or War on Terror, given 90,000 people were killed. Special Forces would likely have orders to shoot to kill if they could find Prometheus).

It appears the threat of Prometheus justified killing over capture, because there are some forms of justice beyond the jurisdiction of any court, especially where the capture is simply not an option because of the level of the villain’s power. However, this was done without any legal authority on Green Arrow’s part.

Worse yet, Green Arrow did not collect or destroy Prometheus’ technology to ensure no one else would get it.

With that said, Green Arrow killed Prometheus “between worlds and dimensions.” There would be an impressive jurisdictional defense on how either Federal or State law applied outside of reality as we know it (jury nullification carried the day in comic).

And that is how a lawyer reads comic books.

The Legal Geeks Review Abraham Lincoln: Vampire Hunter (YouTube)

Attorneys Josh Gilliland and Jessica Mederson discuss Abraham Lincoln: Vampire Hunter and the US Civil War History.