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It was a joke!

Donald Trump is back in the news again…this time for suing comedian Bill Maher over an offer Maher made on the Tonight Show a month ago.  Talking to host Jay Leno, Bill Maher said that he would donate $5 million to the charities of Trump’s choice if Trump could prove that he wasn’t “the spawn of his mother having sex with an orangutan.”  Trump provided Maher with his birth certificate, but Maher refused to pay up, so Trump filed a breach of contract suit against Maher.

GavelI’ve written about unilateral contracts before.  In such a contract, the offeror (Bill Maher)  makes a promise (donate $5 million) if the offeree (Trump) performs the requisite terms (proving his father is a homo sapien).  Trump’s claiming that he performed and, therefore, Maher needs to pay up.  But Maher is refusing, so what’s his defense?

It’s a joke!  Maher isn’t the first defendant in a breach of contract suit to claim that a contract was never intended – that the entire deal was based on a joke.  And, indeed, the law generally recongizes the idea that even if the contract looks legit it won’t be enforced if it’s a joke.  See Restatement of Contracts, 2d, § 214(d)-(e) comment c.  Of course, if you could easily avoid your contractual obligations by claiming you were joking, everyone would do it.  See, e.g., Luebbert v. Simmons, 98 S.W.3d 72, 78 (Mo.App. W.D. 2003) (defendant was unable to avoid contract by claiming she was drunk and/or joking).

Studio Audience

So how does Maher prove to the court that he was joking?  The court will look to Maher’s conduct and words.  If a reasonable person would believe that Maher intended a real agreement from his actions, then Maher can’t avoid the creation of a contract.  Id.  If, on the other hand, it was obvious that it was a joke, than the court will find that no contract was formed.  See Leonard v. Pepsico, Inc., 88 F.Supp.2d 116, 127-128 (S.D.N.Y. 1999).  In this case, given that this was a comedian performing on a late night talk show before a laughing studio audience – and given the parallels to Trump’s own offer to President Obama – it will be difficult for Trump to show that any reasonable person believed a contract had been formed.  But he’s in the news again, so Trump’s already won.


Ferengi Prenuptial Agreements

Star Trek Deep Space 9 addressed many legal issues in its seven seasons, from whether a host of a symbiont could be tried for the crimes of a past host/symbiont (Dax), to the right to a fair trial (Tribunal) and prosecutorial misconduct from presenting false evidence in a court hearing (Rules of Engagement).

Some of the biggest legal issues presented were on Ferengi culture across multiple episodes. Ferengi law prohibited women from wearing clothes, leaving the home, learning to read and earning profit. Moreover, 53% of Ferengi population was female, casting the laws as a form of gender-apartheid.

Adding insult to further injury, women who wished to marry had to sign a Waiver of Property & Profit, which was a prenuptial agreement that prohibited the prospective wife from 1) owning any property and 2) making any claims against the husband’s estate in the event the marriage ends.

Dabo_Rom_9937Many of these issues were the central themes in the episode Ferengi Love Songs, which addressed prenuptial marital agreements and equal protection under the law.

Validity of Ferengi Prenuptial Agreements

In Community Property states (or planets), property acquired during a marriage is the joint property of the “community” and would be divided equally at either divorce or death (unless the community interest owned by the deceased spouse is specified in a will). Conversely, property acquired before marriage, or acquired by gift or devise, is the separate property of a spouse.

However, the property rights of the community may be altered by a “contract” between the husband and wife (such as a premarital agreement).

In California, these agreements are executed without consideration and become effective when the marriage begins.

Dabo_9948And no [fictional] race is better at contracts than the Ferengi.

Considering these legal principles, could the Ferengi Rom have a valid prenuptial agreement with his Bajoran fiance Leeta that prohibited her from having an interest in his property?

Could Rom prohibit Leeta from owning any property?

As a preliminary matter, simply decloaking before a prospective wife with such an agreement is pretty much entering the command code to set your relationship on self-destruct. With a zero second countdown. It truly would be the no-win scenario.

California law states for a premarital agreement to be enforceable, the following must be demonstrated:

(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves either of the following:

(1) That party did not execute the agreement voluntarily.

(2) The agreement was unconscionable when it was executed and, before execution of the agreement, all of the following applied to that party:

(A) That party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party.

(B) That party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.

(C) That party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

(b) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.

(c) For the purposes of subdivision (a), it shall be deemed that a premarital agreement was not executed voluntarily unless the court finds in writing or on the record all of the following:

(1) The party against whom enforcement is sought was represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel.

(2) The party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed.

(3) The party against whom enforcement is sought, if unrepresented by legal counsel, was fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement, and was proficient in the language in which the explanation of the party’s rights was conducted and in which the agreement was written. The explanation of the rights and obligations relinquished shall be memorialized in writing and delivered to the party prior to signing the agreement. The unrepresented party shall, on or before the signing of the premarital agreement, execute a document declaring that he or she received the information required by this paragraph and indicating who provided that information.

(4) The agreement and the writings executed pursuant to paragraphs (1) and (3) were not executed under duress, fraud, or undue influence, and the parties did not lack capacity to enter into the agreement.

(5) Any other factors the court deems relevant.

Cal Fam Code § 1615.

Right out of the space dock, the premarital agreement would be unenforceable on its face if the prospective wife was not represented by counsel to advise the prospective wife on her property ownership rights or possible community property rights. Additionally, there would be a strong public policy agreement against stripping the prospective wife of her right to own any property. That alone would leave the premarital agreement dead in space.

While case law has upheld premarital agreements with spousal support waivers that are  “executed by intelligent, well-educated persons, each of whom is self-sufficient in property and earning ability, and both of whom had the advice of counsel regarding their rights and obligations as marital partners at the time they executed the waiver,” divesting a woman of her right to own any property would completely destroy the prospective wife’s ability to be “self-sufficient in property and earning ability.” In re Marriage of Pendleton & Fireman, 24 Cal. 4th 39 (Cal. 2000). Moreover, there is a huge difference between contracting away spousal support rights and a woman being reduced to property.

Turning to Oklahoma case law, an “antenuptial agreement” is enforcement if it is “fairly procured.” Okla. Stat. Ann. title 84, § 44; In re Estate of Cobb, 305 P.2d 1028, Syl. P 2 (Okla. 1956). One Oklahoma case stated:

To ensure fairness, antenuptial agreements that make no provision for the intended wife are given the “closest scrutiny.” Cobb, 305 P.2d at 1031. Further, agreements that do not provide (or meagerly provide) for the intended wife are valid only where “a full and fair disclosure was made to her of the extent and value of [her prospective husband’s] property before she signed it, or that she was aware to all intents and purposes of the nature, character and value of the estate which she was relinquishing . . . .” Id. at 1032 (emphasis added).

Gant v. Gant, 1994 U.S. App. LEXIS 20603 (10th Cir. Okla. Aug. 4, 1994).

The Gant case would be of little help to finding an enforceable Ferengi prenuptial agreement, because even if the prospective wife understood the value of the estate she was relinquishing, one could not argue giving up an interest in a future husband’s estate is the same as giving up her right to own property herself.

Dabo_Prenup_Phaser2It is highly unlikely that a prenuptial agreement that prohibited a wife from owning property would be valid. However, a prenuptial agreement that only protected the pre-marriage assets of the parties is a “traditional” prenuptial agreement. If Rom simply wanted to protect his own estate in the event of divorce, it likely would be a valid prenuptial agreement, depending on how the agreement was executed. Consider the following valid marital agreement:

WHEREAS, the parties to this agreement contemplate entering into the marriage relation with each other, and;

WHEREAS, [the husband], individually owns certain tangible and intangible property, a list of which is set out hereinafter in Exhibit ‘A’, the nature and extent of which has been disclosed to the [wife], and he desires that all property now owned or hereafter acquired by either [sic] shall be free, for purposes of testamentary disposition, divorce or otherwise, from any claim of the [wife], that may arise by reason of their contemplated marriage, other than as set out herein;

NOW THEREFORE,  in consideration of the premises and the mutual covenants herein contained, it is agreed as follows:

1. Both before and after the solemnization of the marriage between the parties, [the husband] shall separately retain all rights in his own property, including all interest, rents and profits which may accrue or result in any manner from increases in value, and he shall have the absolute and unrestricted right to dispose of his property, free from any claim that may be made by the [wife] by reason of their marriage, and with the same effect as if no marriage had been consummated between them, whether such disposition be made by gift, conveyance, sale, lease; by will or codicil or other testamentary means; by laws of intestacy; or otherwise. Any property, real, personal or mixed, acquired after the date of said marriage shall be considered joint property unless agreed to in writing, signed by both parties.

. . . .

8. [The wife] has examined the financial statements attached hereto and made a part hereof as Exhibit ‘A’ and has had the opportunity to question and examine all items therein, and acknowledges that fair disclosure has been made by [the husband], as contemplated under the provisions of Section 43-8-72, Code of Alabama (1975), as amended. Each certifies that he or she has had an independent and separate counsel and has been independently advised and has been given, without limitation, all information requested. Each further certifies that counsel has advised and informed him or her of the legal effects of this document.

9. In the event of the death of [the husband] or the granting of a final divorce decree, [the wife] shall have no right to any claim against the estate of [the husband] based on spousal or marital rights including, but not limited to maintenance, support, or property settlements, by reason of or on account of dissolution of the marriage, or by reason of death.”

Exhibit A, which was a document attached to the antenuptial agreement, was labeled “Property to be Retained by [the husband], Individually, Without Any Claims by [the wife],” and it included six paragraphs identifying real and personal property, as follows:”

1. Any pension plan, including all stocks owned prior to marriage of parties, and including any IRA accounts, SEP IRA accounts or 401k accounts.

2. All checking and/or savings accounts, including money market accounts individually  owned by [the husband], prior to marriage of the parties.

3. All jewelry owned by [the husband], including jewelry passed down to said [husband] by his parents, and/or grandparents, including his mother’s engagement ring, grandmother’s engagement ring, mother’s diamond/ruby ring, mother’s emerald ring, and father’s diamond cluster ring.

4. Automobiles owned prior to marriage, including BMW automobile [and] Ford Explorer.

5. Home, real estate, and furnishings located therein, located at [the marital residence].

6. All personal property and belongings owned by [the husband] prior to the marriage of the parties.”

Hood v. Hood, 72 So. 3d 666, 670-671 (Ala. Civ. App. 2011).

There is no question that a court, especially considering the contract would provide nothing to the wife in the event of divorce or death, would closely review a prenuptial agreement.

To be valid, a court would require having Leeta at least be represented by an attorney, with an opportunity to fully review Rom’s assets and understand what rights she was waiving.

Even then, the former Dabo Girl turned Jumja stick vendor, still might have been at a disadvantage to negotiate, given their differences in economic abilities.

Sadly, the episode does not have a happy legal ending, because neither party had an attorney. Instead of a prenuptial agreement that protected the interests of both Rom and Leeta, Rom gave away his money to an orphanage (a win for the children), effectively taking a vow of mutual poverty to marry Leeta.

If only there had been a law firm on DS9….

Now, let’s talk about equal protection under the law for Ferengi women who are banned from reading, wearing clothes, leaving the house, having a job, or earning profit….


…and don’t forget about the potential harassment suits over Quark’s employment contracts over Oo-mox….

Bow Ties, the TARDIS & Court Opinions

Unless you have been time locked in the The Last Great Time War, most science fiction fans recognize that Matt Smith’s 11th Doctor has ushered in a Bow Tie Renaissance.

Doctor Who, without question, has done wonders for bow tie awareness with “Bow Ties Are Cool.” However, lawyers and judges have worn bow ties for as long as there has been the United States of America.

Great bow tie wearing American legal minds have included Clarence Darrow, John Quincy Adams, Joesph Welch, John Paul Stevens and Abraham Lincoln.

You also cannot say “bow tie” without saying Winston Churchill.

JoshDr_7458I personally made the switch to bow ties in 2007, so I would stand out from other speakers on eDiscovery. Bow ties are also just cool.

Case in point: Before a community legal event, the elected District Attorney and Public Defender both complimented me on my bow tie, demonstrating bow ties can bring both sides in the administration of justice together.

What have judges said about bow ties in court opinions over the years? Let’s review the legal valet of bow ties.

Residual Fear of Bow Tie Wearing Law School Professors

Some lawyers and judges had rough encounters with bow tie wearing professors in law school. Exhibit A of such negative long term memories:

This is a difficult case. It involves several discrete areas of New York contract law coupled with imperfect facts; the combination of which is appropriately found on the pages of cruel contracts exams given by law professors clad in bow ties. Nevertheless, pursuant to this Court’s diversity jurisdiction, the following facts were adduced and legal issues raised by the Parties for this Court to resolve.

Grandis Family P’ship v. Hess Corp., 588 F. Supp. 2d 1319, 1321 (S.D. Fla. 2008).

The Clothing of Contempt

Justice Joseph Boyd from the Supreme Court of Florida made the following point in a dissenting opinion on whether someone could be held in contempt based on courtroom attire (in the case, a string tie):

It is interesting to observe that the female Assistant Attorney General who appeared before this Court against petitioner was wearing an attractive coat, shirt and tie which would have been considered extremely unorthodox forty years ago. Apparently if the male petitioner in this instance had been wearing the same coat, shirt and tie worn by the female Assistant Attorney General the trial courts would not have cited him for contempt. The irony of the situation is further illustrated by the fact that if petitioner should become a judge and should determine it proper for all male attorneys to wear string ties when appearing before him, he might well cite all non-conforming members of the Bar for contempt. If trial judges can require male attorneys to wear ties preferred by said judges then those who wear bow ties may require the wearing of bow ties and those who wear blue ties may be offended by those who wear red ties.

Specifically, it is my opinion that judges are not permitted by the Federal or State Constitutions, statutes or rules of court, to hold an attorney in contempt for wearing any type of clothing in courtrooms so long as such clothing does not interfere with the proper administration of justice or demonstrate disrespect for the court or judicial proceedings.

Sandstrom v. State, 336 So. 2d 572, 578-579 (Fla. 1976).

Bow Ties & Religious Freedom Under the First Amendment

In a case pertaining to what sorts of ties a prisoner could wear, the Court had to address whether prohibiting the Plaintiff from wearing a multi-colored bow tie violated his religious freedom in prison.

A Department of Corrections policy directive, No. 4911, lists types of clothing that inmates are permitted to wear. The list of acceptable items includes “Neckties – cloth, solid colors only,” and “Bow ties.” Since a bow tie is a type of necktie, and the directive specifies that only solid-color neckties are permitted, the directive is reasonably read as allowing solid-color bow ties and prohibiting multi-colored bow ties. Defendants introduced evidence that they informed Allah that his confiscated bow tie was unacceptable not because it was a bow tie, but only because it was multi-colored, and that there was no institutional objection to his having solid-color bow ties. Since there was evidence that wearing any color bow tie is an acceptable exercise of the Nation of Islam religion, the trial court’s conclusion that the prohibition against Allah’s wearing a multi-colored bow tie did not infringe his rights was not erroneous.

Allah v. Irvin, 1995 U.S. App. LEXIS 39868, 2-3 (2d Cir. N.Y. Nov. 17, 1995).

Bow Tie Wearing Jurors: The Scourge of Criminal Defense Lawyers

Judge William Hungate stated the following regarding peremptory strikes, jury selection and bow ties:

JoshDrWho_7450Some well-known and successful criminal defense lawyers have expressed views about jurors that to others may seem idiosyncratic, if not absurd. Percy Forman, one of the more successful, is leary of Germans, Russians, and others with a strong sense of law, order, and “tribal tradition.” Louis Nizer has said he is suspicious of prospective jurors with beards or bow ties: “They’re usually individualists who will try to win a jury over to their view.

United States v. Johnson, 721 F. Supp. 1077, 1081 (E.D. Mo. 1989)(Emphasis added).

All things considered, Louis Nizer did have a valid point on people who wear bow ties: We tend to “think different” and are not afraid to stand out.

Ingratiating Bow Ties

Supreme Court Justice John Paul Stevens, a long time bow tie wearing justice, made the following point in dissent with bow ties as an example, simultaneously showing the contrarian nature of some bow tie wearers:

Consider the following scenario. A crafty homeowner in need of a mortgage, having learned that the bank’s loan officer is a bow tie aficionado, purchases his first bow tie to wear at their first meeting. As expected, the loan officer is wearing such a tie, which, incidentally, the prospective borrower considers downright ugly. Nevertheless, thinking that flattery will increase the likelihood that the officer will be favorably disposed to approving the loan, the applicant swallows hard and compliments the officer on his tie; he then volunteers the information that he too always wears a bow tie. This is a lie. Under the majority’s interpretation, this person could spend 30 years in federal prison. He made a “false statement.” 18 U.S.C. § 1014. In fact, until that day he had never worn a bow tie. And the statement was made “for the purpose of influencing” the bank. Ibid. The applicant subjectively hoped that the loan officer–flattered and feeling a sartorial common ground–would be more likely to approve his mortgage.

United States v. Wells, 519 U.S. 482, 513 fn 14 (U.S. 1997).

The FBI vs Bow Tie Attorney

Litigation can raise blood pressure and cause out-of-character behavior. In one case, a FBI Agent threatened a bow tie wearing attorney. The attorney invited the Agent to meet him outside and also reported the threat to the Court. The judge stated the following:

Agent Long is an experienced FBI agent. Mr. Skepnek, an able attorney with a jovial personality whose in-court manner can be characterized as that of an exuberant gladiator, has a penchant for bow ties. He played football at the University of Kansas and is approximately ten years younger and forty pounds heavier than Agent Long.

Agent Long’s unprovoked conduct in the courtroom raises questions not only as to his training and ability as an FBI agent but also as to his judgment and belief in his own physical capabilities. In light of Mr. Skepnek’s strongly stated disclaimer that any intended intimidation was effective, the Court finds that the quality of the defense afforded the defendant has not been jeopardized.

The Court finds further that perhaps the appropriate sanction would be simply to direct Agent Long to attempt to carry out his threat. While Mr. Skepnek might be willing to “participate” in the imposition of this sanction as evidenced by his response to Agent Long, the Court concludes that such sanction might very well constitute cruel and unusual punishment in contravention of the eighth amendment to the United States Constitution. So, because the defendant has withdrawn any further demand for sanctions, the Court happily deems the matter MOOT.

United States v. Ryans, 1989 U.S. Dist. LEXIS 18274, 2-3 (W.D. Okla. May 5, 1989)

I’m Your Private Trademark Lawyer

In a case that could have had attorneys fighting over who would argue the merits, and others perhaps having tearful memories on how they paid off law school loans, one Court provided the trademark history of Chippendales’ “Cuffs & Collar” uniform, complete with a diagram:

The applicant, Chippendales, is in the business of providing adult entertainment services for women. It opened its first strip club in Los Angeles in 1978. In 1979, Chippendales performers began wearing an abbreviated tuxedo–wrist cuffs and a bowtie collar without a shirt–as part of their act. This costume, referred to as the “Cuffs & Collar,” was featured prominently in Chippendales’ advertising and performances over the past several decades.

It is set forth below:
TrademarkChipCaseIn November 2000, Chippendales filed an application to register the Cuffs & Collar trade dress. In 2003, the United States Patent and Trademark office (“PTO”) issued Registration No. 2,694,613 for the Cuffs & Collar for “adult entertainment services, namely exotic dancing for women.” U.S. Trademark Registration No. 2,694,613 (the “‘613 mark”). A mark that is inherently distinctive qualifies for registration under the Lanham Trademark Act (“Lanham Act”). See Pub. L. No. 79-489, 60 Stat. 427 (1946) (codified at 15 U.S.C. § 1051 et seq.). A mark can also qualify for trademark protection under Section 2(f) of the Lanham Act if the mark has become distinctive through use in connection with the applicant’s goods in commerce, known as acquired distinctiveness. See 15 U.S.C. § 1052(f) (“Section 2(f)”).

Although Chippendales submitted evidence both of “inherent” distinctiveness and, alternatively, “acquired” distinctiveness under Section 2(f) of the Lanham Act, the examining attorney in  2003 concluded that the applicant was only entitled to a registration based on acquired distinctiveness. Because of the existing procedure at the PTO at the time of the decision, Chippendales could not contest the basis of the examining attorney’s decision. The sole option at that time would have been for Chippendales to request that the registration be cancelled and that the mark be remanded for reconsideration. Chippendales was about to commence an infringement action based on the registration and thus opted not to initiate the cancellation of its registration under Section 2(f). The ‘613 mark became incontestable in 2008 under 15 U.S.C. § 1065.

In re Chippendales USA, Inc., 622 F.3d 1346, 1348-1349 (Fed. Cir. 2010).

A Lawyer & His TARDIS

JoshDr_7459We began with Doctor Who and should end with Doctor Who. Ironically, there are no US court opinions referencing Doctor Who over the last 50 years.

In fact, the references to TARDIS have nothing to do with Time And Relative Dimension In Space.

In one 2011 case, “Tardis” referred to a UK product that pertained to wire strippers and can machines. J. McIntyre Mach., Ltd. v. Nicastro, 131 S. Ct. 2780, 2797 (U.S. 2011).

TARDIS is also referenced in cases involving air traffic safety. TARDIS is an acronym for “Terminal Automated Radar Display Information System,” which is an inexpensive radar system designed for air traffic control. Collins v. United States, 564 F.3d 833, 838 (7th Cir. Ill. 2009).

The First Question

There is no question there are geek judges, as evidenced in court orders referencing Star Trek and Star Wars. Rassilon’s gauntlet is now thrown down for a judge to include a Doctor Who reference in a court opinion.

The question remains, who will be the first to reverse the polarity of the neutron flow and cite Doctor Who in a footnote?

The Force is Strong in This Court

As you can see from the video below, Josh and I love to discuss Star Wars.  And we’re not the only ones.  With the big news about JJ Abrams directing Episode Seven, everyone is talking about Star Wars right now.  And judges are no exception to the the rule – they like Star Wars too.  (In fact, just like JJ Abrams, judges like both Star Wars and Star Trek.)

While there are many cases that involve Star Wars issues (copyright disputes, business disputes involving claims of evil empires, employee harassment cases revolving around name calling), judges also like to work in their Star Wars references just for fun.

A Galaxy Far, Far Away…

One example of just such a reference occurred last summer in People of the State of New York v. Malcolm Harris, Docket No. 2011NY080152 (N.Y. Crim. Ct. June 30, 2012).  Judge Matthew A. Sciarrino Jr. (The Legal Geeks and Above the Law are both fans of his) denied a motion by Twitter to quash a subpoena seeking discovery of defendant Malcolm Harris’s tweets and other non-content information collected by Twitter.  Noting that there can be no reasonable expection of privacy in a tweet, he emphasized the point in a footnote: “In fact, on August 1, 2012 your tweets will be sent across the universe to a galaxy far, far away.”  This reference is notable both because it’s so true – we are now sending information to galaxies far away (140 characters at a time) – and because it was placed in an order that got a lot more attention than the usual court opinion.

Star Wars ChambersJudge Sciarrino is an admitted Star Wars fan and takes that love with him to work.  The proof is in the above picture of the judge’s former court chambers.  While I don’t know of any studies that have been done to see if other judges decorate their chambers with Star Wars paraphernalia, other court orders and opinions show a similar love for the Force.

The “far, far away” references compare to the use of Star Trek’s “boldy go” language often referenced by courts.  For example, in an opinion addressing a business dispute, the plaintiff tried to argue that two transactions were not related.  The court noted, however, that “the transaction was not in another galaxy, far, far away…”  Agrippa, LLC v. Bank of America, N.A., 2011 WL 102677, at *1 (S.D.N.Y. 2011).

Spock and Yoda – Judicial Muses

While some courts have turned to Spock for guidance, it should be no surprise that courts looking for an appropriate Star Wars movie character to provide guidance turn to Yoda, the Jedi Master.

In addressing an accounting issue and net proceeds, the Seventh Circuit explained, “Size matters not, Yoda tells us. Nor does time.”  U.S. v. Hodge, 558 F.3d 630, 632 (7th Cir. 2009).

In Kentucky, the dissenting opinion put it this way: “Even Yoda, the diminutive Star Wars guru, recognized that sometimes in life we have to fish or cut bait. ‘Do or do not. There is no try.'”  Com. v. Marshall, 345 S.W.3d 822, 835 (Ky. 2011) (Cunningham, J., dissenting).


Footnotes for Fun

Oddly enough, while Star Wars is arguably more pervasive in popular culture than Star Trek (inspiring debates over Lucas’s changes to official canon and even an official White House petition), it doesn’t appear to inspire the same amount of creativity among the judicial branch as Star Trek.  As a fan of footnotes, it’s hard to beat the Star Trek references to Klingon dictionaries and Romulan Cloaking Devices.  Aside from Judge Sciarrino’s footnote discussed above, I only found two other Star Wars footnotes that were very entertaining.

First, while discussing bias and prejudice during voir dire, the Seventh Circuit noted that sometimes prospective jurors attempt to avoid jury duty by behaving oddly.  In a footnote they reference Tina Fey’s jury duty in 30 Rock when her character dresses up as Princess Leia.  The court went on to note that while it was funny on TV, such behavior in an actual court could result in a finding of contempt.  See U.S. v. Hill, 552 F.3d 541, 548 (7th Cir. 2008).  Working in both a Tina Fey and a Star Wars reference into one footnote was awesome – I just wish they could have mentioned Carrie Fisher’s actual appearance on the series.

Second, another court impressed me with the depth and breadth of their footnote references.  In addressing parties who conspired to hide assets during divorce and child support proceedings, the court stated that “[t]his case is somewhat akin to deciding a dispute between Darth Vader and the Borg, or if you prefer a classical metaphor, Scylla and Charybdis.”  The court then dropped footnotes to Star Wars, Star Trek (both First Contact and The Next Generation), and Homer.  See Anthony v. Mazon, 2006 WL 1745769, at * (Cal.App. 4 Dist. 2006).  That kind of creativity is why I love footnotes – and judges who love Star Wars and Star Trek!

Andie Bolt & The Legal Geeks Talk Comedy, Cancer & Online Dating

AndieBoltThe talented Andie Bolt, geek, comedian, and writer, joined Jessica and Josh to discuss attorneys, Slytherin House and her recent projects.
We also vent about online dating.




Flash Gordon & The Planet of Liability

The 1936 Flash Gordon story Planet of Peril, Chapter 1 to the Space Solders serial, present very interesting issues in air travel and the duty of a common carrier.

Alex Raymond’s classic charters Flash Gordon (Buster Crabbe) and Dale Arden (Jean Rogers) made their big screen debut in 1936 during an ill-fated flight in a meteor shower. In what would seriously disturb any traveler in post 9-11 America who complain about taking off their shoes, the pilot told the passengers they could put on parachutes and bail out. The pilot further stated:

There is a parachute under every seat. We were ordered to bring them aboard this morning in the case of any trouble.

In a remarkably limited display of screaming, passengers put on parachutes and bailed out of a trimotor aircraft.

TrimotoraircraftThe Duty of Common Carriers

Everyone who has ridden a bus or taken a plane flight has been on a common carrier.

A “common carrier” is an regulated industry that transports goods or individuals and is responsible for the loss of goods during the transportation. Given the nature of transporting people or goods, a carrier owes a passenger “the highest degree of care.” Brasseur v. Empire Travel Serv., 1995 U.S. App. LEXIS 36967, 2-4 (9th Cir. Cal. Dec. 15, 1995), citing Marshall v. United Airlines, 35 Cal. App. 3d 84, 110 Cal. Rptr. 416, 418 (Cal. Ct. App. 1973).

Common carriers have a heightened standard of care because “during travel a passenger is exposed to numerous hazards while his or her freedom of movement is entirely under the control of the carrier.” Brasseur, at *2, citing Orr v. Pacific Southwest Airlines, 208 Cal. App. 3d 1467, 257 Cal. Rptr. 18, 21 (Cal. Ct. App. 1989).

The duty applies while passengers are in transit and “until they have safely departed from the carrier’s vehicle.” Id. Moreover, “[u]ntil the passenger reaches a place outside the sphere of any activity of the carrier which might reasonably constitute a mobile or animated hazard to the passenger the rule of utmost care and diligence . . . still applies.” Brasseur, at *2-3, citing 110 Cal. Rptr. at 419 (quoting Brandelius v. City & County of San Francisco, 47 Cal. 2d 729, 306 P.2d 432, 436 (Cal. 1957)).

It is also worth noting what “ditching equipment” is required under the law for commercial aircraft:

stewardess in a life jacket(a) Emergency flotation and signaling equipment required by any operating rule in this chapter must be installed so that it is readily available to the crew and passengers.

(b) Each raft and each life preserver must be approved.

(c) Each raft released automatically or by the pilot must be attached to the airplane by a line to keep it alongside the airplane. This line must be weak enough to break before submerging the empty raft to which it is attached.

(d) Each signaling device required by any operating rule in this chapter, must be accessible, function satisfactorily, and must be free of any hazard in its operation.

14 CFR 23.1415.

Parachutes are not on the list. Just imagine how messy it would be if 787’s had ejection seats and one went off at 39,000 feet.

No Bailing Out on Liability

goThe transcontinental airline was 1) a common carrier and 2) owed Flash and Dale a heightened duty of care.

Given the planetary dangers Earth was experiencing, including the parachutes enabled the passengers to escape the doomed aircraft.

However, if the danger was so great that the plane was required to add parachutes (which no commercial airline does), it probably would have been safer NOT to fly in adverse weather (if a meteor shower can be considered weather) and subject the passengers to the danger of bailing out of a plane without skydiving or survival training.

On the flip side, parachute instructions would make for a very entertaining in-flight safety briefing.

Once the passengers were safely on the ground, the heightened duty of care would not have ended, because parachuting into an unknown area would not leave the passengers safe and the airline free of responsibility. The airline could not argue that the passengers were “outside the sphere of any activity of the carrier which might reasonably constitute a mobile or animated hazard to the passenger,” because the passengers were scattered about the countryside wherever the wind took them.

By way of example, a passenger was not owed a heightened duty because the airline did not warn her about the possibility of a hurricane hitting after being safely delivered to Cancun. Brasseur v. Empire Travel Serv., 1995 U.S. App. LEXIS 36967, 4-5 (9th Cir. Cal. Dec. 15, 1995). This case would be very different than Flash’s situation, since the airline did not deliver the passengers safely to their destination. Moreover, the airline also knew of dangerous conditions prior to takeoff from the meteor storm. As such, a Court would likely find an airline that requires passengers to bail out of a plane is not free from ensuring the passengers’ safe rescue, thus ending the airline’s heightened duty of care.

However, getting on an untested rocket ship would be an unforeseeable intervening factor that an airline could not be responsible for continued passenger safety.

A Rocket to Mongo & Heightened Duty of Care

The airline was not the only common carrier in Flash Gordon: Professor Zarkov’s rocket arguably would be considered a common carrier. Moreover, society would require people who build rockets in their backyard to be responsible for the safety of those anywhere near such a potentially dangerous machine.

rocket toyProfessor Zarkov negotiated with Flash to join him on his spaceflight to save the Earth from the planet Mongo on a collision course with Earth. Gordon agreed, provided Dale could join them [Note, unlike the 1980 movie, Zarkov did not kidnap Flash and Dale at gunpoint]. While this is a very basic example of contracting for transportation (without a liability release and covenant not to sue), Zarkov providing transportation to another planet would expose Flash and Dale to numerous hazards while their freedom of movement was entirely under the control of Zarkov. As such, Zarkov would owe them a heightened duty of care on their spaceflight.

Highlighting the dangers to Dale and Flash (and legal risk to Zarkov), Professor Zarkov forgot to turn on the oxygen before take off, causing a significant life threatening risk to his passengers from asphyxiation.

RedishPlanetUpon landing on Mongo, the passengers immediately face numerous risks, including giant lizards, being captured by armed and well-armored soldiers, fighting men with fangs and an alien culture where the men wore short-shorts without pockets (One of the few times in SciFi where the female characters arguably had more clothing).

Professor Zarkov’s heightened duty of care may have ended when they safely arrived on Mongo (albeit for a brief time), just as the airline did not have a duty to warn about a hurricane after getting a passenger safely to her destination. Moreover, it would be unreasonable for Zarkov to be held responsible for the unforeseeable actions of Ming, the Shark Men, Vultan or Princess Aura. Flash and Dale arguably assumed the risk of the unknown when they agreed to fly into space with Professor Zarkov.

The Princess vs The Damsel in Distress 

Finally, it is worth noting that the stronger female character was Princess Aura, Ming’s daughter. Aura was willing to stand up to her father Ming, hit her targets in a ray gun fight, showed no fear in taking immediate action and dressed down those threatening her.  However, she was both possessive and manipulative, which were serious negatives.

Dale Arden, on the other hand, constantly needed to be saved by Flash. A relationship based on perpetually rescuing someone would be as healthy as flying on a commercial airline that required parachutes. Fortunately, the character was stronger in the 1938 Flash Gordon’s Trip to Mars.

Flash Diani
Yes, my brother Gabe Diani before an audition.


Flash Gordon Inflicts Emotional Distress All Around

Get Ready to Kick Some Flash

That’s right.  The slogan for Flash Gordon, the epically bad 1980 sci fi movie, was actually “Get ready to kick some Flash.”  That alone causes me emotional distress.  Shouldn’t Flash be the one doing the kicking – not the one being kicked?  And that was the best slogan they could come up with?  That’s the slogan my son would have picked!

Flash GordonAs a kid I never saw the Flash Gordon movie, but we had the book version of the movie (I have no idea why) and I loved pouring over the pictures of Ming the Merciless, the bizarre birdmen, and the women in beautiful dresses.  (I was a kid and we only had CBS – I was pretty hard up for entertainment!).


My baby brother, however, is fascinated with the movie and insisted that I watch it with him over the holidays this year and I was blown away by how fantastically awful it is (the soundtrack by Queen is its only redeeming quality).  Surely Mystery Science Theater 3000 spoofed it, right?  The hero who can defeat the bad guys if he has a football-shaped object in his hands.  The evil overlord with a ring of seducton.  The comically slow battle between the spaceship and the feeble bird men.  I’m just impressed that Timothy Dalton was able to overcome that movie and go on to become Bond (for a little while).

(No need to watch the entire movie – the trailer is much better…)

So while the comic strip was good enough to inspire Star Wars, the movie version was awful.  But a bad movie isn’t grounds for a lawsuit (unless you’re one of the financial backers).  One scene in the movie, however, is similar to an issue that’s come up in lawsuits several times.  In a handy plot twist, Flash Gordon is executed by order of Ming and poor Dale has to watch him die.  Later, of course, it turns out that Flash’s death was faked and he still lived!  So the question becomes, could Dale sue somebody for believing her loved one was dead?

She could – although she probably wouldn’t win.  Over the years people have sued for the distress they suffered when informed that loved ones had died when, in fact, their loved ones hadn’t died.  These suits have met with mixed success.

In one suit, where parents were informed that their teenage daughter had died in a car crash, the Kansas Supreme Court held they couldn’t recover because they couldn’t show that the emotional distress they suffered was solely because of the mistake about the daughter’s death.  Instead, the distress may have also been caused by the accident itself and their daughter’s problems afterwards.  See Hoard v. Shawnee Mission Medical Center,  233 Kan. 267, 278, 662 P.2d 1214, 1222 (Kan.,1983).

On the other hand, a New York court allowed a daughter to recover for the emotional distress suffered when a hospital  mistakenly told her that her mother had died.  The key to the court’s liability in that case, however, was the hospital’s duty to advise the proper next of kin of the death of a patient.  See Johnson v. State,  37 N.Y.2d 378, 379-380, 334 N.E.2d 590, 59, 372 N.Y.S.2d 638, 639 (N.Y. 1975).

In all of the sitautions, however, the suit has to be brought by an immediate family member.  While Dale clearly had strong feelings for Flash, they weren’t even dating, much less married or otherwise related.  So Dale, like the rest of us, is out of luck.  We all suffered emotional distress watching Flash Gordon (or, in her case, watching Flash “die”), but we can’t sue anybody for the pain we suffered.


AbbyShot's Eleventh Doctor's Purple Coat