Josh with Vegas PG. She might have been a Star Fleet Jag Officer.
Big Wow! ComicFest was May 18 & 19, 2013.
It was the first purely comic convention I had attended in years (My first “geek” convention was Time Con 1985).
I can say no legal conference I have attended has had any attendees in cosplay.
Granted, the “document review attorney” or “certified computer forensic expert” costumes might not be as entertaining as Power Girl or Conan the Barbarian.
Boston Metaphysical Society
I picked up the first two issues of Boston Metaphysical Society and talked with the author Madelene Holly-Rosing. It is a 19th Century steampunk detective story involving paranormal activity in 1895. The story is a six-part mini-series with fictionalized historic figures of Alexander Graham Bell, Thomas Edison, Nikola Telsa and Harry Houdini (founders of B.E.T.H.). Think Steampunk Ghostbusters & The League of Extraordinary Gentlemen rolled into a well-written detective story. Truly a good read.
The legal issues that came to me while reading the story, would be how to limit the personal liability for the founders of B.E.T.H. Granted, the 1890s was a relatively safe era to engage in clandestine operations of intellectual titans with a low threat of lawsuits. However, any competent attorney would want to form a corporation to limit personal liability of the founders. Moreover, they would want adequate insurance, if metaphysical insurance can be purchased.
It also goes without saying having Alexander Graham Bell, Thomas Edison and Nikola Telsa all have intellectual property they would want to protect. All should consider Non-Disclosure and Non-Competitive Agreements. An attorney would also want to look at the Sherman Antitrust Act of 1890 to ensure Edison and Telsa do not create a monopoly on electrical power.
Around the Exhibit Hall
The Exhibit Hall had many talented artists, writers and dedicated cosplayers. The Exhibitors also were markedly different from the legal technology shows I have attended, because it is easier to sell collectables on an exhibit hall floor over six-figure software.
I was very impressed with the Exhibitors. They had the art of commerce down, with credit card transactions on iPads and Blackberrys.
They were also a lot of fun to talk to.
The panel discussions included everything from the History of TV Horror Hosting to Drawing Without Paper, to making cosplay costumes and a tribute to Bob Wilkins.
I had proposed my Legal Geeks seminar on Han’s Legal Justification for shooting first, Firefly & Contract Law, Red Shirts & Assumption of Risk, plus other topics, but never heard back from the organizers. Next time.
There’s Only One Way to Rock
I was very impressed that the attendees really knew how to rock out. There were some amazing singers who took the mic in Rock Band, gathering a crowd while they played. Two of them were truly awesome as they sung Don’t Stop Believing and Under Pressure.
Until Next Time
I enjoyed attending Big Wow! ComicFest to see what makes a show outside of the legal/eDiscovery world successful. Both have a lot in common with having an exhibit hall and panel discussions. However, the “geek” conferences have far more creative ability to “think outside the jury box” when it comes to innovation.
Legal conferences will always have a serious tone, because that is the nature of the practice of law. Clients come to lawyers because they need real help. With that said, those in the legal world should look at ways to capture the creative energy of a comic book convention in planning a conference.
The Chewbacca Defense made famous on South Park originally aired during my first year of law school. It is a powerful satire of trial advocacy, mocking the closing argument from the OJ Trial.
Ladies and gentlemen of this supposed jury, I have one final thing I want you to consider. Ladies and gentlemen, this is Chewbacca. Chewbacca is a Wookiee from the planet Kashyyyk. But Chewbacca lives on the planet Endor. Now think about it; that does not make sense!
Why would a Wookiee, an 8-foot-tall Wookiee, want to live on Endor, with a bunch of 2-foot-tall Ewoks? That does not make sense! But more important, you have to ask yourself: What does this have to do with this case? Nothing. Ladies and gentlemen, it has nothing to do with this case! It does not make sense! Look at me. I’m a lawyer defending a major record company, and I’m talkin’ about Chewbacca! Does that make sense? Ladies and gentlemen, I am not making any sense! None of this makes sense! And so you have to remember, when you’re in that jury room deliberatin’ and conjugatin’ the Emancipation Proclamation, does it make sense? No! Ladies and gentlemen of this supposed jury, it does not make sense! If Chewbacca lives on Endor, you must acquit! The defense rests
In the story, Capitalist Records sued Chef for harassing a major record company after Chef sought to enforce his copyright on a song and be credited with its authorship. However, once the fictional Johnny Cochran made his Chewbacca Defense in closing argument, the jury returned a verdict of Chef being guilty of harassing a record company. The fine was $2 million and payable within 24 hours or a jail sentence.
I’ve Got a Bad Feeling About This
What is the legal theory at play in the infamous Chewbacca Defense?
It is Jury Nullification, which is a jury’s knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness. (From Black’s Law Dictionary App).
The jury rejected Chef’s prior copyright evidence, instead siding with the record company because of the nonsensical red herring argument made by the cartoon Cochran. This result demonstrates jury nullification of Chef’s copyright claim. Additionally, while jury nullification is generally in criminal proceedings, given the size of the fine and jail sentence threatened against Chef, what originally was a civil action has significant criminal law overtones.
Here is how one court described jury nullification:
“[A jury] has the power to acquit on bad grounds, because the government is not allowed to appeal from an acquittal by a jury. But jury nullification is just a power, not also a right, [ ], as is shown among other things by the fact . . . that a trial error which favors the prosecution is harmless if no reasonable jury would have acquitted, though an actual jury might have done so.”
Sorich v. United States, 709 F.3d 670, 678 (7th Cir. Ill. 2013), citing United States v. Kerley, 838 F.2d 932, 938 (7th Cir. 1988).
So, why use Chewbacca to get the jury to ignore the copyright evidence? Because neither an attorney or judge should instruct or encourage juries to use their nullification power. United States v. Appolon, 695 F.3d 44, 64-65 (1st Cir. Mass. 2012), citing United States v. Manning, 79 F.3d 212, 219 (1st Cir. 1996) and United States v. Bunchan, 626 F.3d 29, 34 (1st Cir. 2010). Purposefully telling a nonsensical story about Chewbacca would be the most direct way to get the jury to ignore their duty to apply the facts to the law with an extremely dangerous weapon in court: confusion.
This conduct would be both highly unethical and violate the rules of evidence, because the Chewbacca Defense is 1) Not relevant to the litigation and 2) The prejudicial effect outweighs the probative value of presenting Wookies and Ewoks to a jury in a copyright case. To put it simply, there is too much danger of a jury just letting the Wookie win. A judge likely would say, “I have a bad feeling about this” and possibly declare a mistrial if such an argument was made in court.
A party successfully using the Chewbacca Defense to confuse the jury into engaging in jury nullification in a civil lawsuit runs the risk of the losing party winning on a Judgment Notwithstanding the Verdict (JNOV). In Chef’s case, the copyright violation should have entitled him to a judgment as a matter of law.
What a Wookie
Chewbacca is the ultimate wingman.
He likely would be imposing co-counsel in a trial, delivering howling cross-examinations.
Chewbacca would also give closing arguments no one would forget.
Sadly, Court Reporters would fear him.
However, actually using the Chewbacca Defense to get a jury to nullify the law would end with the judge feeding the lawyer to the Rancor.
The story of Defiance takes place in the not-too-distant future.
The Earth was terraformed in a war with aliens called Votans, literally wiping out cities and governments.
An armistice is entered between the races, not necessarily meaning peace, but an end to war.
So, what is the law in the former city of St. Louis if the city, state of Missouri and the government of the United States no longer exist?
Defiance appears to be a city-state, such as Sparta, comprised of humans and different races of Votans.
Moreover, the city was protected by a force shield, again pointing towards the status as a city-state.
There are references to a town charter which is the controlling government document. This could be evidence of a “constitution.”
The city charter appears to mirror the US Constitution allowing for religious and cultural freedoms.
This was demonstrated by a Castithan ceremony punishing/torturing a Castithan who acted cowardly in a battle (which likely also violated the law, but was tolerated for political stability). However, given the nature of the torture, the Castithan is arrested for his own protection on the charge of loitering.
Loitering is the criminal offense of remaining in a certain place for no apparent reason. (See, Black’s Law Dictionary App). Loitering statutes are generally held to be unconstitutionally vague. Id.
For example, the City of St. Louis once had § 765.010, Ordinance 50549 of the Revised Ordinances of the City of St. Louis, 1960, which stated:
“No person shall loiter at the corner of streets, or in the vicinity of any place of amusement, or hotel, or public building, or thoroughfare, and refuse to disperse or vacate such places when requested so to do by a police officer.”
St. Louis v. Burton, 478 S.W.2d 320, 321 (Mo. 1972).
This law prohibiting “wandering the streets” was constitutionally prohibited on grounds of both vagueness and overbreadth. Burton, 478 S.W.2d 320, 323 (Mo. 1972).
Charging the victim with loitering again points to Defiance being a city-state. There are no state crimes being violated, other than the laws of the city itself. Moreover, with the undefined city charter of Defiance, and the lack of the US Constitution, it is unknown whether a court would find a law prohibiting loitering in Defiance to be valid.
However, there is a significant argument against Defiance being a city-state: There is an agreed upon currency which is used by others outside of Defiance. Currency is issued by a government, and usually backed so it has value, opposed to gold or silver. And where there is a government issuing currency, there are also laws.
Which brings us back to the original question: what is the law of Defiance? It appears to be that outlined by the city-charter and government. It could be a stand alone city-state in a “territory” of the former United States, perhaps explaining the use of currency. However, given the destruction of the Pale Wars, it is unknown what former US Jurisprudence survived or why currency has value.
We do know this: the Mayor’s sister is a prostitute who runs the local brothel/bar, which is a class C felony in Missouri today. § 567.060 R.S.Mo.
And that is strong evidence that Defiance is a city-state, because only a state could issue such a law.
Magnum, PI was one of the definitive shows of the 1980s. The stories focused on doing what was right and highlighted the honor of those who served in the United States military.
It also raised many legal issues….like was Thomas Magnum a tenant or guest on Robin Masters’ estate, “Robin’s Nest”?
In the first episode of Magnum PI, Magnum is staying in Robin Masters’ guest house, driving the [awesome] Ferrari 308 GTS and serving as the head of security of the estate. This was an unpaid position that included Magnum testing the security systems of the property. Other duties included rescuing the daughter of one of Robin’s friends in Italy and helping with security of Robin’s mansion in England (in different seasons). Would these services constitute rent for staying at the Robin’s Nest?
Under Hawaiian law, a “landlord and tenant may agree to any consideration, not otherwise prohibited by law, as rent.” HRS § 521-21. Additionally, if there is not a written rental agreement between the parties as to the tenancy of a lease, the tenancy is a month to month lease. HRS § 521-22.
The unwritten security services for staying in the guest agreement between Robin Masters and Magnum appear to form a rental agreement. However, there is one structural problem with this agreement: No written document, meaning the lease could be unenforceable under the statute of frauds. HRS § 490:2A-201. However, since there was contract performance by Magnum in his security duties, this arguably would eliminate the statute of frauds issue. See, Shannon v. Waterhouse, 58 Hawai’i 4, 5-6, 563 P.2d 391, 393 (1977).
If Magnum was a valid tenant, this would mean Magnum could exclude others from entering the guest house. However, Higgins virtually never knocked before entering the guest house, which arguably would violate the renter’s rights to have uninterrupted use of the property.
This Reminds Me of One Time…
Magnum frequently entered into oral contracts with Higgins.
The contracts usually included specific use of Robin’s Nest, such as use of the tennis courts, wine cellar, cars and other parts of the property.
These oral contracts were arguably lease modifications that present statute of frauds issues.
However, since both Higgins and Magnum were men of honor that performed their promises, the performance would remove any enforceability issues for the lack of a written document.
The Island Hoppers
Magnum called on his friend TC for helicopter flights in numerous episodes.
These flights, agreements for payment and repairs for small arms fire, should have all been in writing.
One episode had TC’s “tab” up to $800 for all the flights.
However, since TC performed the flights, he would be entitled to payment from Magnum for services rendered.
Why Oral Contracts?
It is a surprise that a billionaire author would not have an attorney write up a lease agreement with a renter acting as his chief of security. However, perhaps because Robin had such honor and prestige, the idea of not performing simply was not the behavior of those he befriended. Regardless, the only compensation for employment being a place to stay and a car to drive might be a great deal for Robin, but might violate some employment laws.
The new season of Doctor Who opened with questions about the impossible girl who died twice. The Bells of Saint John also offered excellent examples of cyber-security, computer forensics and social media investigations for all the lawyers on the planet.
New Form of Identity Theft
The story involved the villain “uploading” the souls of WiFi users who clicked on an unknown WiFi connection.
This rendered the body lifeless, with the souls trapped in an online purgatory known as the “data cloud.”
What legal issues can we we surmise from such wrongdoing?
First, never click on an unknown WiFi Connection.
It can subject you to other individuals accessing your data.
This unauthorized access brings us to the first possible legal issue: Identity Theft.
“Identity Theft” under California law is defined as follows (other states and countries have similar provisions):
(a) Every person who willfully obtains personal identifying information, as defined in subdivision (b) of Section 530.55, of another person, and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person, is guilty of a public offense, and upon conviction therefor, shall be punished by a fine, by imprisonment in a county jail not to exceed one year, or by both a fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170.
Cal Pen Code § 530.5
Would uploading someone’s soul to be trapped in an unholy cloud sever count as identity theft? While every byte of someone’s life is literally being stolen, it is not being taken with the intent to defraud to acquire a good or service. However, this act would still be considered an “unlawful purpose” because it would be a very unique form of kidnapping and murder.
The upload of a person would be a form of kidnapping, because it is the forcibly detainment of a “person” in online storage. This would be a untested reading of California Penal Code § 207, because the body of the person is normally taken in a kidnapping.
Despite the soul surviving in the data cloud, the human body dies after the upload. This opens up murder and wrongful death claims against the Great Intelligence and fellow co-conspirators in the cyber-kidnapping conspiracy. Additionally, there could be attempted murder charges for those who were downloaded back to their bodies.
A Note On Computer Forensics
The Bells of Saint John showed the uploading of a human soul in a matter of minutes. The bandwidth and processing speed must have been alien to have been done so quickly. While I am not a computer forensic expert, I have seen the byte-by-byte capture of a 500GB hard drive take several hours.
Capturing the content of the human mind, let alone the soul, would require an extreme amount of processing power and WiFi bandwidth to upload a “soul” in a matter of minutes. Greg Kipper, computer forensic expert and author of Augmented Reality: An Emerging Technologies Guide to AR, estimated to collect 2.5 petabytes over WiFi, it would take weeks, if not months. As Greg said, it would be like “pouring the ocean through a straw” for just the raw data.
Social Media Investigations
Social media is a hot topic in eDiscovery, with the issues covering everything from privacy rights to profile preservation. Clara Oswald, the new companion, provided an excellent example of social media investigation to identify the corporate “villain” in the story. The investigation included hacking into the corporate webcams to take photos of users and matching the faces on social media sites to see who the individuals listed as their employers. While most private eyes do not break anti-hacking laws to take webcam photos, the character of Clara Oswald brilliantly demonstrated how to use social media to identify a key fact in a dispute. In most cases, the issue can be anything from photos in a worker’s compensation case showing a purportedly injured person water skiing to trademark infringement to when someone “checked in” at a location.
I have a feeling it was not Steven Moffat’s intent to write an episode about social media investigations (which would also be awesome on Sherlock). However, the episode was a wonderful example for attorneys on how social media can be used in a lawsuit to prove a party’s knowledge or location when an incident occurred.
Where will the 50th Anniversary of Doctor Who take us legally? Who knows, but Chapter 11 may cover the Rule Against Perpetuities.
St. Patrick’s Day is a holiday celebrating the life of one man and all things Irish.
I had the good fortune a few years ago to celebrate St. Patrick’s Day in Chicago, with a front row seat to seeing the river dyed green.
Sadly, the way some people celebrate ignores the real meaning of St. Patrick’s Day.
Instead, the celebrations keep many defense attorneys busy with new clients from irresponsible behavior.
By the nature of the adversarial system, District Attorneys in criminal cases and Plaintiff attorneys in civil ones may also find themselves with new cases. The Judges do not end up finding a four leaf clover under any circumstances.
Let’s review cases involving St. Patrick’s Day and leprechauns in honor of St. Patrick’s Day.
As a preliminary matter, if a city aids a St. Patrick’s Day Parade, would that violate the First Amendment’s prohibition on establishing a religion?
No, as one Court explained, “aid by the city of New Haven to the St. Patrick’s Day parade is not an establishment of religion because, even though the practice of honoring St. Patrick may be rooted in religious belief, a parade named after him is not necessarily religious and has possibly ‘evolved into a secular celebration by Irish-Americans and their friends.’” Commack Self-Service Kosher Meats, Inc. v. Hooker, 680 F.3d 194, 206 (2d Cir. N.Y. 2012), citing Curran v. Lee, 484 F.2d 1348, 1349-50 (2d Cir. 1973) (Emphasis added).
The next legal issue is why do people want to hold a parade to celebrate St. Patrick’s Day. One Court explained the meaning of parades and the First Amendment:
The tradition of a parade as a public event means that a street march commands our attention in a way that a sidewalk procession does not. As a community, we look forward to parades, we are attentive to them, and we interrupt our everyday lives to accommodate them. A parade is a significant community event — whether its purpose is to recognize Irish heritage on St. Patrick’s Day, to celebrate a sports championship, or to express gratitude to soldiers on Veterans Day. A marcher confined to the sidewalk is thus denied the public forum that we historically have used to express our collective sentiment. See Timothy Zick, Space, Place, and Speech: The Expressive Topography, 74 Geo. Wash. L. Rev. 439, 460 (2006) (hereinafter “Zick”) (“In terms of communicative behavior, place is as critical to expressive experience as voice, sight, and auditory function.”).
Sullivan v. City of Augusta, 511 F.3d 16, 52-53 (1st Cir. Me. 2007).
There can be legal risk for businesses in allowing St. Patrick’s Day observations at work.
Companies that have “no button” policies should be careful to not selectively enforce the rules around St. Patrick’s Day.
For example, if managers do not enforce the rules on St. Patrick’s buttons, but then enforce the rules when employees wear pro-Union buttons, the selective enforcement could be evidence of discrimination. (See, Waterbury Hotel Mgmt., LLC v. NLRB, 314 F.3d 645, 655-656 (D.C. Cir. 2003)).
There is also something to remember at work: do not pinch coworkers not wearing green. That can be battery in many states and possibly sexual harassment as well.
Leprechauns make many appearances in case law, however, none lead to a pot of gold.
Consider one case involving mortgage lending:
The simple fact of the matter is that Plaintiff borrowed money, she is legally obligated to pay that money back, and Neil Garfield and his army of magical leprechauns cannot help her.
Searcy v. EMC Mortg. Corp., 2010 U.S. Dist. LEXIS 119975 (N.D. Ga. Sept. 30, 2010).
In a criminal trial, the Defendant ended up gagged because of his outbursts in court over leprechauns. As the Court explained:
To address the concerns raised by the United States Supreme Court with respect to gagging, defendant’s ability to communicate with counsel was no less limited than if he had been removed from the proceedings. Moreover, it is hard to imagine how seeing defendant gagged would be more of an affront to the court’s dignity or affect the jury’s feelings toward defendant more than defendant had already done with his forty-one comments in front of the jury, primarily about leprechauns turning everyone into stone.
Martin v. McQuiggin, 2009 U.S. Dist. LEXIS 125629 (W.D. Mich. June 1, 2009).
It is also hard to not love a judge from 1965 who not only cites 19th Century Admiralty cases, but also works in a leprechaun reference.
Clause 1 of the voyage charter provides, among other things: “Any extra expenses incurred by reason of nature of cargo and of metallurgical expert to be for charterers account * * *.” Amtro points to this language in support of its claim for extra expenses incurred while the NICTRIC was delayed in Japan. While the record discloses that a scrap cargo, such as was carried by the NICTRIC was not favored in the discharging scheme in Japan, it does not support a finding that the total day, or any specific part thereof, was due to the nature of the cargo. Furthermore, it would require the imagination of a leprechaun to extend this language to cover a situation where a ship carrying scrap was compelled to wait longer to obtain a berth than ships carrying other kinds of cargo. Obviously, the “extra expenses” mentioned in this clause refer to those expenses, if any, directly incurred in loading, transporting or discharging the scrap. Likewise, the fundamental purpose of demurrage is to make an adequate allowance or compensation for the delay or detention of the vessel. The claim for alleged extra expenses is denied.
Cia. Estrella Blanca, Ltda. v. S.S. Nictric, 247 F. Supp. 161, 171 (D. Or. 1965), citing The Conqueror, 166 U.S. 110, 17 S. Ct. 510, 41 L. Ed. 937 (1897); Continental Grain Co. v. Armour Fertilizer Works, 22 F. Supp. 49, 54 (S.D.N.Y.1938); The Apollon, 9 Wheat. 362, 22 U.S. 362, 376, 6 L. Ed. 111 (1824); W. R. Grace & Co. v. Hansen, 273 F. 486, 496 (9th Cir. 1921). (Emphasis Added).
I cannot imagine a more terrifying meeting with corporate counsel than pitching the recent video of a race car driver in disguise taking a sales person on a joyride.
Let’s consider the possible legal issues the attorney was faced with in making a “surprise” online commercial:
1) Do not kill anyone.
2) Talent Releases of Everyone Filmed. Not difficult, but something to make sure is done.
3) Permission from the auto dealer in advance of the “test drive.” There would be liability issues in the event the car was damaged. One would assume phone calls were made to secure permission, confirmed with contracts. This says nothing of the risk to human life.
4) Securing permission to engage in “reckless” driving. There had to be a closed course of some kind that kept the public from entering the area where the “joyride” was taking place. Permits most likely were filed to secure this permission and road closures.
5) Permission to drive on private property at a high rate of speed. Certificates of Insurance naming the property owner as an additionally insured were most likely issued.
6) What happens if the sales person was injured or had a medical emergency from the joyride? Would there be issues of kidnapping by taking the sales person on the joyride against their will?
Many people enjoy these “gotcha” videos, but attorneys have to go on their own high speed chase to ensure all laws are followed in producing such webisodes. These are only a few of the issues to consider. There most likely were many more for corporate counsel to make decisions on, followed by an ice cold refreshing beverage that was not soda.
Everything dies. Your chances of dying unexpectedly also go up exponentially if you have run-ins with Ice Warriors, Cybermen, Daleks, Zygons, Voords or The Rani.
Most people plan for death by writing a will. The survivors of those who do not have a will learn very quickly about inheritance through intestate succession.
However, what about the Doctor? What effect would the ability to regenerate when one’s body dies and a wave of energy creates a new body for the former decedent? There is one way to know for sure.
The Doctor needs The Lawyer.
Death of a Time Lord
Time Lords (and script writers for 50 years) have a way of cheating death: They can regenerate 12 times.
This happens when a Time Lord “dies”: A wave of energy surrounds the dying/dead body of the Time Lord, creating a “new” body that is physically different.
There are significant personality changes and preferences in everything from clothing, manners and humor.
And sometimes diet.
Virtually every regeneration scene in Doctor Who (minus the Sixth to Seventh) showed a knowledge of impending death.
The Tenth Doctor’s “I don’t want to go” is the best evidence that the Tenth Doctor knew his “life” was ending and a new Doctor would take his place.
The power to regenerate enables Time Lords to live a very long time, but that does not mean Time Lords cannot die. For example, a Time Lord can die if the regeneration process is interrupted. Or in the Master’s case, he chose not to regenerate, and died.
The “New” Time Lord
The “new” Time Lord, despite being a different person, is still the same person at their core. This is evident in values, memories, friendships, behavior and property ownership.
And the Time Lord usually maintains the same enemies (The Doctor vs The Master is Exhibit A of this point).
Three of the best examples of different regenerations of the Doctor having common characteristics is 1) the majority of Doctors all used a sonic screwdriver; 2) three of the eleven Doctors wore bow ties (arguably the First Doctor wore an Victorian style bow tie at times); and 3) The Doctor likes having at least one traveling companion.
Virtually all of the Doctors have also shown they can do a lot of running.
However, there are significant differences between the regenerations of a Time Lord.
Take the Third Doctor for example. Every Doctor has been willing to confront their enemies, but the Third was perhaps the most physical of the Doctors with his Venusian Karate.
Why are differences in clothes, personality and whether a Time Lord gives a karate chop relevant to the validity of a will?
Because it shows that the change between regenerations creates a “new” person, which would impact the intent of a prior existing will.
The Law of Wills & Time Travel
The Black’s Law Dictionary iPad App defines a Will as:
The legal expression of an individual’s wishes about the disposition of his or her property after death; esp., a document by which a person directs his or her estate to be distributed upon death <there was no mention of his estranged brother in the will>. — Also termed testament; will and testament; (archaically) testamentary instrument.
Case law on Wills state that the “primary and paramount factor in construing a will is testator’s intention.” In re Estate of Reinhardt (1887) 74 Cal 365. State legislatures have codified the importance of the intent of the testator with code sections stating the “intention of the transferor as expressed in the instrument controls the legal effect of the dispositions made in the instrument.” Cal Prob Code § 21102.
Wills have specific rules on how they are constructed, such as the following general requirements:
1. The will must be in writing;
2. The will must be signed by the testator;
3. The will shall be witnessed by being signed, during the testator’s lifetime, by at least two persons each of whom (A) being present at the same time, witnessed either the signing of the will or the testator’s acknowledgment of the signature or of the will and (B) understand that the instrument they sign is the testator’s will.
Generally, Cal Prob Code § 6110.
The will should also be dated. This is a problem with someone who travels in time, because it can result in paradoxical interpretation of when a will was drafted.
California created a rule that beneficiaries of a will must survive the testator by 120 hours. Again, another problem for someone who travels in time, because the named beneficiary might exist in time several decades before the testator’s death, and thus has already been dead for years, even though they survived the testator. Cal Prob Code § 6211.
A holographic will does not involve holograms at all (Sorry, the Ninth Doctor’s Emergency Program 1). A holographic will is a valid will if it is written by the testator’s own handwriting and signed. Cal Prob Code § 6111.
A will is revoked if a subsequent will states the older will is revoked or by any inconsistency with the new will. See, Cal Prob Code § 6120. This is a problem for a time traveler, because a prior will can be created in time before the original will was prepared.
The Law of Intestate Succession
The Black’s Law Dictionary iPad App defines intestate succession as:
(18c) 1. The method used to distribute property owned by a person who dies without a valid will. 2.Succession by the common law of descent. — Also termed hereditary succession; descent and distribution.
The general rule for intestate success if the deceased did not have a spouse, property flows down to children (the issue of the deceased); if no children then to up parents; if no surviving parents, then to the issue of the parents. See, generally, Cal Prob Code § 6402.
Intent of the Deceased vs Regenerated Time Lord
What effect does the personality changes between regenerations have on the validity of a will? Arguably the will is no longer valid, because the changes can be great, thus revoking the intent of the past Time Lord.
Take the 10 year anniversary special The Three Doctors for example. The Second and Third Doctor openly debated with each other; the First Doctor gave them both a once over and stated, “So you are my replacements: A dandy and a clown.”
The same can be said for each time the Doctor has encountered past versions of himself in the Five Doctors, the Two Doctors, and Time Crash: all had arguments with each other.
They all then got along, with one big exception: Trial of a Time Lord.
The villain in Trial of a Time Lord was the final (or second to last) regeneration of the Doctor (known as The Valeyard), serving as the prosecutor of the Sixth Doctor for genocide and other crimes.
On a fundamental level, it is very hurtful that the Doctor “turned evil” and became a lawyer.
The Valeyard is powerful evidence that a future regeneration can have a complete change of intent, rendering any past wills to be completely invalid (and a regeneration that will probably be disregarded because of the The Last Great Time War).
What does this mean for any Time Lord with a prior will? The effect of a regeneration could result in a new version of oneself with a different set of values, requiring the new Time Lord to review their prior will for any modifications based on their current intent.
A Big Ball of Wibbly Wobbly Timey Wimey Legal Stuff
The effect of time travel on drafting and modifying wills would cause an attorney to scream as if they had looked into the Time Vortex in determining the intent of a Time Lord client. The law firm would also give the Doctor the nickname “The Oncoming Storm” because of the causation complexities time travel creates in interpreting the validity of a will. Consider the following hypothetical temporal legal timeline of will modifications:
This is highly problematic for an attorney, because the reasons for modifications (if not revocations) of a will are out of order, despite being in temporal order. The order of will modifications would have to be reviewed by when the Doctor made them in his lifetime, not temporal order. This fundamentally changes legal analysis. Let’s review the will history not in temporal order, but the order in which the Doctor made the will modifications:
The First Doctor prepares a will naming his granddaughter Susan to take possession of the TARDIS in the event of his death on November 23, 1963.
The Second Doctor modifies his will in 1746 to leave Jamie McCrimmon his recorder.
In 1972, the Third Doctor again modifies his will to leave Elizabeth Shaw his shoes with the keys to the TARDIS.
At 65 Million BC, the Fifth Doctor creates a pour over trust to create a mathematics scholarship in the memory of Adric.
In 2986, the Sixth Doctor again modifies his will to create a scholarship from a pour over trust for botany students on Earth in memory of the Vervoids.
In the year 200,100 the Ninth Doctor’s “holographic will” tells Rose to let the TARDIS die, be buried, and for her to live a good life.
The Eleventh Doctor in 1890 adds a codicil to his will to leave Vincent van Gogh the collected works of Andrew Wyeth (who will not be born until 1917).
Could the different hypothetical wills all be valid, despite being from different regenerations?
Maybe. A Court would look at the intent of each will and see if there are any conflicts. Moreover, were there any significant life changes (besides the regeneration) that would call into question the validity of a will? For example, getting married (or divorced) or having a child are such life changes that could show a change in intent.
Consider the above hypothetical: The First Doctor’s will to leave the TARDIS to Susan would likely not be valid after Susan left traveling with the Doctor and the Last Great Time War, because she is presumed dead with all other Time Lords. Unless she is hiding as a human.
As for Jamie McCrimmon, he died on an [comic book] adventure with the Sixth Doctor, thus Jamie would not be able to inherent under the Doctor’s will.
The Third Doctor’s will leaving his shoes with the TARDIS keys to Elizabeth Shaw would no longer be valid, because the Doctor’s banishment to Earth ended in 1973 and Shaw also left the Doctor’s company very early in the Third Doctor’s adventures.
The Fifth and Sixth Doctors’ intent to create pour over trusts would likely still be valid, provided there are funding sources for the scholarships.
However, would the Ninth Doctor’s holographic “Emergency Program 1″ revoke all prior wills? While the Doctor did have a hologram giving his last wishes, the recording was not a written document in his own handwriting. However, it is arguable that Rose was the Doctor’s agent to carry out the Doctor’s final wishes.
As for Vincent van Gogh, the validity of the will would turn on when the Doctor died whether van Gogh could take under a will. If the Doctor died in the 34th Century, van Gogh in the 19th Century would not survive the Doctor the required 120 hours to take under the will (the difference between the 34th Century and the 19th Century is thousands of years longer than 120 hours).
However, consider the Eleventh Doctor’s two marriages: Marilyn Monroe and River Song. The Doctor should have changed his will after each, provided the marriages were both valid. One can imagine the marriage to Monroe was annulled shortly after the Christmas Eve ceremony. Conversely, it is difficult to say the marriage to River Song is valid, because it took place in an alternate timeline in Egypt caused by a paradox with all of reality crashing down around them. This ceremony might not be valid anywhere (or any timeline) because of the temporal paradox and lack of a marriage license for Court to recognize. It is also difficult to show a Common Law or Marvin marriage, due to the lack of the Doctor and River living together for any period of time.
What does this all mean? The Doctor really should see a lawyer after regenerating to ensure all his affairs are in proper order. Moreover, the power to regenerate does not mean the there is no risk of death; seeing an attorney to have a valid will is the responsive thing to do for someone who walks in eternity.