The Backbencher

How Many Scintillas Does it Take to Win?

One barrel of flour contains zero scintillas of evidence.

Time is measured in minutes. Sugar, in spoonfuls. Rain, in inches. 

Evidence, of course, is denominated in scintillas. 

Whenever a lawyer or judge wants to emphasize the lack of evidence in favor of some party or proposition, we hear that familiar refrain, "There is not one scintilla of evidence."

How did the scintilla become the recognized unit of measurement for evidence? We do not know precisely, but in this post, I present some of my own research findings.

An early prominent use of the scintilla can be found in the famous case of Byrne v. Boadle, 159 Eng. Rep. 299 (Exch. 1863). That case introduced the doctine of res ipsa loquitor to help out the unfortunate Mr. Byrne, who, struck by a barrel of flour that fell out of a building, had not a "scintilla of evidence" to prove that the barrel's fall was the result of any negligent conduct.

But the earliest use of "scintilla" that I could find was the dissent of a Judge Grimke of the Constitutional Court of Appeals of South Carolina in Frost v. Brown, a land-title case from 1798:

The U.S. Constitution: Not All that Well Written

I mean, it’s fine as a first draft, but if I were a law-firm associate, I wouldn’t turn it in to a senior partner without putting in a lot more work.

I am not a legal writing professor, and I suppose it’s a good thing I'm not. The fact is, if it were turned in to me as homework, I could not, in good conscience, give the United States Constitution better than a B-minus. And that’s with a healthy dose of grade inflation already factored in.

First of all, let’s look at the handwriting. It’s sloppy. You may not have known this, but the Constitution contains numerous interlineations.  In Article I, Section 3, explaining Senate procedure upon the impeachment of the president, there is this doozy:

 

 

The intended language is: “When the President of the United States is tried, the Chief Justice shall preside[.]”

The original uncorrected, verbless text is: “When the President of the United States the Chief Justice shall preside[.]”  

How can you screw up and write something like that unless you are totally mentally wandering while doing it. This is the Constitution of the United States of America for crying out loud. You’d think you could focus. And if you can’t get it right the first time, then I say grab another sheet of parchment and start from the top of the page. Where is the craftsmanship? Look, I can only imagine what a pain in the a** it would be to write out a long legal document on calfskin with nothing but an inkwell and a pen made out of a feather. Honestly, I couldn’t do it. But then again, I didn’t take the job. According to historians, it was a fellow named Jacob Shallus who did take the job.

And, honestly speaking, he kind of phoned it in.

There are a total of four interlineations in the original Constitution.[1] What’s worse, Shallus did a “my bad” about the mistakes, listing them next to the signature block on the past page – but, incredibly, he only noted three of the four interlineations! How lazy do you have to be to fail to count up all the dents you tried to knock out of your own work?

Okay, so the Constitution’s penmanship is annoying. But is it a real problem? Precedent suggests that it is. Frighteningly, the federal district court for the District of Columbia, where the Constitution currently resides, has declared legal documents unenforceable on grounds of sloppiness.

In Antonelli v. Senate Realty Corp., the D.C. court lowered the boom on a slapdash deed of trust with more than a note of scorn: “Certainly this document on its face has been so altered by interlineation and hand-printed additions as to make it legally obnoxious and unacceptable.”[2]

Yikes. Could it be that our Constitution is “legally obnoxious”?

Under the eyes of the law, perhaps. There is no Supreme Court opinion directly on point, so, for now, it is an open question.

One thing we do know is that the Constitution was a rip off. The U.S. government paid Shallus the princely sum of $30 for his calligraphy services.[3] That may not seem like much, but this was 222 years ago. Using the unskilled-labor inflation index, $30 in 1787 is equivalent to $10,694 today.[4]

That kind of government waste makes a $640 toilet seat for the Pentagon seem like a bargain.

Shallus’s bang-up job also included erasures,[5] a misspelling,[6] and wildly inconsistent capitalization.[7]

Now, I haven’t even started to talk about the actual text.

The text of the U.S. Constitution is replete with ambiguity. And I say that not because the Constitution is a great document that is at the center of a great story about great struggles over great freedoms and other great stuff.[8] It is because, at least in large part, the Constitution is a maze of passive voice, mismatched grammatical constructions, and awkward phrasing.

Take a look at the Second Amendment:

 

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

 

What in the heck is that supposed to mean?

Surprise, surprise: People disagree.

Analyzing the text, we can confidently make two observations: (1) If the amendment was intended to say that states have the right to give guns to their national guard units – and that’s the extent of the right – then the text clearly wouldn’t have been phrased the way that it was. (2) If the amendment was meant to give individual citizens the right to possess guns, without being part of a state-run militia, then the text clearly wouldn’t have been phrased the way that it was.

That leaves us with only one sure conclusion: The drafters shanked this one big time.

Incredibly, over thousands of pages of the United States Reports, our Supreme Court has not once used the words “poorly drafted” to describe the Constitution.

Yes, I checked.

We may need to revisit that hallowed quote of Ben Franklin, who, walking back from Independence Hall, was asked by a Philadelphia resident, a Mrs. Powel, what resulted from the Constitutional Convention.

Famously, Mrs. Powel heard Franklin say, “A republic, if you can keep it.”

It seems quite possible that Franklin’s actual words were, “A republic, if you can read it.”

---

[1] U.S. Const. art. I, § 2 (“the”); art. I, § 3 (“is tried,”); art. I, § 10 (“the” in two different places).

[2] Antonelli v. Senate Realty Corp., 230 F.Supp. 776, 779 (D.D.C. 1963).

[3] See Irvin Molotsky, N.Y. Times, September 17, 1987 at http://www.nytimes.com/1987/09/17/us/the-constitution-it-s-200-years-old-and-it-certainly-has-been-around.html.

[4] See Samuel H. Williamson, “Six Ways to Compute the Relative Value of a U.S. Dollar Amount, 1790 to Present,” MeasuringWorth (2009) at http://www.measuringworth.com/uscompare/.

[5] U.S. Const. art. I, § 2 (“thirty”); art. I, § 3 (“may make”).

[6] U.S. Const. art. I, § 10 (“it’s” in “except what may be absolutely necessary for executing it’s inspection Laws”).

[7] See, e.g., U.S. Const. art. I, § 2 (“vacancies” and “Vacancies”). See also art. I, § 8 (“credit” in “To borrow Money on the credit of the United States”) and art. IV, § 1 (“Credit” in “Full Faith and Credit”); art. I, § 2 (“Executive” in “the Executive Authority thereof shall issue Writs of Election”) and art. II, §1 (“executive” in “The executive Power shall be vested in a President”).

[8] Though it is, of course.

[Cross-posted on PrawfsBlawg.]

Avoiding the Tragedy of Low Prices on Beer

One of the great benefits of living in a federal system with 50 sovereign states is that, compared to a normal country, we're 50 times as likely to create really silly laws.

I recently captured these photos of a Marathon service station in west central Ohio selling “beer and wine at state minimum prices.”

Now I’m sorry, but that is just funny. Of all the evils to protect people from, the Ohio legislature, in their infinite wisdom, has seen fit to protect the citizens of the Buckeye State from getting too much of a bargain on beer.

God forbid. Maybe they should outlaw rainbows and cute, fuzzy bunnies while they're at it.

Let me make a clarifying observation: The Ohio legislature is not protecting people from cheap beer. (Natural Light, for instance, is still legal.) They are protecting people from paying cheap prices for beer.

You can see exactly how this plays out in the next two pictures. The minimum prices are different for different beers. A “fancy” beer, Miller Genuine Draft, has a minimum price of $5.19 for a six-pack of bottles. The state allows a longneck six-pack of Busch, however, to be sold for $4.19.

That’s right, the state of Ohio, in its infinite wisdom, forces people to pay more for MGD than for Busch. I’d love to have been there during the committee hearings.

“Esteemed members of the legislature, please put down your tasters. All in favor of making Ohioans pay a buck less for Busch, please signify by stumbling over a lobbyist.”

I’d have taken more photos, but I was stopped by the store clerk. She said the owner of the store, watching on closed-circuit television, was upset. Why? He was, she said – and this is best part – worried that I might be from a competitor store. Huh? What’s a competitor going to do with that information? Undercut his prices??

The law, Ohio Administrative Code 4301:1-1-72, that dictates minimum prices on beer has a preamble explaining its purpose. One aim is to prevent sales that would “improperly stimulate purchase and consumption” of beer.

Oh, okay. That makes sense. So if a “good” beer, like Budweiser Select, were sold for $3.49 per six-pack of 16-ounce cans, then people would go crazy and drink too much. But it’s okay to charge that for Milwaukee’s Best Ice, since, presumably, the taste of “the Beast” serves as its own limit on consumption.

Another purpose of the law is to “eliminate discriminatory sales practices that threaten the survival of wholesale distributors”. That’s a good point. As we all know, a lack of state-minimum prices on beer has led to the tragic loss of beer distribution in most of the rest of the United States.

Now, some of you may think that the real purpose of the law is to eliminate competition on the basis of price. Not so. The law says that part of its purpose is to “preserve orderly competition”.

If we could only put the high-minded geniuses of the Ohio legislature in charge of college sports, we might get more orderly competition in football – for instance, a rule that mandates all teams named “Ohio State Buckeyes” start national championship games with an automatic extra 30 points. That way we could prevent “disorderly” results such as Ohio State losing in back-to-back years.

A Legal Analysis of Timeshares and Other Consumer Fraud Issues

I recently heard North Dakota’s attorney general, Wayne Stenehjem, speak on the important issue of consumer fraud. He’s a smart and talented guy. And that’s why it was all the more disappointing to hear his legal opinion on timeshares.

“A valid timeshare contract is not consumer fraud,” he said.

Now, when you read those words, you are probably saying to yourself, “Hmmm. That is a really boring quote.”

Fair enough, but this is the Attorney General of North Dakota we are talking about. And since I live in North Dakota, I’m not about to go dressing up his quotes.

The other thing I recall Attorney General Stenehjem saying did not constitute consumer fraud was delayed pancakes.

Apparently Attorney General Stenehjem’s office received a complaint from the patron of a restaurant advertising “all-you-can-eat pancakes.” The man said that when he was done eating a pancake, and he would ask for another, the waitress would sometimes make him wait as long as an hour and a half for the next pancake.

Not consumer fraud, according to the attorney general.

Now, I’m just going to disagree with that. I think that guy got ripped off. And, so, yes, I think that constitutes consumer fraud. Have I researched the issue? No. Do I have any experience with North Dakota’s consumer protection statutes? No. Have I done a keyword search on “pancake” in Westlaw? No. Do I have even a scintilla of precedent or so much as one reasoned argument from accepted legal principle? No. But I’m a law professor in North Dakota, and I think that entitles me to make my own legal pronouncement. So here it is:

Pancake delay, if both persistent and substantial, constitutes consumer fraud under the laws of the state of North Dakota.

There. That felt good. I’ve established a two-pronged test that would make the Supreme Court proud. And now that poor ripped-off restaurant patron can cite my blog in his doomed small-claims action.

But back to timeshares.

A couple of years ago my wife and I got a cold call from a major timeshare operator and we actually took the bait. We would get a deluxe room at a resort in Phoenix, access to the pool (with waterslides and a lazy river!), and, of course, a free gift. All we had to do in return was sit through a timeshare sales-presentation lasting no longer than one hour.

I was confident in my ability to resist high-pressure sales tactics and the intoxicating aroma of fresh-baked cookies. So we went for it. How bad could it be?

At the appointed hour, we went down to the timeshare sales office and met our sales guy. The first thing he said, motioning to our 12-month-old son who was just learning to walk, was, “He looks like a little drunken sailor.”

I took extreme offense at this, particularly because our son, Joe, looked exactly like a little drunken sailor. I was ready to deck the guy. It was all the more intolerable since this sales guy was one of only two people we’d ever met who did not react to our son like he was the cutest, most adorable thing in the world.

The other person was – and this is the actual truth – interviewing to be our nanny. As my wife held three-month-old Joe in her lap, and we sat across from this woman in a coffee house in Santa Monica, she actually – and this is entirely accurate – recoiled in horror when she saw Joe spit up a little. Grimacing and turning her head slightly to the side, she pointed to Joe with a crooked finger and said, “Um, there’s something, um, leaking out of his mouth. You might want to get that.”

As you won’t be surprised to learn, we opted for daycare.

So since the timeshare salesman not only insulted our kid, but actually seemed annoyed by him, we decided we would not pick Joe up, but, instead, let him walk FOR THE ENTIRE TOUR.

This was hilarious, of course. It took us eons to do the walk-through. Joe staggered in a halting zig-zag through every room of the model condo, grabbing wildly at flimsy simulated televisions and silk houseplants to keep from careening over. By the time we got back to the sales guy’s desk, our hour was, blessedly, almost up.

The sales guy went in for the close. “What I’d like to do now, is show you some of the numbers on how much money you’ll save with the timeshare plan.”

I stayed strong. “Well, whatever you want to do with the next two-and-a-half minutes is fine by me. It’s your time, and we’ll listen. But when the hour’s up, we’ll be going back to the pool.”

At this point, our guy sensed the sale was getting away from him, so he went to his A-game. For the next 150 seconds, we were barraged with such an onslaught of pathos as you could not believe. His being orphaned as an infant. His cruel aunt and uncle who made him live in a closet under the stairs. That time that he was almost killed by Voldemort. It was unbelievable. But when the minute hand reached the top of the clock, I picked Joe up, and we were out of there.

We strode confidently back to the pool, our bank account intact. But it turns out we didn’t get off scot-free. The fact is, years later, we still bear the emotional scars. I mean, it really was pretty sad that his mother sacrificed herself to save him from Voldemort’s death spell. You know, maybe we still have his business card around here somewhere.

Walt Disney World: Tips for the Unwary Traveler

A few weeks ago, I told you something of our recent family vacation to Walt Disney World, in particular, the Epcot theme-park, which was the realization of a great dream of Walt Disney to have “someplace for the monorail to go.”

I am revisiting this topic to impart another important tip for travelers: You’re better off waiting in line.

Let’s say you’ve just waited thirty minutes in line only to find yourself actually walking up three flights of stairs to take yourself past two small rooms decorated to look like Tarzan’s home.

Understandably, your next move is to seek out a ride with no line.

Do not ride that ride. Believe me, there is a very good reason no one is standing in line for it. You may not know what that good reason is, yet, but trust me, there is definitely a good reason.

Think about it this way. Remember when DVDs first came out? This highly advanced video technology offered the chance to not only see movies, but to also see “bonus features.”

The most naughtily alluring of all these was the “deleted scenes.” Twitching with excitement, you arrow-keyed your way through the DVD menu and hit select to enter that forbidden realm.

Within minutes, in a moment of unparalleled mental clarity, you reached this startling epiphany:

“Oh. I can see why they deleted that.”

A Disney World ride with no line promises the exact same thing for you as deleted scenes. When you are done, you will be approximately three minutes closer to your death than you were when you started.

Don’t do it.

Time is not the only thing you have to lose. My family experienced the horror of a no-line ride first-hand. At the Imagination! pavilion in Epcot, we found a zero-minute wait-time attraction called Journey into Imagination. What we would see, hear, and experience over the next three minutes would scar us forever.

Here’s what happens once you are strapped into the ride-pod for Journey into Imagination: A conversation ensues between a purple dragon, called Figment, and an “imagination scientist,” played by a vaguely familiar English actor who obviously owed some very dangerous people some very large amount of money when he accepted this role. And when I am on vacation, I prefer not to be bummed out by thoughts like this.

On the ride, most of what you are forced to watch consists of foam-core poster board decorated with glitter and illuminated with black lights. In other words, it’s the equivalent of a ribbon-winning heavily-parent-assisted submission to your local junior high science fair.

Along the way, the pitiable English actor and Figment engage in a spate of strained dialogue. Then things get worse. Figment operates an “imagination device” and BLAM! – all riders are hit smack in the face with a unimaginable blast of skunk-smell.

The ride’s climax is just a rewarding. The lights go out. It is pitch black. There is a LOUD bang. A barrier drops down. Flood lights suddenly illuminate a scene containing – get this – a lot of foam-core poster-board and glitter.

I wanted to sue somebody.

Really.

I hadn’t even stepped outside of our ride-pod before I started to rant about how the skunk-smell blast could constitute an actionable battery.

And I still think I’m right. The yellow pages stocked in our Walt Disney World resort hotel room was curiously devoid of any ads by attorneys specializing in “theme-park indignancies” or “smell torts,” but I’m confident I have a plausible cause of action.

If you’re admitted to the Florida bar, and you want to work on a contingency, call me.

Stdnts: U. Shld. Try Out for L. Rev.

Ah, spring! To borrow some words from Browning and Tennyson: The hill-side's dew-pearl'd, the lark's on the wing, and a young law student's fancy lightly turns to thoughts of law review ...

Perhaps as many as a third or even half of law students try out for their school’s law review. Why? Of course, it has nothing to do with how prestigious law review is, it is instead because of these students’ sincere love for legal abbreviations.

Students doing law review spend a lot of time making sure things are abbreviated properly. The Bible of legal abbreviations is the “Bluebook,” a style manual concocted by a group of student-run law reviews from various schools in order to “greatly simplify”1 the process of writing and editing their articles.

The Bluebook has made important contributions to the advancement of human society. For instance, one great achievement of the Bluebook was the abbreviation of the word “law.” After many years of working with this awkward and unwieldy word, editors suddenly hit upon the idea of replacing it with the abbreviation “L.” Scholars have now had decades added to their academically productive years by the cumulative time savings of not having to read so many unnecessary aw’s.

The following is a REAL abbreviation from the Bluebook, if you don’t believe me, you can look it up on page 159 of the 16th Edition:

Eur. Consult. Ass.

It stands for European Consultative Assembly, and apparently, it is used so often in legal scholarship, that the law review folks wanted it to have its very own abbreviation, thus saving scholars countless hours by not having to type, “opean,” “ative” and “embly.”2

When people talk about going to law school to make people’s lives better, this is exactly the kind of work they’re talking about.

Eur. Consult. Ass. sounds bad enough. But what about when you need to abbreviate just "European Assembly"? Um, Beavis? You just subcited “Eur. Ass.”.3 Heh-heh heh-heh.

HEY NOW! Don’t you dare sigh and roll your eyes! If you’re put off by the semi-obscene content of the Bluebook, then you take it up with the people responsible. It’s not my fault.

While Bluebook abbreviations have allowed great time-savings in terms of reading and typing, it is true that the obscure referencing system has caused lawyers, judges and academics to spend days, or even weeks, trying to figure out abbreviations such as “S. Exec. Doc. W. ”4

Nonetheless, a greater good is done in that over the decades, Bluebook abbreviations have saved approximately a third of an ounce of the world’s ink supply. Cost adjusted for inflation, this is a savings of nearly 1.4 cents!

Tireless workers that they are, law review editors will abbreviate a word even if they can only trim just a couple of letters off. For instance, Sweden, Russia, Brazil and Turkey are, respectively, Swed., Russ., Braz., and Turk.

After seeing those, you might be shocked to learn that they refused to abbreviate “Mauritania,” “Cote d’Ivorie” or “Sao Tome & Principe.”

Oh, you say, those countries are too obscure to abbreviate. OH YEAH?? Check this out: Greece, a country of 11 million, gets spelled out, BUT the Seychelles — an Indian Ocean island nation of just 78,000 people — gets the abbreviation “Sey.”

At this point, “#@*%$&@#$?!??!?!?!” is an excellent question you may have. And you know what? I have no idea. But I’m sure they have their reasons. And after you make law review, I hope you’ll call me up and tell me what you find out.

Gd. Lk.! Th. nat’n of Sey. is cntng. on u. ...

________________________
Footnotes:

1. Admittedly, my words.

2. “Eur. Consult. Ass.” has been used in all of 46 law review articles, per Lexis, as of April 21, 2008.

3. See James Barr Ames, Novation, 6 Harv. L. Rev. 184, 186-187, n.3 (1896).

4. “S. Exec. Doc. W.” has appeared in a total of three law review articles, per Lexis, as of April 21, 2008.

[I wrote this Backbencher classic when I was a 1L. Some editing aside, this content originally appeared in the Harvard Law Record in 1998.]

Model Answer: My Contracts Exam

Law school exams are just around the corner. And law students are no doubt wondering, what do the best law school exam answers look like?

What if I could give you a peak at a law school exam response written by a law professor in the making?

Well, I’ve decided to give you a chance to see the tender genius of MY VERY OWN EXAM RESPONSE from back when I was in law school. So here, in its entirety, is my essay for Contracts. I think you will see that it was, in a word, innovative.

EXAM RESPONSE - CONTRACTS:

JJ might argue that the contract is unenforceable because he crossed his fingers while signing it. Finger crossing voids all promises. LL could counter, however, that JJ had two fingers crossed, which would erase the effect of the original crossed fingers, and LL could enforce the contract. But if JJ crossed his legs as well as crossing fingers on both hands, then the contract would be invalidly held as invalidly invalid, and JJ would not be bound. (I think.)

Alternatively, LL could contend that he said out-loud "no crossies" while JJ was signing the contract. This would invoke the parol evidence rule. The key things to remember about the parol evidence rule are: (1) it is a doctrine of contract law, not evidence; (2) it has nothing to do with "parole"; and (3) it is not really a "rule," but is more of a "guideline." For these reasons, on the facts presented, the parol evidence rule would bar consideration of the rule against perpetuities.

Still another defense that JJ can assert is that the contract lacks "consideration." Since JJ signed the contract without reading it, it is pretty clear that he did not really "consider" it at all. Thus, we must look to the "mailbox rule." The mailbox rule is that all mail weighing more than 13 ounces that bears postage stamps must be taken to a retail post office. Based on the facts presented, since JJ's contract was only two pages, it does not weigh too much, and therefore the mailbox rule will not apply.

If JJ continues to want out of the deal, JJ could simply wait until next Tuesday and say it's "Tuesday Take-Backs Day." He could then "take back" the contract. Unlike the crossies, there is really nothing LL can do to defend against Tuesday Take-Backs Day, which is why LL is likely to try to "settle the case" before next Tuesday.

It’s Never Too Late to Do Better on the LSAT

Hey law students, still suffering feelings of inadequacy about your LSAT score? Hey, who couldn’t use a little boost? Remember, your fellow law students are not as easily impressed as your parents and high school guidance counselor.

And here’s the best part: You don’t even have to take the test again! This is part of a whole new test-taking strategy that I am developing. My slogan is:

The LSAT: Don’t Prepare, Repair!

That’s correct! Switch your focus from what you do before the test to what you do after the test! No matter how well you did on the LSAT, you see, your score can be made vastly more impressive through the judicious use of a few well-placed excuses. Quick quiz: Who got the more impressive results on the LSAT?

a) Joe Bloggs scored a 161.

b) Beth Bloggs - after never having looked at a test-prep book — drank a case of Keystone Light and got 20 minutes of sleep the night before the test, and was then awakened by her boyfriend calling to break up with her, after which she scored a 149, even though she really wanted to go to business school at the time and didn’t really care how well she did.

Beth Bloggs by a mile and smile! That’s a future senator there! You may ask, “Okay, but is this fair?”

Yes it is — and here’s why: The actual question-and-bubbletron portion of the LSAT is an extremely poor predictor of your success in law school and your legal career. Ordering colored beads on a necklace according to rules such as “Every green bead must be next to an orange bead,” is a skill which — believe it or not — is entirely useless in the world of law. On the other hand, your ability to embellish stories, hide mistakes and pull facts straight out of the thin air is not only highly indicative of your potential, it’s practically essential to your mere survival in the legal profession!

The LSAT, in fact stands for “Law School Admissions Test,” because it tests whether or not you are naive enough to admit that you worked hard to prepare for the test and still didn’t do as well as you would’ve liked.

I know what you’re all saying, “But I was asked to order colored beads on necklaces for three months straight at the law firm I worked at over the summer.”

Whoops! If you didn’t immediately work up some story about your vicious bead-specific carpal tunnel syndrome, then you didn’t pass the test. If you were really working it, you would have cut off the circulation at your wrists until your hands swelled up blue, and then staggered into your supervising attorney’s office and passed out. They love that stuff.

“Okay, smarty pants,” you’re saying, “So if you know so much, how well did you do on the LSAT?”

Well, as a matter of fact, after dealing with the traumatization having been beaten with No. 2 pencils and orange beads throughout my childhood ...

________________________
[I wrote this Backbencher classic when I was a 1L. Some editing aside, it originally appeared in the Harvard Law Record in 1997.]

Talkin' Sports Over Some Law-Firm Beers

In my post last week, I explained how, as a law-firm associate, I was assailed every year in my annual review for the “complicated color system” of tape flags that I used in a document review during my first year as an associate. te.

You know what’s particularly unfair about being singled out for that? Lawyers are always making things more complicated than necessary. It’s part of the culture.

For instance, one large L.A. law firm I know uses important-sounding covert-government-style abbreviations for everything, especially the firm committees. The policy committee, and this is completely true, is “POLCOM.” The litigation steering committee is "LITCOM." And the committee for food and beverage, no joke, is called “EDPOT,” for “edibles and potables.”

Hearing a person I know from this law firm talk about firm governance is like listening to a Tom Clancy book-on-tape. That is, to borrow some book-jacket language, it is “a chillingly authentic heart-pounding supercharged thrill-ride!” When this lawyer talks, it is as if YOU ARE THERE, right in the room where the decisions are being made …

And then SECPOLCOM entered the room, pointing to the CRT, indicating the EDPOT scenarios. “I recommend positioning our Amstel Lights to the left of the Heinekens.”

You may have noticed that Amstel Lights and Heinekens are a universal constant at law firms. From New York to Los Angeles, and every law firm in between, when it’s time to serve beer, it’s Heinekens and Amstel Lights. You know I am right. Oh, firms like to pretend they are different from one another, but they all answer the beer question the same way.

Why is it always Heinekens and Amstel Lights? I’ll tell you why — it’s because they are the safe beers. They taste like domestics, but they are just foreign enough to say, “We’re sophisticated.”

The truth hurts, I know. But lawyers are the most risk averse of professionals. No law firm would dare serve Miller Lite. Casual Fridays caused enough of an uproar. But serving a Budweiser, that'll never happen.

The law itself is a risk-averse profession. When times are good, or when times are bad, people need lawyers. It’s a safe bet, career wise.

That’s why lawyers like to talk about sports. An interest in sports is a safe bet. It shows you are culturally connected to the mainstream. But since George F. Will wrote a book about baseball, it’s not inconsistent with being a discerning high-brow.

Lawyers love to burst out with observations such as, “They’re playing Warner too close to the net to make the option effective against that passing defense, especially when you factor in the infield-fly rule.”

This caused me considerable stress during my law-firm days. I love sports, but I was prone, for example, to forgo watching SportsCenter and keeping track of player statistics when my own hours-per-night sleep stat was hitting 2.5, 2.6 — or thereabouts.

Now sure, sleep’s not that much fun when you spend the whole time having nightmares in which you are frantically trying to figure out what to do with a document that has a blue tape flag in the upper right corner. But at least some sleep is necessary, otherwise you’re liable to burst into a meeting saying, “I like pudding!”

And if you do that, you’d sure as heck better like pudding alright. Because that’s what you’ll be talking about with the REVCOM every year for the next several years. Don’t ask how I know.…

Lawyers Aren’t Boring – Just Ask Them About Tape Flags

People say lawyers are boring. But that’s only half true. Lawyers may be boring to “people,” but lawyers are absolutely fascinating to other lawyers.

I know, because I am one. And I’ve actually had multiple conversations — some lasting the better part of an hour — about the use of Post-it-brand tape-flags in document review. That’s typical of the conversation you might hear over the Amstel Lights and Heinekens at law-firm happy hours.

Now, most people use green for “okay to produce,” but the rest of the colors could mean anything. Red could mean “privileged” or “not responsive” or just “important.” And yellow, orange, blue, purple, and white? Well, they run the gamut. Any one of them might be “redact,” “come back to later,” or “show to the partner.”

Personally, I found there were never enough colors. I once talked to a person who’d worked at a firm where they had hot-pink tape flags. Wow, hot pink! Can you imagine the possibilities? You could create a category called “somewhat important and there’s at least an argument for privilege.”

One associate I know — from a firm without the hot-pink flags — developed a whole system in which subtle details were memorialized by the corner of the document upon which the tape flag was placed. Purple flag top left? That’s “possibly protected by the spousal privilege, but the other side probably already has this document anyway, since they are very friendly with our client’s wife.”

It’s quite important for young lawyers to talk through these tape-flag issues, because poor tape-flag skills could sabotage your career.

I know someone who, very early in his career, was told by a supervising attorney that he used too many different colors of tape flags when reviewing documents. This “complicated color system,” as it came to be known, was not only the focus of his first annual review, it became a perennial topic in reviews for years afterward. This was the case, even though he never used the lousy “complicated color system” ever again!

I know this story is true, because that young lawyer was ME.

Thank goodness we didn’t have those hot-pink ones.

I blame my law school. They were supposed to teach me to “think like a lawyer.” In fact, they taught me to have thoughts such as, “The application of a law-and-economics approach on these facts would suggest a departure from conventional notions of constitutional jurisprudence.”

But as we all know now, that’s not how lawyers think. Lawyers think like this: “Is orange going to make my tape-flag system look too complicated? If it does, will that affect my chances at partnership? And what’s that out my window? SUNRISE AGAIN?????”

My point is this: From associates at the firm happy hour to the partner who reviewed me, everyone seemed to think tape flags were interesting enough to be discussed at length.

And you thought they were interesting enough to read to the end of this post.