CRIMINAL LAW AND ME

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I’ve enjoyed movies involving criminal trials as much — well nearly as much — as the next person, especially before I became a lawyer. (Afterwards, my interest devolved into seeing how many mistakes about courtroom procedure, the practice of law and the office life of lawyers I could find in what I was seeing, which was fatal to that temporary but willing suspension of disbelief essential to viewer appreciation.)

It’s true I entered law school at the age of 51 principally to be able to earn enough money to finish raising my two trusting children as I thought they should be raised. But I did feel I might be a good trial lawyer because I’d always been a big talker.   As a seasoned movie-goer, I visualized myself mesmerizing juries with my words. Then I discovered mesmerizing juries came last.  There was a lot, a lot, a lot of other stuff that preceded it, especially in civil litigation, where 90% of cases settle on the courthouse steps, if not before. As for crime in its less than murderous aspects, much of it is plea-bargained before it reaches fact-finding in court, which is what jury trials are all about, at least until the penalty phase.

[Before moving on, are we clear about the difference between civil and criminal litigation?  Civil cases are claims of harm brought by one party against another that don’t involve alleged violation of a federal or state statute, or of a municipal regulation.  The plaintiff (complaining party) seeks either injunctive relief — “Court, make him/her/them stop it!” or “Court, make him/her/them do it!” — or else money damages, as compensation for the alleged harm done.  No one goes to jail or prison or is condemned to death.  Criminal complaints, on the other hand, always allege statutory or regulatory violations, are brought against the defendant(s) by state district attorneys or federal assistant attorney generals acting on behalf of  governmental entities and, if proven beyond a reasonable doubt, do result in jail or prison time, or — as in the recent Boston Marathon bomber trial, brought under federal law — a death sentence.] 

Okay, back to me. What kind of future did I have in mind  when I applied to five law schools in the greater Boston area and entangled myself in considerable federally-backed loan debt?  Candidly, I was hoping for any kind of job I could get at what everyone thought of as “my age.”  Lawyer husbands of neighbors counseled that after I had passed the bar, I should set up shop at any small local law firm that would give me a desk, and then represent anyone who came in: this potential client population, they anticipated, would consist of friends, or friends of friends, seeking divorces or separation agreements or modification of custody agreements, or perhaps a new will.  No salary, of course. Just a percentage of whatever I brought in.

Theoretically speaking, there would have been an alternative to this unappealing prospect right at the outset, although no lawyer husband of a neighbor mentioned it. Any member of the bar can sign up at any Massachusetts trial court to represent indigent defendants and be paid by the Commonwealth. It’s not much per case, but probably more than a percentage of any domestic dispute fees I might have been able to generate. I could also have applied for a job as a county Public Defender and, if hired (despite my “age”), become a “regular” employee of the Commonwealth. These two avenues would have been open to me because criminal defendants are legally entitled to representation by counsel and few, other than members of the Mafia or those accused of white collar crime (that is, of playing footsie with the federal and state securities laws) can afford to retain private defense lawyers. Therefore the government which has indicted them must also provide a defense.

Perhaps not surprisingly, public defense work never crossed my mind. Defend criminals in order to send my darling children to good colleges?

I know, I know.  Under the Anglo-American system of law, you’re not a criminal until it’s proven.  Accusations can be wrong. You’re entitled to a defense. Even if there’s seemingly compelling “proof” that you’ve done what the criminal complaint asserts you’ve done, there may have been legal flaws in the way such evidence was obtained which should preclude any verdict based on it.  I do believe all this.  However, I’ve never believed it enough to step into a jail cell, even with a prison guard right outside, in order to confer with a sullen client, perhaps not guilty of the particular offense with which he was now charged, but only perhaps.  (Although a defense attorney wouldn’t really want to go into that, because unlike in movies, the job after indictment is not to find truth, whatever it might be, but to identify flaws in the prosecution’s case.) I would have been especially reluctant to step into that cell if the sullen client were known to be generally comfortable with wielding knives and punching people even if he may not have done it this time.

That’s not to say I don’t admire lawyers who do step up to bat in order to preserve what they can of how our legal system is supposed to function.  I know a wonderful woman, married to a man with whom I shared a secretary when I practiced law, who emerged from Harvard Law School with a stellar record, held a prestigious federal clerkship, and then turned down a great offer from a major law firm paying major money to go defend criminals in Suffolk County, which includes downtown Boston and its slummier corners. At the start, she earned barely a living wage walking into those prison cells alone. But her defense work, which is now in the federal system and supervisory, has since that humble beginning been praised and commended by the entire Massachusetts judiciary and bar.  I might add she continues to correct you if you happen to use the word “criminal” in connection with anyone in her client base.  “Alleged criminal,” she says quickly, with a smile.

So how about the other side?  Nina Mishkin, tough on crime?  Criminal Law was one of the five mandatory courses of the first-year curriculum at Suffolk Law School when I enrolled in 1982.  I found it confusing.  But then I found the other four courses confusing, too. (Constitutional Law most of all.)  I suspect everyone did, but being twenty-two and twenty-three, they all played it cool and pretended it was a breeze.  At 51, I sweated bullets. Going to law school “at my age?” What had I been thinking?

I did like the Criminal Law professor, though.  She was about as old as I was but had gone to law school at 39, after an early marriage splintered into divorce.  Then she practiced in the Middlesex County District Attorney’s office for eight years, building up trial experience. (I found out all this later, of course, not while her student.)  She was also attractive, wore great suits which I much admired, and had good legs. She must have had the legs before she became a lawyer but they did add to her appeal as a role model. When the results of the Criminal Law exam, given in December, were posted in January, it appeared that sweating bullets had been of some merit as a methodology for learning law. I finished first in the class:  1/345.

Encouraged by early success, I made a mental note to take, in due time, the other course she taught, a third-year elective called Criminal Practice.  Which, in my third year, I did. This was not, as you might imagine, simulated courtroom practice in a classroom, although there was some of that — to somewhat prepare us for what awaited in a real court.  (“Objection!”  “Objection!” “Objection!”)  No, no.  We would actually be thrown to the lions.  Had I considered carefully, I might have had second thoughts. I have never done well with on-the-spot stress and angst.  (Stress and angst that I can take my time with, although not good, is part of life. By contrast, thinking fast on your feet doesn’t come up very often.) But I already had a job offer for when I would pass the bar. (God willing!) And so, with carefree abandon, I registered. What the hell. That was exactly the right word.  For me, hell is what it turned out to be.

It was then possible to offer live courtroom practice to students under a statute I can no longer cite permitting them to represent the Commonwealth in Massachusetts District Court (not to be confused with the federal District Court) under the supervision of an Assistant District Attorney.  This court had jurisdiction over only a few relatively minor criminal offenses. (Complaints involving weightier matters were brought in Superior Court.) The two I now remember were “‘Larceny Under” (thefts of under $100 in value) and “OUI”s (“Operating Under the Influence” — that is, drunk driving).  Over the semester, two OUI’s came my way.  I knew nothing of adroit cross-examination, how not to lead the witness, how to rephrase, or when to make my own objections.  Truth to tell, despite the 1/345 I knew nothing, and neither did any other law school student or graduate, about how to practice law, or how to try cases.

I nevertheless prevailed.  Bottom line: Nice-looking middle-aged lady in navy blue nunlike skirt suit actually won.  Both times.  In front of two separate six-person juries.  The second time, even the hitherto dour judge smiled approvingly. But the stress and angst to reach that result, the splitting headache that left the premises with me, were too high a price for prosecutorial triumph. At the end of the semester, I accepted the job offer from a (big) civil litigation firm, which provided plenty of stress and angst of its own, but spaced out over the next twelve years. Those two little OUI trials therefore became the only true war stories of my legal career — good examples of what thinking outside the box and life experience can do for you when opposing counsel and a not particularly friendly judge seem about to shut you down.

You want to hear?  My pleasure.  Another time.

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READINGS FROM MY LAWYERS CUP

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I cannot swear to tell the truth, the whole truth and nothing but the truth about lawyering  because the truth is that I’m ambivalent. For one thing, the most interesting men I met but didn’t marry were lawyers. I met them in private life, though — and not in their professional capacities. Also, becoming a lawyer myself changed my life in late twentieth-century America for the better in so many ways it would take a whole essay to tell you about it.  However, most of these changes were attributable to (1) the law school curriculum, which taught me how the world really works, which my liberal arts education, however valuable in other perhaps more lasting ways, did not; (2) the social status attached to professional identification as a big firm lawyer rather than as a single middle-aged woman who dabbled in writing when she wasn’t just being a mother; and (3) the independence that comes from being beholden to no one because you earn your own comfortable living, with enough left over to give your children the good education they deserve, start putting something away for old age, and then indulge once in a while in nice clothes, season tickets to whatever pleases you, travel anywhere without having to ask anyone else.

That was the good stuff about lawyering. There was also what we actually had to do on a daily basis in what is referred to among lawyers as private practice. [I cannot speak for the life of in-house counsel — who I have heard actually get to go home before 7 p.m. — or of lawyers in “the public sector.”] We had to work, or be available to work, twenty-four seven. We had to represent huge corporations with big bad problems that had no easy solutions, for which said corporations were willing to pay the huge hourly fees — deductible from corporate taxes — of the armies of lawyers toiling at their behest. In the Litigation Department, we had to stall, delay. [Often for years.] File motions to remove, to dismiss, to continue. [“Continue” means to put off.] Torture the other side, and be tortured in turn, with discovery requests for roomfuls of boxed documents.  Really enjoyable work. Without end.

No wonder at least some of us reached the point where what was called “life-work balance” tipped too far to one side to be called “balance” at all, irrespective of the personal benefits that flowed from the really nice money, and had to sever our “commitment to the Firm.” (I still love those euphemisms.) In other words, had to flee.

That was how I came into possession of my Lawyers Cup. It belonged to S., a relatively young partner who had an office on the same floor I did.  S., who I hardly knew except by sight and to nod at in the halls, must have been doing his quiet suffering for some time, because you couldn’t just up and go. Even if you were asked to leave, you were given plenty of time in the 1980’s and 1990’s to look for another job while pretending to be still devoted to the one you had just been ejected from. Probably not so true anymore. Young lawyers may be looking back and sighing, “Ah, those were the days!”

Then, what do you know, S. announced at the weekly Department meeting — attendance mandatory but not billable –that he had accepted a position as Environmental Director of a corporation he’d been representing as a lawyer in some tangle with the EPA (federal Environmental Protection Agency)… and would be leaving in two weeks!  Alligator congratulations all around! The Firm threw him a farewell party in one of the bigger conference rooms! Lawyers from many other departments tore themselves away from their desks and telephones to gather around platters of large shrimp on toothpicks, slices of London broil, imported cheeses on imported crackers, and to imbibe at least one plastic glassful of free-flowing New York state champagne.  The Department Head made a happy-sounding speech. Was it because everyone was so overjoyed S. had managed to emancipate himself with honor from the Firm?  Well, maybe.  Or was it because everyone hoped S. would think back favorably on the Firm in his new role as the one choosing the law firm to represent his employer when it found itself in legal doo-doo?  One hand usually washes the other, doesn’t it?

Two weeks later S. was gone and his office vacant, except for a few empty file folders on the bookcase shelves and the large yellow cup which had held his pens and pencils.  I guess he felt he didn’t need it anymore. I can’t say he gave it to me as a parting gift. I can’t even say he told me to go take it when he circled the floor to say goodbye. I just did. I went right to his vacated office, took the cup, washed it out and kept it. I probably don’t need it anymore either.  But I don’t at the moment know anyone who does. So it stays in our kitchen cabinet, alongside Bill’s Freud cup, and a third cup with sunflowers on it that I made while visiting a paint-your-own-cup workshop with two of my young grandchildren and their parents.

Since the cup serves no particular purpose at the moment, unless a single person comes over for coffee, in which case the guest gets the sunflowers and I take the Lawyers cup, I might as well share some of what it says with you. It’s fairly bitter, like black coffee. Which is, I know, how many people do feel about lawyers. I just wish they could remember that lawyers are people, like everyone else. That “justice” is intangible and unknowable. And that in civil court disputes, nobody wins. But if the cup speaks to you, be my guest. And if it doesn’t, it may give you a few smiles, anyway.

  • Only painters and lawyers can change white to black.
  • A jury consists of twelve persons chosen to decide who has the better lawyer.
  • It is the trade of lawyers to question everything, yield nothing, and to talk by the hour. (Thomas Jefferson)
  • Castles in the air are the only property you can own without the intervention of lawyers. Unfortunately, there are no title deeds to them.
  • The sharp employ the sharp. Verily, a man may be known by his attorney.
  • Lawyers earn their living by the sweat of their browbeating.
  • When you have no basis for an argument, abuse the plaintiff. (Cicero.)
  • It is hard to say whether the doctors of law or the doctors of divinity have made the greater advances in the lucrative business of mystery.
  • There are two kinds of lawyers: those who know the law and those who know the judge.
  • A small town that can’t support one lawyer can always support two.
  • Money talks, but big money doesn’t: it hires a staff of lawyers.
  • Litigant (n.): A person about to give up his skin for the hope of retaining his bones. (Ambrose Bierce.)
  • There’s no better way of exercising the imagination as the study of law. No poet ever interpreted nature as freely as a lawyer interprets truth. (Jean Giradoux.)
  • Every business has its own best season. That is why they say that June is the best month of the year for preachers. Lawyers have the other eleven.
  • Lawyers: Persons who write a 10,000 word document and call it a brief.
  • He is no lawyer who cannot take two sides. (Charles Lamb.)

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We’ll hear from the defense another time.  My lawyer skills are too rusty right now.

“…AND WIFE”

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[Re-blogged from November 30, 2013]

Early this morning, something I haven’t thought about in years floated up out of the vasty deeps within and refused to go away.  Don’t ask me why, or why now, because I haven’t  a clue.

It was the case of “I. de S. and Wife.”

This was the very first tort case ever reported in Anglo-American case law, and the first case I read when I went to law school at the ripe age of 51.  I think “I.” stood for “Isaac.”  I’m not sure where “S.” was. Surrey? Suffolk? Salisbury?  Maybe a friend across the pond can help us out here?

Glossary of terms. Consult as needed.]

  • Anglo-American law.”  American law derives from English law.  No big surprise. We were English colonies before we went off on our own.  English law was all there was. Moreover, the law is thrifty; it keeps everything that gets decided, and builds on it.  Even after a revolution. “Stare decisis” (it stands decided) — if you want to use fancy words.
  • Case law.”  Also known as bench-made law. Or common law. (In contrast to law enacted by legislatures.) What judges decide after all the factual evidence is in, and after they’ve considered all the relevant case law that came before.
  • Tort.”  Not a misspelled Austrian pastry.  A branch of civil law having to do with various kinds of intentional or negligent harm people inflict on each other (excluding breach of contract, which is part of contract law ) — for which there may be financial compensation.
  • Civil law.”  Not criminal law.  No jail time.  No executions.  Can get expensive, though.

Ouch.  Yes, I know it hurts.  But how can I tell you about I. and his wife, who both lived in S. at the very beginning of the 13th century, without the vocabulary?  Anyhow, that ‘s all out of the way now. Onward!

As I  recall — and it’s been a long time, so some of the details may be fuzzy — I. was a tavern keeper.  After he had shut up shop for the night, there was loud and horrid caterwauling in the street below the window.  The wife of I. — nameless for eternity — looked out, and became afeared.  (Tr., She was frightened.)  I.  went to court. He brought suit. He prevailed.

The judges decided there had been an assault.  Even though the guy in the street hadn’t actually touched anyone.  It was the first actionable tort!  Assault:  any intentional act or conduct which  creates in another person a reasonable apprehension of imminent bodily harm.  Stare decisis.

Significant words that will be on the test:  (1) intentional; (2) reasonable; (3) imminent; (4) bodily.   But never mind that.

What was really significant — to me and all the other women in the class, which was 50% of us — was I.’s wife.  Because she was so in-significant.  She had no name.   She had no right to bring her own complaint. (I. had to do it instead.)  In the eyes of the law she was not a person, and therefore had no injury.  She was his appendage, his property, his chattel.  Frightening her  — by inflicting reasonable apprehension of imminent bodily harm — was an injury to him.

Sounds nuts, doesn’t it? Thank goodness we’re not living then!

Not so fast.   As recently as the mid-twentieth century (when I was in college), a wife in some states still couldn’t sue her husband — except, under certain limited circumstances, for divorce.  If the brakes on his parked car failed, and the car rolled down the driveway and hit her as she was coming in from the street with the groceries — she couldn’t make a claim against his insurance company.

Why not? Because of the time-honored legal doctrine of marital harmony, with which the courts  – and the insurance company —  chose not to interfere.  Man and wife were one flesh, went the reasoning. So how could a man (through his insurer) pay himself for hurting his own flesh?

Flash forward to a few days ago when, blog-browsing, I came across a really adorable young man.  He’s twenty-five, and still unmarried, but he’s writing posts about what he’ll tell his future daughter(s), and what he’ll tell his future son(s) — most of both of which I really like.  So I clicked “like.”

But he also wrote a sweet and loving post to his future wife, whom he hasn’t met yet, in which he promises to go out in the world to work for her, and take care of her, and always consider her in all his decision-making for the two of them. I know he means well, but I  couldn’t click “like.”  Why can’t she  — the future wife — also go out in the world, and sometimes take care of him, and always consider him in all their decision-making for the two of them?

My ambivalence about traditional “wife”-dom is perhaps surprising in someone for whom being married has been such a central preoccupation over the years.  I used to say I couldn’t leave a husband till I had a shrink, and I couldn’t leave a shrink till I had a husband.  And that was the story of my life, until Bill.  Bill has broken that pattern for me by being both a shrink (now nearly retired) and someone who’s stuck around, unmarried, for almost thirteen years while agreeing that if it ain’t broke don’t fix it.

I guess he’s my common-law husband. And I’m his common-law wife.  [See glossary, above.]  Not quite a wife, but almost. Works for him, works for us, works for me.

Oh, wait.  Does New Jersey recognize common-law marriage?

I’d better go find out right away.

THROWING OUT THE FARMLAND BRIEF

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[This post is an experiment.  It’s certainly different.  Also, I suppose, educational.  But long.  If you hate it, please do come back tomorrow.  I promise to be short. And sweet as pie….]

FARMLAND BRIEF

THE FARMLAND BRIEF: SO YOU KNOW WHAT WE’RE TALKING ABOUT HERE

One of the things you’re supposed to do when you get older is throw stuff away.  That’s so loved ones who survive you won’t have to do it — or fight over doing it — after you’re gone.  You should start by getting rid of everything you’ve been keeping “just in case.”  Then you move on to things you used to be fond of.  And then….  But I haven’t got that far yet.  In fact, I really haven’t even begun.

However, I do think about that first step, almost daily.  “Just in case” what?  Why does my basement still contain a casebook of contract law?  I know the answer there:  Because I liked the Contracts professor in 1982.  (Nice one, Nina.)  But a large manual on how to conduct depositions in Massachusetts? Do I really plan to do that ever again now that I’m retired and living in New Jersey?

Then there are several red-rope folders full of nicely bound memoranda, with colored paper covers, in support of appeals, or oppositions to appeals, to the Massachusetts Appeals Court and the Massachusetts Supreme Judicial Court.  The color of the paper told the court clerk  —  at a glance! — whether you were Appellant or Appellee, or were filing an Amicus brief.  An Amicus brief is what?  Never mind. You are probably confused enough already.

Who is going to read this closely argued work in the red-rope folders when I’m no longer here?  One memorandum to the Appeals Court, I recall, was about who was liable for a leaky floor in a dairy. The trial court had let the installer of the floor get off without paying a red cent.  The client, who owned the cows, insisted on an appeal. The argument for this exercise in futility was like an upside-down pyramid balanced on a single sentence discovered after exhaustive search of multiple bound volumes of trial and deposition testimony to the contrary.  That all-important single sentence could perhaps have been construed to suggest that maybe, just maybe, the installer had had a momentary and fleeting doubt about the impermeability of one of the tiles in the floor.  You’d really like to read something like that?

[Footnote : I was a second-year associate when this problematic dairy floor arrived on my desk. As the fifth-year associate who delivered it explained with a demonic grin :  “Shit rolls down hill.”]

However, no legal residue in the basement compares to The Farmland Brief.  Almost two inches thick, thanks to the supporting documents bound into it as exhibits, it occupies pride of place on the dusty bookshelf containing the other memorabilia heretofore described.  It’s there because it poisoned two years of my life, including many weekends or parts of weekends.  Why am I keeping it? Why?  I wasn’t even the lead lawyer.

[Word to the wise:  Here’s where you bow out until tomorrow unless you want to learn more than you ever thought you needed to know about NEPACCO II, CERCLA, Superfund sites, diversity jurisdiction in United States courts and whether the costs of cleaning up environmental contamination constitute ” damages because of property damage” within the meaning of comprehensive general liability insurance policies.]

Everybody gone yet?  Okay, let’s start with NEPACCO.  It’s an acronym for Northeastern Pharmaceutical and Chemical Co., and also for a case that Northeastern brought in the United States District Court for the District of Missouri to find out if it really was responsible under CERCLA for cleaning up environmental damage it had caused in the state of Missouri before CERCLA was enacted.

What is CERCLA?  It too is an acronym — short for a piece of federal legislation called the Comprehensive Environmental Response, Compensation, and Liability Act, also known as Superfund.  [And if you think all this is flowing from me like ordinary speech, think again.  I had to do research, as if I’d never known it, principally in a law review article which appeared in the Summer 1998 issue ofThe Missouri Law Review:  “CERCLA Response Costs and CGL Policies: Insureds Find a Favorable Forum in Missouri” by Ryan S. Fehlig. Which I mention just in case anyone wants to look really deeply into any of this, a thing I very much doubt.]

The federal trial court for the state of Missouri decided that Northeastern did have do the cleaning up at the Superfund sites it had polluted before CERCLA was enacted because the law was retroactive and therefore applied to pollution already in existence. Northeastern appealed to the United States Court of Appeals for the Eighth Circuit; the Eighth Circuit upheld the trial court’s decision, and that was NEPACCO I.

However, none of this concerned us, practicing law back in Massachusetts.  Then came NEPACCO II!

Like all big corporations, Northeastern had for decades been buying comprehensive general liability  (“CGL”) policies and excess liability policies and excess policies on top of those — millions and millions of dollars of insurance to cover property damage and personal injury and whatever.  Naturally, it turned to these policies to help cover the cost of cleaning up the sites it had been stuck with in NEPACCO I.

Northeastern’s insurers all said, “NO!”  You can understand why.  At the time their actuaries had calculated the premiums for all those policies, cleaning up environmental damage wasn’t even a mote in anyone’s eye.  No one had thought of it. So the premiums hadn’t been high enough to cover the risk of this new kind of liability.

Northeastern, or its insurers (I forget which, but it doesn’t matter), went back to the federal trial court to get this very important insurance coverage question settled. The court agreed with the insurers.  On appeal, the Eighth Circuit agreed with the trial court.  And that was NEPACCO II.

Now for a little lecture on jurisdiction.  There are two systems of courts in the United States.  Every state has at least one state trial court and one or two levels of appellate court (for appeals).  These state courts decide issues of state law.  (They may also  decide issues of federal law, but usually the parties to a dispute about a question of federal law take their differences to federal court.)

In addition to state courts, every state has at least one federal trial court.  There are also federal appeals courts, called Circuit Courts of Appeal, which take appeals from the federal trial courts in a number of states.  For instance, the Eighth Circuit Court of Appeals, which decided  the two NEPACCOs, takes appeals from federal trial courts in Iowa, Arkansas, Minnesota, Nebraska, North Dakota, South Dakota and Missouri.

Federal courts have two kinds of jurisdiction, meaning they can hear two kinds of cases.  The first  involves questions of federal law.  The second is called “diversity” jurisdiction.  If the parties to the dispute come from different — i.e., “diverse” — states, they can be heard in federal court even if the question they are arguing  involves state law.  To decide such state law questions, the federal court will look to state law, if there is any.  But if the state has not yet decided the question before the federal court, the federal court has two choices:  (1) it can send the question of law back to the state court to decide; or (2) it can try to decide what the state court would have decided if the question had come before it.

The states regulate insurance.  Questions of insurance law are therefore matters of state law.  The federal trial court that decided NEPACCO II, and the Eighth Circuit Court that upheld the trial court on appeal, thus looked to Missouri state law for the answer to the question of whether the words “damages because of property damage” in CGL policies covered Superfund liability. They found there wasn’t any Missouri state law about this!  No Missouri state court had ever addressed the question!  So the two federal courts, sequentially, decided that IF Missouri had had to decide, it would have held that the term “damages because of property damage” in CGL policies did not include the costs of environmental damage cleanup by insureds.

Oy!

Do you know what this meant to corporate polluters in Iowa, Arkansas, Minnesota, Nebraska, North Dakota,  and South Dakota — as well as in Missouri?  No insurance coverage whatsoever!  No matter how much they had paid those big bad insurance companies for decades!

Now — at last — we come to Farmland.  The woman partner I mainly worked for from 1991 until 1997 specialized in environmental insurance coverage litigation. (Fights in court between insurers and their insureds about what was covered and what wasn’t. She always represented the insureds.)  Her cases were usually in Massachusetts, although there were occasional forays into the Superfund litigation wars in adjoining states.

However, in 1994 or 1995 she had the unusual and potentially lucrative idea of overturning NEPACCO II by bringing the matter of “damages because of property damage” in standard CGL policies before the Missouri Supreme Court and persuading that court that the Eighth Circuit had been wrong when it tried to read Missouri’s mind. What do you know?  She found herself a Missouri plaintiff — namely Farmland Industries, Inc., Farmers Chemical Company, and Union Equity Co-Operative Exchange (collectively known as “Farmland”) — with environmental liability at seventeen sites!  And Farmland had thirty-six insurers — all refusing to cough up, because NEPACCO II said they didn’t have to.

She also found some Missouri lawyers willing to sponsor her for one-time admission to the Missouri bar (pro hac vice is the technical term) — for purposes of representing Farmland in this challenging enterprise.  And she persuaded me to help her get through it. “Persuaded” is a euphemism; I really had no choice.  In addition, we had a senior associate, a junior associate, three paralegals, an insurance policy specialist, secretaries for everyone, and the night word processing department.  A whole army!  This was a round-the-clock operation — everyone industriously billing time at an obscene number of dollars per hour.

Back to those seventeen sites: They weren’t all in Missouri.  In order to stay in Missouri state court and not get transferred to federal court (where diversity jurisdiction and NEPACCO II would apply), the woman partner cleverly persuaded Farmland to settle with thirty-two of its insurers, so that only five of the original seventeen sites — all in Missouri — and only four insurers remained in the litigation.

Now there was no more diversity between the parties. So the defendants couldn’t get the case transferred out of the trial court of Clay County, Liberty, Missouri and into federal court (where they wanted it).

I will not describe the next year or so.  We had to analyze every single case ever decided anywhere in the United States on this question and sort them into two baskets:  one a basket of decisions for us, and the other a basket of decisions that the federal trial court and Eighth Circuit had relied on to come up with NEPACCO II.  (“Basket” is a metaphor, you understand.  There were no baskets.  Only piles of photocopies of decisions highlighted in yellow all over everyone’s floors so there was nowhere to walk.) Then we had to show how every single case in the second group differed from Farmland’s situation and explain to the state court (respectfully but forcefully), case by case, why the federal court was wrong to put its eggs in the second basket.

There was a lot of writing and rewriting.  The woman partner who had stirred up this hornet’s nest was nervous, because the monthly bills for legal services to Farmland were very high, and mounting higher, and Farmland was understandably restive.  Thanks to her, we were rewriting until eleven and twelve o’clock at night.  Each rewrite had to be proofread.  Ever hear of The Uniform System of Citation?  You’re lucky.  It regulates every single comma and period and space after a period in every single piece of legal writing.  And regulates many other things in that writing as well.  We had to comply with its regulations. On each rewrite.  And you thought the practice of law was glamorous!  I thought I’d go blind!

Also, everything we wrote that the woman partner finally approved of — after changing her mind three or four times — had to be filed in Missouri by Missouri counsel.  Which means it had to be sent to Missouri counsel in time for them physically to get it to court before court closed on the last day for filing.  Fed Ex stopped picking up in Boston for next day delivery to Missouri at 11 p.m.  After that, there was a service called Mercury, but they didn’t pick up;  you had to get your stuff to them by 2 a.m..  I think that job was relegated to the senior associate, who was a man.  Poor guy, wandering the dark streets of Boston with our precious legal memoranda and appendices at 1:45 in the morning.

We were all very tense and sour, and snapped at loved ones, and the money didn’t make it better.  Then we lost. On something called a summary judgment motion — which means it was all on paper to the court.  (No trial or witnesses or any of the good stuff.  Just paper.) Farmland of course appealed, since that had been the plan in the first place.  The case was transferred to the Missouri Supreme Court before the Missouri Court of Appeals could issue an opinion.

And the nightmare began all over again.

It lasted another year.  But at last there was oral argument. By our woman partner. The Missouri Supreme Court is in Jefferson City, the fifteenth largest city in Missouri.  It has nothing of interest in it except the State Capitol, the State Supreme Court, the State Penitentiary (in a rather attractive building), and one hotel for all lawyers arguing cases before the Court.  It is in the geographic center of the state, and does not have an airport.  We flew to St. Louis, and drove to Jefferson City by limousine. We passed a llama farm.  The limousine driver explained that llama was going to be the coming meat in expensive restaurants.  He said this in 1996.  He was apparently wrong.

I spent the evening before oral argument in the woman partner’s hotel room, watching her try on each of the three skirt suits she had brought and helping her decide which of the three was most persuasive. We chose the navy blue; she was short and blonde, and it made her look like a sweet lay nun. Next day, in navy, she argued our case before seven Missouri justices. By now she knew it forwards, backwards, sideways.  You could interrupt her with questions, and she didn’t bat an eye.  She looked small and pure.  Counsel for the insurers were loud and large and blustery and thought they could shout her down.

You can’t shout down pure.  We won.  NEPACCO II was no longer good law in Missouri!  [See Farmland Industries, Inc. v. Republic Insurance Co., et al., 941 S.W.2d 505 (Mo. 1997).] Insurers would hereinafter have to pay through the nose for Missouri environmental cleanups!  As for us, we could clear the floors, bundle up all the paper, send it away to Dead Storage and go out for a celebratory dinner.

But for sixteen years I’ve kept a copy of the victorious Farmland Brief!  Perhaps for auld lang syne?  What kind of auld lang syne? I was miserable the whole two years! Maybe I thought I was going to write about all that unhappiness. Although I’ve never even looked at the damn thing again.  Until now.  When I took a picture of it [see above ] to show you.

Oh, my God!  You know what?  I saved, and just photographed, the wrong brief!  This is the brief to the trial court — the one that lost.  I made a mistake.  The winning brief is back in Dead Storage in Boston.

*********************

So I can begin to throw stuff out.  I can begin with this.  Out, losing brief, out!  Boy, does that feel good!

Now what shall I throw away next?

“…AND WIFE”

Standard

Early this morning, something I haven’t thought about in years floated up out of the vasty deeps within and refused to go away.  Don’t ask me why, or why now, because I haven’t  a clue.

It was the case of “I. de S. and Wife.”

This was the very first tort case ever reported in Anglo-American case law, and the first case I read when I went to law school at the ripe age of 51.  I think “I.” stood for “Isaac.”  I’m not sure where “S.” was. Surrey? Suffolk? Salisbury?  Maybe a friend across the pond can help us out here?

[ Glossary of terms. Consult as needed.]

  • Anglo-American law.”  American law derives from English law.  No big surprise. We were English colonies before we went off on our own.  English law was all there was. Moreover, the law is thrifty; it keeps everything that gets decided, and builds on it.  Even after a revolution. “Stare decisis” (it stands decided) — if you want to use fancy words.
  • Case law.”  Also known as bench-made law. Or common law. (In contrast to law enacted by legislatures.) What judges decide after all the factual evidence is in, and after they’ve considered all the relevant case law that came before.
  • Tort.”  Not a misspelled Austrian pastry.  A branch of civil law having to do with various kinds of intentional or negligent harm people inflict each other (excluding breach of contract, which is part of contract law ) — for which there may be financial compensation.
  • Civil law.”  Not criminal law.  No jail time.  No executions.  Can get expensive, though.

Ouch.  Yes, I know it hurts.  But how can I tell you about I. and his wife, who both lived in S. at the very beginning of the 13th century, without the vocabulary?  Anyhow, that ‘s all out of the way now. Onward!

As I  recall — and it’s been a long time, so some of the details may be fuzzy — I. was a tavern keeper.  After he had shut up shop for the night, there was loud and horrid caterwauling in the street below the window.  The wife of I. — nameless for eternity — looked out, and became afeared.  (Tr., She was frightened.)  I.  went to court. He brought suit. He prevailed.

The judges decided there had been an assault.  Even though the guy in the street hadn’t actually touched anyone.  It was the first actionable tort!  Assault:  any intentional act or conduct which  creates in another person a reasonable apprehension of imminent bodily harm.  Stare decisis.

Significant words that will be on the test:  (1) intentional; (2) reasonable; (3) imminent; (4) bodily.   But never mind that.

What was really significant — to me and all the other women in the class, which was 50% of us — was I.’s wife.  Because she was so in-significant.  She had no name.   She had no right to bring her own complaint. (I. had to do it instead.)  In the eyes of the law she was not a person, and therefore had no injury.  She was his appendage, his property, his chattel.  Frightening her  — by inflicting reasonable apprehension of imminent bodily harm — was an injury to him.

Sounds nuts, doesn’t it? Thank goodness we’re not living then!

Not so fast.   As recently as the mid-twentieth century (when I was in college), a wife in some states still couldn’t sue her husband — except, under certain limited circumstances, for divorce.  If the brakes on his parked car failed, and the car rolled down the driveway and hit her as she was coming in from the street with the groceries — she couldn’t make a claim against his insurance company.

Why not? Because of the time-honored legal doctrine of marital harmony, with which the courts  — and the insurance company —  chose not to interfere.  Man and wife were one flesh, went the reasoning. So how could a man (or his insurer) pay himself for hurting his own flesh?

Flash forward to a few days ago when, blog-browsing, I came across a really adorable young man.  He’s twenty-five, and still unmarried, but he’s writing posts about what he’ll tell his future daughter(s), and what he’ll tell his future son(s) — most of both of which I really like.  So I clicked “like.”

But he also wrote a sweet and loving post to his future wife, whom he hasn’t met yet, in which he promises to go out in the world to work for her, and take care of her, and always consider her in all his decision-making for the two of them. I know he means well, but I  couldn’t click “like.”  Why can’t she  — the future wife — also go out in the world, and take care of him, and always consider him in all their decision-making for the two of them?

My ambivalence about traditional “wife”-dom is perhaps surprising in someone for whom being married has been such a central preoccupation over the years.  I used to say I couldn’t leave a husband till I had a shrink, and I couldn’t leave a shrink till I had a husband.  And that was the story of my life, until Bill.  Bill has broken that pattern for me by being both a shrink (now nearly retired) and someone who’s stuck around, unmarried, for almost thirteen years while agreeing that if it ain’t broke don’t fix it.

I guess he’s my common-law husband. And I’m his common-law wife.  [See glossary, above.]  Not quite a wife, but almost. Works for him, works for us, works for me.