Tuesday, October 1, 2013


A couple of clowns shy of a circus ...

(Bradshaw v. Unity Marine Corp. US Dist. Court, S.D. Texas)

This case, penned the Court, “involves two extremely likable lawyers”—yes, a nice beginning, but (affability be damned!) things turned immediately ugly—“two extremely likeable lawyers who ... have obviously entered into a secret pact—complete with hats, handshakes and cryptic words—to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed.”

The Court was left on its own to deduce whether plaintiff’s claim for injuries suffered while working aboard a vessel using defendant’s dock was subject to Texas’ two-year statute of limitations or the three-year federal statute for maritime personal injuries.  If Texas law applied, plaintiff’s claim was time barred.  This was not an easy task.  And the Court’s apparent frustration bubbled out in its (odd) interjection (made with nary a semblance of a sequitur) that, “[A]t the end of the day, even if you put a calico dress on it and call it Florence, a pig is still a pig.”

The Court summed up with a pat on its own judicial back: “After this remarkably long walk on a short legal pier”—the Court’s analysis was pretty lengthy—and “having received no useful guidance whatever from either party, the Court has endeavored, primarily based upon its affection for both counsel, but also out of its own sense of morbid curiosity, to resolve what it perceived to be the legal issue presented.  Despite the waste of perfectly good crayon seen in both parties’ briefing (and the inexplicable odor of wet dog emanating from such)”—no explanation provided for this stenchy canine comment—“the Court believes it has satisfactorily resolved this matter.”

The Texas statute controls.  Plaintiff loses.

John S. Spencer

If you don’t want to receive further communications from this email address please simply reply: “Cease.”

Friday, May 24, 2013


celebrated his 297 courtroom victories (compared to only 3 losses, and one of those reversed on appeal) by taking his confidential secretary Della Street and, sometimes, the private eye Paul Drake to a restaurant of some high culinary repute for a gourmet meal—the adjective is Perry Mason creator Erle Stanley Gardner’s—for a gourmet meal of steak and french fries. Steak has been the center piece of many a Last Meal.  But not so for six time killer Velma Barfield (weapon of choice: arsenic). Just prior to becoming (in 1984) the first incarcerated woman to be killed via lethal injection this (so called) Death Row Granny washed down a mess of Cheez Doodles with Coca-Cola.  

Food Crimes.  They’re not just limited to petty stuff such as a quick snatch & dash of a bag of Doritos® from the local 7-11.  Not too long ago German peculators made off with 11,000 pounds of Nutella® (you know, that funky chocolate-hazel nut stuff). 

There’s no single recipe for a Food Crime.  A quick look on line will provide exemplars of gross foods which clearly constitute overt crimes against good taste and decency.  How’d you like some Casu Marzu, a Sardinina goat’s milk cheese, which during fermentation is purposefully infused with flies which leads to a proliferation in the cheese itself of fly larvae and maggots.  Or maybe you’d prefer Hasma, a desert made from the fallopian tubes of frogs.  Now, some of these foodstuffs might be tough to come by (even at Whole Foods) so you might want to go with a can (Net Wt. 5.5 oz.) of one of Libby’s® readily available delights: the famous Potted Meat Food Product which contains (and this is just the stuff they own up to being in there) mechanically separated chicken, beef tripe, partially defatted cooked beef fatty tissue, beef hearts, water, partially defatted cooked pork fatty tissue, salt, mustard, natural flavorings, dried garlic, dextrose, sodium erythorbate and sodium nitrate.

Nor should we ignore those foods that can assault and batter your very well being.  The Carl’s Jr. Six Dollar Guacamole Bacon Burger, when paired with an order of  medium fries and a 32 oz. soft drink, weighs in at 1,810 calories, 92 g fat, 3,450 mg sodium.  But it’s not just carnivores who are prey to such gastronomical attacks: even without a drink or chips the 12" Blimpie Special Vegetarian Sub packs a punch of 1,186 calories, 60 g fat, 3,532 mg sodium.    

So munch on, crunch on, take your nuncheon
Breakfast, supper, dinner, luncheon ...

(Robert Browning (1812–89) The Pied Piper of The Pied Piper of Hamelin)

John S. Spencer

Litigation & Mediation

Tuesday, April 23, 2013


"So all my best is dressing old words new
"Spending again what is already spent ..."
                                                           (Wm. Shakespeare, Sonnet 76)   

Words—gibbered or written—are an attorney’s stock in trade.  And there are some fine sounding legal phrases which can be trotted out.  Duos exempoator: Quicquid est contra normam recti est injuria. (Whatever is against the rule of right is a wrong.); Res est misera ubi jus est vagum et incertum. (It is a wretched state of things when law is vague and mutable.)  But as to attorneys themselves seldom is heard an encouraging word.  You’re more likely to hear argy-bargy (heated argument) and bumfs (dull, official notices or memoranda); or adjectives such as: sesquipedalian (embracement of polysyllabia); or erinaceous (resembling a hedgehog: Latin derivation, English usage since the 18th century) or inaniloquent (inanely loquacious) or incompt (unkempt, unpolished).  None of which is to say that attorneys might not be adept at eutrapely (pleasantness in conversation: some claim this is one of Aristotle’s seven moral virtues) or skilled at ensorcelling others (viz., bewitching, enchanting or captivating others: from Middle French ensorceler: see sorcery)—particularly jurors whom they might be fleeching (coaxing or wheedling especially by flattery) or sometimes judges before whom they might even stoop to uttering a flagitation (urgent importunity).  But enough of this lexiophilic palaver.  It’s time for me to absquatulate.  Bye!

John S. Spencer
Sausalito CA 94966

Wednesday, March 27, 2013

“But I’m not so think as you drunk I am.” (J.C. Squire)

I'd like to say I have this on good authority but I have it only on Internet authority.  Still, it bears an innate believability and came replete with a facsimile of a motion whereby a Colorado attorney sought an extension to respond to a legal proceeding on the grounds that she “had almost completed ... [her] response on the due date ... but suspended her work to take a friend out to dinner for his birthday.  When she came back, she was unable to finish it, due to the wine.  :-) ”  (Yes, the little sideways happy day face thingy was included in the pleading.)  “WHEREFORE ...” she concluded “... inebriation constituting excusable neglect ... the court should grant the ... extension, as it is in the interest of justice.”  Apparently (again, my authority is the Internet) the court—the phrase sober as a judge comes to mind—granted the extension.  (However, please note that the attorney in a reported (purported) email exchange with the original reporters of this matter claims that she withdrew the motion and filed another one.) 

Friday, February 22, 2013


Some might suggest that “Sluggerrr,” the Kansas City Royals’ mascot, should be charged with Aggravated Public Annoyance or arrested just because or maybe put on a drone hit list. 

 That probably ain’t going happen, but Sluggerrr will have to face some civil court music—again.  John Coomer, while attending a Royals game, was struck in his left eye by a foil-wrapped hot dog which Sluggerrr had (allegedly) tossed into the stands as part of a between-the-innings promotion known as the “Hotdog Launch.”  Coomer suffered a torn and detached retina and underwent surgery; he had additional surgery for a cataract; now has an artificial lens in his eye.  Commer sued.  A jury ruled in Sluggerrr’s favor.  A Missouri Appellate Court (recently) reversed the ruling stating (inter alia) that, “Everyone who participates in or attends a baseball game assumes the risk of being hit by a ball, because the risk of being hit by a baseball is a risk inherent to the game.  However, the risk of being hit in the face by a hot dog is not a well-known incidental risk of attending a baseball game.  Consequently, a plaintiff may not be said to have consented to, and voluntarily assumed, the risk merely by attending the game.”  (internal quotations and citations omitted)  Coomer v. Kansas City Royals Baseball Corp.  (Appeal from the Cir. Ct. of Jackson County, Missouri) (2013) WD73984 & WD74040.)  There’s a somewhat similar California case: “Tremor,” the Rancho Cucamonga Quakes’ mascot, is a seven foot tall dinosaur with a protruding tale.  Once upon a time at the “Epicenter” (Quakes’ home-field) Tremor was getting his freak on in the stands and his tale kept bumping and distracting a fan who, while distracted, was hit in the face by a foul ball.  Summary judgment in favor of Tremor was reversed on appeal.  Lowe v. Calif. League of Prof. Baseball (1997) 56 Cal.App.4th 112. 

Friday, January 25, 2013


Is Chicken Really the Devil’s Meat?

Sarti v. Salt Creek Ltd. (2008) 167 Cal.App.4th 1187 doesn’t provide a definitive answer to this poultry puzzle but does provide a heart (and gut) wrenching portrayal of a plaintiff who suffered a massive physical meltdown after partaking of “raw ahi tuna, avocado, cucumbers and soy sauce” at a local eatery.  She tested positive for Campylobacter, a bacteria “not found in raw tuna, unless that tuna has been cross-contaminated by raw chicken, where the bacteria is common.”  Four practices were identified which could have lead to cross-contamination: (1) Wipe-down rags not sanitized between wiping down surfaces; (2) Insufficient sanitizer in the dishwasher; (3) Chicken tongs sometimes used for other food; (4) Raw vegetables stored under (unspecified type of) raw meat so that a drop of raw meat juice might get on the vegetables.  There was also testimony that “the waiter ... used a wet, unsanitized rag stored underneath the bar to wipe down ... [plaintiff’s] table.”

Sarti is a must read (if you have the stomach for it) for anyone prosecuting or defending a food poisoning case because of its exhaustive review of seminal cases in this genre including Minder v. Cielito Lindo Restaurant (1977) 67 Cal.App.3d 1003.  Mr. and Mrs. Minder ate a Sunday afternoon lunch at a restaurant.  Afterwards husband had an upset stomach.  Three days later he began sweating, developed a fever.  His wife felt a little nauseated on that Sunday afternoon, and her symptoms lasted for two days, when she became feverish and chilled.  Both of them had Shigella Flexneri, Group B.  The appellate court reversed judgments in favor of plaintiffs because (per the Sarti Appellate Court’s analysis of Minder) “there was no evidence to reasonably infer a link between the particular kind of food poisoning involved and the specific unsanitary conditions at the restaurant.”

Minder compelled the Sarti trial judge (who, of course, didn’t have the benefit of the Sarti appellate opinion) to follow Minder’s “black-letter rule of law that inferences are off limits to prove a food poisoning case.”  So, even though he felt that plaintiff had won her case “fair and square,” the judge entered a jnov (judgment non obstante veredicto [judgment notwithstanding the verdict]) in favor of defendant restaurant thus vitiating the jury’s $3,225,000 award.

But, in the end, the sweet taste of victory was plaintiff’s.  The appellate court reversed the jnov  and reinstated the verdict, noting, “Despite intimations in the Minder opinion to the contrary, food poisoning cases are governed by the same basic rules of causation that govern other tort cases.  Reasonable inferences drawn from substantial evidence are indeed available to show causation.”                        
The Satri jurists also distinguished Sarti from Reese v. Smith (1937) 9 Cal.2d 324 which concerned a seamstress, linked sausages, botulism and a judicial proclamation that “maggots themselves are ‘not poisonous,’ not necessarily confined to rotting food ... [and are] ‘but the larvae of insects, most commonly that of the housefly.’”

Lunch anyone?