‘Twelve Angry Men’, or The Origins of the Jury System

An earlier blog post talked about ‘straw men’ and compurgation; and to continue in that vein I wanted to say a few words about the origins of the modern jury. The timing for me is quite fortuitous, as I just hosted a small group of law students from Korea. Korea is in the early years of experimenting with the introduction of a jury system for a small number of criminal offenses, and while taking them on a tour of the U.S. district court (where they had occasion to observe a pre-trial hearing for a civil case, as well as testimony in a criminal case) I had ample opportunity to reflect on our use of juries.

Many people cringe at the sight of the ‘jury summons’ they receive in the mail every few years. I have to admit that I have no direct experience with serving as a juror– I’ve been bounced every time, which frequently happens to those with legal training–but nonetheless find the institution fascinating and I hope to have first-hand experience with this someday. The closest I’ve gotten so far is seeing “Twelve Angry Men” several times.

We say that the two most important duties of a citizen are voting and jury duty; yet too many Americans don’t bother with the former and bend over backwards to avoid the latter. I thought it might be instructive to write a few words about medieval juries so as to put the role of juries in historical context. For its origins, we need to go back at least as far as the Norman conquest of 1066. As originally conceived, a jury was a body of men sworn to give a true answer to a question– they essentially provided information of interest to the Crown related to property and questions of law, the best example being the “Domesday” survey of Great Britain completed in the 1080s. It not infrequently, if incorrectly, is referred to as the “Doomsday Book”–the etymology probably is from the old English word “dom” meaning “judgment”–and judgment it was, as the tax and property judgments made in it were unalterable and not subject to any appeal!

Juries were therefore tasked with the function of providing the Crown’s representatives with information on a wide variety of matters, such as land ownership, agriculture, the number of sheep or pigs in a county, and to identify suspected criminals for trial by ordeal. With the decline of ordeals after 1215 (you can read more about ordeals in my article here), juries took on an increasingly formalized and important role. Jurors were to be independent neighbors, culled from the area but not having a direct interest in the questions before the jury. Like witnesses and compurgators, jurors were originally expected to know something of the truth of the matter before them– hence the reason for requiring them to come from the same area as the parties. The questions juries were asked could be a question of fact or of law, or of mixed fact and law. They could be asked, for example, to render a verdict under oath as to the names of all landowners in the district and how much land each of them owned; or the names of people suspected of murder or other crimes. This was one of the largest differences between contemporary and medieval juries: namely, that juries long ago were expected to know in advance the circumstances of the particular case in front of them. Other contemporary elements were the same: juries generally consisted of 12 people (although the introduction of women to juries is of recent vintage), were sworn under oath,  and were expected to render unanimous verdicts.

By the 14th century it was generally accepted that juries were to work together as one body, with the aim of not only answering questions but in hearing sworn evidence and determining the truth or falsity thereof. Medieval juries typically had a wider range of decision-making then they do today, but the right of juries to vote their consciences, rather than delivering the verdict that was expected, took some centuries to become the norm. For those of you who blanch at the sight of  a jury summons, you should know that as courts became increasingly concerned with parties exerting outside pressures and influence on jurors a process of strict sequestration became common. In the modern era, we equate sequestration with sensational trials (like the O.J. Simpson trial), where the media blitz is so extreme that it is considered imperative to keep jurors isolated from it, although sequestration may also be used for other reasons such as to ensure juror safety. During the middle ages, however, jurors were essentially kept as prisoners by the court. In order to ensure they took their role seriously, and to expedite a timely and unanimous verdict, they were typically kept under lock and key during their deliberations and, worse of all, given no “meat, drink, fire or candle”–meaning they were kept in the cold and dark, unfed, until they reached a verdict! Should the jury not be unanimous, one old practice was to place them together in a cart and ride them through town until such a time as they could all reach a consensus.  Juries that issued verdict that did not comport with the court’s interpretation of the facts, or raised the royal ire, could face significant consequences: fines and imprisonment were not uncommon, nor was the early practice of razing the houses of jurors who delivered a ‘wrong’ verdict.

So, next time you receive a jury summons, remember: it’s not that bad!

Incidentally, the Commonwealth (in conjunction with Suffolk University) recently created an 18 minute long Jury Duty Orientation video; my friend Kathleen P. appears as one of the jurors in the front row. You may wish to check it out here: Massachusetts Jury Duty Orientation video.

And Happy New Year!

Of Christmas Caroling, Extortion, and Mistletoe

What, might you ask, do caroling and extortion have in common? Unless you’re very cynical, the answer probably should be “nothing.” Personally, I love the holidays and believe caroling is a lovely tradition. I still remember the last time I answered the front door, to be greeted by a spirited group of carolers. It was a lovely and festive act, much appreciated at the time, and we invited them in for eggnog and cookies. But as we approach the holidays, consider for a moment some of the lyrics of the popular 19th century Christmas carol, “Here We Come A-Wassailing,” otherwise known as “Here We Come A-Caroling” or “The Wassail Song”:

Here we come a-wassailing
Among the leaves so green;
Here we come a-wand’ring
So fair to be seen.

REFRAIN:
Love and joy come to you,
And to you your wassail too;
And God bless you and send you a Happy New Year
And God send you a Happy New Year.

Our wassail cup is made
Of the rosemary tree,
And so is your beer
Of the best barley.

REFRAIN

We are not daily beggars
That beg from door to door;
But we are neighbours’ children,
Whom you have seen before.

REFRAIN

Call up the butler of this house,
Put on his golden ring.
Let him bring us up a glass of beer,
And better we shall sing.

REFRAIN

We have got a little purse
Of stretching leather skin;
We want a little of your money
To line it well within.

REFRAIN

Bring us out a table
And spread it with a cloth;
Bring us out a mouldy cheese,
And some of your Christmas loaf.

REFRAIN

God bless the master of this house
Likewise the mistress too,
And all the little children
That round the table go.

REFRAIN

Good master and good mistress,
While you’re sitting by the fire,
Pray think of us poor children
Who are wandering in the mire.

REFRAIN (for alternate lyrics, see Here We Come A-wassailing)

Well, when you comtemplate the lyrics they seem a bit odd and full of curious juxtapositions, beginning with the nicest sentiments but quickly devolving into demands for beer, Christmas loaf, mouldy cheese (apparently a desirable thing, mind you), and even money to line one’s purse, all mixed in with a little bit of pathos and manipulation (“pray think of us poor children/who are wandering in the mire.”) Meanwhile, they emphasize that despite these demands the carolers are no mere “daily beggars” but your neighbors.

No less strident, but much more straight-forward, are the entreaties conveyed in one of my perennial favorites, “We Wish You a Merry Christmas,” which hearkens back to the 16th century or so:

We wish you a Merry Christmas;
We wish you a Merry Christmas;
We wish you a Merry Christmas and a Happy New Year.
Good tidings we bring to you and your kin;
Good tidings for Christmas and a Happy New Year.

Oh, bring us a figgy pudding;
Oh, bring us a figgy pudding;
Oh, bring us a figgy pudding and a cup of good cheer
We won’t go until we get some;
We won’t go until we get some;
We won’t go until we get some, so bring some out here.

Besides the fact that most of us tend to forget the second, “figgy pudding” stanza, and perhaps are somewhat unsure what a figgy pudding is–it’s an ancient type of Christmas pudding, by the way–the lyrics can be quite alarming. Am I to understand that you are wishing me a Merry Christmas and a Happy New Year (thank you, that’s very nice), but that you are also requesting–nay, demanding–a figgy pudding and a “cup of good cheer”? And you won’t leave unless you get it?  Fiddlesticks and bah humbug–that’s extortion!

So, where does this tradition come from? It has been said to date back to Anglo-Saxon pagan traditions originally, and subsequently incorporated into Norman-era Christmas customs. It shares common elements with two medieval traditions: the one, the charitable exchange between feudal lords and their serfs on Twelfth Night (the serfs providing song and blessings on the house in exchange for food and drink); the other, the ancient practice of feudal service, where a lord was owed goods or services (e.g., a specified number of knights or men-at-arms, crops, or nominal items such as a ‘rose at midsummer’). The acts depicted in “Here We Come A-Wassailing” are the benign form of this exchange between a lord and his serfs; they grant the lord and his family their collective blessing in exchange for a spot by a warm fire, the wassail beverage, and perhaps other food and gifts.  The custom expressed in “We Wish You a Merry Christmas” is more analogous to that of trick-or-treating: give us what we want, or we’ll make mischief and/or not leave until you do. To my mind, that shares certain similarities with some forms of the chiravari or shivaree (see my entry for the Role of Informal Law ), in which rambunctious groups loudly serenaded couples on their wedding day, banging pots and drums under their windows and blowing trumpets until bribed to depart.

So, should carolers come to you door, don’t forget to invite them in for the wassail beverage (or equivalent) –and at all times mind the contractual obligation created by standing beneath the mistletoe! To all of you I wish “good tidings for Christmas and a Happy New Year”. Now off I go a-wassailing.

I am endebted to my dear friend and law school classmate, Robert P. McHale, of R | McHale Law,  for suggesting wassailing as a potential blog topic. A figgy pudding to you, my good sir.

What Is A ‘Straw Man’, and What Is the Connection to the Rise of the Jury Trial?

A colleague, while discussing corporate takeovers, recently asked me about the origins of the term straw man— hence this week’s blog entry. I’m always happy to make the connection between the contemporary and the historical! A straw man, as the term is commonly used, typically has two meanings: the first of these is commonly used in political or other debates, where a straw man or straw man argument is essentially a misrepresentation of an opponent’s argument by comparing a statement one’s opponent has made with a false (yet superfically plausible-sounding) equivalence and then refuting it. This gives the appearance of having refuted the opponent while in reality one has merely refuted a distorted version of what he or she had originally said. This can be a highly effective debating tool–effective but intellectually bankrupt. Common means of creating a ‘straw man’ argument involve exaggerating, over-simplyfing, or decontextualizing an opponent’s position, or inventing a character that ostensibly reflects the views with which one is in disagreement, or “quoting” some unnamed person that is said to be representative of the opponent’s arguments. The etymology of straw man in this context probably refers to the straw-stuffed dummies historically used for bayonnet drills and the like by the army, or by boxers of old, as they provide no resistance and make success assured. What does this have to do with the rise of the jury trial? As far as I know, nothing!

The other meaning of straw man, however, may very well have a great deal to do with jury trials. In this usage of the term it refers to someone who is a figurehead or a stand-in for someone else (either a real or corporate person). In some instances, a straw man is used in order to meet the letter of the law in such contexts as property conveyances: the common law has traditionally held that one cannot convey property to oneself; if one holds property and wishes to convert it to a joint tenancy (owned equally with another person), then the one can “convey” the property to a straw man (such as one’s lawyer) who is nominally then the owner but only in name; the straw man then conveys the deed to the original owner and their new joint tenant. In this context a legal fiction is used in order to achieve a desired, and lawful, purpose. Straw men can also be used for illegal purposes or as a means of skirting the law; for example, for money laundering purposes a straw man may hold ownership of a business while the real owners (e.g., an organized crime syndicate) stay in the shadows. A straw man may be used to shield someone from liability; shell corporations (corporations that exist in name only but have no real assets) can be used for this purpose to essentially make owners judgment-proof. The etymology of this type of straw man seems to have its origins in an ancient medieval legal practice known as compurgation.  Compurgation was the swearing of an oath, usually a very specific, ritualized oath, in order to settle  a legal dispute. One party would “purge” himself of the charges or legal claim by undertaking the oath without error or hesitation before witnesses, and was used in the U.K. until the early 17th century in debt cases. The party would bring witnesses (usually 11) to attest to the truthfulness of their claim; this made sense when communities were small and tight-knit and if one was attesting to a claim that had actually occurred before numerous witnesses and where was one able to get 11 people to testify to the party’s credibility. The shortcomings of such a system are quite obvious, which eventually led to the rise of a class of professional ‘oath helpers’ who congregated around court houses and offered to swear to the veracity of a party’s claim for a fee. While perhaps apocryphal, it is said that they would advertise by having tufts of straw poking out of the tops of their boots, thereby letting the initiated know their availability as a professional oath helper– and hence the origins of the term straw man. Indeed, as justice was centralized in royal courts it became completely impractical to bring in 11 people from afar to testify in routine cases. By the end of the 16th century part of the official duties of court porters was to find these professional ‘oath helpers’ to assist in the ritual of legal process. This process begain to die out by 1600 and was largely forgotten by the end of the 17th century at the same time that the jury trial became more and more entrenched as a means of settling criminal, and later civil, cases. The jury, or jurata, were required to swear an oath to deliver a true answer (or verdict); its members were therefore known as jurors (or juratores) referring to the fact that they were people who had been sworn. While they were originally supposed to know something of the truth of the matters that came before them– hence the reason they were culled from the environs near where the cases occurred–juries were to morph into groups of 12 people who were to be disinterested in the outcome of the trial but tasked to ascertain what the true facts were.

And if you think jury duty is an onerous burden now, wait until you hear what being a juror used to be like–which gives me an idea for my next blog entry!

Is Trial By Combat Still a Possible Form of Legal Action?

Imagine you’ve just gotten a ticket for a motor vehicle violation. You have the right to defend yourself against it, but do you have the right to take up arms to do so? In other words, can you demand your right to trial by combat? This question may seem non-sensical. After all, we have an adversarial system, but it’s not that adversarial, right?

Before delving into why I’m posing that question, a bit of legal historical context: trial by combat, also known variously as ‘trial by battle’, ‘wager of battle’, or ‘judicial duel’, was a medieval form of criminal procedure in which the disputants in a legal suit fought each other, with the winner also deemed to have won his or her case. Alongside ordeals (you can read my article on that topic, if you are so moved, at Between a Rock and a Hot Place) , trial by combat was a common form of adjudication of disputes. Originally Germanic in origin, the Normans brought it with them to England following the Conquest. In the U.K. it’s high point of use was between the 11th and 15th centuries. Trial by combat was not available in certain cases, such as if there was very strong exculpatory evidence against the defendant, if he or she was captured ‘red-handed’, or if he or she had attempted escape following capture. A party lost by dying, being rendered unable to fight any further, or by crying “craven” (a lovely old word meaning “cowardly”, but originally being old French for ‘broken’, meaning in this context “I am vanquished”). A defendant who was killed lost the case (not that it probably mattered much at that point), but if defeated and alive, could be executed or declared “infamous” (meaing he lost all legal protections, priviliges and status). A defendant who defeated the plaintiff, or was able to defend himself successfully from sunrise to sunset, was deemed exonerated. The stakes were high for the plaintiff, as well– if killed, he lost the suit (again, probably not very important at that point); if he survived and lost, he was likewise rendered “infamous”.  Interestingly, before being allowed into the ring to begin their trial by battle, the combatants often had to swear an oath that they had not resorted to sorcery; one such surviving oath read as follows: “Hear this, ye justices, that I have this day neither eat, drank, nor have upon me, neither bone, stone, nor grass; nor any enchantment, sorcery, or witchcraft, whereby the law of God may be abased, or the law of the Devil exalted. So help me God and his saints.”

So, why am I asking whether trial by combat is still a possible form of legal action? Just that question came up a few years ago in the U.K.  In December 2002 a 60 year-old unemployed mechanic from the town of Bury St Edmunds incurred a £25 fine for a minor traffic infraction resulting from his failure to notify the Driver and Vehicle Licensing Agency (DVLA) that his motorcycle was no longer operational. Leon Humphreys shocked the court by maintaining that he still had the ancient right to fight a champion nominated by the DVLA. Following his hearing, he was quoted as saying: “I am willing to fight a champion put up by the DVLA if they want to accept my challenge. The victor speaks in the name of God and justice so it is a reasonable enough way of sorting the matter out. I know I am in the right so I do not have anything to worry about. I am reasonably fit for my age and I am not afraid of taking anyone on if they want to fight.” The magistrates did not quite know what to make of this– the question of whether this barbaric form of medieval process was still extant hadn’t come up before, to their knowledge. [This leads me to mention that there’s never a legal historian around when you need one, but I digress]

They eventually decided (quite rightly) that it was not. While they may have been unsure of the reason, the reality is that trial by combat fell into disuse in the late medieval period and was forgotten– or, at least, forgotten until 1818 when a defendant in a murder appeal demanded it to a shocked court (Ashford v. Thornton). It was formally repealed by Parliament the following year, which also abolished ‘appeals of murder’ (the ability of a third party to prosecute a defendant after he or she had been acquitted of murder charges). But could it still be an option in the U.S.?

English common was received into the U.S. before the American Revolution. Following American independence, the common law remained entrenched here, albeit supplanted, modified, and expanded upon at both the federal and state levels over the intervening two centuries. Clearly, U.K. decisions regarding English common law are not binding on U.S. courts; and moreover trial by combat survived in the U.K. until formally abolished by Parliament in 1819, well after American independence. Since we inherited the common law, and since subsequent repeal by Parliament has no legal weight here– and as it appears no court in the U.S. has ever grappled with the issue– that leaves open the question of whether theoretically trial by combat may have survived as a legacy of our common law system.

This would, of course, bring a whole new meaning to “fighting it out in court”.

 

…a few more esoteric Constitutional provisions…

My last entry had to do with whether President Obama could unilaterally use the 14th Amendment to raise the debt ceiling. This prompted me to think about the handful of esoteric constitutional provisions that have faded into desuetude, been repealed by subsequent amendments or events, or otherwise been largely forgotten.  The Constitution has two such examples that came to my mind: the first of these, found in Article I section 9, read that “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.”   This provision reflected Congress’ reluctance to attempt to restrict slavery at the time of the Constitution’s ratification; in fact, this clearly was designed to ensure that Congress made no restrictions of the slave trade for at least 10 years after ratification. Another example, found in Article IV section 2, likewise had to do with slavery as well. It stated that “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.” This unhappy provision also protected the slave trade, by precluding sanctary in free states for escaped slaves, but was superseded by the 13th Amendment as part of the Reconstruction Amendments passed in the aftermath of the Civil War.

The Bill of Rights (the first 10 Amendments) also contain an interesting relic. I mentioned in my previous entry the 3rd Amendment which stated that “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” While clearly a response to the British policy of forceably garrisoning troops in civilian houses during the occupation of Boston and other cities, this amendment has thankfully slumbered quietly since its birth in 1791. While not terribly esoteric (nor terribly controversial, either), the most interesting amendment from a historical perspective is the most “recent”, the 27th, ratified in 1992. Why do I say the most “recent”  in quotation marks? Because it was one of the proposed amendments to the Bill of Rights in 1789, but was not ratified until 203 years later. It states that “No law varying the compensation for the services of the Senators and Representatives shall take effect, until an election of Representatives shall have intervened.”  This restriction on Congress’ power to set its own salary languished for two centuries–and was able to do so as it set no deadline for ratification–until the 27th Amendment was certified following its ratification by Michigan on May 7, 1992 which met the 38 state (or 3/4 majority) requirement. Interestingly, it later came out that the historical record had forgotten that Kentucky had ratified the amendment in June 1792, meaning that it was actually Missouri’s ratification two days earlier that had made the amendment official– nevertheless, Michigan still gets official credit for being the 38th state.

Massachusetts, by the way, still hasn’t ratified the 27th Amendment, making it one of only 5 such states.

Can an ‘Obscure’ Amendment Really Be A Solution to the Debt Crisis?

It’s difficult to think of an amendment to the U.S. Constitution that is truly “obscure”–although the 3rd Amendment is certainly an interesting historical relic as it restricts the government’s garrisoning of troops in civilian houses. However, some sections of the Constitution, including amendents,  clearly do deserve this moniker, and this week one such provision has suddenly become part of the debt ceiling debate. Of course, the 14th Amendment can hardly qualify as ‘obscure’ as a whole, given that it governs citizenship rights, expands due process and equal protection rights to also bind state governments and was promulgated as part of the Reconstruction Amendments of the post-Civil War period.

However, clearly there are phrases and parcels of the Constitution that are mystifying and esoteric, and part of the 14th has generally escaped notice until now: namely section 4 which reads: “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.” Section 4 was designed to indicate that any debts incurred by the Union during the Civil War were valid–and conversely, that Confederate debts were not, as section 4 goes on to say “But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.” And of course it is supposed that any debt incurred or issued by the U.S. following this amendment would also be valid.  It also appears uncontroversial that this section of the 14th Amendment is largely a historical anacronism. While the 3rd Amendment made perfect sense at the time of its promulgation, given the nasty tendency of occupying British soldiers to make themselves at home in civilian houses, section 4 of the 14th Amendment likewise had a perfect internal logic in the aftermath of the Civil War. But would it have any meaning now?

If jurists agree on anything regarding constitutional interpretation, it is probably that no-one exactly knows what this constitutional provision really means, or what if any applicability it would have today. It has been suggested, by Former President Clinton no less, that if he were president he would utilize the Executive power under the 14th Amendment and take unilateral action. But it cannot be said with any certainty that this section actually gives power to the Executive branch (although the Executive is tasked with executing and enforcing the laws), rather than Congress, or that the debt ceiling has to do with the ‘validity’ of the debt, or that section 4 really encompasses this issue at all rather than merely saying that all debts could not be retroactively deemed to be invalid–as the former Confederate states might well have chosen to do should they have regained power of Congress in the postbellum period. This is doubtlessly a fascinating constitutional question, and one that interests the legal historian because it is not often than a constitutional provision which has largely lay dormant for so long suddenly becomes the focus of discussion. Ultimately, however, the question might well be less about whether the President has the constitutional authority under the 14th Amendment to raise the debt ceiling–a question that constitutional pundits will discuss for some time and which would take a clear opinion by the Supreme Court to definitively answer–but what would happen if he did. The public would probably release a sigh of relief, foreign markets would be at least somewhat placated, and there doubtlessly would be shrill cries from some inside Congress and a challenge of some kind. What type of challenge– a court challenge by aggrieved Congressional members, mere posturing, articles of impeachment being drawn up, battle lines drawn in the next election, or the like–could only be conjectural, but challenged the President’s actions would be, although almost definitely post facto.

This might be an interesting spectacle to watch, and even perhaps necessary should legislative action not be forthcoming.  Certainly it would make for fascinating political theater and interesting scholarly discourse, regardless of other consequences. However, ultimately–and regardless of the intent underlying section 4 of the 14th Amendment– the fundamental, constitutional duty of Congress to address this issue is unassailably clear. If the solution has to involve a little-remembered, little-understood constitutional provision, then Congress will clearly have abrogated its duty.

Of Draco, “Draconian”, Irony, and Legal Reform

Today in a seminar someone said in passing that a company’s policies “were draconian”. It triggered a thought in my mind that the origins of the word had to do with Draco and his legal code, and I decided it would be interesting to excavate this legal history  esoterica a little further.

The definition of draconian is  “of, relating to, or characteristic of Draco or the severe code of laws held to have been framed by him”; also “cruel” or “severe” (see definition). But who was Draco, and what did he do that he has lent his name to this adjective?

Draco was an ‘archon’ or magistrate in Athens, Greece, who was tasked with compiling and revising Athenian law, to replace the systems of ‘oral law’ (law that wasn’t codified or written) and ‘blood feud’ or ‘vendetta’ law, with a written code of law enforceable by courts. He performed this task around 620-621 B.C, according to Aristotle, and was noted for his impartiality in so doing. The laws were apparently posted on a pivoting three-sided pyramid of wooden tablets. The laws were quite simple to understand, however, as almost all infractions were punished by the same sentence: death. Plutarch recounted that when asked about his liberal use of capital punishment, even for minor offenses, Draco stated that “he considered these lesser crimes to deserve it, and he had no greater punishment for more important ones.”  (Life of Solon). Even non-capital offenses were treated harshly: for example, debtors of the lower class in society could be sold into slavery. His laws were repealed in their near-entirety (with the exception of his law on homicide) by his successor, Solon, in 594 BC . An ironic and dubious historical legacy for someone who had set out to be a legal reformer–even more so because he might have succeeded: his code was seen by some contemporaries as much less arbitrary than the oral law it had replaced.

 

Lawyer Jokes

cropped-judge.jpgSome years ago I was teaching a large survey course in Canadian Legal History. I decided it would be an unconventional but effective ice-breaker if I told the class that I was expecting them to come prepared to share their favorite lawyer joke at the beginning of each class, and if they didn’t cooperate, I would share with them the most painful, cringe-worthy lawyer joke I knew instead. It took only one such example  for them to embrace the idea, and for the rest of the semester we opened each class with a new joke. At the end of our fifth or sixth class, however, a very earnest student came up to me and asked me pointedly why I was encouraging the denigration of such a noble profession, particularly given that we had all chosen to pursue this field.

I admit I was a bit gobsmacked by this. Flabbergasted. Slack-jawed, even. After a few seconds of awkward silence, I answered something like this: “Our much-maligned profession has been the butt of jokes since time immemorial. While we can console ourselves with the knowledge that this is obviously the result of jealousy on the part of everyone else, the fact remains that lawyer jokes will live on regardless of whether we tell them or not. But it’s important to remember: if you can’t laugh at yourself….someone else will be only too glad to do it for you.” This seemed to mollify her a bit. Personally, I think she was wound a bit too tight.  

Anyway, here are some of my favorites. If you have any suggestions for additions, please let me know. And if you’re a lawyer, please don’t charge your clients for the time spent reading these.

Q: How many attorneys does it take to screw in a light bulb?

A: Three: one to climb the ladder; one to shake the ladder; and one to sue the ladder company.

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A noted criminal defense lawyer was making the closing argument for his client accused of murder, a case in which the body of the victim had never been found. The lawyer turned dramatically to the courtroom’s clock and, pointing to it, announced “Ladies and gentlemen of the jury, I have some astounding news. I have located the supposed victim of this murder and he is alive! Within the next thirty seconds, he will walk through the door of this courtroom!” A heavy silence fell over the courtroom as all waited….but nothing happened. The lawyer continued, “The fact that you were watching the door, expecting the victim to walk through it, is proof that you have reasonable doubt as to whether a murder was actually committed, and you should acquit!” The jury was instructed, filed out, and filed back just a few minutes later with a guilty verdict. After the jury was dismissed, the shocked defense lawyer raced over the jury foreman. “Guilty? How could you convict? You were all watching the door!” “Well”, said the foreman, “most of us were watching the door. And some of us were watching the defendant–and we noticed that he wasn’t watching the door.”

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Did you hear about the crook who was having a rough time getting an attorney to represent him? Every time an attorney learned that he hadn’t stolen the money he was charged with, the attorney quit!

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“God works wonders now and then; Behold! a lawyer, an honest man.”  — Benjamin Franklin

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Q: What’s the difference between a lawyer and an accountant?

A: Accountants know they’re boring.

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Q: What’s the difference between a vacuum cleaner and a lawyer on a motorcycle?

A: The vacuum cleaner has the dirt bag on the inside.

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 Did you hear about the lawyer whose firm had so few clients that he divorced his wife just so he would have a case?

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What do you call 10,000 lawyers at the bottom of the ocean? A good start.

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What’s the difference between a lawyer and a vampire bat? One is a bloodsucking parasite, and the other is a mouse-like creature with wings.

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What’s the difference between a lawyer and a catfish? One is a bottom-feeding scavenger, and the other is a fish.

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What’s the difference between a lawyer and a vulture? Lawyers accumulate frequent flyer points.

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Q: What do you throw to a drowning lawyer?

A: Their partners.

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A  neighborhood church-run food panty realized it had never received a cent from the town’s wealthiest citizen, a lawyer. The minister in charge of the food pantry decided to call on him to see if they could persuade him to contribute. “With all the success you’ve had, and all the blessings bestowed upon you, wouldn’t you like to give back to the community to aid those less fortunate?”, asked the minister. “It certainly appears you can afford it.”

“Oh yes?”, said the lawyer. “Well, were you aware that my mother is dying from a long, painful illness, and has racked up medical bills far in excess of her savings?”

“Ah, no, I wasn’t”, said the minister.

“Or that my brother, who is a disabled veteran, is blind, confined to a wheelchair, and depends on others for all of his daily needs?”, continued the lawyer.

“No, I didn’t realize that”, said the minister, growing embarrassed.

“Well, did you know that my sister’s husband died tragically in a car accident, at the hands of a drunk driver? And that he left her penniless with four children to support?!!”, thundered the lawyer, his face flushed with anger.

Abashed, the minister hung his head and mumbled, “no…I had no idea…I’m so sorry….”

At this the lawyer stood up. “Well”, he said, “if I don’t give any money to them, then what makes you think I should give any to you?”

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A doctor on vacation in the Caribbean ran into an old lawyer he knew and asked him what he was doing there. Said the lawyer, “Well, I bought some lousy real estate in Florida, but it caught fire, and I spent the fire insurance proceeds on this fabulous vacation. What about you?”  Said the doctor, “I had a similar experience. I had some lousy real estate in Louisiana, and it flooded, so I treated myself to a well-earned vacation using the flood insurance proceeds.” At this the lawyer looked confused. “Gosh,” he asked. “How did you manage to start a flood?”

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A woman and her young daughter were visiting the grave of the girl’s grandmother. On their way through the cemetery back to the car, the daughter asked, “Mommy, do they ever bury two people in the same grave?”
“Of course not.” replied the mother, “Why would you ask that?”
“The tombstone back there said ‘Here lies a lawyer and an honest man.'”

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A successful London barrister went duck hunting in rural Scotland. He shot a bird, which inconveniently dropped onto a farmer’s field on the other side of a fence. As the barriester climbed over the fence to retrieve it, an elderly farmer drove by on his tractor, stopped, and asked the barrister what he was doing.

“I shot a duck and it fell into this field, and I’m going to retrieve it”, said the barrister.

Replied the farmer, “This is my property, and I’ll not allow you to trespass on it.”

The indignant barrister replied, “I’m one of the most successful barristers in London, and if you don’t let me retrieve that duck, I’ll take legal action against you the moment I return back to my office.”

The old farmer smiled and said, “No reason for such unpleasantness. For centuries we’ve settled small disagreements like this with the Scottish Three Kick Rule.”

“The Scottish Three Kick Rule? What’s that?”, asked the barrister.

Said the farmer, “Well, first I kick you three times, and then you kick  me three times, and so on, back and forth. The person who gives up first loses the disagreement.”

The barrister sized-up the old farmer and quickly decided that he could easily take him in such a contest.  “I agree to abide by your quaint local custom”, said the barrister.

The old farmer slowly got down from his tractor and walked up to the barrister. The first kick of his heavy work boot hit squarely in the barrister’s groin, which dropped him to his knees in agony. The second kick to his head levelled him completely and knocked out several teeth. The third kick, aimed precisely at his kidney, caused the barrister to almost cry out for mercy, but he willed himself not to. The barrister slowly and painfully righted himself, gasping for breath and spitting out blood, his teeth clenched in pain. “Okay, old man, now it’s my turn”, said the barrister.

The old farmer smiled and said, “Naw, I give up. You can keep the duck.”

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A man died and was taken to a place of eternal torment by the Devil. As he passed raging pits of fire and shrieking sinners writhing in agony, he saw a man he recognized as a lawyer snuggling up to a beautiful woman. “That’s unfair!”, the man cried. “I have to spend all eternity in these fire pits of damnation, yet that lawyer gets to spend it with a beautiful woman!”. “Shut up!”, barked the Devil, jabbing the man with his pitchfork. “It’s not up to you to question that woman’s punishment!”

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Satan appeared to an attorney and offered him all the wordly wealth and pleasures he could imagine, if only he would sign over his eternal soul and those of his wife and children. The attorney thought about it for a few minutes and finally said, “okay, I give up– what’s the catch?”

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What do you get when you cross the Godfather with a lawyer? An offer you can’t understand.

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Lawyer: “Your Honor, I wish to appeal my client’s case on the basis of newly discovered evidence.”   Judge: “And what is the nature of the new evidence?”  Lawyer: “I have discovered that my client still has money.”

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Two pre-schoolers overheard at the playground. “My name is Johnny. What’s yours?”, asked the first boy. “Tommy”, replied the second. “My daddy’s a doctor. What does your daddy do?’, asked Johnny. “My daddy’s a lawyer”, answered Tommy. “Honest?”, asked Johnny. “No, just the regular kind”, replied Tommy.

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Diogenes went out into the night to look for an honest lawyer. “How’s it going?”, someone asked. “Not too bad”, said Diogenes. “I still have my lantern.”

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What’s the definition of  ‘mixed emotions’? Watching your lawyer drive over a cliff in your new car.

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An attorney was on vacation in Mexico. While he walking through a small town a car accident occured which quickly drew the attention of a large crowd. Running to the scene of the accident, the attorney was unable to make his way past the crowd until inspiration hit: He began yelling “let me through, let me through! I’m the victim’s son”. The crowd made room for him to get past, allowing the attorney to reach the victim: a donkey.

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A doctor and attorney were chatting at  a party. During the course of their conversation, they were constantly interrupted by party-goers who described their ailments and asked the doctor for medical advice. After an hour of this, the exasperated doctor said to the lawyer, “This is driving me crazy. Do you have a similar problem? How do you stop people from pestering you for free legal advice when you’re in public?”  Replied the lawyer, “It does happen to me, and my solution is to give it to them….and then I send them a bill. Works like a charm.” The doctor was shocked, but upon reflection decided to give it a try. The next day, still feeling slightly guilty, he went to place the bills he had prepared in his mailbox– only to find a bill from the lawyer.

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A man walks into a lawyer’s office. “I have a problem with my neighbor. But before we talk about that, I need to know: how much do you charge?”

Says the lawyer, “well, I have a very simple fee structure. You pay me $5000, and you can ask me three questions.”

“$5000 for three questions? That seems awfully steep”, says the potential client.

“Yes”, says the lawyer. “Now, where do I send your bill?”

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There’s an interesting new novel about two ex-convicts. One of them studies to become a lawyer, the other decides to go straight.

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What’s the difference between an attorney and a pit bull? Jewelry!

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Changing lawyers is a lot like moving to a different deck chair on the Titanic.

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Two men named George and Harry  set out in a hot air balloon to cross the Atlantic Ocean. After 37 hours in the air, George says “Harry, we better lose some altitude so we can see where we are”. Harry lets out some of  the hot air in the balloon, and the balloon descends to below the cloud cover. George says, “I still can’t tell where we are, lets ask that guy on the ground”. So they descend further, and Harry yells down to the man “Excuse me, could you tell us where we are?” The man on the ground yells back “You’re in a balloon, 100 feet up in the air”. George turns to Harry and says “That man must be a lawyer”. And Harry says “Why do you say that?”, George asks. “Because the advice he gave us is 100% accurate, and yet totally useless”.

[This part of the joke was added by lawyers]: The man called back up to the balloon, “You must be a legal client.” George yelled back, “Why do you say that?” “Well,” the man replied, “you don’t know where you are, or where you are going. You got into your predicament through a lack of planning, and could have avoided it by asking for help before you acted but you expect me to provide you with instant information if not a solution. The fact is you are in the exact same position you were in before we met, but now it is somehow my fault.”

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An associate was sent abroad to represent a long-term client accused of robbery. After days of trial, the case was won, the client acquitted and released. The associated immediately emailed his managing partner: “Justice prevailed!”.  The partner emailed back: “Appeal immediately.”

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Q: How many lawyers does it take to roof a house? A: That depends on how thin you slice them.

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“A lawyer is a gentleman who rescues your estate from your enemies and keeps it for himself.”  —Lord Brougham

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A man arrested for embezzling millions of dollars went to a criminal lawyer. The lawyer told him, “Don’t worry about it– you’ll never go to jail with all that money.” And of course he was right– when the man went to prison, he didn’t have a dime!

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A man walks into a post office in early February to mail a package. As he is waiting in line, he sees a middle-aged woman standing at a counter, methodically placing “love” stamps on a huge stack of envelopes with hearts all over them. She then takes out a perfume bottle and generously spritzes the stack of envelopes. Intrigued, the man says to her, “you must have a lot of boyfriends!”  “No”, says the woman, “I’m just mailing out 1,000 Valentine Day’s cards signed ‘guess who?'”.  “Why on earth would you do that?”, asks the man. Replies the woman, “I’m a divorce lawyer.”

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A career pickpocket was in court, charged with several counts of larceny. After accepting his plea of not guilty, the presiding judge set the pickpocket’s bail at $1000 pending trial. “Your honor”, said his lawyer, “my client cannot possibly come up with that amount at this time, but if you’d allow him just a few minutes to mingle with the crowd….”

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An independent woman started her own business. She was shrewd and diligent, so business kept growing. After a short time she realized she needed an in-house counsel, and so she began interviewing young lawyers.  “As I’m sure you can appreciate,” she started off with one of the first applicants, “in a business like this, our personal integrity must be beyond question.” She leaned forward. “Mr. Smith, are you an ‘honest’ lawyer?”

“Honest?” replied the candidate. “Let me tell you something about honesty. Why, I’m so honest that my dad lent me one hundred thousand dollars for my education and I paid back every penny with interest the minute I defended my very first client.”

“Impressive. And what sort of case was that?”

Mr. Smith squirmed uncomfortably in his seat: “Well, my dad sued me for the money.”

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Top 5 Warning Signs that you Might Need a New Criminal Lawyer:

#1: Your lawyer tells you that his last good case was of Budweiser.

#2: When the prosecutors see your lawyer, they high-five each other.

#3: Your lawyer picks the jury by playing “duck-duck-goose.”

#4: Your lawyer tells you that he has never told a lie.

#5: A prison guard is shaving your head.

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A defense lawyer successfuly defends a major organized crime figure on charges related to distributing narcotics, murder, attempted murder, racketeering, and extortion. As he is leaving the courtroom for his press conference, an indignant older woman accosts him: “Sir, have you no decency? is there anyone you wouldn’t defend?”  Replies the lawyer, “Well, I don’t really know…why, what you have done?”  

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Q:Why does California have the most attorneys in the U.S., and New Jersey the most toxic waste dumps? A: Because New Jersey had the first pick.

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Q: What happens to a lawyer who jumps out of a plane at 35,000 feet without a parachute? A: Who cares?

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A man walking on the beach came across an odd-looking bottle. Not being one to ignore tradition, he rubbed it and, much to his surprise, a genie appeared. “For releasing me from my captivity in the bottle, I will grant you three wishes,” said the genie, “However, there’s a catch– for each of your three wishes, every lawyer in the world will receive double what you ask for.”  The man thought for a moment, and wished for a Ferrari. In a puff of smoke a beautiful red Ferrari appeared in front of him. “Now, every lawyer in the world has been given two Ferraris,” said the genie. “What is your next wish?”  Said the man, “I wish for a million dollars,” and the money likewise appeared before him in a puff of smoke. “Now, every lawyer in the world has two million dollars,” said the genie, “And what is your third wish?”  The lucky man thought for a minute and said, “Well genie, I’ve always wanted to donate a kidney.”

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Santa Claus, the tooth fairy, and honest lawyer, and an old drunk were walking along when they simultaneously spotted a hundred dollar bill lying in the street. Question: Who gets it? Answer: The old drunk, of course, as the other three are mythical creatures. (thanks to my friend J. Costello for passing this one along)

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In the middle of the night, out in the country, two drivers have the misfortune of both slightly crossing over the white line in the center of the road. They collide and a fair amount of damage is done, although neither is hurt. They both get out to survey the damage. During the discussion, it becomes evident that one is a doctor and the other is a lawyer. The lawyer calls the police on his cell phone and reports they’ll be there in 20 minutes. It’s cold and damp, and both men are shaken up. The lawyer offers the doctor a drink of brandy from his hip flask, the doctor accepts, takes a long swig and hands it back to the lawyer, who puts it away. “Aren’t you going to have a drink ?” the doctor says. “Sure”, replies the lawyer. “But AFTER the police get here”
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Q: What do you get when you cross a lawyer with a demon from hell? A: The same thing you had before.

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The trouble with the legal profession is that 99% of its members give the rest a bad name.

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If I had but one life to give for my country, it would be my lawyer’s.

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The problem with lawyer jokes is that lawyers don’t think they’re funny — and no-one else things they’re jokes!

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“It is interesting to note that criminals have multiplied of late, and lawyers have also; but I repeat myself.”  –Mark Twain

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Did you hear about the terrorists who took a whole courtroom full of lawyers hostage?  They threatened to release one every hour until their demands were met.

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Q: How many lawyers does it take to stop a speeding bus?  A: Never enough.

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Q: Why do the rules of professional responsibility prohibit sexual relations between a lawyer and a client? A: To prevent a client from being charged twice for essentially the same service.

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Q: Why do lawyers make so much money? A: I’ll tell you as soon as I finish completing your bill for the punchline.

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A jury is a collection of people banded together to decide who hired the better lawyer.

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A physician, an engineer, and an attorney were discussing who among them belonged to the oldest of the three professions represented. The physician said, “Remember that, on the sixth day, God took a rib from Adam and fashioned Eve, making him the first surgeon. Therefore, medicine is the oldest profession.” The engineer replied, “But, before that, God created the heavens and earth from chaos and confusion, and thus he was the first engineer. Therefore, engineering is an older profession than medicine.” Then, the lawyer spoke up, “Yes, but who do you think created all of the chaos and confusion?”

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One morning at the law office, one attorney looked at the other and said, “Wow, you look really terrible this morning.” The other lawyer replied, “I woke up with a headache this morning and, no matter what I take, I can’t seem to get rid of it.” The first lawyer told him, “Whenever I get a headache like that, I take a few hours off during the day, go home, and make love to my wife. Works every time.” Later that afternoon, the two lawyers met again. The first says, “Hey, you must have taken my advice. You look much better.”  “I am”, says the other, “and thanks for that great advice you gave me. By the way, you have a beautiful house.”

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Two friends bumped into each other outside of court one day.  “I hear you lost your court case,” said one. “Did your lawyer give you bad advice?”  “No,” replied the other. “He charged me a lot for it.”

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A police chief, a fire chief, and a city manager were traveling together by car to a municipal management conference in a distant city. Their car broke down in a rural area, and they were forced to seek shelter for the night at a nearby farmhouse. The farmer welcomed them in, but cautioned them that there were only two spare beds, and therefore one of them would have to sleep in the barn with the farm animals. After a short discussion, the police chief agreed to sleep in the barn. Shortly after retiring, a knock was heard on the door of the farmhouse. The party inside answered to find the police chief standing there, complaining that he could not sleep. There were pigs in the barn, he said, and he was reminded of the days when everyone called him a ‘pig’. The fire chief then volunteered to exchange with the police chief. A short time later, another knock was heard at the door. The fire chief complained that the cows in the barn reminded him of Mrs. O’Leary’s cow that started the Chicago fire, and that every time he started to go to sleep, he started to have a fireman’s worst nightmare, that of burning to death. The city attorney, in desperation for sleep, then agreed to sleep in the barn. This seemed like a good idea until a few minutes later, when another knock was heard at the door. When the occupants answered the door, there stood the very indignant cows and pigs.

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Two lawyers walking through the woods spotted a vicious-looking bear. The first lawyer immediately opened his briefcase, pulled out a pair of sneakers and started putting them on. The second lawyer looked at him and said, “You’re crazy! You’ll never be able to outrun that bear!” “I don’t have to,” the first lawyer replied. “I only have to outrun you.”

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A paralegal, an associate and a partner of a large law firm are walking through a city park, when they spotted an antique oil lamp. The paralegal picked it up, but both the associate and partner grabbed for it, arguing that they found it first. Their tussling had the effect of jossling the lamp, and to their shock a Genie emerged in a great purple cloud of smoke. Said the Genie, “In gratitude of your freeing me from the lamp, I grant you three wishes. As there are three of you, you each get one wish.”
The paralegal blurted out, “I want to be in the Caribbean, sipping cocktails with a gorgeous movie star.” Poof! The paralegal’s wish was granted.
The associate stammered out, “I want to be in Hawaii, relaxing on the beach with a professional hula dancer and an endless supply of Mai Tais.” Poof! The associate’s wish was likewise granted, and he disappeared instantly.
“It’s your turn,” the Genie said to the partner, “And what is your wish?”
The partner replied, “I want those two back in the office after lunch.”

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A doctor told his patient that his test results indicated that she had a rare disease and had only six months to live.
“That’s so little time. Isn’t there anything I can do?” pleaded the patient.
“Marry a lawyer,” the doctor advised. “It will be the longest six months of your life.”

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WHEN YOU NEED A REALLY GOOD LAWYER– Defendant: “Before I enter my plea, I would like to ask the court to appoint a lawyer to defend me.”  Judge: “You were in the actual commission of a crime, with the stolen goods on you, a gun in your hand, and your victim on the floor. What could a lawyer possibly say in your defense?”  Defendant: “That’s just it, your Honor…I too am very curious as to what he would possibly say.”

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What is constitutional autochthony?

I was recently asked a very interesting question, somewhat related to legal history: namely, what is constitutional autochthony?

‘Autochthony’ is a word that rarely surfaces in everyday English, but it is a synonym for ‘native’ or ‘indigenous’. It is most often used in anthropology, biology and related sciences, but is also used in law. The formal definition is: 1. Originating where found; indigenous: as in ‘autochthonous rocks’; an ‘autochthonous people’ 2. Originating or formed in the place where found, such as an ‘autochthonous blood clot.’ It derives from the Greek, meaning ‘springing from the land’. You can find the definition at: http://www.thefreedictionary.com/autochthony

When referring to ‘constitutional autochthony’, one is therefore referring to the nativity or indigenous nature of a constitution. This has two practical applications in that context: when referring to a constitution that emerges internally from a jurisdiction or country, meaning that it is free from external legal control and influence; or when referring to a constitution that is redrafted, amended or otherwise remade to ‘reclaim’ it as being autonomous and native. When talking about this last meaning — reclamation– this often has occurred when countries achieved independence from colonial powers. Post-colonial countries amend or replace these constitutions with ones developed in the native country, as they are considered more legitimate and authentic and therefore more valid and enforceable. Specific examples include the redrafting of the Irish constitution in 1937 (and previous amendments to the 1922 constitution), India in 1949, Zambia in 1991 (replacing the constitution of 1973) and South Africa in 1996.

Constitutional autochthony is therefore concerned both with the autonomy of the government that has adopted the constitution, as well as with the indigenous (‘native’) nature of the constitution.

For an interesting discussion of the Australian context and how this may be achieved for Australia, see http://www.austlii.edu.au/au/journals/FedLRev/2001/10.html

Informal Law and Custom

While I had intended to discuss heartbalm actions further, that will have to wait for a future blog entry as I wanted to discuss the concept of ‘informal law’ in more detail. I have long found the concept of informal law fascinating.

Informal law or ‘custom’ may involve practices or traditions that are symbotic or complementary to existing laws, or are designed to circumvent the law, or are quasi-legal and essentially supplant the law. Examples of symbiotic informal law or customs were once common in everyday life. By way of contemporary examples, they may include such things as the general practice of alternating cars as they merge from two lanes into one when neither lane has a yield sign–this is not a legal requirement but has become a custom that not only reflects good manners but also helps the flow of traffic when one lane is blocked. In some places, it is considered custom that someone who shovels out a parking spot following a snow storm is entitled to mark it as theirs, which is a practice rarely reflected in the law (interestingly enough, in Boston, municipal ordinances allow one to claim a parking spot one has dug out for 24 hours after a snowstorm; while neighboring Cambridge had an ordinance that makes it unlawful to do so).

The tension between what people wish to do and what the law allows them to do has often been the impetus for the growth of informal law or custom. The field of family law, for instance, is replete with examples. Couples wishing, for whatever reasons, to circumvent or skip the requirements for a legal marriage have long created informal marriages (often referred to as “common law” marriages) without seeking a marriage license or participating in a marriage ceremony. An informal or common law marriage usually involves a couple who have agreed to be married, live together as husband and wife, and hold themselves out to the public as such. (This is the legal standard as set out in the Texas Family Code §2.401, for example).

The dissolution of marriage is another striking example. Particularly when divorce law was highly restrictive, self-help divorces were a means of curcumventing the law. In the simplest form, a spouse could simply abandon the other; husbands ejected wives from their homes, wives left their husbands. Should a wife have abandoned her husband in this manner, he might well place newspaper advertisements announcing that she had left his ‘bed and board’ and that he would not be held responsible for debts incurred in his name by her.

A fascinating historical example related to self-divorces was the practice of ‘wife auctions’. While at first blush this appears to be an archtypical example of historical chauvanism, the reality was often more nuanced. A wife auction, as the name suggests, involved a husband putting his wife up for public sale. As barbarous as this sounds, in many instances the wife was a willing participant–perhaps even the instigator–the successful buyer was known beforehand to all (including the wife, who in some instances was already cohabitating with him) and the auction result a foregone conclusion; sometimes the wife herself provided the buyer with the money to finance the winning bid! English wife auctions were to die out by the mid 19th century due to reforms to the divorce laws.

Examples of informal law continue to exist all around us, although they are not always obvious. For example, in 2005 new rules regarding personal bankruptcy went into effect, with the avowed purpose of making it more difficult for individuals to file for personal bankruptcy under Chapter 7 or Chapter 13 and thus providing greater protection to creditors. One result of this has been a probable increase in ‘informal’ or ‘unofficial’ bankruptcies. An informal bankruptcy involves an individual who doesn’t file for official bankruptcy protection but attempts to have the same protection by making themself judgment proof. This might include not paying debts, not keeping assets in one’s name, moving, changing one’s name, and any number of other subterfuges in order to avoid paying one’s creditors– in other words, being what in common parlance is known as a ‘deadbeat’.

Informal law can also include a quasi-legal custom that exists in parallel, or symbiosis, to the law itself. Particularly in the context of criminal justice, informal law has often surfaced with groups have felt the law could not, or would not, act. They included ritualized forms of protest, performance, violence or demonstration used to enforce community standards related to marriage and other issues (such as whitecapping and shivarees/charivaris), vigilantism, lynching (a particularly common, and revolting, practice in the southern U.S. aimed at blacks), and rioting. The charivari or shivaree (perhaps consisting of loud processionals, banging pots and drums, blowing on trumpets and the like) could be mischievous–designed to harass a newly married couple on their wedding day in exchange for food or drink–or reflect a very real sentiment of community disapprobation over wife-beating, an inappropriate marriage, or the like.

Many rituals that accompanied the practice of criminal justice could be said to be customary or informal law insofar as they were not legally codified but became entrenched components in the administration of the law. The practice of judges’ donning a black cap when handing down a sentence of death, for example, is a marvelous example of such a custom. In the ninetenth century, labor law was often a mixture of legislation, local laws, common law concepts, and customary and judge-made discretionary law. For example, it was frequently a custom that deserting servants were required to make up lost time to their employers, even when not explicitly provided for in the law.

So, here is a question for you: what other examples of informal law or custom come to mind?