Alternate Realities
Liveblogging the CivPro reading. Brought to you by the Federal Rules of Civil Procedure, Rule 8(e)(2) and Rule 11.
5:40 pm.
Case at hand: McCormick v. Kopmann
Illinous Court of Appeals, Third District. 1959
5:41. First head-scratcher. The defendant spells his name Lorence [sic] (utilized, and incorrectly, just for you, Armen) Kopmann. Odd spelling. I suppose it's the old law professor maxim at work: odd spellings beget odd parties beget odd cases beget odd decisions begets good casebook entries.
5:46. Damn that first entry took a long time to correctly compose. Better get a move on or I'll be on blogger all night.
5:47. Back to the facts. McCormick was killed while driving down Main Street in Podunk (names have been changed to protect the innocent), Illinois. The car that collided with McCormick's was driven by Kopmann.
5:48. Awesome case already. It includes an administatrix, which just sounds dirty, let's face it. Anyways, McCormick's estate pleads (among other things) two counts in the alternative. In the first count, the estate alleges that Kopmann strayed over the center line and struck McCormick, who was exercising due care, head on. In the fourth count (counts 2 & 3 aren't at issue), the estate tries to sue a third party, the Huls, claiming that McCormick was actually driving drunk because the Huls plied him with too much booze. So, according either Kopmann was negligent, or, in the alternative, McCormick was drunk because the Huls were negligent. It's win-win for McCormick's peeps. Isn't the law grand?
5:56. Motions filed by various Ds. Denied. I can't be bothered to recount the details. Except the clever turns of phrase, like Kopmann's lawyer's characterization of allegations of Count I and IV as "fatally repugnant". Not merely repugnant. Fatally repugnant.
6:00. Conflicting testimony. McCormick intorduces "proof" that he was in his lane the whole time. Kopmann introduces testimony to the contrary. He said, she said... Blah, blah, blah... Best conflicting testimony: Plaintiff's witness says McCormick had "one or two" bottles of beer" at Mary Huls' tavern. Mary Huls herself says McCormick had one bottle. "Several witnesses testified that McCormick had no alcholic beverages in John and Mary Huls' tavern." First observation: Yeah, like a couple of guys in a bar are going to be keeping track of how much others are drinking. Second observation: How could Huls' lawyers think these witnesses were helpful, contradicting an already inconsistent factual record?
6:03. Trial Ct. Verdict. Sorry Mr. Kopmann. Even if McCormick was boozing, you crossed the center line. Please pay $15,500. Huls get off scot-free.
6:04. Predictably, Kopmann appealed. Damn. If he didn't, it would have been, like, the greatest CivPro reading day ever! A wacky and entertaining set of facts, and little actual procedure to discuss.
6:05. Lots of law. Boring. Court's first conclusion: counts 1 and 4 are mutually exclusive, McCormick can't recover damages on both counts. But he can still plead both. Sorry Kopmann. Things aren't looking good for you so far.
6:07. Ahh. The Rule. How satisfying: order amidst the chaos. Apparently, Illinois law, based on FRCP Rule 8(e)(2), "expressly permits a plaintiff to plead inconsistent counts in the alternative, where he is genuinely in doubt as to what the facts are and what the evidence will show." More on the latter part of the preceding sentence later, I imagine. Policy justification for pleading in the alternative: settle controversies most justly in a single action, as opposed to several individual actions.
6:17. Phone call!
6:30. Ahh, the unassailable logic of the judiciary. According to the court, McCormack's best move in the case was dying. If he had lived, he could not have plead both counts(because he would not likely have been "genuinely in doubt" as to the facts). But he died. So his estate can float however many cockamanie versions they want. Just win, baby. Just win.
6:45. Losing steam. Can't be bothered to blog further. Court thinks that plaintiffs should be allowed to plead in the alternative, otherwise their whole case may be dismissed and justice would be denied. Never mind the fact that in this particular case, the plaintiff plead two wholly contradictory alternatives, thereby boosting the odds that it would win no matter how the jury understood the facts. Moreover, the plaintiff never actually tried to prove all of the elements for Count IV against the tavernkeepers. So this claim seems a bit frivolous, or at best a psychological ploy meant to maximize a jury's opportunity to compensate the plaintiff. You can see McCormick's lawyer up there now: "Ladies and Gentlemen of the jury! Mr. McCormick was killed in an accident. Someone is at fault, and that someone should pay a price -- the cost of raising McCormick's children, for example -- for the wrong that has been done! Now, if you think Mr. Kopmann did it, find for us on Count I. But if you buy the notion that Mr. McCormick may have had too much to drink, then find for us on Count IV. Thank you and God bless."
6:55. In the notes, we learn that at common law, plaintiffs could not plead inconsistent allegations. This apparently "put the plaintiff in a very difficult situation," as she could only plead one of two or more equally plausible claims, leaving the defendant an easy defense: another equally plausible claim. Wah. Wah. Wah. I like the common law rule. I know -- in fact, our whole torts class now knows -- the Emersonian lament that "foolish consistency is the hobgoblin of simple minds." But I happen to feel that a plaintiff should have to be reasonably sure that the person he drags into court has actually wronged him. If he's not sure, he'll should just have to do more pre-trial investigation.
Oh well, this has been an interesting exercise. Not as fun, or funny, as I'd hoped. Thanks for reading, if you've read this far, and don't worry: I won't try this again.
5:40 pm.
Case at hand: McCormick v. Kopmann
Illinous Court of Appeals, Third District. 1959
5:41. First head-scratcher. The defendant spells his name Lorence [sic] (utilized, and incorrectly, just for you, Armen) Kopmann. Odd spelling. I suppose it's the old law professor maxim at work: odd spellings beget odd parties beget odd cases beget odd decisions begets good casebook entries.
5:46. Damn that first entry took a long time to correctly compose. Better get a move on or I'll be on blogger all night.
5:47. Back to the facts. McCormick was killed while driving down Main Street in Podunk (names have been changed to protect the innocent), Illinois. The car that collided with McCormick's was driven by Kopmann.
5:48. Awesome case already. It includes an administatrix, which just sounds dirty, let's face it. Anyways, McCormick's estate pleads (among other things) two counts in the alternative. In the first count, the estate alleges that Kopmann strayed over the center line and struck McCormick, who was exercising due care, head on. In the fourth count (counts 2 & 3 aren't at issue), the estate tries to sue a third party, the Huls, claiming that McCormick was actually driving drunk because the Huls plied him with too much booze. So, according either Kopmann was negligent, or, in the alternative, McCormick was drunk because the Huls were negligent. It's win-win for McCormick's peeps. Isn't the law grand?
5:56. Motions filed by various Ds. Denied. I can't be bothered to recount the details. Except the clever turns of phrase, like Kopmann's lawyer's characterization of allegations of Count I and IV as "fatally repugnant". Not merely repugnant. Fatally repugnant.
6:00. Conflicting testimony. McCormick intorduces "proof" that he was in his lane the whole time. Kopmann introduces testimony to the contrary. He said, she said... Blah, blah, blah... Best conflicting testimony: Plaintiff's witness says McCormick had "one or two" bottles of beer" at Mary Huls' tavern. Mary Huls herself says McCormick had one bottle. "Several witnesses testified that McCormick had no alcholic beverages in John and Mary Huls' tavern." First observation: Yeah, like a couple of guys in a bar are going to be keeping track of how much others are drinking. Second observation: How could Huls' lawyers think these witnesses were helpful, contradicting an already inconsistent factual record?
6:03. Trial Ct. Verdict. Sorry Mr. Kopmann. Even if McCormick was boozing, you crossed the center line. Please pay $15,500. Huls get off scot-free.
6:04. Predictably, Kopmann appealed. Damn. If he didn't, it would have been, like, the greatest CivPro reading day ever! A wacky and entertaining set of facts, and little actual procedure to discuss.
6:05. Lots of law. Boring. Court's first conclusion: counts 1 and 4 are mutually exclusive, McCormick can't recover damages on both counts. But he can still plead both. Sorry Kopmann. Things aren't looking good for you so far.
6:07. Ahh. The Rule. How satisfying: order amidst the chaos. Apparently, Illinois law, based on FRCP Rule 8(e)(2), "expressly permits a plaintiff to plead inconsistent counts in the alternative, where he is genuinely in doubt as to what the facts are and what the evidence will show." More on the latter part of the preceding sentence later, I imagine. Policy justification for pleading in the alternative: settle controversies most justly in a single action, as opposed to several individual actions.
6:17. Phone call!
6:30. Ahh, the unassailable logic of the judiciary. According to the court, McCormack's best move in the case was dying. If he had lived, he could not have plead both counts(because he would not likely have been "genuinely in doubt" as to the facts). But he died. So his estate can float however many cockamanie versions they want. Just win, baby. Just win.
6:45. Losing steam. Can't be bothered to blog further. Court thinks that plaintiffs should be allowed to plead in the alternative, otherwise their whole case may be dismissed and justice would be denied. Never mind the fact that in this particular case, the plaintiff plead two wholly contradictory alternatives, thereby boosting the odds that it would win no matter how the jury understood the facts. Moreover, the plaintiff never actually tried to prove all of the elements for Count IV against the tavernkeepers. So this claim seems a bit frivolous, or at best a psychological ploy meant to maximize a jury's opportunity to compensate the plaintiff. You can see McCormick's lawyer up there now: "Ladies and Gentlemen of the jury! Mr. McCormick was killed in an accident. Someone is at fault, and that someone should pay a price -- the cost of raising McCormick's children, for example -- for the wrong that has been done! Now, if you think Mr. Kopmann did it, find for us on Count I. But if you buy the notion that Mr. McCormick may have had too much to drink, then find for us on Count IV. Thank you and God bless."
6:55. In the notes, we learn that at common law, plaintiffs could not plead inconsistent allegations. This apparently "put the plaintiff in a very difficult situation," as she could only plead one of two or more equally plausible claims, leaving the defendant an easy defense: another equally plausible claim. Wah. Wah. Wah. I like the common law rule. I know -- in fact, our whole torts class now knows -- the Emersonian lament that "foolish consistency is the hobgoblin of simple minds." But I happen to feel that a plaintiff should have to be reasonably sure that the person he drags into court has actually wronged him. If he's not sure, he'll should just have to do more pre-trial investigation.
Oh well, this has been an interesting exercise. Not as fun, or funny, as I'd hoped. Thanks for reading, if you've read this far, and don't worry: I won't try this again.
Labels: Law School
posted by Anonymous at 5:40 PM
8 Comments:
Could you do this for every case? It makes it much more interesting than actually reading.
Out of total selfishness, I'd like to second the motion for you to continue liveblogging the cases. That was an excellent case brief. :)
Last entry at 6:55??? Sounds like someone should also liveblog Jeopardy. Honestly, who does not know that Buzz Aldrin's real name was Edwin?
Not a bad brief and mildly amusing... but your policy discussion is vapid. It appears this is your first ever foray into the legal system. Either that or your post is an excellent argument against "live blogging"... because only your first-impressions have been recorded. Or, in the alternative, some combination there of.
First, the case is about a pleading -in a complaint- the INITIATION of a law suit. I don't recall the federal rules, but in CA pleading is merely "notice" for most causes of action. Simply put, the complaint is merely to notify the D that someone has a beef with him/her. Despite your magical leap in time and logic, at the pleading level, no one has been "hauled into court" just yet.
Second, the JURY is the trier of fact. If there is a dispute about the facts (and why wouldn't there be, it's a law suit!)... the jury will decide what, in "fact", most likely occured. In this case, the jury will weigh all the testimony to decide whether or not dude drank, and if so whether he was impaired blah blah blah... something about crossing a double yellow line, here. If the P is not permitted to plead alternative, and indeed contradictory, causes of action then P'd be stuck making their best guess about what a jury, who has not yet been selected, will determine the "facts" are. A wronged P could be SOL because his lawyer's sixth-sense failed her/him. This is justice? Pahleeze!
Missing all sides of a policy issue isn't your fault so much as it's a problem of pedagogy. It's just stupid to try to learn procedure by reading appellate cases. Civ Pro should be taught by, at least, looking at trial-level procedings; in the case of the FRCP, district court procedings. Duh.
Another pedagogical problem is teaching Civ Pro in the absence of substantive law. This case is a tort. In tort there are all sorts of different "fault" assignments for multiple D's and the P... the break-down for which will depend on the jury's determination of "the facts." (I've happily forgotten the comparative fault schemes.) So particularly in a case with multiple D's in a negligence cause of action, a P should be able to plead contradictory causes of action.
Just a thought...
We've all read Sumers v. Tice. Despite the indication from the comment above, I remain convinced that most readers can tell when our comments are tongue-in-cheek and when they are serious. Oh and Cal is one of the few Code states...or so the wise textbook tells us. Possible topic of live-blogging I sense...
As anyone even remotely connected to the law should know, the expense of being sued begins immediately and increases with each succeeding step - pleading or motion, discovery, trial, appeals, etc. Being "dragged into court" is hardly a technical legal term, and I'd say that it's fair to apply it as soon as the defendant is forced to start writing checks to a lawyer. While the idea doesn't get too much play in Bundy's class, procedural rules are costly when they make law-abiding citizens (or corporate entities) more likely to need to defend themselves from spurious claims. There had better be a big social payoff (e.g., the rule is necessary to allow citizens whose rights have been violated a fair chance of compensation) to justify the costs. Allowing pleading in the alternative probably passes the test, but the question sure as hell ought to be asked. Tacitus asks it. You go girl!
I have represented both plaintiffs and defendants. I can assure the person now appropriately named "Anonymous bitch" that one is "hauled into court" the moment one receives a summons and complaint.
"Anonymous Bitch" has been emasculated, temporarily. For he is not, in fact, capable of motherhood.
Anonymous Bitch's post included a "tongue in cheek" as well as a bit of a tongue lashing (and not the good kind). See first paragraph of "her" post for the cheeky part.
The intended critique was of the pedagogy in teaching civ pro, not in the merits of your live-blogging talents. But as several seem to have read it similarly, perhaps Anonymous Bitch should reconsider the harshness of "her" critique.
Barring that, consider for a moment a critique that doesn't place you at the center, but rather identifies your first impressions (funny and amusing as they are) as symptomatic of a bigger problem with legal education. One can see from your live blog how teaching civ pro from appellate cases and in the absence of substantive law leads students to the intended conclusions quickly. You got there, and got there fast all while typing humorously for your friends. Well done! The critique was not of you. It was of pedagogy. Further evidence of the inadequacy of teaching CivPro in this way is the assumption that the magic editor managed to get all the relevant facts presented into that blurb of an appellate decision... again... Civ Pro really should be taught from trial-level records.
BTW, I concede the point about the expense involved in showing up for a pre-trial motion.
Thank you for not ripping into my spelling errors and typos.
Your Anonymous Bitch
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