So. What's Your Favorite Bad Legal Argument?
I have been conducting research in support of a motion for summary judgment. The motion will oppose what is, arguably, the most impotent legal argument of the year. (No, not "important." Impotent. As in, weak, feeble, flaccid, impuissant, stupid.) I don't feel comfortable outlining the story here (it's a matter of public record, but still . . . I'm a mere summer), but I do feel comfortable sharing a case that decided a very analogous issue. The Plaintiff in Pulse v. Hamer, 8 Or. 251 (1880) argued essentially as follows:
It seems very likely that Plaintiff here will not survive summary judgement (and I'd better hope no -- if this goes to a jury, all bets are off!) but it got me thinking: what's the weakest, but real, legal argument you have ever heard? (HT to Profs Law Blog for the idea). Please play along in the comments section, according to the following rules:
(1) It must be a position asserted in court (orally or in a filing), not just a brainstormed argument from early in the pre-litigation stages.
(2) It must be an argument pressed by a lawyer, even if the lawyer was just making the bad argument because a client insisted.
(3) It must be a case that you worked on, that you saw personally (as a lawyer, party, clerk, or bystander in court), or that you can document with a citation.
(4) This rule is redundant with (2), but just to be clear, your argument can't be anything from the mouth a peer in a law school class. That would be cruel. It would also be like shooting ducks in a barrel.
It is true that I allege Defendant breached an oral contract that is void because it falls within the statute of frauds. However, our negotiations included an oral agreement to sign a written agreement. That oral agreement does not fall within the statute. Therefore, the court should order specific performance of our oral agreement to sign a written instrument. Then it should award damages for Defendant's breach of the written contract.Add a dash of fraud, sprinkle some reliance, whip to a frothy lather, and voilà! You have cooked up and served the complaint that is now before me.
It seems very likely that Plaintiff here will not survive summary judgement (and I'd better hope no -- if this goes to a jury, all bets are off!) but it got me thinking: what's the weakest, but real, legal argument you have ever heard? (HT to Profs Law Blog for the idea). Please play along in the comments section, according to the following rules:
(1) It must be a position asserted in court (orally or in a filing), not just a brainstormed argument from early in the pre-litigation stages.
(2) It must be an argument pressed by a lawyer, even if the lawyer was just making the bad argument because a client insisted.
(3) It must be a case that you worked on, that you saw personally (as a lawyer, party, clerk, or bystander in court), or that you can document with a citation.
(4) This rule is redundant with (2), but just to be clear, your argument can't be anything from the mouth a peer in a law school class. That would be cruel. It would also be like shooting ducks in a barrel.
posted by Patrick Bageant at 10:27 AM
2 Comments:
Haven't I seen this question posted elsewhere? Volokh Conspiracy maybe?
Anyway, this violates Rule 2, but it's too good not to mention:
When I was clerking, we had a suit filed by a prisoner for "theft through deception" by another prisoner. The complaint alleged that plaintiff paid $500 to the defendant. Defendant failed to deliver the cocaine.
I'm disappointed by the incredible restrictions you placed on this, Patrick. It prevents me from telling the story about how my landlady thinks she can use my security deposit to perform any improvements necessary to restore her house to brand new condition, blatantly ignoring the meaning and spirit of ordinary wear and tear. Fun times, I swear.
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