Law In The Second

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Step 4: Exam Acro-mony - May 5-7, 2008

Of the classes into which I was likely to enter on a pony (not quite a high horse), Civil Procedure was near the top of the list. The more structural and rule-based a class is, the better I tend to perform. I can learn and apply rules fairly well. Where the law is more fluid and pliable, the muck seems to rise.

I attempt to eat a full, nutritious meal the day before examinations. I also like to take part in an athletic activity immediately before exams. Not only do I believe that a diet full of nutrition and an abundance of energy play a major role in intellectual abilities and success, but that a physically-fit body contributes to mental acuity.

The usual “last meal” before my final includes fish (for protein), spinach (all sorts of vitamins and nutrients), brown rice (carbohydrates, fiber and protein) and other vegetables, including mushrooms and onions. The meal is usually filling and very satisfying.

As per the athletic activity, I have taken to running. I used to go running nearly every day. However, as I have before delegitimized my life because of law school, I have had little time to take part in the activity. However, I decided that I needed to straighten the flurry of thoughts in my head, and I wanted time to myself (not to mention that it would aid me in sleeping that night). I stretched, and warmed up. Then I started running. A little know fact about me drew attention on this run: when I was a third-grader, I auditioned for the part of the young Forest Gump. When I started running, I could not stop. “I was running!” I ran a few miles. Normally an acceptable act, this was a bad idea. I had not engaged in any activities that can be classified as athletic for months. I was so out of shape, that I was not even rounded. (Insert pause for giggle here.) When I got home, I was overly winded and instantly sore. The soreness did not go away for quite some time, either. I was so out-of-shape that I hobbled into the final the next morning.

I did a few uncharacteristic things during finals this year. One of them was to study with a friend the day before the test. Having tutored athletes during undergrad (great stories were yielded from that stint in college), I know that I learn quite well when teaching others. Why not apply this method to law school, especially when my recent academic life has been quite the appositive failure.

During the study session, I tendered discussion by dreaming up test-quality questions. One of the questions I posed to my friend created a lot of debate. When she was done attempting to tell me the answer, I informed her that she was wrong. Why be verbose when a few words will suffice? I explained the correct answer, how, why it was right and important cases that discussed the reasoning and holding behind the law as it applies.

When we sat down at the exam, I performed my traditional testing procedure: (1) tilt head slightly to the right to express my state of perplexity; (2) cry; (3) place reading glasses (that do not really help my vision, but make me feel smarter) on my face and insert ear plugs dangerously far into ear canal to ensure idiots are drowned out; (4) read the exam in its entirety, highlighting and making notations as they are necessitated; (5) repeat Step 2; (6) proceed with the easiest and most heavily weighted portions of the exam, followed by the rest; (7) ask myself “why?”; and (8) repeat as needed.

When I reached Step 4, I noticed something quite interesting: the hypothetical I had posed the day prior to my friend appeared in almost verbatim form. Just when I thought that the Big Guy was not bored with playing games with me, He seemed to have taken a nap. I, obviously, aced that question. However, when I asked my friend about the question after the exam, she told me that her answer represented her first answer to me during the study session. I was really upset. She was quite downtrodden when she realized that she made the same mistake. At least I got something out of the studying.

The proverbial icing on the cake was our Professor allowing the test to occur in open-note fashion. Even though everybody is allowed notes and the exam is graded with a greater difficulty, open-note exams allow for an extra element to surface in gaining ground on the grading curve. The notes used greatly contribute to a higher level of success on these tests.

I possessed what I referred to as “Civil Procedure Gold”; the notes and diagrams were, by far, the highest quality and most useful documents with which I have come into contact. Civil Procedure Gold was an immense help on the exam, yielding high quality responses to each question posed. I am indebted to the notes. Thank you, Civil Procedure Gold.

Two days later, the Contracts examination was administered. The Professor (as duplicitously referenced previously) gave the class three sample questions. The class was told that any one of the three practice questions could, possibly, show up on the exam in part or on the whole. As has been his customary practice for years, one of the questions nearly always is the question on the exam. Even with tradition being well documented, there is always doubt that the questions will actually be used.

I split my time unevenly among the three questions. I spent what is likely 75 percent of my time on the first question, and split the remaining 25 percent on the other two questions. I put most of my “eggs in one basket.” This is equivalent to an insurance policy where the deductable may very well cost more than the repairs needed. However, should the first question be selected, I would likely make money from the policy, metaphorical speaking (this metaphor is brought to you by an actual life occurrence – a good story itself).

I noted all possible answers and cases for each question and spent a good amount of time analyzing each (as per the above-mentioned time allocation). Having studied non-stop for two weeks to that point, my brain was not operating correctly. I needed to revert to high school tactics: acronym acrimony. Creating crazy acronyms is a technique that has long served me well. For my contracts exam, “I Sparce(s) Cubic Wife Wig” was borne.

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Damages

Incidental

Specific Performance
Punitive
Anticipatory
Reliance
Consequential
Expectation
(S)peculative

Important Points
Conv. Recip. Inducement
Unconscionability
Breach (Induced and Contract)
Interference with Contract and Business Relations
Consideration

Warranty (Breach and Fitness)
Induced Reliance
Fraud
Equitable Estoppel

Willful Misrepresentation (… of facts)
Illusory Promise
Good Faith

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It worked wonderfully for my memory. However, the acronym was not the amazing occurrence as I sat down to proceed through my examination protocol. Again, Step 4 did not disappoint.

The basket with the vast majority of my eggs went to market! It was the second time I experienced an insurance pay-day. The first question, in 99 percent original form was the examination question. Winner! Coupled with the Opera experience, I feel relatively solid about the exam. There is much more I wish I had discussed in the answer, but if we were given five more hours to write an answer, I would have used the entire time, and still felt this way.

I am hesitant to feel good about exams because last semester, when I felt I did a solid job, I did the opposite (even though there was more to grading than my performance, which was an issue itself).

Having completed two examinations (with two more to go) I needed to purge my brain of all the info I stuffed within. I took the rest of the day to relax and do light studying for my property exam that was to occur in five days (the upcoming Monday).

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Contracts Final Question*:

Personal Hauling, Inc., is one of the largest companies in the country that rents out trucks and shipping materials for hauling. In 2005, after a lengthy search for a painting system that would give its trucks a superior paint finish at a reasonable cost, Personal contracted with Denkel Corp. to construct and install Denkel's patented paint equipment at Personal's main plant and to supply its own paint ingredients, which are specially made for use in the system.

In the negotiations between Personal and Denkel in 2005, Denkel said that its paint system was completely reliable. The contract warrants that the paint will last at least three years after each application. However, the contract also includes the following provision:

Denkel's liability under this contract for any damage whatsoever that may be caused to Personal's trucks by use of the paint or by chemicals in the paint shall be limited to full reimbursement of the cost of the paint ingredients. There shall be no other liability or damages to Denkel because of any such damage.

The system was installed late in 2005, and was immediately put to use for painting Personal's entire fleet of trucks with a large reproduction of Personal's logo and the words, "Another Happy Customer of Personal Hauling." However, the system never worked properly. Within a few months, thousands of trucks started losing substantial amounts of paint, and ultimately all of the trucks had to be taken out of active service and repainted by hand.

The installation of the system (which is now useless to Personal) cost $600,000, and the paint ingredients cost $450,000. After lengthy discussions between the two companies, Denkel has offered to settle the case for $400,000, but Peter Personal, the chief executive of Personal Hauling, is reluctant to accept that amount. He is especially incensed because he has recently learned through industry sources that Denkel had been having trouble with the mixing and spraying mechanism in its paint system at least since 2003. However, Personal is unwilling to embark on expensive litigation unless there is a reasonable chance of a substantial recovery.

Personal has now come to the law firm at which you are an associate. The partner in charge of the case has asked you for a memorandum analyzing Personal's case (including an explanation of what additional information, if any, that you need from Personal), and recommending how best to proceed on its behalf.

Write the memorandum.

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Civil Procedure Final Questions*:

Scenario 1 (Question A): Trial and Error

Federal District Judge Virginia Emerson has just presided over a jury trial in which Plaintiff was awarded $10 million damages in a products liability action brought under the federal court’s diversity jurisdiction. A week after she entered judgment on the jury’s verdict, Judge Emerson and her law clerk Sam were discussing the trial in her chambers. Troubled by some of her rulings during the trial, Judge Emerson asked Sam to make a list of the potentially reversible errors which occurred during the trial. Later that day, Sam gave her the following list:

• The court denied Defense counsel’s request for a one-day adjournment so that he could produce a witness who had been out of the country;
• The court refused to allow the introduction of a relevant engineering report prepared by Defendant’s expert witness; and
• Plaintiff’s counsel made, during her closing argument, several improper references to matters outside the record.

After reviewing the list that same day, Judge Emerson becomes convinced that these errors were serious enough to warrant action on her part. Neither side has made any post-trial motions.

Question A: What, if anything, does Judge Emerson have power to do to address the errors? Please explain your answer.

Scenario 2 (Questions B & C): Will Swoboda Strike Out?

On May 1, 2004, Ron Swoboda was on his way from his home in Pennsylvania to a friend’s wedding in Michigan. He was driving through Ohio when his car was rear-ended by a truck traveling in the lane behind him, severely injuring Swoboda. The truck was owned and operated by Chang Products Corp., an office supply enterprise which was incorporated in Illinois and also had its principal place of business in Illinois. The truck had been en route from Illinois to make a delivery in Ohio. Chang Products regularly conducted business in several states, including Illinois and Ohio, but not Pennsylvania.

Assume that Pennsylvania’s long-arm statute conferred personal jurisdiction to the full extent permitted by the Fourteenth Amendment’s Due Process Clause. Assume further that Pennsylvania has a statute which requires that all out-of-state corporations wishing to transact business within its boundaries appoint a Pennsylvania agent for service of process. According to the statute, if an out-of-state corporation appoints such an agent, it will possess “within the state the same rights and privileges that a domestic corporation would possess, and shall be subject to the laws of this state.” Because Chang Products was considering expanding its business to Pennsylvania, it had appointed a Pennsylvania agent for service of process on April 15, 2004. The corporation has not yet conducted any business in Pennsylvania; indeed, it has not yet decided whether it will do so in the future.

Swoboda sued Chang Products Corp. in federal court in Pennsylvania under diversity jurisdiction. Swoboda served Chang Products in two ways: (1) he served the Pennsylvania agent Chang Products had appointed for service of process; and (2) he served the president of Chang Products while she was attending a “21st Century Office Products Symposium” in Philadelphia. Chang Products moved to dismiss on the ground that the court lacked personal jurisdiction. Chang Products argued that personal jurisdiction in Pennsylvania was improper because the incident did not occur in Pennsylvania, the corporation was not incorporated in that state, and it conducted no business there.

Question B: Is this case controlled by Burnham v. Superior Court? Why or why not?

Question C: What is Swoboda’s best argument for asserting personal jurisdiction in Pennsylvania?

Scenario 3 (Question D): The Twisted Truth

Pretzel lives in Massachusetts; Donut lives in Arizona. Pretzel sued Donut in Massachusetts state court on a defamation claim. Donut refused to waive service of the summons, and Pretzel waited to serve Donut until Donut was changing planes in Boston’s Logan Airport (on a trip from Arizona to Nova Scotia). Pretzel then filed an affidavit of service describing personal service upon Donut at Logan Airport. Donut filed a motion pursuant to Rule 12(b)(5), arguing that he had missed his flight that day and never arrived at Logan Airport, and thus could not have been served. He attached an affidavit from a friend, Cookie Crumb, which stated that Crumb had witnessed the personal service in this case effectuated on a man who bore a striking physical resemblance to Donut, but was not Donut. The trial court denied Donut’s motion but Donut did not participate any further in the proceedings. Pretzel then obtained a default judgment against Donut in the defamation action. Donut did not appeal the judgment, nor did he pay the amount of the judgment.

Pretzel is now seeking to sue on the defamation judgment in Arizona, where Donut owns substantial property. Donut has appeared in the Arizona enforcement proceeding to argue that the Massachusetts judgment should not be enforced because the Massachusetts court lacked jurisdiction, since Donut was never actually served in Massachusetts.

Question D: How should the Arizona court rule on Donut’s argument, and on what rationale?

Scenario 4 (Questions E & F): Anziel & Brix

Anziel and Brix are neighbors who live on adjoining farms and used to be on good terms. The breakdown in their relationship occurred on January 15, 2008, when Anziel saw Brix driving Anziel’s tractor without permission. Anziel became extremely upset and demanded a large payment from Brix. Mediation efforts failed, and Anziel sued Brix for the tort of conversion for using the tractor without permission. At trial, the parties waived a jury and Brix’s only defense was that he and Anziel had agreed that, during the year 2008, each could use any motorized vehicles belonging to the other without seeking advance permission. The court accepted this defense, rendered a verdict for Brix, and entered judgment for Brix on February 15, 2008. Anziel did not appeal.

Anziel has now filed another lawsuit against Brix. He alleges that on April 1, 2008, Brix drove Anziel’s tractor and damaged it. His complaint contained two counts: (1) conversion; and (2) property damage. Assume that Brix admits using Anziel’s tractor on that date, but claims he did not damage it:

Question E: What, if any, pre-trial motion should Brix file to seek dismissal of Count 1? In what manner will this count likely be resolved?

Question F: What, if any, pre-trial motion should Brix file to seek dismissal of Count 2? In what manner will this count likely be resolved?

Scenario 5 (Questions G, H, I, and J): No Salad Days for Meebecker

Mary Meebecker is suing the Arugula Brokerage Co. in state court, alleging fraud under the federal securities laws. In that lawsuit, she is also asserting a state law claim for fraud in connection with the same conduct as her federal claim. Assume that good faith is a defense to fraud under the federal securities laws, but is not a defense to fraud under the state law. Meebecker is seeking both damages and injunctive relief. Arugula has now filed a notice of removal.

Question G: If Meebecker argues that the federal court lacks jurisdiction because the state court did not have jurisdiction over the federal securities law claims, what will be Arugula’s best response?

Question H: Will the federal court have jurisdiction over the state law claim? Why or why not?

Question I: Will the federal court allow a good faith defense to the federal securities law claim? Why or why not?

Question J: Will the federal court allow a good faith defense to the state law claim? Why or why not?

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*Openly distributed by Professors without any terms regarding disclosure.

First Name Basis With The Opera - May 5, 2008

I am a conniving and ultimately resourcefully manipulative person. Let’s face it: it is a skill that I tend to unintentionally employ regularly - it seems to be an accidental fabric of my being. Perhaps this is why I love courtroom litigation. Anyhow, where an opportunity exists that I may be precluded from undertaking, I do whatever it takes, within reason, to enable myself to appreciate the occasion (usually accomplished by taking part in the opportunity, itself).

Before I get ahead of myself, I will evoke a careful chronology to keep the events clear.

In mid-March-ish, my nationally renowned contracts professor (the otherwise senile professor I often discuss) made a discussion-board posting to the larger-than-100-person class.

The post informed us that the professor “[has] an extra ticket for La Traviata at the Metropolitan Opera on Wednesday evening, March 19, at 7:30. If anyone in the class is interested in going, please let me know by email…”

I did not see the post until a few days after the notification was made. In a class as large as that, I knew that I had missed the train. To understand how glorious time with this professor can be, it must be realized that this professor rewards, quite abundantly, for participation. Basically, he uses participation to give people the grades he believes they deserve. Participation can affect a person’s grade in the class incredibly significantly. Being senile, if the man can remember your name, you are “made”. I not only wanted to go to the Metropolitan Opera and spend time with a nationally renowned professor (I will discuss him later), but I wanted to weasel my way into a good grade.

Understanding that my natural gifts are limited to humor, writing and resourceful manipulation, I decided to use what my mother gave me. Playing dumb is something I can be good at, but I tend to be an amateur. Judge for yourself:

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From: H
To: Professor
Subject: Opera

Dear Professor,

Not only am I interested in attending, but I am enthralled at the prospect of accompanying you to the Opera. Raised on the West Coast, the Met is only discussed in fleeting moments of dream, whereas now, living on the east coast, it is a possible reality.

Regardless of your decision, thank you for the opportunity!

Respectfully,

H

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Remember, I knew he had already found a student with whom he would be accompanied. It was unscrupulous, I know, but how could I not try?

I received the following reply:

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From: Professor
To: H
Subject: Re: Opera

Would you be able to go to Fille du Regiment (Dessay & Florez) on
Monday, May 5?

- Professor

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From: H
To: Professor
Subject: Re: Re: Opera

Professor,

I would be absolutely delighted to attend. I shall keep clear my schedule.

Thank you!

-H

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Success! Triumphantly, I accepted the invitation. My excitement grew over the next month-and-a-half. However, it was not until much later that I realized the date of the Opera would be a positive and negative packaged in a nice box with a bow (very environmentally unfriendly). As finals approached, time became more precious. My calendar of events was relied upon to budget my days properly. Waste was wanted, not.

As it turned out, May 5 was the day of my first final: Civil Procedure II. Contracts final examination was two days later, on May 7. The negative was that I would lose almost an entire day of studying. The positive was that I would be making an impression on my contracts professor two days prior to our examination.

I, of course, believed the Opera to be an investment in my future. I was overly excited for the occasion. I was not able to think about it for too long in the days leading up to the excursion because finals required all the brain-power I possessed (a limited quantity to begin-with).

Immediately following the Civil Procedure Final, I had to begin readying myself. I would meet the Professor at the Metropolitan Opera in the City. Travel time and getting ready would allow me an hour or two to spend getting lost.

I boarded the Long Island Railroad (the scourge of the first year tort law classes – you would understand if you have engaged in law school and know a Ms. Palsgraf) and made my way into Manhattan. I brought the notes I had prepared for the Wednesday final with me for study time on the train and wherever else I could fit them in. When I closed in on Penn Station, I remembered that I had a friend who was working and living in the City. I had not seen him in a few years, and we had been trying to coordinate a meeting. I called him up, and, luckily, he was about to go on his lunch break. I met him in Chelsea, by the dance theater by which he is employed, and we went for some deli sandwiches. He is originally from Arizona, and was a leader – the same level as I was - in the youth organization I have been active with since I was young.

I nearly walked right past my old friend. While I am no fan of New York the fact that I nearly missed him spoke to the positive effects of the locale: my otherwise fluffy (when my high school wrestling co-captain and I would tell our coach that he was fat, he would respond, “I am not fat, I am fluffy”) friend was half his width. I looked at him and said, “J: Do not perceive this the wrong way, but you look amazing! You have lost a ton of weight. What did you do or change?”

“I started working out, changed my eating habits and the City. I walk everywhere. It is an effect of the city,” he stated.

Well, I guess New York is only 99.5 percent horrible. As if.

After catching up with J and his life, we parted ways. I headed towards the Lincoln Center – home of the Met, the New York Philharmonic and the New York City Ballet, and Juilliard among others. My stroll by Central Park and the sights of the City renewed my belief that New York is a nice place to visit but not to live. I expect that it would be nicer to live in NY if you have a good amount of disposable income and an appreciation for the arts in general.

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An Aside: in the car, on the way to the train station, Roommate turned slightly to the right and said, “Beside the fact that you will be given an “A” because of tonight, do you really want to go to the opera?” I responded that, “I am more excited about the opera than I am about the prospect of the good grade.” She possessed a picturesque dumbfounded look. “Anybody who has an appreciation for the arts will have an appreciation for opera,” I said in response to her dumbfoundedness.

“How does having an appreciation for the arts correlate to liking opera,” she retorted, questioningly.

“Well,” I said. “How many people do you know who can sing opera?”

“None. But, I do not know anybody who wants to,” said my Roommate emphatically.

“That is my point, exactly,” I said with my trademarked smirk. “As somebody who cannot draw a stick figure, I have an immense appreciation for paintings and drawings. The same appreciation extends to all forms of artistic expression.”

She quickly changed the subject.

--

While my parents were very careful with their spending of money, and tried their very best to shield their children from any knowledge of their very tight budget – my mother had the same pair of shoes for longer than is socially acceptable – they also sought to share their love of and expose us to every form of the arts possible. I am, quite possibly, one of a handful of the male gender (an important designation) who, at the completion of my 18^th year of life, had seen more ballets than I have fingers, been to greater than five museums of art in at least three countries and numerous states, seen plays and musical productions with great regularity and seen the performances of philharmonics and orchestras on multiple occasions. As a great number of persons designated as “they” say, like death and taxes, an appreciation and desire to experience the arts is a sure thing.

That said, I was more excited than the average heterosexual male in his 20s would – or, to some, should – be. As the time to meet the professor in the lobby neared, I began to experience a good level of anxiety.

I was scared. Actually, literally, in the flesh scared out of my flesh. How in the world would I entertain and carry on eloquent conversation with a legal legend?

I realized that I had not researched the Opera I would be seeing, nor did I know how I would keep the Professor’s brilliant-self entertained for multiple hours. Technology saved me, in part. I looked up the Opera on my phone’s internet, and quickly memorized every fact my brain could hold on such short notice. I was hoping that the interesting nuggets of operatic insight would not become inter-twined with something contract-based. For example, thoughts of expressing that this opera is considered by the critics as the “Mount Everest of operas” because the male lead was to hit nine high-C’s in quick succession during the first act, usually before his voice could warm-up, instead coming out of my mouth as “I read that Judges have held that this Opera is unconscionably difficult for the Male lead, and, under the Everest Doctrine in the Restatement (Third) of Performance, must warrant that he will deliver nine high trees estoppels in the first provision of the contract.”

Luckily, my notoriously great brown-nosing skills were perfectly delivered throughout the night, which lasted from 7:00PM until 12:30. It was a long, late night with the Professor!

The whole experience was quite overwhelming. This was a significant event, to date, in my life, marked with excitement, a grandiose, larger-than-life environment and a quite unique feeling of being very special. The Professor, known as the "Father of Modern Legal Ethics," a man with more stories than Theodor Geisel, and a greater wealth of experience and knowledge than I could ever wish to possess. The Metropolitan Opera House is a great metaphor for this professor: world-renowned, host to a great many legends, and, quite frankly, one of the most amazing venues for performance. I, factually, was no less than 30 years younger than the next youngest opera-goer; it is not surprising either. What kind of young male (wants to) attend the opera, especially when his date is a greater-than-80 year old man (I only wish this was spent with my grandfather). As far as great choices made during finals, this easily tops the list.

The Professors seats were Orchestra level, and only a few rows from the stage. It could not have been much better. Needless to say, the vantage point was expensive, and I was lucky.

I cannot fully interpret my experience into cognizable words. Opera is believed to be without any emotion. The performers are thought to stand still, with their arms at their sides during some very intense scenes. This misconception is, actually, only partially misconceived. Some of the most amazing vocally renowned opera performers have been referred to as an “arm-chair” on stage. While acting skills were not important in yester-years, this Opera (La Fille Du Regiment) put the ever-existent notion of boredom to rest. Not only were the voices amazing, but the Principle performers acted as well as any stage actor I have viewed in the past. The Professor later told me, on our drive home, that while acting was not seen as important in years past, acting was becoming far-more recognized as a part of performances, and a necessary skill to be recognized. The acting was, in short: fantastic.

My professor, an opera attendee for the last 30 years, and subscriber to the Metropolitan Opera (and, at times to the New York Opera concurrently) has seen and experienced much of what Opera has to offer. Of the performance I watched, he said that there were a lot of firsts. The male Principle hit the nine High C’s with perfection, and was given the longest ovation my professor had ever witnessed. The lead (Florez) kept his pose for a great portion of that time, and then broke character to bow a few times, and like a giddy school-boy, giggled at the audience’s display of appreciation. After a few minutes, he looked down, into the orchestra pit, at the Conductor. He gave a questioning look to Conductor, who nodded in affirmation, raised his hands to signal the orchestra, and played the music to aide Florez in an encore. In 30 years, my Professor had not seen an encore performed. It was that outstanding.

Most people wonder how an opera can be enjoyable if in a foreign language. The response is that each seat is equipped with a translation device to any of a great many languages. The audience would often laugh before the French line was delivered. The performance was obviously tweaked for its audience. The pretentious potential mother-in-law for the female lead (Dessay) was American, and the prospective groom was a member of the Olympic Bobsled Team. At one point, the French mother got caught up in the English and French that was being exchanged on stage, and seemingly, by accident, responded in English when it should have been in French. It made the performance all the much more enjoyable. There was quite a bit of humor infused into the Opera. The composer and writer wrote such a great Opera, that the humor transcended over a century, and was received with laudable comedy.

The amazing experience of the Opera was complimented by amazing conversation and priceless insight. I learned a great deal about the man and his legendary life. Having spent is practical career as a civil rights and criminal defense attorney, the Professor explained that the reason he teaches first-year contracts is because he believes the class to be the best medium in which to teach practical lawyering skills. His true intent is clear: the Professor with the greatest tenure of any person at the law school chooses to teach where he can help students become the best attorneys possible. His altruism is admirable.

On the drive home, my dissociation with New York became apparent when he asked me to direct him to my house on our drive home. I was not too great a help.

I really cannot express just how impactful the night was on me. Not only have I garnered an addiction to opera, but I have obtained insight and retained a great deal of advice that will not go to waste.

I now refer to the professor by his first name, except when I am communicating with him. My friends and I figure I have earned the right to do so when he is not around.

Finals... 2 DOWN.

UPDATED THROUGH APRIL 28!

OH JOY!

Thank You, Dad - April 25-28, 2008

The landlord is relentless. Either the attorney is not very good at giving directions, or our landlord is not go at following them. Landlord thought it a good idea to call Roommate on Friday. This was after I spoke with his attorney, establishing the fact that Landlord should be directed not to speak with Roommate or I because he has retained legal counsel.

Roommate did not pick up the call, instead allowing it to go to voicemail. The message that was left consisted of the Landlord wanting to “sit down and discuss the problems we are all having.” He said that he understands that we may have some problems with his partner, but that he did not want this to become a big issue. The problem with his message is that Roommate and I are not as dense as we apparently have come across. We know that Landlord was the one who went to an attorney, and directed said attorney to draft and send a letter to Roommate and I. He is the one who elevated the whole issue.

In response to the call, and because I had told Attorney that we would no longer communicate with he or his client orally unless it was in court, the only option we had was to send an email to Attorney regarding his client’s contact with us.

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From: Tennants

To: Mr. Bad Attorney

Subject: Re: Landlord

Mr. Bad Attorney,

We wish to inform you that your client, Landlord, has contacted us. Inasmuch as we would like to solve the problems that have been presented, we cannot ethically engage in conversation with your client or his agents. As was discussed during our telephone conversation, in order for us to have any interaction with Mr. Landlord or his agents, we need a signed document, from you, stating that you give permission for direct communication to occur.

We would also like to reiterate that the plethora of needless and bothersome contacts from your client need to cease immediately. As we have previously stated, we are attempting to study for finals and need an atmosphere that is without any extraneous and undue influences. The sheer number of calls and contacts, alone, when we have requested that they desist, are bordering on harassment. We hope that your client and your client's agents will respect our right to the quiet enjoyment of our residence and lives.The level of anxiety and aggravation that your clients have caused, as well as the time we have superfluously spent, are already far too much. We trust that you will counsel them as to the results of their actions.

We look forward to resolving this matter in full, in a way that is agreeable to your client as well as ourselves.

I thank you for your time and effort on these and all other issues.

Very respectfully,

TENNANTS

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We received no response to the email Friday.

When Sunday came around, I was fairly certain that the Landlord or his agents would show up to carry out their open house. Having become rather adept at legal research, I quickly oriented myself as to the state statutes for criminal and civil trespassing. I realized that in order to prove criminal trespassing, it must be shown that the accused trespasser knew they were entering property on which they were not allowed. Civil trespass, on the other hand, does not demand knowledge of actions, the action itself suffices. I did not want them to skate on the fun criminal trespass would yield, so I took measures to ensure the trespassers knew they were entering a restricted area. I took one measure, to be exact: I posted a rather conspicuous sign on the front door of my home that said the following in large, bold type:

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NO TRESPASSING

Under New York Penal Law §10.03, §140.00(5) and §140.05, Entering or Remaining In or Upon the Premises Without Permission Constitutes Criminal and Civil Trespass, and is a Violation of the Law.

Violators Will be Prosecuted

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Roommate and I disagreed about the posting of a sign with the above printed on it. She thought it would make things worse. I told her that the law basically required such a move be made by us. She also was not planning on being home during that time, so I was on my own. The sign went on the door.

No open house was held.

This was a positively great occurrence. I had to study for my first finals (Civil Procedure II and Contracts), and wanted no distractions. Calling the police and dealing with dumb people was not really on my to-do list for the day.

I studied. And studied. And Studied. This process will continue for nearly three weeks more. The stress, and cabin fever build up to be quite immense.

On Monday, an email response from Bad Attorney arrived in my inbox.

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To: Tennants

From: Mr. Bad Attorney

Tennants,

It appears that you had a lot of time to spend on letters and e-mails to me that could have better been spent on studying for final exams, and they probably took longer than the two hours it would have taken for Mr. Landlord to have his open house. Your research indicates that you are more interested in going after me and Mr. Landlord, rather than to explain any legal basis for your opinions on real estate law.

Mr. Landlord is the landlord and the owner of the property. He has every right to contact you.

Nonetheless, as I stated in the Fed Ex letter you should be receiving today, I am going to be discussing the situation with Mr. Landlord this week to determine his future course in this matter. We both agree that this should be resolved-- you do not need a dispute with me and my client and I don't need one with you.

- Mr. Bad Attorney

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Where Roommate was once the pacifist in this situation and I was the bull, Roommate grew horns upon receiving this response. I, on the other hand, wanted to give peace a chance. We had instantly switched placed in this whole dance.

Monday brought forth my final Property Law class. It seems the Professor had grown quite attached to the class and the students. This was not overly surprising, as she regularly revealed her enthusiasm for this class during her lectures. As the class began, the professor started giving a speech about how she loved the class and hopes we will all stay in contact with her as time passes. During her speech, she started tearing up. It was very touching.

In other interesting news (literally), I was appointed the Editor of the Law School newspaper by the current, outgoing editorial board. I was caught very off-guard by the selection, as I had forgotten about the student run organization. As I told one of my buddies, when it pours, my life becomes cats and dogs. Should be quite interesting running the First Amendment publication.

Guest Post:: Ross Armstrong - "Approaching Camp II"

As his Saturday, April 12, 2008 post, Ross Armstrong, author of The Daily Ross - a law student blog of a different creature than my own - takes an otherwise cliche extended metaphor, and makes it perfect. Keep extending those metaphors, Ross. Law School final examinations are no fun, but it is nice to get to the top and look back. As my first year of law school comes near its end, so does my excitement to be able to look back.

Read on:

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Saturday, April 12, 2008

Approaching Camp II

From what I can tell, the climb from Camp I to Camp II looks shorter than the initial climb to Camp I. Not only does it look shorter but we know have our climbing legs. We know how to read cases, how to study for tests and be most prepared for class. Our heart rates no longer increase when the professor enters the room and as the dust has settled after leaving Camp I are comfortable with a place among our peers. As I approach Camp II, I can't help but wonder what happened to all the mountain below me. Is it really time for our last finals of our first year? Where did all that time go? It is in the respect of time, I think we are least prepared for Camp II. We'll be ready for the tests and fact patterns but how did we burn through four months so quickly?

The climb is not as focused on the mountain this time. As one climbs toward Camp II, thoughts of what happens after the entire climb is done is forced your way. The window of the post-climb world was opened for us to peer through; to get a glimpse of what world awaits us once we climb the summit was not only distracting from the climb itself but brought new thoughts of stress. The quest for summer jobs, externships, class and traveling abroad helped distract from the mountain itself. In some ways, such distractions may have helped to see the larger mountain range and in other ways took time away from enjoying the mountain itself. So, with two weeks of a final push as we approach Camp II, we climb on; now with a dual focus of the summit and life after it.

Act 2: Other Than That - April 24, 2008

The day, other than the day, was fantastic. The day, other than that, was spectacular. Why, in fact, my day was full of joy and happiness, other than that.

I had the last class with Senile Professor. I had my last Stupid Class. I had to deal with that.

I will miss Senile Professor, and his pointless ranting and the numerous side-tracked soliloquies about canes from Saudi Arabia and dumb lawyer jokes. I made it through the last two hours unscathed.

As one could gather, the end of Stupid Class was on my checklist of “Things to Accomplish without Committing a Crime.” I made it to the end, and as I walked out, a shroud of excitement befell my body. Smiles ear to ear.

As the final “good day, lad” to Stupid Class, we were all given slots in which we were to have our final one-on-one meeting with the very smart Stupid Class Professor. The meeting was spent mostly discussing the letter Roommate and I received. As it turns out, Professor worked for a non-profit tenant’s rights organization. She told me that the letter I received was not uncharacteristic of landlord attorneys. She told me that, Landlords and their attorneys think that a letter from a lawyer will scare people into paying their rent or performing other tasks. They are right most of the time. Such a tactic usually yields success for them. However, every once-in-a-while, the tenant is educated in the law or has representation, and that is when the fun occurs.

After telling me that she hopes that it does not interfere with finals, I we quickly discussed some details about the Final. The meeting was concise and to the point. Definitely my style.

Little did I know that more fun was on its way in the hour following our meeting. That is when “It” (where “it” = “that”) happened. I made the call, had my fun, and then went on with my day.

When I arrived at the residence (where an open house will not be occurring), I removed my phone from my pocket and dialed the County Bar Association. I wanted to go fishing. The call was answered by a woman who I very quickly came to appreciate.

“Uh, hi. I do not know with whom I need to speak. I am a law student who has had communications with a local attorney,” I began. “In multiple communications, he threatened to report us to the Bar Association if we did not comply with his client’s demands. I want to ask somebody what I can do, and to see if I am taking the right steps.”

She asked if I had filed a grievance.

I told her that “I had not yet done so,” and did not think I was prepared to just yet. “It may not be something that is at that level, at this point.”

She coaxed more of the story, including the letter and phone call, out of me over the next minutes.

After the abridged version had been told, she said the following, in a matter-of-fact tone:

“I am sending you a grievance form,” she stated. “You need to fill it out and send it back. Now, what is your address?”

Yes ma’am! Alright, consider it done.

I figure that the call was a good sign of things to come. The call gave me the renewed sense that I had handled the situation correctly. That is definitely a solid “pat on the back.” I could use a few more of those.

I find that all the interesting events happen to me. As my Brother said, “We have a problem, you and I. We stand up for ourselves where others wouldn’t. It gets us into trouble. A lot.”

He is definitely correct. However, I would not change that characteristic for any reason. It is something I definitely like about myself.

Last Contracts Class: check!

Last Stupid Class: check!

The Second Coming: No check.

The First Exchange With Legal Counsel: check!

Day of Mr. Bad Attorney Ruined: check!

Tired and Stressed: check, check.

Part 1: The Goose Gets a Gander – April 24, 2008

I like to give people the benefit of the doubt. It keeps me a little less pessimistic and gives me hope that there is inherent good and elements of reason in everybody. However, reason, good faith and common decency are not traits that all people can possess. Mr. Bad Attorney (from yesterday) is one of these bad people.

When one has, what is supposed to be, their intellectual superior asking very frantically if you reported them for ethical violations, you have a sign that reads “upper hand,” with an arrow pointing in your direction. However proverbial my sign was today, it was still mine.*+

The small print: *Does not threaten well by others. +Caution: Bites. Hard.

To premise the environment, an in-depth study should be conducted. The perfect storm of events: so very flawless, the following is unbelievable. However, I could not make this up if I tried (for other stories of impossible truth, read the LSAT Saga – back luck and brawling lesbians, with helicopters and guns). The law school confiscates your thinking cap and imagination during orientation - I am without the ability to create entertaining stories with drama and action. My art, for the most part, is in the retelling.

So commences the day:

The story begins with the tale of two roommates. You know them well, but trouble's-a-brewin'.

My roommate is having a bad week. Roommate is having a horrible day. The worst day of a horrible week is not the correct time to try to mess with any person, especially Roommate.

After having a relatively horrible morning, where there were tears and a lot of remorse involved, Roommate’s phone jingled a sound we have come to loathe. Our Landlord’s partner’s wife was causing the phone to ring. In her already unpleasant mood, Roommate answered the phone. Wife proceeded to “notify us” that there would be an open house this Sunday.

Mayday! Mayday!

Roommate, with all the cool ferocity she could muster, told Wife that (1) she was not in the mood to deal with this, (2) there would be no open house, (3) she should consult her attorney before attempting to enter the premises without permission, and (4) this is not a debate, the decision had been made. The rest of her call was jumbled in the retelling, but I did retrieve this: her call ended the same way mine would.

When Roommate educated me about the call, I told her (and she readily agreed) that there would be no further communication verbally with us, and that we would not again have any communication with them because they had retained counsel.

I pledged to make a call to Mr. Bad Attorney (who I have deemed “Buttorney” to make myself happier on the inside) to ask him to advise his client and any agents of his client that the harassment should cease.

The call was a pain in the butt from the outset. I called the firm, was transferred to the “switchboard,” and connected with Mr. Bad Attorney’s secretary. She told me that she needed to “check to see if he is on the phone.” Having dealt with a phone or two in my life, and attempted to dodge a great many calls, I know that this translated to Mr. Bad Attorney being in the office, and his secretary finding out whether or not he wanted to talk to me. Surprise pervaded my being when I was told that he was, in fact, on the phone. Who saw that coming?

I told Secretary that I would be pleased to wait for him to finish his other call. She, in a puzzling state of mind said “OK.” Ten minutes later, she told me he was still on the call, and I responded that I still would wait. We went through this twice more, until I was able to drive my tenacity home. After a lengthy time, she came on the line and notified me that Mr. Bad Attorney “is going to be on the phone for quite a while longer.” I asserted that, “Luckily, I have nothing to do for nearly two more hours, and would love to wait for him.”

Astonished and a bit perturbed, she scoffed “Fine!”

Low-and-behold, a few minutes later, Mr. Bad Attorney answered the phone.

“Hello, who is this?” he asked.

“I am H, calling in regards to your client, Mr. Landlord.

“You are not Ms. Roommate, why are you calling on this matter?” He quizzically stated.

“If you had bothered to look at the lease agreement before you hastily authored your letter to us, you would notice that my name appears right next to Ms. Roommate’s name. As the law would have it, this makes me a party to your letter as well,” I uttered in disbelief.

His obviously poor investigation and lack of facts would become the theme of the call.

I told him, as succinctly as possible – mainly because I did not want to have a long, adversarial conversation with him – that “I request that you advise your client and your client’s agents that they are not to contact my roommate or I any further, as they have retained you as their legal counsel, unless we receive, from you, a signed letter stating that they are released to do so.”

The call instantly became hostile as the unfounded accusations came bounding my way.

“My client tells me that you have not paid your rent for the month of April,” he accused.

“You obviously have not done your research, or you would have discovered that one day before you penned your name to the demand letter, we hand-delivered checks to your client’s agent,” I responded.

“That’s not what my client said, and he seems like an honest guy to me,” Mr. Bad Attorney rebuffed.

“Well, I am telling you that your client’s agents have been in possession of our checks for days now. I have no idea what or how much he has told you, but you do not have the whole story,” said I.

“My client would not lie to me, are you saying he is?”

“I am not saying your client is lying, all I can say is what I know I have done.” I responded.

“Do you have cancelled checks? Send me copies,” he said as he spouted out 10 digits I chose to ignore.

I told him that “there are a number of problems he and his client bear with their assertions. First, the house is in violation of the warranty of inhabitability. There have been numerous conditions, of which his client had been informed for over 5.5 months – more than half our current lease period – and that as a result we are well within our rights to withhold any rent that his client claims is due. Second, as you will read in the letter you shall receive tomorrow; the lease agreement is without terms of delivery. Therefore, as you will find when you research the law, the landlord must physically go to the most prominent point on the property and demand any due rent. Even with the foregoing aside, in an attempt to remain conciliatory with your client, we paid our rent anyhow.”

At this point I told him that he obviously had not done his research, and that it is also apparent that he did not have the entire story from his client. I told him that I would not discuss the issue until he had all the facts.

Then, it got ugly.

“You cannot stop my client from having an open house. They are within their rights under the lease agreement,” he said.

Knowing he had not read the lease very closely, I decided to have some fun debate with a lesser-informed foe.

“If you had taken the time to actually read the lease you would find that the word ‘may’ appears. During my first weeks of law school, we discussed the construction of contracts, you know, like the effect commas have when placed in different locations, and the meaning of certain words.” I said proud of my knowledge.

“The word ‘may,’ unlike ‘shall’ or ‘will,’ means possibly or is permissible. Not only did we inform your clients that an open house is possible at a later date, but we have allowed the property to be shown with a prior appointment. However, even if you are right, and I am pretty sure you are not, the agreement provides that showings can only take place at times deemed reasonable…”

He cut me off, and angrily asked me “where does it say that?”

I retorted that “it is located in paragraph 15; the same paragraph that you cited in your letter to us.”

The sound of the opening and closing of a file cabinet was noticeable in the background. As paper ruffled he mumbled something to himself, probably reading the lease agreement for the first time.

It was time to continue. “You know very well that we are law students, and you also know that we are in close proximity to finals…” I started.

Cut off mid-sentence, he was concrete in his denial that he did not know our schedule. I responded that, again, he obviously did not have all the facts, and that his client knows that the reason we refused an open house was our intentions to study, uninterrupted, for finals. I also reminded him that, as a legal practitioner, he is expected to know the full story before making any factually untrue statements, and that he is as culpable for a falsification as his client, because he signed his name on the demand letter.

After that, I was allowed to continue my previous statement, “… it is unreasonable to hold an open house during law school finals.”

He responded with the laughable reasoning I did not expect from an experienced lawyer. “Springtime is the best time to sell real-estate, and that most open houses occur on Sundays in the afternoon.”

I nearly laughed. I had to make the obvious statement: “Inasmuch as I am sure the time seems reasonable to your client, a contract goes both ways. As such, it has to be reasonable for us as well.” I restated the fact that it is unreasonable for law students to have their residence shown during an open house during finals season.

“I don’t think other people would agree with you,” he said.

Again, I had to make the obvious reply. “To tell you the truth, Mr. Bad Attorney, I could care less what others think,” I began. “I am relatively positive I could convince a Judge that I am correct; I am even more positive that I would not even have to convince a Judge; they would already know that we are correct, because we have the law on our side.”

He started to make outlandish suggestions, including driving to the law school to study, going outside to read or going into a room. On the face, these are not bad suggestions. However, silence is key, a computer is necessary and time cannot be wasted. Yeah, law school is intense.

I told him that “I do not know how it was thirty years ago, but…”

Cut-off once again by Mr. Bad Attorney turned horrible interrupting annoyance. “I will not be talked down to by a law student. I will not take condescension.”

“I was not talking down to you, nor was I meaning to be condescending,” I said as angelically as possible. “I was attempting to tell you, before I was interrupted, that either you do not remember how law school works, or perhaps it has changed. I cannot speak for you, but I can say that perhaps 30 years ago you went to law school, but I am a law student in the present. I can say that every minute of time is precious to law students, and I cannot afford to have any interruptions, intrusions or inconveniences. I certainly cannot waste any time.”

I relayed that I appreciated his concern for my well-being, but that holding an open house during finals is ludicrous, and cannot occur.

Then, the illegalities assumed their position.

“If you do not do honor the lease agreement, I will notify the bar association. Not honoring the terms of a lease is unethical,” he said.

“Are you threatening me?” I asked. “It sounds like you are making a threat, and I do not like being blackmailed or coerced to do anything I do not have to do.”

This part is fuzzy, but he back-pedaled quickly, and then started to make threats and statements of extortion about notifying the bar association, and how hard it would be to pass the bar examination as a result.

As sad as I was to ruin the surprise of our letter, I let the goose have a gander. “As you will read in our response tomorrow, we have already preempted your attempts to extort and coerce us,” I said proudly. “We have forwarded your demand letter and our response to the Bar Association.”

Uh oh. Somebody’s in trouble. Doo-doo hit the fan.

“Did you file a grievance with the Bar Association?” he asked with a worried tone, with a hint of angry.

Gleefully, I responded that “I did not file a grievance; I merely forwarded the letter you sent us, and the response we are sending you. I have nothing to hide; you best hope you do not either.”

“It seems to be the same thing,” he scoffed.

“Well isn’t that the problem: the way you think things seem to be is far different from what they actually are,” I rejoined.

“Who did you send the files to? If you filed a grievance, I am going to need to report you to the Bar also. In thirty years I haven’t had a complaint filed. I have been a member for decades,” he sputtered angrily.

“Who did I send the files to,” I rhetorically asked. “I sent the document to the American Bar Association, the New York Bar Association, and every other organization I could find,” I said with a smirk.

“You just sent it to the bar,” he asked.

“No,” I said assuredly. “I sent it to the Bar Association Ethics Committee and every other legal ethics committee I could find in the State and County.

My parents always explained (and my experience supports) that one of the worst things one can do to an enemy is to take the “wind out of their sails.” It is better to tell your parents that you were a ‘bad boy’ before your brothers can. Not only is the punishment less harsh, but your brother does not get to have the joy of turning you in.

In this case, Mr. Bad Attorney’s boat – the forgotten fourth ship of Columbus’ fleet, ‘The Bob’ – was without wind. The ship is going to end up in Greenland: a beautiful icy abyss, all alone.

I was tiring from arguing with an uneducated, baseless wall. I told him that, “as of this moment, we will no longer communicate orally. The only way we will respond to you or your client is by certified mail or, if he so chooses, the filing of suit in a court of law.”

Obviously enraged, Mr. Bad Attorney scoffed at me and stated that I could not tell him how to mail a document. “I will mail documents to you however I want. If I want to do it through service of process or hand-delivery, I will do that!”

“You are right,” I said. “You can do it however you want. If you wish to spend money in that fashion, that is your prerogative. However, oral communications cease now.”

He started to babble and talk over me. So, as calmly as possible, I told him that “I am no longer going to discuss this issue any further. I consider these issues closed, and sincerely hope you advise your client regarding all applicable laws regarding trespassing, extortion, harassment and a wide selection of intentional torts. I am going to hang up the phone now and …”

He cut me off and began to babble. Again, I repeated my closing line, “I am going to hang up the phone now, even though you are not listening and I will probably hang up while you are talking. I wish you a good day.” My follow-through was perfect. Index finger to the end button: as quickly as he had realized he screwed up mighty well, I was able to take in the glory of bad lawyering. Lawyers like this make me want to specialize in Legal Malpractice. As my father said, there is nothing better than suing a bad attorney.

If Mr. Bad Attorney wants to take us to court, it will be a spectacle. To witness a 30-year veteran lawyer lose to law students would be precious. However, I really need to concentrate on finals. It would be better if this all just went away.

I am never a lucky-ducky.

Think Again - April 23, 2008

Right when I thought things were decent with the Landlord, I was wrong. I really dislike being threatened, especially by people who have no basis for doing so. When lawyers get over-zealous, they sometimes forget basic laws or underestimate the people they are dealing with. I have do believe this guy thought he was going to scare us into action.

Think again, Mr Bad Attorney. Think Again.

Below is the letter we received in the mail, followed by the letter we will be sending back. (Like I have any extra time laying around to do this stuff.)

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April 22, 2008

Dear Tenants:

We represent Landlord, the owner of the above property of which you are a tenant.

We are advised by Mr. Landlord that you did not pay him his rent for the month of April, 2008 in the sum of $$$$.

Please be advised that pursuant to paragraph 19 of the lease, you have five days to correct the default and pay Mr. Landlord the rent due. If you continue in default, the lease will be canceled and Mr. Landlord will seek to evict you.

We also understand that you are attempting to impede Mr. Landlord from having an open house to sell this property. That behavior would violate Mr. Landlord’s rights under paragraph 15 of the agreement, and you may not prevent Mr. Landlord from holding an open house to sell his property.

Finally, we understand that you are in law school. If you continue to violate the terms of this lease, we will deem that to be a matter of interest in the event you do seek to become a member of the Bar of this State.

Very truly yours,

Mr. Bad Attorney

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April 23, 2008

Dear Mr. Bad Attorney:

As first year law students, our law school trains and educates us in the practice of thorough legal research. We can reasonably assume that, as a practitioner of the law and a member of the State Bar Association of New York, you are just as capable of performing inquiries into applicable laws and facts.

We find it devious that an attorney would make egregious misrepresentations of the terms of our residential lease in an attempt to coerce actions and silence behavior that we, as tenants, are well within our rights to assert.

Had you properly researched our dealings with Mr. Collace, you would have discovered that, per section 15 of our lease agreement, your client may show the house to potential buyers. Under a strict interpretation of the law, the use of the word “may” is defined to mean “possibility” or “is permitted to.” Having covered the interpretation of contracts during our first week of law school, we believe, and case law supports, a reading of the clause as meaning that entrance to the property is a possibility, and could permissively occur. We have cooperated in the showing of the house previously, and will continue to do so as long as appointments are made in advance. Having allowed the property to be entered multiple times, we have fulfilled our duty as a tenant under the lease agreement. Paragraph 15 does not provide any limits, and as such, should be read under the strictest interpretation possible.

Furthermore, had you read the contract, you would have noticed the phrase “at reasonable times” appears. Your emphatic recognition of our status as law students and your client’s repeated acknowledgement that one of the many reasons for our denial of an open house was its proximity to final examinations; we found your client’s repeated and unyielding requests unreasonable. We have provided your client with a set of dates which would be agreeable to discuss a potential open house. Not only will witnesses verify the vast number of calls to our telephones from your client after the issue had been discussed at length and repeatedly denied, but can attest to the amount of stress and emotional distress he has caused us. It is also important to note that the lease agreement contains a great many clauses that are clearly unconscionable. Though an amended agreement should be drafted forthwith, we feel it sufficient to duly note such occurrences in the present.

Had you completed a thorough interview of your client and a complete investigation into the facts involved prior to hastily preparing the unfounded letter, you would have discovered that your client has, in multiple circumstances and for extended periods of time, violated our warranty of habitability and has willfully violated the terms of the lease and our quiet enjoyment of the property. New York Real Property Law, Article 7 describes the landlord-tenant relationship. New York Law requires the lessor to provide tenants with such basic needs as hot water, heat and other related services, or be found guilty of a violation of the law. The warranty of habitability also requires the lessor to ensure the property is “fit for human habitation and for the uses reasonably intended by the parties and that the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety.” On multiple occasions, and as several witnesses will attest, the house was without basic needs, including heat, hot water, and proper plumbing. Many of these problems have gone undiagnosed, unrepaired and without change for more than half of the current lease period.

Moreover, you allege, without factual basis, that we had failed to pay any due rent. The law entitles the withholding of rent when the terms of the lease agreement remain unfulfilled by the lessor. Here, not only are there drainage problems still uncorrected, but the showers continue to be without hot water for any reasonable period of time. Having properly informed your client of these and many other problems that made the residence below the standards of habitability, more than five months ago, we were and continue to be well within our rights as tenants to withhold rent.

However, even under these circumstances, in an effort to remain conciliatory with your client, we tendered payment of rent prior to April 22, 2008 – the date of your letter – as is reflected on the checks delivered to and cashed by your client. However, the lease does not provide for any delivery of the rent, and is without an address for notice. As such, the law requires the landlord present himself at the most prominent point of the property, and there, demand rent. Here, the landlord had not done so, and is without standing to make any statements to the effect that rent was unpaid. Had your client arrived at our residence and demanded rent, the rent could have been tendered. No such attempt was made.

Even more appalling was the inclusion of the last paragraph of your letter. As a member of the New York State Bar Association we, as law students, look to you and other active practitioners for guidance and role-models. Having once been a student of the law, your understanding of the stresses of law school, and the immense pressure to pass the Bar Examination gives you an expert view on the result of threatening us with report to the Bar Association. Your quite obvious attempt to extort, coerce, harass and intentionally inflict emotional distress is quite disappointing, and illegal.

The New York Lawyer’s Code of Professional Responsibility, provides in section EC 1-7, that “a lawyer should avoid … condescension toward, and treat with dignity and respect, all parties…” We highly suggest that you familiarize yourself with the document, in its entirety, but would like to draw your attention to the following:

EC 1-7: A lawyer should avoid bias and condescension toward, and treat with dignity and respect, all parties, witnesses, lawyers, court employees, and other persons involved in the legal process.

EC 7-1: The duty of a lawyer, both to the client and to the legal system, is to represent the client zealously within the bounds of the law, which includes Disciplinary Rules and enforceable professional regulations.

EC 7-10: The duty of a lawyer to represent the client with zeal does not militate against the concurrent obligations to treat with consideration all persons involved in the legal process and to avoid the infliction of needless harm.

EC 7-19: Our legal system provides for the adjudication of disputes governed by the rules of substantive, evidentiary, and procedural law. An adversary presentation counters the natural human tendency to judge too swiftly in terms of the familiar that which is not yet fully known; the advocate, by zealous preparation and presentation of facts and law, enables the tribunal to come to the hearing with an open and neutral mind and to render impartial judgments. The duty of a lawyer to a client and the lawyer's duty to the legal system are the same: to represent the client zealously within the bounds of the law.

Furthermore, we wish to draw your attention to the section describing misconduct by an attorney. Under DR 1-102 [1200.3], it is intolerable for an attorney to engage in conduct that violates any disciplinary rule, to engage in illegal conduct that, among other things, adversely reflects on an attorney’s fitness as a lawyer, or to engage in conduct “involving dishonesty, fraud, deceit, or misrepresentation.” Your material misrepresentations and grossly inadequate research is plainly visible in the demand proffered and threats levied against us in your letter.

In addition, DR 7-102 [1200.33] forbids a lawyer from taking action on “behalf of [a] client when the lawyer knows or when it is obvious that such action would serve merely to harass or maliciously injure another.” Having attended and graduated from law school and subsequently taken the bar exam, you are well aware of the ferocity of your statements and the concern, worry and upset the blackmail would yield. We are unable to conclude that there was any reason to include the final paragraph in the letter but to coerce, extort, harass and inflict distress upon us.

We trust you and your client will familiarize yourselves with New York Penal Code, section 135.60, which defines coercion as any instance where a party “compels or induces a person to engage in conduct which the latter has a legal right to abstain from engaging in, or to abstain from engaging in conduct in which he has a legal right to engage, by means of instilling in him a fear that, if the demand is not complied with, the actor or another will … perform any other act which would not in itself materially benefit the actor but which is calculated to harm another person materially with respect to his…career, financial condition, reputation or personal relationships.” It would also serve you well to become acquainted with statutes regarding extortion/blackmail and harassment, as well as multiple areas of intentional tort law.

Your attempt to scare us into acting against our will is reprehensible and ethically unscrupulous. We read the paragraph to be a flagrant violation of DR 9-101 [1200.45], which resolves that “a lawyer shall not state or imply that the lawyer is able to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official.” You know, very well, that the New York State Bar Association is a legislative body aimed at regulating the legal profession. By threatening to report us to the Bar Association, you concretely imply that our future career can and will be affected should we assert our rights or disagree with your client’s lessor tactics and management, and that you and your client will initiate an investigation into our character.

As future candidates of the State Bar, we are ashamed of your actions, and would like the harassment to cease with due immediacy. We respectfully request that your client terminate the unfounded, unnecessary and deliberate attempts to interrupt our studies. I sincerely hope that you will advise your client that any entry onto our property without our permission constitutes criminal and civil trespass.

We intend to perform well on our law school examinations without dealing with this or any other issue concocted by you or your client.

This letter is not to be construed as a complete statement, nor is it fully inclusive of all grievances, assertions and statements of fact. We reserve our right to pursue all avenues of recourse available and the ability to exercise our liberties under the law.

Very sincerely,

We Two Tenants

cc: XXX, XX

American Bar Association

New York State Bar Association Committee on Professional Ethics

Grievance Committee for the Tenth Judicial District

Wanting Warm Water – April 22, 2008

Waking up at 10:30AM is a luxury to which I would love the opportunity to grow accustomed. I was more full of life and energetic than was normal for my otherwise genuinely bitter self. The weather has allowed me to garner a dose of sunshine every day, albeit for short periods of time. Minus the lukewarm, then freezing cold, then hot, then cold shower, the day was quite the keeper: short and happy.

I made a leisurely haul to my only class of the day, which was to begin at 10 past 1:00PM. The fifty minutes of class, as always, vanished far-too quickly to make me feel fulfilled.

When the class ended, I got back into my car and drove home. I spent nearly as much time in class as I did in my car. With the gas prices on the rise, school-based debt is beginning to look increasingly reasonable.

I was notified today that I won a relatively expensive gift-card for attending legal research training. It will definitely go to good use, and will save me quite a bit of money.

Behind the scenes - on the home front – landlord problems abound. The house that Roommate and I currently lease was an investment project by two people who had no business investing in and renovating real estate. The electrical system is the lowest quality possible. When one light goes out, all the lights in the vicinity go out at the same time. The probability of this occurring in every room is nearly impossible. The wiring was definitely not done by a professional.

Our plumbing is a classic horror. Not only do we lose all hot water in our showers after two minutes, only to regain it back ten minutes later, and then lose it again, but nearly every drain has backed up. We notified our landlord of the problem back in December, and it still remains unfixed. He sent a general contractor who spent three-hours trying to fix it, who then called his neighbor who was a plumber – I could have done the same thing. After plumber explained what to do on the phone, the contractor was unable to fix anything. Two plumbers later, we were left with a “Sorry, it is because the hot water heater is so small.” We still lose hot water after two minutes.

I have become a master-toilet plunger (and Roommate loves me for it). Not only do the toilets refuse to drain, but Roommate’s shower becomes a pool. She has tried every type of drain de-clogger (even the professional stuff); nothing works.

We have gone through two different dishwashers. What did they expect? When you purchase the cheapest model on the market, these things happen. Our washer/dryer unit has ceased working and our boiler (it is what the heating oil goes through to make thing hot) has shutdown multiple times and refused to start back up many more times.

Our neighbors love us, and really want us to stay for the next two years – I think they just like my cookies. However, I keep telling them that I think the landlord hates us. When they ask why, I usually tell them that Roommate and I want far-too-much, like heat, hot water and an electrical system that works. We ask too much.”

However, things remained cordial between the landlord and Roommate and I until recently. We have repeatedly told the landlord and their real estate agent ,who is attempting to sell the house at an astronomical price, that we will not allow them to have any “open houses.” Not only is there a dog to deal with, but I study at home. On top of that, I refuse to allow strangers open access to my residence where I have expensive items – plus, why would I allow them to have a fully furnished house (which makes it easier to sell) when we are not benefitting in any way. This was made clear.

When Roommate received a call on Saturday, it became clear that it was far more beneficial for us to have her as the point-person for the rental. I would have blown up. The landlord left a message informing us that there would be an open house the next Sunday, and that the dog cannot be on the premises.

Yeah, right. Like that is happening. I made Roommate promise not to call the landlord back unless I was present; I needed some free entertainment.

Landlord is a wimp. When she called him back yesterday, his wife was the one who was arguing with us. She attempted to tell us that they “let us have the dog in the house” and that we should let them hold the open house. Roommate blurted out laughing that they did not let us do anything, and that, again, the dog is not leaving the house, that she would be gone studying, and that I would be there studying. She also made it clear that, since final were approaching, there is not a chance in the world that they would be able to hold the open house. After the landlord’s wife made a laughable offer to have her kids watch the dog, Roommate was sure to mention the fact that the water STILL was not working correctly.

I think I want too much out of life.

Officially Wrong (And It Feels So Good)

Dear Horrible Administrative Law Judge,

You are officially wrong. Congratulations.

Very sincerely,

Me

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Where I was once using a technicality to claim an undefeated hearing record (I had lost a case, but it was on appeal, so, in reality, I had not actually lost it), I can now claim – for the time being after today’s events – that I am officially undefeated.

For over 3.5 months, my roommate and I have been awaiting judgment on the case we appealed. Having submitted quite a extensive appeal brief, we were anxious to find out the “verdict”.

As I was walking to my car to head to the hearing, I received a call from the client whose case we had appealed. A few weeks ago, we received a positive judgment in record-breaking time against this employer (in favor of our client – our appeal client’s co-worker). Our lengthy wait made up for the blazing fast speed of the other case.

My client was on the other end of the phone, and cautiously proceeded to tell me that we had won the appeal, and that he would receive unemployment benefits, as he should have all along. I literally jumped-for-joy with the good news. I hurriedly dialed my roommate, and decided to have a bit of fun. As forlorn as was possible.

“I just got a call from our client about the appeal,” I said quietly. “Yeah, this time the judgment was a bit different.”

She pushed me to tell her about the outcome. When I told her that we had won the appeal, she screamed. I later found out that the scream occurred in the middle of a crowd of people who were studying.

I am elated that we won the case, and even happier to be able to close the file of another client. That is always a good feeling.

I wish I could be a “fly on the wall” of the Employer. He is having a bad month: my roommate and I are 2-and-0 versus his company. The man must hate us; that makes me happy.

The horrible judge was officially overruled. It must feel relatively bad to have “Mommy and Daddy Appeal Board” overrule your finding. Maybe it is important to allow people basic rights. Life is good, for now.

The following is the Appeal Board Judgment on the case:

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The Department of Labor Issued the initial determination disqualifying the claimant from receiving benefits effective September 5, 2007 on the basis that the claimant lost employment through misconduct in connection with that employment and holding that the wages paid to the claimant by EMPLOYER prior to September 5, 2007, cannot be used toward the establishment of a claim for benefits. The claimant requested a hearing.

The Administrative Law Judge held a hearing at which testimony was taken. There were appearances by the claimant and on behalf of the employer. By decision filed November 29. 2007, the Administrative Law Judge sustained the initial determination.

The claimant appealed the Judge's decision to the Appeal Board. The Board considered the arguments contained in the written statement submitted on behalf of the claimant.

Based on the record and testimony in this case, the Board makes the following

FINDINGS OF FACT: The claimant worked as a manager for a chain of five or six retail stores for approximately seven years through September 4, 2007. In July of 2007, the claimant was reassigned to a store after the manager of that store quit. The claimant made an order on July 23, 2007 which was canceled because the president believed that it was excessive. On Saturday August 11, 2007 the claimant was in the process of compiling an order when the vice-president called and directed him to go to another store. The claimant informed the vice-president that he was in the process of making an order and the vice-president again reiterated that the claimant was to go to the other store. As a result the claimant left the remainder of the order to the assistant manager who had regularly completed orders. The assistant manager submitted the order on or about August 13, 2007. On September 4, 2007, the president informed the claimant that he was discharged because he was dissatisfied with the claimant's performance. When the claimant asked the president for a specific reason of why he was discharged the president would not elaborate.

OPINION: The credible evidence establishes that the claimant was discharged because his performance of his job duties did not meet the employer's expectations. While an employer may discharge its employees for any lawful reason it deems fit, it is not every failure to meet an employer's expectations that rises to the level of misconduct under the Unemployment Insurance Law. In this case there is no evidence that the claimant's inability to meet his employer's performance standards was the result of any intentional action or omission on his part. In so holding, we note that the president himself stated that the claimant was discharged for poor performance and refused to give the claimant any specific reason for his discharge. Moreover, even if we credited the president's testimony that the claimant was in fact discharged as a result of the August 13. 2007 order, we would still conclude that the claimant's actions do not rise to the level of misconduct. In reaching this conclusion, we note that the claimant could not complete the order because he was called away by the Vice-president and that he reasonably delegated the task to the assistant manager who had regularly placed orders in the past. Accordingly, under these circumstances, we conclude that the claimant's employment ended as the result of poor job performance and not as the result of misconduct.

DECISION: The decision of the Administrative Law Judge is reversed.

The initial determination of misconduct is overruled.

The claimant is allowed benefits with respect to the issues decided herein.