ON THE LIGHTER SIDE You’ve been through a lot of ponderous (tedious and boring) material, so it’s time to take a break. Historically, legal writing contained some of the most flowery and creative use of the English language of virtually any profession except creative writing itself. We found a wonderful model of the creative use of legal writing in an actual case. In 1934 in a Texas court the plaintiff (Hattie Beatty) sued the defendant, Missouri, Kansas, Texas Railroad for damage sustained to her person when she had solicited sex from a railroad employee (Dockery) while he was working. Hattie and Dockery had undertaken the process in a switchroom tower belonging to the railroad company. She alleged she was “injured” by a lever and some electric shock in the switchroom tower in that process, and sought damages. The whole case was fraught with rather touchy subject matter, with masterful written command of language, to make the case of the defendant. Here is the answer from Texas Railroad:
REPORT 13-a HATTIE BEATTY VS THE RAILROAD ANSWER (to complaint) “Defendant demurs generally to the allegations in the plaintiff’s petition contained and says the same are not sufficient in law to constitute a cause of action against the defendant, and of this, prays judgment of the Court. For further answer, if necessary, this defendant denies all and singular, the allegations in said petition contained, and demands strict proof thereof. Answering further, if need be, this defendant Railroad Company would reveal to the Court that in truth and in fact, the plaintiff, Ms. Hattie Beatty, for several nights prior to the occasion of which she now complains had strolled by the signal tower in question, and on each occasion, persistently propositioned this defendant’s employee at said tower, one Dockery, to engage with her in the ancient and popular pastime. That the said Dockery is an old and trusted employee, a man of over 60 winters, with snow in his hair, but with summer in his heart; that the faint odor of perfume touched his delicate nostrils and the full red painted lips of this modern Aphrodite brought back youthful dreams to his aging head. And, although the season was falltime, the sap began to rise in his erotic soul as in romantic springtime of yore. It was on the unlucky night of Friday, the 13th of September, A.D. 1934, that said Dockery finally succumbed to the plaintiff’s feminine allurements, the price being one dollar paid in advance.
171 Legal Transcription II © 2010 All rights reserved.
That in all truthfulness, the only mechanical contrivance or unique lever about the said tower in which the plaintiff expressed any interest whatsoever was that which was hung on the person of said Dockery. That this defendant Railroad Company had not equipped its said tower for such passionate purposes, and had in fact instructed its said employee to admit no visitors thereto, but that unbeknown to this Defendant, the said Dockery permitted the plaintiff to come into the crowded quarters of said tower switchroom to indulge with him in an indoor session of Spanish athletics; that while she reclined upon a cushioned chair and unfolded her female charms to his approach, her bare knees did touch an open electric switch upon the wall of said tower, thereby creating an electrical contact quite different from the one for which she was prepared; that either from shocked surprise at the seemingly amative powers of the said Dockery or for other reasons unknown to this defendant, the said plaintiff sank to the floor of said tower in an apparent swoon, leaving the said Dockery unrewarded and bewildered, raiment disarranged and struggling desperately to operate his signals for a fast train which he discovered at the moment approaching unexpectedly upon the defendant’s tracks. That as to this defendant, the transaction was ultra vires and completely outside the scope of employment of said Dockery, and clearly without benefit to this corporation except for the publicity that might possibly attend as proof to the world of the exemplary manner in which the Railroad cares for and preserves the virility of its aging employees. That it should be held, however, that the said Dockery was on the occasion in question for this defendant railroad, which is, as the court has often heard plaintiff’s counsel charge, a heartless and bloodless corporation, a poor creature of the statute without pride of ancestry or hope of posterity and physically incapable of becoming enraptured in ethereal paroxysms of love, then, and in that event only, this defendant pleads that the plaintiff was guilty or contributorily negligent in the following manner: That the said Dockery urged the plaintiff to remove herself from the cushioned chair to the floor of the tower in order that his engagement might be fulfilled in the good old fashioned way, but that the plaintiff proclaimed her efficiency and maintained her ability to handle the entire situation from her position in the chair, and that she remained in said chair contrary to Dockery’s urgent solicitations and entreaties and received the electric shock as a direct and proximate result of her insistence upon departure of well‐recognized precedent; that the plaintiff was negligent in failing to pursue her activities horizontally from the floor, and that her failure so to do proximately contributed to cause her injury, if any. And now, becoming actor herein only in the event the Court should hold that the said Dockery represented this defendant corporation in question, which will never be admitted, this defendant shows as against the plaintiff one devalued dollar of United States currency, and that it received no value therefore as agreed by plaintiff, and the said dollar has never been returned to its owner, and that under all facts hereinabove alleged, it is entitled to recover said sum of money. PRAYER FOR RELIEF WHEREFORE, this defendant Railroad Company prays that the plaintiff take nothing in this suit as did the said Dockery take nothing from the plaintiff, and that in the alternative alleged, it recover from the plaintiff the sum of one dollar and all costs herein, and that the virtue of the Railroad Company be in all things vindicated and that it be further relieved of all possible insinuations against its chastity that may arise as the result of this lawsuit, and for such other relief as it may merit. 172 Legal Transcription II © 2010 All rights reserved.
The railroad company won the case and got the $1.00 refunded to Dockery. Needless to say, Hattie had that one really blow up on her and it was mostly likely due to the language and portrayal of events in the pleading. In another Texas example, the fifth circuit court of appeals ruled that Calvin Burdine, who was convicted of stabbing his lover to death in 1984, received adequate representation from court‐appointed attorney Joe Cannon, who fell asleep between five and 10 times during the trial. In their decision, judges said there is no evidence as to when Cannon slept, so "it is impossible to determine" if he slept through crucial points in the case. Here is one of the newspaper articles which reported on the ruling.
173 Legal Transcription II © 2010 All rights reserved.
REPORT 13-b HEADLINE: “TEXAS COURT RULES IT’S OK FOR LAWYER TO SNOOZE DURING DEATH PENALTY CASE” WASHINGTON [quoted from The Salt Lake Tribune, November 2, 2000] “A new court ruling out of Texas offers good news to lawyers who have a hard time staying awake in court… .” “So rules the 5th U.S. Circuit Court of Appeals in a Texas death‐penalty case. Texas Governor, George W. Bush has been put on the defensive during his presidential campaign because his state leads the nation in executions. Cases like the snoozing defense lawyer help us to understand … .” “In a 2‐to‐1 decision, a three‐judge panel ruled October 27 that a lawyer can doze during a death‐ penalty case, as long as he or she doesn’t do it during important segments of the trial. It’s up to a client to point out to the judge that his or her attorney is taking a siesta, the panel declared, and that the lawyer missed something important.” “In this case, the defendant, Death Row Inmate Calvin Burdine, was convicted of capital murder in 1984 in the stabbing death of his former roommate. A state court found last year that his court‐ appointed attorney, Joe Cannon, ‘repeatedly dozed and/or actually slept during substantial portions of the trial. In particular while the state’s prosecutor was questioning witnesses and presenting the evidence that led to Burdine’s death sentence.’” “The dozing typically occurred in the afternoon after the lunch recess for episodes that lasted 30 seconds or less in length. One of the witnesses, a member of the jury, said he saw Cannon nod or doze on five to 10 occasions, including one in which Cannon’s head was bowed for at least 10 minutes.” “It was not possible to tell from the evidence whether the defense lawyer fell asleep during ‘crucial inculpatory evidence,’ or during the presentation of ‘uncontested, unobjectionable exhibits or testimony,’ the court ruled. The burden of proof lies with the defendant, it said. Apparently the 6th Amendment, which guarantees criminal defendants the right to an attorney, does not stipulate that the attorney has to be awake [emphasis ours] even when the defendant’s life is at stake.” “Still, Judge Edith Jones and Judge Rhesa Hawkins Barksdale, in an opinion written by Barksdale, said it was up to Burdine, the defendant who was sitting next to Cannon, to object at the time – or at least to wake Cannon up [emphasis ours].” “In a stinging dissent Judge Fortunato Benavides wrote, ‘It shocks the conscience that a defendant could be sentenced to death under the circumstances surround counsel’s representation of Burdine.’” “Just imagine, for example, the public outcry that would have erupted had it been a county prosecutor who fell asleep on the job.” “Stephen Bright, director of the Southern Center for Human Rights, notes that Houston alone has had three capital cases that have been upheld despite sleeping defense lawyers [emphasis ours].” 174 Legal Transcription II © 2010 All rights reserved.