The following definitions were found, one rainy afternoon, on a crumpled yellow pad jammed behind the back of the Curmudgeon’s mahogany desk:
Attorney-client privilege: A method for concealing your client’s devastating written admissions by instead identifying the document’s author, date, addressee, and general subject matter. Ordinarily, the likelihood that a document is privileged is directly proportional to the value of the document to the opposing party’s case.
Business development: Playing golf with old college buddies. As in: “Of course I charged the firm for my business development trip to Scotland.”
Business judgment rule: A rule of law that allows directors to escape liability for corporate disasters, so long as the disasters were carefully planned from the start and did not benefit the directors personally.
But see: A legal signal used to introduce a case. The signal “But see” indicates that there is controlling authority directly contrary to the stated proposition—and the following case is not it.
Cf.: A legal signal used to introduce a case. The signal “Cf.” indicates that no authority whatsoever supports the stated proposition. The following case is not remotely on point, but is the best the author could do.
Civil penalties: A vehicle for permitting the government to impose criminal penalties on its citizens without providing due process.
Construction against the drafter: A rule of contract law to punish the person who actually took the time and effort to try to memorialize the parties’ agreement.
Directors and officers liability insurance: Paying a premium now for the right to sue your insurance carrier later.
Deposition, defending: Seven hours locked in a room with a compulsive talker and a sociopath.
Deposition, taking: Seven hours of pretending to be a sociopath while locked in a room with an amnesiac and a compulsive obstructionist.
ERISA preemption: A legal doctrine that permits all issues concerning certain health benefit plans to be decided under a federal common law that does not exist, rather than under a state common law that is unfavorable.
Estate plan: A process that involves two documents: a will, in which provision is typically made for the spouse and children; and a codicil, in which provision is typically made for the second spouse and/or only certain children. See “Will Contest.”
Failure-to-warn liability: A legal obligation that manufacturers include on their products statements that consumers will neither read nor obey. As in: “Do not use this cotton-tipped swab to remove wax from your ears.” See also “Warning Label.”
Fair, reasonable, and adequate: The lawyers receive millions of dollars and the clients receive pennies each. As in: “The class action settlement is approved as ‘fair, reasonable, and adequate.’”
Fear of future injury: The judicial abolition of the doctrine of ripeness.
Federal common law: The body of law eliminated by the Supreme Court in Erie v. Tompkins, which currently controls the outcome of many lawsuits.
Internal Revenue Code: What the Ten Commandments would look like after tax lawyers got through trying to find loopholes in them.
Inventory: Clients, to whom the lawyer owes the duties of zealous representation, loyalty, fidelity, and close personal attention. As in: “Plaintiffs’ counsel entered an ‘inventory’ settlement for their 40,000 existing clients and a class action settlement for the future claimants.”
Judges, appointed: A judicial system designed to thwart the will of the people.
Judges, elected: A judicial system designed to respond to the people’s current whims.
Lodestar fee: The highest hourly rate that a plaintiff’s lawyer could request without breaking into uncontrollable laughter, multiplied by the number of hours recorded in fictitious time records.
Medical malpractice: (1) The routine level of medical treatment given to most patients in America; (2) anything less than perfection, when viewed by a jury, after the fact, with a crippled patient sitting in the courtroom.
Moving for summary judgment in certain state courts: Casting artificial pearls before genuine swine.
Mrs. Palsgraf: A litigant memorialized in a song by Simon and Garfunkel:
Here’s to you, Mrs. Palsgraf, Cardozo loathes you more than you will know.
Wo, wo, wo.
Here’s to you, Mrs. Palsgraf, in New York the railroads never pay.
Hey, hey, hey.
M.S., Science: The highest academic credential most frequently held by plaintiffs’ expert witnesses on medical causation issues in mass tort litigation.
Negligent infliction of emotional distress: A rule of law designed to overrule Palsgraf v. Long Island Railroad, 248 NY2d 339 (1928).
Objection: An attorney-client communication made during a deposition for the purpose of ensuring favorable testimony.
Parol evidence rule: A doctrine that allows a judge who doesn’t understand a contract to ask a witness to explain it to a jury.
Parts is parts: The slogan of America’s mass tort courts. As in: “That’s all for jaw implants. Is anyone here for breast implants? No breast implants? Any heart valves?”
Review, abuse of discretion: A standard of review that permits trial courts to make whatever mistakes they like.
Review, de novo: A standard of review that permits appellate courts to make whatever mistakes they like.
Review, certiorari: A standard of review that permits the U.S. Supreme Court to make whatever mistakes it likes.
Rocket science: A subject that is permitted to be second-guessed by a jury of twelve people with an average of an eighth-grade education. As in: “Did Morton Thiokol negligently manufacture the O-rings used in the space shuttle Challenger?”
Strict liability: A judicial social policy based on the rationale that, if you impose liability without fault upon manufacturers, products will cost a lot more, fewer people will be able to afford them, and there will thus be fewer injuries.
Summary judgment: (1) Procedural device to deprive a plaintiff of his constitutional right to trial by jury; (2) procedural device designed to let a defendant get out of a frivolous lawsuit after spending millions of dollars in discovery.
The insurance company always loses: A common law rule, now codified by statute in many states.
Tort reform: Legislation designed to deprive people categorically of compensation for damages they have suffered.
United States Food and Drug Administration: The research and regulatory arm of the trial lawyers’ association.
Warning label: A concise guide to all litigation that a product’s manufacturer has ever faced. As in: “Do not drive this golf cart sideways on a hill with more than two people in it, or on a highway. Engage the brake before exiting from the cart on a hill.”
Will contest: A judicial procedure in which disappointed legatees attempt to prove that their beloved testator was drunk, incompetent, or unduly influenced at the time the estate plan was made.