ANOTHER GREAT DAY FOR ANGLO-AMERICAN JURISPRUDENCE

 

Special thanks to Andrew Stevens, of Landry, Mazzeo & Dembinski for bringing this story to my attention: to wit,

"Son Wins Lawsuit After Mom Throws Away His Best Porno Mags"

This case comes out of federal court in our great state of Michigan.

Son moves back in with his parents after a divorce.  He brings with him his prized stash of porn (magazines, films and sex toys), apparently accumulated over some time.  I wonder if that collection was an asset awarded to him in the property settlement?

It appears he did mention the collection to his parents, who did not approve. 

When he moved out, several years later, he sent for his property.  The boxes containing the "porn stash" (not to be confused with "pornstache" ), were not included in the items sent.  The parents had destroyed the items, emailing their son and heir that they had done him a favor by getting rid of the stuff.  Opinions apparently differed.

The case filed by the son ended up in Federal Court, so the son had to allege the collection was worth at least $75,000.  

The son did win a summary disposition motion on the liability issue.  Damages to be determined.  More about that later.

"His attorney, Miles Greengard, contends that his client should receive treble damages, which is allowed under his claim of conversion of property."

“We have asked the Court for treble damages, which we believe are warranted given the wanton destruction of the property,” he said.

Attorney Greengard was pleased with the judge’s ruling. The case wasn’t just about a guy and his dirty magazines, he said.

“This was a collection of often irreplaceable items and property,” Greengard said.  

I am sure Mr. Greengard's parents are very proud of his achievement:  "My son, the porn preserver".

I was about to compose what I thought Greengard's humblebrag LinkedIn post about this case might look like.  Then I thought, hey, maybe Greengard posted one himself.  So I checked and while Greengard is on LinkedIn, he has not yet seen fit to broadcast his "win".  A wise move, in my opinion.  That doesn't mean he won't post about the case eventually (maybe after the damages are determined), but I find most LinkedIn dweebs/twits/dorks/wonks can't post their "achievements/wins/non-losses/trivia"  fast enough.

I understand most of us have had cases we don't really want to appear in our published memoirs.  We are not all in a position to pick and chose our cases.  

I remember one particular file that was placed on my desk while I was out doing justice somewhere.  The lawsuit had already been filed.  My hero had sustained an undeniably serious injury.

 

The facts were these.  He and a couple of friends went to party on another friend's piece of vacant rural property.  They thought it would be nice to have a campfire.  But, there was no firewood laying on the ground.  But there were lots of trees on the lot.  And plenty of branches above attached to those trees.  But, how to get them down.   The "plan", and I use the term ironically, was this.  First, retrieve a length of seatbelt material one of the  friends had stolen from work (?), which was kept in the car.   Next, tie one end of the seatbelt to the car bumper.  Next, knot the other end around the center of a 2' long branch/piece of wood.  Throw that end over a tree branch 20 or so feet above ground, knotted end and log returning to earth.  Then, have my client (a volunteer), sit astride the 2' piece, while holding on to the seatbelt material knotted around said log.  Finally, signal to the car driver to pull away from its initial position, thus lifting my client up into the branches, where he would knock down some branches to be used to start and fuel the desired campfire.  Simplicity itself.  Elegant, stable, genius.

Visualize, if you will a combination of the Three Stooges, The Flintstones and the Jackass TV show.  Not surprisingly perhaps, even the vast wasteland of the internet cannot provide a better visualization of the event than the picture below:

Before his task was properly started, my client returned to earth, more than a bit faster than he had ascended.

He sustained a severe ankle fracture, requiring multiple surgeries.

My firm filed suit against property owner, the car owner and operator, on various theories.  2 defense attorneys, with separate policies with different insurance carriers.

During his deposition, the client maintained that the plan had been a good one and all fault lay with the person who improperly knotted the stolen seatbelt material, and with the driver who pulled away faster than a reasonably careful stolen seatbelt puller-upper should have under the circumstances.

My client was certain that he himself had carried out his role with all due care and caution.

Note:  my client was quite obese and there was a question as to whether the 2' foot log on which he sat was sufficient to provide a stable perch for his glutei maximi.  Nope, said my client.  He had the tools and the talent needed for the task at hand.

I don't remember the precise date this case was filed, but I have to believe that it was before the comparative negligence statute was enacted that barred all non-economic loss damages for a person over 50% comparatively negligent.  Notwithstanding, there was still enough "material" for  Summary Disposition motions all rouond.  2 different motions in fact.

This was the kind of case you hope you can resolve privately, without every having to articulate your theory of liability (if any) in public.  Settle, lose on SD without oral argument, get sick and send someone else to Case Evaluation and Settlement Conferences.  Facilitation might be all right, so long as there are no plenary sessions, and you meet with the mediator outside the presence of your client.

And, God forbid that such a case should ever go to a jury.

To paraphrase Oscar Wilde (the original quote can be found here) “One must have a heart of stone to hear the the plaintiff's opening statement without laughing.”

Summary Disposition motion number 1 came up for hearing before Judge Nancy Grant in Oakland County, and she was wonderful.  She, as always, had read the briefs, and as usual had her opinion ready to read.  The attorneys waived oral argument (thank God) and she denied the motion!  I lived to lose another day.

When  Summary Disposition motion number 2 came was heard a few months later, I hoped for a similar procedure.  But my luck ran out.  She recited the facts of the incident on the record, her eyes wide with wonder (and disbelief).  We argued and.....she denied the second motion as well!  Even if there was LinkedIn back then and I was the worst of humblebraggers, I would not have posted about this "win".

By the way, the case did ultimately settle....privately.  "Another WIN!"

You see, as my old boss Harvey Howitt would invariabaly say, 'It all worked out".  As I only saw him in open court twice in the 20+ years I worked at B&B (shorthand for Bernstein and Bernstein-not Sam), things did work out for him most times...he gave the difficult stuff to others to deal with.

Enough about me (a statement you will never read on LinkedIn).  I digress.  Back to the original topic of this post-pornography.

Now that the legal issue has been resolved, the matter of damages remains.

The parties have until mid-February to file written submissions on damages.  The judge states that there will be no evidentiary hearing on damages.  Wouldn't that be interesting.  I'd pay admission to watch.  If live hearing restrictions still applied, the court's YouTube channel for remote hearing, should consider Pay Per View for such an event.

“This was a collection of often irreplaceable items and property,”  plaintiff attorney Greengard said.

Indeed?  I'd love to see the attorneys arguing about the valuation/rarity of, say,  a Betamax tape "mint in box" vs "gently used"  of Debbie Does Dallas. 

Or, can any sex toy, not "mint in box", have any value at all?  Ewww.

Or, is there a premium on items from the so called "Golden Age of Porn, 1969-1984-it has a Wikipedia article!  If so, how is that premium determined?

Or, based on the glut of free porn on the internet (so I am informed), can any pornographic material be categorized as rare or irreplaceable in the current market, and are damages nominal if not nonexistent?

And, how do you qualify an expert in this area?  I assume many might volunteer for the job, but who is an expert in pornography?  Justice Potter Stewart wrote in his concurring opinion in Jacobellis v Ohio 378 U.S. 184, 197 (1964)"

“I have reached the conclusion . . . that under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it..."

Man, if a Justice of our Supreme Court can't define pornography, how can we ever place a value on an allegedly irreplaceable collection thereof?

As for my own experience, I will quote a now forgotten comedian from the Sixties speaking on the subject:  "I don't know what pornography is.  I don't even own a pornograph".  (For you youngsters, back then music was played on a high tech device called a phonograph, making the joke quite funny at the time).

So, I will follow the progress of Werking v Werking with great interest and will post the Court's opinion on damages, or the victor's LinkedIn post.  

I already have my comment ready:

"Look, Ma!  Top of the World!"-James Cagney, White Heat 1949.