Law is Hard: Worried About the OGL (Part 2)

Snarf Zagyg

Notorious Liquefactionist
Now, my good readers, we have come to the second in the occasional series on the Law (having been roused due to the OGL nonsense). In order to understand why the law can be so gosh-darned difficult to understand at times, we must first answer a more simple question, as first posited by the Hon. Jimmy McNulty- “What the eff did I do?”
The answer, Jimmy, is that you tried to represent yourself. Don’t do that. Really. But given that this is a blog about legal matters, I can’t address any issue without contradicting myself, so, instead, I shall say ... eh, you probably shouldn’t do that. In other words, in order to understand why the law can be so difficult, it can help to examine why people shouldn't represent themselves.

A person who represents themselves is called pro se, which is Latin for “either a moron, or a prisoner, but probably both.” There are fa few times that you might want to represent yourself; briefly, but not exclusively, they are as follows:

1. You are suing someone for taking your cheese, or your security deposit, or something else that isn’t worth much. Well, maybe it’s worth a lot to you, sucker, but not to an attorney. These are “small claims,” and the courts simplify the matters for you. If you're lucky, maybe you'll get to meet Judge Judy!
2. You are dealing with something small and uncontested, or something were there is usually assistance available through your local court system. Some uncontested divorces. An easy will. A temporary restraining order so Brenda will stop getting all up in your bidness.
3. You’re a prisoner. Seriously, you have a lot of time. Why not?
4. You’re crazy.

“But wait,” you say, “Why do I need to pay Mr. Fancy Pants with his smart book learning? I’ve seen every episode of Law & Order, I can watch youtube videos on how to accomplish anything, including building small tactical nuclear weapons, and I can use that google scholar to look up cases and stuff. I mean, I’ve met lawyers before. They’re dumb as a box of rocks that ate a bag of stupid. It can’t be that hard!”

And you will tell yourself this, over and over again, until sometime many months from now, when you’ve lost and you don’t even know why. Allow me to explain-

a. Law is a different language. You’ve probably read through one of those of those shrink-wrap contracts that you’ve agreed to, and through which you’ve given up your soul and agreed to binding arbitration in the U.S. Virgin Islands (just kidding- of course you haven’t read it, and thank you for the soul), but most people think of “lawyer-ese” as just being really technical English. But it’s more than that. It’s really technical English, combined with Latin, combined with legal French, combined with archaic English, combined with random splatterings of WHEREAS and COMES NOW that only make sense if you understand that lawyers just keep copying other lawyers’ work, and have since Ugg first brained Flogg with a rock, and Flogg retained Eep, Flick, and Mr. Chompers for a lawsuit against Ugg. In addition, many of the words will have a technical-y meaning that doesn’t fully map on to the meaning you understand in normal usage. A prayer for relief isn’t always res ipsa, my friend. That’s a lawyer joke, and like all things dealing with the law, it isn’t funny. But what it means is that a prayer for relief is not the same thing as saying, “Oh lord, please help my sacred gin take the headache away!”

b. Deadlines, man. Litigation is a mixture of apathy and terror. And the reason for this are the deadlines. Simply put, there are three type of deadlines; those that don’t matter, those that might matter, and those that will kill you deader that Scott Baio’s career if you miss them. A good attorney understands the difference between them; a pro se litigant is wondering why the fancy-pants lawyer took forever to answer the Complaint, but that stoopid appeals court isn’t paying any attention to him just because he was a few days late filing a silly notice.

c. Procedure. Building on (b), procedure matters. Attorneys will understand that the local jurisdiction has a rule that states that all motions are to be submitted in 12 point font, except on Wednesday, when it is to be 14 point font. They will know that Judge Hammer wants a memorandum of law with every motion, and Judge Anvil wants a courtesy copy sent to chambers. They understand that this jurisdiction has replies as of right, and that jurisdiction disfavors replies. And you might say to yourself, “Self, what about justice? Who cares about empty formalism?” To which I reply, “Empty formalism is the way that the legal system kicks out the little guy, so it can concentrate on advancing important cases about allocating resources between banks, and redistributing money from the poor to the wealthy.”

d. Not all precedent is created equal. Of course, the biggest mistake that pro se litigants make is treating all precedent as created equal, except that one thing they have found, which is THE ONE PRECEDENT TO RULE THEM ALL. It doesn’t matter what it is- a facebook post, a case from 1933, an article from People magazine ... they have a winner winner chicken dinner. But it doesn’t work like that. The United States (except for Louisiana, which really isn’t part of the United States, and should be avoided at all costs) follows the common law system, so named because it was invented to keep the common people out of it. But of relevance to the pro se litigant, the common law system is hilariously complex. Let’s say you find language in a case that may support your action. Has it been overruled by another case (another court said, “Yo, dawg, we’re not doing that anymore.”)? Has it been distinguished by another case (another court said, “Yeah, that was okay, I guess, for those idiots back then, but us awesome people will use a new rule!”)? Is it from another jurisdiction (“Sure, that’s how the hippies in New York do the law, but here in Alabama, we hang people that play ultimate Frisbee.”)? Is it dicta (that’s when the court just rambles on, and no one cares what it’s saying)? Is there a statute that applies, overrules, or otherwise modifies the holding of the case (because we’re a common law system, except when we’re not)? In short, you likely won't even know what you don't know.

e. Empty formalism doesn’t matter. Wait, wut? Doesn’t this contradict (c)? Well, yes. This is a law post, so it must contradict itself! Here’s the thing- many people have this notion that there are “magic words,” or “loopholes,” or other silly things that they can use to win a case; at the most extreme ends are the “gold fringers,” the people that concoct theories about copyrighting their names, or the fringe on a flag, or loopholes in the rules that they believe must be followed. But the law has developed rules about rules to deal with gaming with the system. So you have to know when empty formalism will prevail, and when empty formalism will get laughed out of court! Huh. Okay, let’s get more concrete. Let’s say that there’s a statute that says you are immunized from all claims against you for a dog bite on your property so long as you have a sign that includes the words, “DOG ON PROPERTY.” That’s what the statute says. Now, Mr. Pro Se Loopholer thinks it would be funny to put up a sign that says, “DON’T WORRY, THERE’S NO DOG ON PROPERTY.” A few days later, Mr. Kibbles, Loopholer’s rabid chihuahua, proceeds to bite his way through an entire Boy Scout troop worth of ankles and knees. Mr. Loopholer goes to court and reasonably says, “A-ha! You can’t sue me! I had the language from the statute! My sign included the words, “Dog on property.” Suck it, law people! Win for the common man! Those Boy Scouts can hobble off to another defendant” But then someone will say, “Oh, I’m sorry. You’re estopped from claiming the protection of the statute.” Say, what? Estoppel is a fancy French term for- you’re not allowed to do that.* Yes, defeated by the French. And here’s the thing- no matter how much research on the statute Mr. Loopholer did, he wouldn’t have known that. He just, well, had to know it.

I could continue on, but I trust you understand the concept. Lawyers are like pain receptors; a necessary evil that you really, really wish you didn’t have, but you kinda, sorta need so that you know that your housecat is trying to gnaw off your leg in the middle of the night.** The good news, such as it is, is that if you decide to go pro se, there are various court rules and presumptions that give you the benefit of the doubt, which means that the Judge will smile at you a lot before you lose.

*There is another interesting topic, regarding the differences between law and equity and when those differences matter and when they don’t. But to simplify- there’s a difference between money, and what’s right, and America prefers money.

**Yeah, you think Buttons is your pet and your friend, but Buttons really, really just wants to eat you. You’ve been warned.

Wait, I thought that there would be something about the OGL in here?
Yeah. So here's the thing- all of that, above? It applies to the OGL as well (and the discussions people are having about it). A lot of people are trying to work through the various issues involved with a particular set of documents, and are doing so in good faith. Trouble is, these things aren't easy. There are rarely slam-dunk answers. A good attorney can tell you basic issues- "Sure, once you get up to 50 employees, your business has to comply with the FMLA." Or, "The statute of limitations on a breach of contract in that jurisdiction is six years. But those are simple statements of the law, devoid of application to actual facts. Things get incredibly complicated when you start looking at the fact patterns that lead to litigation; here, there is the mixture of the old OGL (which we have seen), the uncertainty of jurisdiction (and contract law varies depending on jurisdiction), a new OGL (which we haven't seen), Hasbro's theory of revocation (if that is, in fact, what they are doing), and even the interplay of various factors like reliance and the allowance of extrinsic evidence.

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Snarf Zagyg

Notorious Liquefactionist
It’s different on the ocean too. 😉


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