Tuesday Talk? Go For It (Update: Was It Good For You?)

You want to comment, and some mean old guy keeps saying mean things to you? How horrifying. So, let’s try something entirely different. This is an open thread, so get out all the words you’ve stifled up to now for fear of some less than adoring tummy rub for your brilliance.

This is an open thread, with just a few rules. No violence. No spam or self-promotion. Links will be allowed, within reason. I will post whatever comment you leave. I will not reply. Talk amongst yourselves. Jump atop the SJ soapbox and tell others what you want. There may be great legal ideas, or there may be complete lunacy that could get you killed. That’s up to you commenters.

Have fun. If this works out, maybe this will be a regular feature. If not, then we gave it a try. If nobody wants to post a comment here, well, don’t say I didn’t give you the opportunity to speak your mind. This is your chance. Go for it.

Update: So was this a good idea? Should this become an SJ staple? Are there any limits that should be imposed, or should it be a free-for-all?

And those of you enjoying the open thread (including the guy whose name rhymes with Shmarlyhorn), I see who didn’t contribute to the cause

87 thoughts on “Tuesday Talk? Go For It (Update: Was It Good For You?)

    1. Sgt. Schultz

      Baby Lawyer: But why are you so condescending to me? Why won’t you respect me? Why won’t you mentor me with love and kindness, just the way I want it?

      Curmudgeon Lawyer: Because you’re clueless, smug slackers who only want to be told how adorable you are while you destroy lives with your incompetence, entitlement and narcissism.

      Baby Lawyer: See? SEE?!?

      1. PseudonymousKid

        Except sometimes even the curmudgeons are full of it and don’t keep up to date on new law. This is an open thread, so I take it I can talk about that other half of litigation. Prepare yourselves.

        Yes, old lawyer, the Uniform Interstate Discovery and Deposition Act is a thing. No, old lawyer, it’s not the 1800s anymore and I don’t have to get a letter rogatory from the Court. Yes, old lawyer, I can issue a subpoena and sign it myself, even to send out of state. I wish I could just stay in federal court.

        Experience will never replace the ability to read and adapt.

        1. Sgt. Schultz

          Cool story, Kid. Absolutely there are old incompetent lawyers. Like you, they all thought they were geniuses when they were young. What could have happened?

          On the other hand, take someone as brilliant as you, add 20 years of experience, and are you brilliant plus experienced? Do the math, Kid.

          1. PseudonymousKid

            I’m full of cool stories, and now can post them all without our host bashing me. It’s too much too handle.

            I’m not brilliant. All I can do is read and only sometimes. Hopefully I can still do it in 20 years. I hear eyesight starts going bad at some point, so maybe not. Unless the robots replace me or there’s a revolution or something.

  1. AnonymousCoward

    One way to either fund SJ forever or to dial down the crazy is to charge to post comments. One cent per letter.

  2. Mark Daniel Myers

    I polish my hat made of tin
    Much to the esteemed one’s chagrin
    My comment’s orthogonal
    Content’s scatological
    Yes Reddit is where I have been

    1. Fubar

      My hat’s off to you. Please continue
      To deliver such treats to this venue.
      I’m often too lazy
      And mentally hazy
      To even begin because I know I’ll completely screw up the last line!

    2. Scarlet Pimpernel

      When given a thread to adorn
      with pen tup whines, complaints and scorn
      my brain turns to toast
      can’t think what to post
      So I will just link to some porn

  3. B. McLeod

    In the news this morning, parents who have managed to kill their children by leaving them in hot cars finger the responsible parties — automotive manufacturers. How dare the automobile industry produce vehicles so hazardous that they can kill the children of grossly inattentive parents? The obvious solution here is to make every American consumer pay for a new tech system in every new vehicle, to protect the children of the small segment of parents who seem to have this problem. We will also need to come up with some mechanism to protect these children from drowning in pools, wandering into traffic, falling down stairs, getting stuck in storm drains, being mauled by dogs, scalding themselves in the bath and drinking harmful household chemicals. (I’m probably at fault for missing a few things that should be obvious).


    1. Keith

      I’m probably at fault for missing a few things that should be obvious

      I think what you’ve missed is that these parents aren’t actually grossly inattentive, nor are they blaming the automotive manufacturers.

      I tend to fall on the “free range” spectrum when it comes to raising my kids and inevitably, the issue of leaving a kid in a car winds up surfacing before too long. It’s a sad fact of human nature that we sometimes remember things that didn’t happen (and vice versa). I’d like to think that because it’s a kid in a car, we’d have better recall, but the science shows that our wiring isn’t made to differentiate like that on an unconscious level. We are made to remember things that are important, things that stick out.
      Dropping off the kids in the morning is routine. It’s normal. It’s banal.

      And that’s without considering the fact that unfortunately most people can’t appreciably comprehend risk and are ill equipped to evaluate the various risks in their lives to understand which are more important.

      Over a decade ago, some egg-heads at NASA figured the tech end out. But as I recall, the implementation was stalled because of liability. For $30 – $45 worth of tech in a vehicle (which would probably come down in price eventually), I’d gladly pay the extra amount. If it wasn’t for the liability aspect, I have little doubt we’d be talking about something that’s a feature capable of being put in every car instead of something they want to mandate in order to save a few lives.

      1. Patrick Maupin

        It’s silly to put it in the car for lots of reasons. Put it in the car seats, which are already mandatory for kids too small to open the door by themselves.

      2. btfine

        I think what you are missing, like most everyone else pushing for new laws and mandates is the cost benefit analysis.
        Even if the installed and marked up cost was $45 (which seems quite low to me), there were ~17.5 million cars sold in the US last year. The linked article stated 37 deaths per year related to kids left in cars. Even if the technology prevented all accidents (highly unlikely) that still leaves you with a cost of $18.9 million dollars per life saved (not a good value, you could feed a couple hundred thousand African kids instead).
        Too bad the parents don’t act as if they are leaving 18.9 million dollars unintended in their backseat, they would be way more careful!

        1. Keith

          I largely agree with you. But I think the lack of market options due to liability concerns is an area where government may be able to help.

          It’s still government involvement, but it may cost a lot less.

          1. Gregg

            There are workarounds for the liability issues other than having government mandate these types of devices. For example, state legislatures could put a cap on possible damages a plaintiff could recover for failure of a device. Or they could even eliminate products liability for these types of devices altogether. Granted, the latter option might encourage reckless companies to create crappy devices, but you could work around that by having the law say the company only gets the total liability shield if its devices pass a review by a government agency. (It would probably need to be more complex with this, such as requiring any company seeking to take advantage of the statutory liability shield to submit to ongoing random inspections of its devices.)

            In any case, there are options that don’t involve shifting the costs incurred by a few (i.e., parents who forget their kids in cars) onto the entire car-buying public.

            1. Gregg

              Aaaaaaargh. Fired that one off without thinking it through the whole way. Here’s the logical flaw: Any setup involving these types of inspections by a government agency would take the costs being born by the parents or car-buying public and would shift them onto the *entire* public through increased taxes. That being said, here are two arguments for why my suggestion wasn’t totally stupid:

              First, the general public does not have to fund this particular action by the agency. Part of the statutory setup offering total liability to these companies could require them to provide the funding for the inspections. It seems likely that this cost would be less than the insurance they would likely purchase in the alternative. Further, this would be a cost they could accurately budget for, unlike a $10,000,000 verdict (or whatever). In turn, these companies likely would shift the costs onto their consumers through increased prices, but these consumers are ultimately the parents who buy the devices (and therefore feel they need it).

              Second, even if the general public is paying for these, the costs are likely less than the $20–30 per car, times however many cars are sold. The government could use an existing agency for this type of purpose. (This would also be the case if the companies themselves were paying for these inspections.)

            2. btfine

              This is an informative example, you can actually watch the hypothetical growth of government happen!

              We went from a tragic accident and a dead child, to an economically ignorant but emotionally appealing cry of “something must be done”, to the creation of some combination of new special laws, mandates, and a government agency for the inspection of certain types of devices. All of course conceived in theory by a, perhaps quite clever, technocrat who will still not be able to imagine all the potentials for failure and unforeseen effects of the new “solution”.

              Remember all this for something as likely as death by shark attack or lightening. The sad truth is, parents need to watch their kids and tragic accidents will continue to happen.

              (Aside: as a parent of 3, I am of the opinion that if a device were mandated that prevented those 37 deaths a year, we would simultaneously see an uptick of ~37 more deaths per year from kids falling into pools and wandering onto highways.)

            3. Gregg

              btfine: There is no “reply” button directly below your comment, so I’m just going to reply here and hope you see it.

              (1) I agree with you that the best solution here is to let the market handle it. My suggestion is that if we *do* decide to go down the path of government regulation, there are less-intrusive ways of doing it than mandating these devices.

              (2) The possible government solution I offered (again, assuming that any government solution is decided upon) is arguably an example of a place in which government “intervention” works with, rather than against, the free market. Nobody would force these companies into this system. Rather, the government option would be to provide them complete protection from product liability claims. A possible tag-along to go with this idea is that the companies might submit their products for inspections. In other words, it’s based around the idea of killing product liability claims to encourage innovation and product development.

              (3) Regardless of how any of us feel about free-market or government solutions, it’s worth examining all possible ideas on the merits. (I know the New Mexico legislature almost certainly isn’t reading this, but it’s still worthwhile for people in society to have these discussions.)

            4. btfine

              I get you’re point RE: a better way of doing things. And yes, if something is going to be done I’ve no problem with discussing the optimum way of doing said thing.

              My point is, this is a problem that is so rare it is not worth the bandwidth.
              Any effort to further reduce already minuscule risks are doomed to be cost ineffective. Discussing the details just encourages the misguided.

      3. B. McLeod

        Actually, they were grossly inattentive (apparently incapable of accepting personal responsibility as well).

  4. PseudonymousKid

    What an opportunity. I can even use the word “I?” That’s too tempting. Is this what the soapbox feels like? It’s nice up here.

    Smoked chicken wings are the superior smoked meat. The meat stays juicy, smoke flavor permeates throughout, and you can flavor them however you like without commitment. Dry rubs, sauces, you name it and it all goes with smoked wings. Want to try how a different wood changes the flavor of the meat? Smoked wings. They are the perfect food.

      1. PseudonymousKid

        I should’ve thrown up a trigger warning for Barbecue purists. My apologies. We’ll call this Barbecue-Bar Food Fusion. Fusion is a hip word.

        Imagine a world where cows did have wings, though.

    1. Christopher Best

      You know, I’ve often describe the unique peaty flavor of Laphroig Islay Single Malt Scotch as the “slightly burnt part on the edge of barbecued chicken.” If you haven’t tried it yet, after seeing this comment, I recommend you give it a whirl.

      1. RAFIV

        I love me some Laphroaig but also try some Whistle Pig Bourbon. Creamy, peppery, with hints of vanilla Bourbon gold…m

        1. PseudonymousKid

          That’d be a rye, wouldn’t it? It’s delicious whatever it is.

          If the scotch tastes like the burnt parts, I’m definitely in. Thanks for the tip!

  5. AnonymousThisOneTime

    Two thiings. First, your blog has been one of the very few websites I try to read daily. I’ve got shit to do, but it’s not rare to end up with another 10 browser tabs open and end up refreshing on Roman history or Chesterson’s Fence. Thank you.

    Second, there was a post, a long while back, about the Second Amendment or firearms where the thread was open to all on that subject. You stated you learned a lot from your readers. Perhaps that could be a better regular feature vs people posting about smoked chicken wings being superior meat.

    Thanks again.

    1. PseudonymousKid

      Probably a vegetarian.

      The real world is sad sometimes. Smoked wings are never sad. Smoked wings win again.

    2. Keith

      I would tend to agree – and that was the first gun control thread I can remember that went so well.

      Considering your regular ministrations for those that go orthogonal on posts (and I’ve certainly been guilty as charged for a significant number of them), it doesn’t surprise me that most people are unsure where to go in an open thread.

      Your typical post usually offers a point of view on a particular topic and the scope is fairly narrow. Sometimes I think you nailed the topic and after a few attempts at typing something, I delete it and keep reading.

      But I’d like to see an open thread on topics of your choosing and see if the general readership couldn’t have a great discussion there as well.

      I’ve learned a lot from the people who comment here. And I’d hope others would feel the same.

  6. B. McLeod

    Well, this is what happens (at least in Jasper, Alabama) when you let convicts have dangerous peanut butter instead of nutriloaf. Using the peanut butter (in some unspecified fashion) to modify the apparent numbering of doors, a prisoner convinced a guard that an exit from the building was door into his cell, so that the guard opened it for him, allowing several prisoners to escape. Not the sort of ruse one would ordinarily expect to work (but perhaps all the doors at this facility are marked with peanut butter. In any event, this was a clear case of “the moving finger smears, and having smeared, moves on.”


  7. Jill A.

    Many thanks for the good writing, for posting, for letting me read. For giving me things to think about and learn about. I’m not the type of person you write for. I’m a 60 year old housewife with a HS education. I enjoy your blawg immensely. Thank you for the links to other good blawgs, also. Also, a big Thank You to the people who do contribute money to keep this site going. I don’t prioritize paying for my reading material, there are other things I need to pay for before I get to my wants. So, from one of the slackers, thank you to all who contribute.

  8. Jim Tyre


    Who are you? More important, what are you? And what dirt do you have on SHG? It must be some deep shit for him to let you get away with what you do.

    1. John Barleycorn

      Well Jim, all I can tell you is that the Barbra Streisand sex tape that’s out there was debunked years ago.

  9. Tristan

    Eh, I will take this opportunity to say hi.

    Hello and thank you to SHG. I have followed your blog for a long time and I have found your point of view very interesting. I like to read/learn about criminal law and I find your writing style informative without getting too bogged down into the details only a lawyer would appreciate. It is a great balance that I rarely find elsewhere.

    Hello and thank you to all of the other contributors. To name a couple: I greatly appreciated the point of view from Greg Prickett. It is hard to see stuff from a police point of view without being police. Also Judge Kopf, your letter to lawyers was very interesting and contained advice I felt was global in its application.

    I look forward to reading Simple Justice daily. Though I don’t really have anything to add in the comments, I still appreciate the conversation that happens there.

    (One more note while I am using your soapbox. I have the worst time typing SHG instead of SGH, you may want to consider setting up a separate email account for SGH which would forward to the correct SHG. It may just be a minor dyslexia on my part but it could get you messages that otherwise would bounce.)

  10. Gregg

    Genuine question* for the more experienced lawyers (and especially Judge Kopf, if he’s reading):

    Say, hypothetically, a lawyer has four arguments he or she can raise in a motion. Argument 1 (A1) is an absolutely outstanding argument, and the lawyer figures it has a 95% chance of succeeding. Argument 2 (A2) is not awful, but it only has a 50% chance of succeeding. Argument 3 (A3) is mediocre, at best. It has only a 20% chance of succeeding, but that 20% hinges more than anything else upon the judge’s feelings towards a developing issue in the law. Argument 4 (A4) is garbage—it is a real stretch of the law and only has a 5% chance of succeeding. Assume that all the arguments are the same complexity, and each individual argument will take ten pages of briefing to explain well, and a minimum of three pages to explain in an at-least somewhat coherent manner. None of the issues are related to each other, such that they lawyer could combine the discussions of them into a single part of his or her motion. Further, none of the issues will require *more* than ten pages. The final assumption is that money is not an issue; the lawyer will receive compensation for everything he or she writes.

    Given that, how should the lawyer strike the balance between raising all possible arguments and trying not to annoy the judge? Obviously, the lawyer will want to make A1 the center of his or her argument. But should the lawyer limit the discussion of A1 to the ten pages it will take him or her to discuss it fully, or should the lawyer make the discussion longer (e.g., taking fifteen pages to explain it). I tend to always believe conciseness is a virtue, but is there any time, such as this, when the lawyer should make A1 longer just so it balances out the other three arguments (none of which are great)?

    Likewise, how long should the other arguments be? Should B2 be the full ten pages, even if it only has a 50% chance of success? Or would that detract from A1 while making the brief longer and risking irritating the judge? (Hence, why the lawyer might consider making A1 longer than ten pages.)

    What about A4? Should the lawyer just leave that argument off altogether, given that it might annoy the judge while detracting from the other arguments? What if we drop its chances of succeeding down to 1%? How about if we say it has only a 1% chance of succeeding *and* will require a minimum of ten pages of briefing by the lawyer?

    In other words, this hypothetical is all about the calculus attorneys make when approaching writing, and the feelings judges have towards reading long briefs. Do weak arguments tend to undermine the stronger ones, from your experiences, or do you find that judges fairly consider all arguments on their own merits, regardless of the rest of the brief?

    (Spoiler alert: I know the answer—as is always the case in law—is “it depends.” I’m just wondering more about how experienced lawyers assess these types of issues and how judges look upon motions containing multiple arguments, some of which are good and some of which are not.)

    *  If you’ve read this far, you already know that “question” really meant “questions (in the plural) based on an overly detailed hypothetical.” Sorry.


    Brief addendum: I apparently suck at math, and the error screen for this site when a commenter screws up the captcha is hilarious. [Ed. Note: I got to customize the captcha error message. You’re welcome.]

    1. PseudonymousKid

      Conciseness is a virtue, huh?

      Judge Kopf and experienced lawyers, assuming I am making an argument to a judge in a motion, how much time should I spend on alternative arguments that are valid, but weaker than the primary argument?

      I just saved you a lot of pennies. I would try to answer, but I don’t know shit yet.

        1. B. McLeod

          Much more so than mattress chick’s parents, I would think (likely in the process of a name change and move sans forwarding address).

    2. Richard Kopf


      I sense that you already know the answer so I won’t bother to reaffirm what you already know. But here is stray tidbit that may not be obvious.

      At the federal trial level, a law clerk is likely to read the motion and brief and propose a draft opinion for the judge to quickly scan and approve. That law clerk is drowning in work. By the way, law clerks are partially measured by time-to-disposition internal reporting requirements.

      In my case, my law clerks are career law clerks. One is over 60 years of age and the other over 50. They have experience in the real world as practicing lawyers. They are much smarter than me. They mentally keep track of dolts who waste their time. They award stars in heaven to those who don’t.

      All the best.


      1. Gregg

        Judge Kopf,

        Thank you for your response. I can only imagine what law clerks have to read through. I don’t know of any Nebraska Local Rules establishing a maximum brief limit, but I know some jurisdictions have limits that (hopefully) lighten the load (e.g., parties must obtain leave from the court before filing any briefs or motions longer than twenty-five pages).

        Thank you,

  11. Jake

    Topic: What are the near and long term impacts of the recent disintegration of public morality, in the United States under President Trump?

    1. LocoYokel

      Under President Trump? What makes you think his inauguration was the beginning, or even marked a significant change in the decline of “Public Morality”?

      1. Jake

        From my perception, you’re either being disingenuous or so woefully oblivious that an exchange of ideas between us is a gross waste of my effort. Ordinarily, I don’t respond to trolling, anonymous commenters on SJ. Since Senpai declared today to be open season, I figure I will let you know I think it’s a little of both. Congratulations! You’re a phony dumbass.

        1. Christopher Best

          I had a paragraph here about how Trump is an unsurprising continuation of a slide down a slope we were already on, yadda yadda yadda, but I realized that paragraph was obvious–and dumb–and I was wrong to accept your premise in the first place.

          The question is meaningless–what the flippin’ hell is ‘Public Morality’!? Governments don’t have morals, and I don’t think you actually want them to.

        2. Joseph

          >an exchange of ideas between us is a gross waste of my effort
          That much, at least, was apparent.

        3. Miles

          Progressive: Let’s talk. When did Trump stop beating his wife?
          Anyone not progressive; Beat his wife?
          Progressive: Disingenuous. Woefully oblivious. Troll. Phony Dumbass.

          And you wonder why Trump is president.

  12. jim ryan

    Indeed, the over use of Indeed is indeed at best unartful and indeed just plain dumb.
    Indeed, it is almost as bad as irregardless, indeed!

        1. SHG Post author

          Indeed I do. It’s the sort of thing I think about whenever I ponder entrusting my life to self-driving cars or deft’s lives to the Sentence-O-Matic 1000.

  13. Jim Tyre

    Dude goes on trial for drug possession, a bunch of oxy. Evidence, including the oxy, goes into the jury room during deliberations. Jury convicts, then departs, hastily.

    After, someone realizes the oxy went missing while in the jury room. Once can speculate, but at least so far, one cannot know. No one has found it, or at least no one is copping to it.

    Does the convicted D have a remedy? New trial? Dismissal? Other? Nothing?

    OBTW, I ripped this from the not fake news headlines, http://www.dispatch.com/news/20170727/71-oxycodone-pills-go-missing-after-jury-deliberations-in-drug-case

    1. SHG Post author

      Dammit. You made me tell this story. Lunch break in trial for couple hundred keys, marshals watching drug evidence decide to toss a wrapped kilo around like a football. I’m sitting there, prepping. Bag breaks, powder goes everywhere. They hastily try to clean up the mess. Afternoon, everyone in the courtroom is licking their fingers, fidgeting but happy. Judge denied every objection.

  14. Eliot Clngman

    US Criminal justice has decayed to the point that fundamental reform (not incremental change) is needed. Because fundamental change is needed, lay people must be mobilized not just lawyer-technocrats!

    A comparative to other advanced western legal systems (especially civil law systems) and common law at an earlier historical epoch leads to the following radical proposals starting roughly with the highest priority:

    (1) Custodial Interrogations (the following ideas are influenced by English reforms in the 1980s):
    a Council should be provided to suspect automatically at custodial interrogations, when the suspect does not provide his own council.
    b Police should not be allowed to lie to the suspect.
    c All of the interrogation must be video recorded without gaps or interruptions.

    (2) Restore the historical role of the pre trial magistrate in determining whether “there is a case to answer”, before allowing a prosecution to occur. And the defense must not be able to waive this. At the same time, abolish grand juries.

    (3) (The Scottish rule) Accomplice testimony must be corroborated.

    (4) (This was the case in France until very recently) Abolish the guilty plea and plea bargaining, so that the trial is always empowered to determine the facts.

    (5) (Very controversial no doubt, but they did this in France to great success!) Codify the criminal law and abolish stare decisis. (The would increase the speed of appeals, because no new law would be created by the opinion.)

    (6) Once the magistrate had allowed the case to proceed, but prior to trial, the opposing councils would propose to the trial judge their witnesses, evidence, etc. The trial judge would decide what would be allowed in or excluded, and there would be automatic and rapid appellate review of his determinations before the trial starts

    1. Jake

      I like all of this. What else could be done to curtail prosecutorial and LEO misconduct? I vote for stiff fines that must be paid by the guilty individual or even jail time for certain categories of offenses.

  15. Ross

    Judge: State your gender for the record
    Defendant: I identify as innocent
    Judge: That’s not how this works

    H/T to crazyrxman

  16. JAV

    My chance to get this off my chest without the risk of a dope slap,
    Neil Diamond is an excellent writer and performer of pop music.

  17. Pingback: Will Raising the Burden of Proof Fix Title IX? | Simple Justice

  18. John Barleycorn

    It could have been a lot worse, but even your bedwetters might come around and polish up a rock or two for Tuesday recess if you give them a whole week to rattle around the levels of pebbles in their minds.

    Keep your eyes on that Shmarly guy though or he might flip over a milk crate or two and set up shop.

    Lot of lunch money floating around around out there not to be eating ruben’s, on the reserved loaf of marbled rye with imported cheese, everyday.

    It will work out just fine until it doesn’t And when it doesn’t, just ask Shmarly what to do, it’s only a nickel.

    Too bad Shirley is dead. I bet she would have dropped in on an SJ Recess now and then just to flirt with that Shmarly guy.


  19. PseudonymousKid


    Maybe setting a general topic would help keep the conversation moving a little better like another commenter said. It would at least keep the rabble from talking about meat. This was fun. You should make it a regular thing with just a bit of guidance. Throw open the floodgates every once in a while too, though.


    1. John Barleycorn

      Playground guidance, really?

      It’s bad enough out there already ever since the slides over six feet disappeared.

      And who the heck came up with this crossing guard bullshit?

      There is a reason you can’t get yourself a chocolate milk in the cafatery anymore, you know.

      Get ahold of yourself man.


      For crying out loud, it’s not as though the tetherball isn’t attached to a string.

  20. rsf

    I’m here to do nothing more than break the rules that I never read. How do I do that? Should I post links to random cat videos, or better yet, attempt to advertise a vacuum sale? Decisions must be made, and fast!

  21. Kirk Taylor

    I’ll post the rhetorical question that comes every time I read a law blog (which is frequently – Sorry Scott – I cheat on you):
    If the law is so complicated that lawyers are required to interpret it, how is the average person supposed to know how not to violate it?
    FYI: This comes up a lot in the tax world, my area of expertise.
    Also, it’s not a free-for-all if I still have to do math…

Comments are closed.