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February 2012

And You Thought Lawyers Were Expensive . . . .

At first glance, a threatened lawsuit against The Cheesecake Factory restaurant in Massachusetts sounds like it could be yet another the-sky-is-falling example of lawsuit abuse from those who are – shall we say – not big fans of the legal system. But like most of these headlines, a closer look at the facts reveals our legal system is working like it is supposed to.   

Newton, Mass.-based attorney Ross Mitchell notified the popular restaurant chain of his intentions to sue under the Massachusetts Consumer Protection Act after a friend was charged $11 for a margarita without being told about the rather exorbitant price beforehand. Apparently, this slight-of-hand is part of a new trend in the restaurant industry to conceal the price of a drink or meal until the bill arrives, after the meal/drink has been consumed.  
The law, as it turns out, is not silent on this practice. In a recent media report about a $275 order of pasta and truffles served at a New York restaurant, Texas Wesleyan School of Law Professor Franklin Snyder described how Article 2 of the Uniform Commercial Code provides a potential solution: 

“The code provides that where the buyer and seller have agreed to a contract but have not agreed on the price, the price is not what the seller subsequently demands. It’s a reasonable price for the goods at issue.”

Armed with the UCC and Massachusetts law, Mitchell was able to convince The Cheesecake Factory to post drink prices on its menus statewide. Except for the cost of reprinting a few menus, it’s hard to imagine how this could have worked out any better: Consumers were being deceived. A concerned lawyer sought compliance based on existing laws. No lawsuit was filed. No huge legal bills incurred. Fairness was restored. The law is now being obeyed.

So, next time you hear about how attorneys drive up the cost of goods, think of lawyers like Ross Mitchell and maybe drink a toast to him with a margarita that costs considerably less than $11. 
P.S. –  Sometimes life imitates art.  Or in this case, an old joke:  

An alligator walks into a bar and orders a martini. The bartender is somewhat taken aback, but quickly figures that an alligator has no idea how much a martini costs, so he pours the drink and says “that’ll be $20.” The alligator pays the bartender and begins to sip his drink, but the bartender is overcome with curiosity.  He says, “You know, we don’t get many alligators in here.”  The alligator dryly replies, “At $20 a martini, I’m not surprised!”   


Posted: 2/29/2012 2:48:29 PM by On the Merits Editor | with 0 comments

Phil Mickelson Hits Another Impressive Shot Out of the Rough

Courts in the U.S. and around the world have been working overtime to keep pace with a growing number of novel legal disputes created by the Internet. Unfortunately, people and businesses continue to fall prey to electronic mischief – including cybersquatting and online defamation – because few of us have the time and/or resources to go after the architects of mayhem on the World Wide Web.

Pro golfer Phil Mickelson does have the resources, however, and he recently did everyone a favor by using a portion of his considerable fortune to take a hardline stance against tawdry, anonymous online allegations against him.  In November, one or more people began using the pseudonyms “Fogroller” and “Longitude” on the Yahoo! Sports website to assert that Mickelson had fathered an illegitimate child and that his wife had an affair.

The pro golfer responded by filing a complaint against a Canadian Internet service provider, which has agreed to reveal the anonymous commenter’s identity, according to media reports. The broader implications of Mickelson’s action are unclear, but as his attorney told reporters: “If we can stop one person, then it’s one less person who can get away with this.”

Mickelson’s legal battle is just the latest example of a well-heeled sports star relying on the courts to help create new parameters for online conduct. Former Dallas resident and current professional basketball standout Chris Bosh famously won a 2009 federal court claim over the rights to the online domain bearing his name. A California judge awarded Bosh his domain and 800 additional domains that used the names of other pro sports stars. In turn, Bosh returned them to their rightful owners for free.

Sports heroes are sometimes criticized for making vast fortunes for merely playing a game, but the actions of both Mickelson and Bosh – and the persistence and creativity of their lawyers – may well end up making the Internet a better place for everyone.


Posted: 2/23/2012 6:07:23 AM by On the Merits Editor | with 0 comments

Real World Troubles for High Court Justice

Supreme Court Justices are sometimes accused of being disconnected from the world in which the rest of us live, thereby compromising their ability to make legal decisions that properly take into account the impact upon “ordinary” people. 

Justice Stephen Breyer might disagree.  The 73-year-old Breyer and his wife were robbed by a machete-wielding man earlier this month while vacationing in the West Indies. The robbery took place in the couple’s vacation home when a masked man stole approximately $1,000 before leaving without harming the Breyers or their guests.

Strange as it might seem, this isn’t even that unusual. Breyer’s experience puts him in the unfortunate company of fellow Justices Ruth Bader Ginsburg – who was victimized by a purse snatcher in 1996 while walking with her family a few blocks from the Supreme Court building – and former Justice David Souter – who was assaulted by two men in 2004 while jogging near the Potomac River.

Ironically, crimes like these are much more likely to find the Justices because they are – despite their status as leaders of judicial branch – relatively anonymous compared to their counterparts in the legislative and executive branches, whose leaders receive far greater personal protection. There have been calls for improved security measures, but let’s hope that the Justices can retain as much freedom as possible to drive their own cars, shop in their local grocery stores, and freely walk the streets of Washington, D.C. That way, they’ll be better equipped to hear the cases of more “ordinary” Americans.      

Posted: 2/22/2012 7:13:10 AM by On the Merits Editor | with 0 comments

Justice Scalia Opines on the Difference Between Law and Politics

U.S. Supreme Court Justice Antonin Scalia was predictably queried about the usual political issues when answering questions posed by lawyers at the American Bar Association’s recent Midyear Meeting in New Orleans.  On the Merits was there to observe the proceedings, where the topics covered by Scalia included those you might expect, including his take on Roe v. Wade (Scalia described the opinion as a “mess”), the effect of his Catholicism on his decisions (none, he says), and same-sex marriage (which he appropriately declined to discuss since the issue likely will be before the Court soon). 

But when asked point-blank about the effect of politics on the Court’s decision-making, Scalia strongly reiterated a consistent theme of other Supreme Court Justices, even those who often vehemently disagree with him. He said politics don’t affect decisions at all; what the public and media regard as political ideology is really what Scalia describes as the “fault line” of theories of constitutional interpretation, or the vast differences in philosophical approach to constitutional issues that that each individual Justice brings to his or her judicial opinions.  Scalia says his philosophy is to follow the “original meaning” of the Constitution, which he contrasted with others’ support for a “living” Constitution that allows for constitutional principles to adapt to specific situations not anticipated by the Founding Fathers.  

The debate over the proper approach to constitutional interpretation will rage on long after we are all gone, but a primary reason we have nine justices with lifetime appointments is the hope that many viewpoints will be at the table when these fundamental and long-lasting decisions are made.  Having judges who feel removed from politics is a good thing. The alternative is much worse

Posted: 2/16/2012 5:45:32 AM by On the Merits Editor | with 0 comments

"Mockingbird” Anniversary Brings Important Reminder for Lawyers

Believe it or not, this month marks the 50th anniversary of the iconic movie that has probably drawn more attention to the legal profession than any other. Universal Pictures’ “To Kill a Mockingbird” debuted in February 1962 with Hollywood great Gregory Peck playing the role of Atticus Finch, perhaps the most fabled attorney in the history of American cinema. Peck’s portrayal of a Depression-era lawyer defending a black man against a rape charge in a rural Alabama courtroom came only two years after Harper Lee published her Pulitzer Prize-winning novel with the same title.

Many Hollywood depictions of lawyers in the years since “Mockingbird” have been noticeably less flattering, including Paul Newman’s role as an alcoholic, rule-bending attorney in “The Verdict” and Joe Pesci’s loudmouth New York defense lawyer in “My Cousin Vinny.” Despite the fact that both of these fictional lawyers overcame their flaws to see justice ultimately done, Atticus Finch remains the paragon of an honest, hardworking lawyer who was willing to do the right thing in the face of great adversity.

Finch’s effort to right an egregious wrong perpetrated against a defenseless citizen is a quintessential story of American justice. Like baseball players who dream of a chance to win the World Series in the bottom of the ninth inning, every lawyer dreams of being Atticus Finch.

Posted: 2/15/2012 7:20:59 AM by On the Merits Editor | with 0 comments

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About This Blog

Thanks for stopping by On the Merits, the first blog from the Texas Center for Legal Ethics. On the Merits will take a close look at significant legal stories with an eye toward addressing the legal myths and misconceptions that turn up in news stories, movies, TV programs, websites, anonymous emails and other forms of mass communications. Our goal at On the Merits is to provide readers with a thoughtful examination of what the media and others are saying about the legal profession and to apply the frequently-absent context of how the legal system actually works.

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