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Thursday, June 15, 2017

The Best Posts From My Blog

I have just finished updating the post that I created April 29, 2013, entitled “A Guide to the Best of My Blog”;  I had been neglecting it and consequently it was quite out-of-date.  Now I’ve reorganized it and, most importantly, put in links to all of the entries, making it easier to navigate the posts through the years (the blog started in late December of 2009 with a scary post called “Dog Meat” []).  I still need to add links to the ending of some of the individual posts and cleanup some duplications, all of which should happen in the next week, but for now the Guide is in much better shape. Here are a list of the topics with my favorite post from each as a tease (and it was hard to make these choices):

1.  The Heart Transplant and Other Medical Matters

“Mama Cat Saves My Life,” October 23, 2011; 

2.  Gay Issues

“How I Lost a Gay Marriage Debate,” April 29, 2010;

3.  Atheism, Skepticism, and Religious Matters

“An Atheist Interviews God,” May 20, 2010;

4.  My Own History

“Some Lottery Winners Score $400 Million”—An April Fool’s Day Joke," April 11, 2014;

5.  Family Stories

“My Competitive Parents,” January 20, 2010,

6.  Cats and Other Animals

"Teaching Cats the Rules of the House," July 16, 2013;

7.  Law and Stories About the Law

"Funny Law Professors," January 15, 2012;   

8.  My Philosophy of Life

9.  Sex and Sensuality

“Good Sex, Bad Sex: Advice on Making Love,” November 9, 2011;

10.  My Novels and Other Works

The Evil Big Birthday Song November 5, 2010;

11.  On the Stage

“My Husband, the Actor,” May 31, 2014;

 12.  Gambling

"Far Too High in Las Vegas," September 1, 2010;   

13.  My Ex-Wife Charleyne

"Charleyne and the Giant Cookie," September 16, 2010;

14.  Politics

“Ohio To Put Guns in Baby Strollers,” June 17, 2012;

15.  Odds and Ends

“I Hate Meetings,” October 31, 2011;

Tuesday, May 30, 2017

Pious Ejaculations and the Flying Spaghetti Monster

I know, I know.  That title needs unpacking before it makes sense.  Let me do that.

The word “ejaculate” has fallen on hard times.  In its purest historical sense (and the one I’m using in this blog post) it simply means to express something suddenly and passionately.  Thus, anytime you’re surprised and say “Wow!” you are ejaculating.  Of course the more crude and therefore dominant meaning is to produce semen at orgasm, which is also a sudden and passionate demonstration of feeling, but let’s drop that meaning for now.

A “pious” ejaculation is what you exclaim when, for example, you hit your thumb while hammering and your exclamation has some religious connotation.  There are many examples: “Jesus Christ!”  “Oh, God!”  “God damn it!” “Holy Fuck”  Etc.   Doubtless you can think of many more (or will if you speculate a bit).  “Oh My God” has become a national ejaculation for almost any situation.

But here’s a major problem that I, along with many atheists, have.  When we strike our thumbs with a hammer we utter these same ejaculations since we too were raised in a society where . . . well, that’s what you say when your thumb is throbbing.  But when I hear myself exclaiming these things—the remnants of my Catholic upbringing—I’m annoyed.  I like to think I’ve exorcised God and all religion from my life—only . . . damn it . . . to be contradicted by my own reaction.  [Interestingly, in the Catholic Church short prayers are still called ejaculations.  Children are encouraged to say things like “Jesus, Mary!” and even repeat such ejaculations throughout the day, thus heeding St. Paul’s injunction to “pray without ceasing.”]

In my novel, an atheist thriller called “Imaginary Friend” (available on Amazon), the protagonist Franklin Whitestone is an atheist who is “outed” on national TV and whose life falls apart immediately thereafter.  Escaping from multiple troubles to the quiet of his own home after a veritable nightmare of a day, he decides to have a martini and gets out the ingredients, starting by slicing a lemon.  Here’s the relevant passage:

           Shortly thereafter he cut his thumb and immediately strung together three inappropriate religious references: “Jesus,” “hurt like hell,” and “Goddamn it!” One more problem, this one linguistic, to add to all the others.
           Now, he took a sip from the martini. Yes, yes, this might help. He staggered back to the living room and plopped down in his overstuffed easy chair, taking increasingly bigger gulps.
           What was going to happen to him? Kelly was pissed, his job appeared to be in toilet, and huge numbers of people were demanding his head on a pole. He remembered his prediction last night that today would be a better day than yesterday, and the thought made him snort in something like amusement.
           Happily, the trembling in his hands stopped as the martini did its job.
           With a sigh, he mumbled, “Oh, Lord!” and then immediately frowned. He’d done it again—an automatic religious response to a non-religious stimulus.
           Well, if he couldn’t solve any of his other problems, perhaps he could do something about this minor annoyance. What could he substitute—train himself to say—in situations where some sort of phrase was needed to express surprise, or dismay, or wonder?
           He tried to think of famous ejaculations used by others. Shakespeare’s characters said things like “odd bodkins” or “egad,” but those sounded too stilted. Little Orphan Annie was famous for “leaping lizards,” but Franklin was far too macho to imitate that sad child. Charlie Brown’s favorite exclamation was “Rats!” and Franklin experimented with saying that out loud a couple of times before discarding it. Part of him liked “Rats,” but another part thought it came across as forced, unoriginal. What I need, he thought, is a euphemism with punch. Something no one else says. Something individual to me, Franklin Whitestone.
           Perhaps he could invoke the names of now-discredited gods of old: “By Zeus!” for example, or “Oh, Baal!” Hmm.
           Then he remembered the alleged primitive belief that the world rests on the back of a giant turtle (which in turn sits atop a stack of other turtles, etc.). Perhaps there was a solution there.
           “Great Turtle!” he exclaimed out loud, and that made him laugh.
           When the martini disappeared over the course of the next twenty minutes, Franklin went to the kitchen to fix another. Of course, that probably wasn’t wise, but—truth be told—nothing else sounded better. He pictured his cleaning lady coming in tomorrow and finding him snoring atop a mound of empty gin bottles.
           “Turtles preserve us,” he muttered as he looked around for the remains of the lemon. 

At the time I wrote this passage I didn’t know about the Flying Spaghetti Monster and the religion worshiping this deity called “Pastafarianism,” but now that I do, I can see how that entity might come to my aid in this situation.  Let me tell you about the FSM. 
This cult began in 2005 when Bobby Henderson petitioned the Kansas State Board of Education to allow Pastafarianism to be taught in public schools along with “intelligent design,” pointing out that there was equal evidence for the validity of both.  For his highly-entertaining and informative letter explaining his argument in detail see  The Kansas dispute created much interest on the internet and Henderson’s starchy sect spread as a weapon in the battle against by religious organizations to take over public education.  He has since published a book explaining the Official Gospel of Pastafarianism

From the FSM Gospel Manual:
Behold the Church of the Flying Spaghetti Monster (FSM), today’s fastest-growing carbohydrate-based religion. According to church founder Bobby Henderson, the universe and all life within it were created by a mystical and divine being: the Flying Spaghetti Monster. What drives the FSM’s devout followers, aka Pastafarians? Some say it’s the assuring touch from the FSM’s Noodly Appendage. There are those who love the worship service, which is conducted in Pirate-Speak and attended by congregants in dashing buccaneer garb. Still others are drawn to the Church’s flimsy moral standards, religious holidays every Friday, and the fact that Pastafarian Heaven is way cooler. Does your Heaven have a Stripper Factory and a Beer Volcano? Intelligent Design has finally met its match—and it has nothing to do with apes or the Olive Garden of Eden.

Much has happened since then, and the photos below illustrate.

Some courts have allowed members of the FSM to have driver’s license photos taken with colanders on their heads, but in Cavanaugh v. Bartelt, 178 F.Supp.3d 819 (2016), a federal court refused a prisoner’s request to dress in pirate’s guard while celebrating his belief in the Flying Spaghetti Monster.  The judge ruled that this was not a sincerely held religious urge, but merely  participation in a self-confessed parody.  Hmm.  Probably just as well, since a prisoner dressed as a pirate with a colander on his head might have substantial problems relating to his fellow inmates.

But back to my main issue.  Might I solve my pious ejaculation problem by converting to Pastafarianism and using its terminology when I strike my thumb and mutter something out loud?  What would fit here?  “NOODLES!”  “PASTA!”  Might bystanders look at me askance?  Readers, feel free to comment on all this in the Comments segment appended to this post.

Maybe I’d be better off with a mildly offensive non-religious ejaculation when hammer mishaps occur.  A simple “Fuck!” should do it.

Related Posts:
“A Guide to the Best of My Blog,” April 29, 2013;
“Is Evolution True?”  July 17, 2011;
“If Humans Are Descended From Apes Why Are There Still Apes?” January 27, 2014;
“Atheists Visit the Creation Museum,” October 4, 2012;
“Intelligent Design, Unintelligent Designer,” May 12, 2012;

Wednesday, May 17, 2017

My Lifelong Loathing of Buttons

I want to know who—in 2017—still thinks that buttons are the best way to fasten clothing?  Show me this person and we’ll have a debate that at some point will escalate to the point where I pull out some of the choicer words I learned in my Navy days.

Let me start by making it clear that I don’t suffer from koumpounophobia, which is the tongue-twisting name for the fear of buttons.  I don’t fear buttons.  I just detest the vile things.

Starting when I was a little boy struggling to push a button through a tiny slit slightly larger than the button itself, up to yesterday when I grabbed a shirt from the closet that had just come back from the dry cleaners and realized that even though I was in a great hurry I would nonetheless have to fasten fourteen buttons before I could get out of the house, my hatred of the damned things been a steady feature of my life.

I’m not a particularly clumsy person, nor am I remarkably adept at motor movements.  I guess I’m more or less average when it comes to maneuvering small objects about.  But for unknown reasons I struggle mightily with buttons.  The ones up and down the front of a shirt aren’t bad, and those are routinely dealt with quickly when I first put on a shirt.  But I don’t see the need to unbutton this shirt when I plan to use it again.  I just slip it off over my head the same way you’d exit a sweater.  When I need the shirt again I ship it back on, already buttoned and ready to go.  This saves much time when one is in a hurry.  Once at a doctor’s office when he asked me to take off my shirt, I slipped a buttoned shirt off over my head in this fashion, and the doctor looked astonished.  “”You’re the second man this week who’s done that!” he exclaimed.  “Yeah, yeah,” I mumbled, “we’re members of a secret society.”

When it comes to the evil buttons on shirt sleeves I approach these with a practiced dread.  Typically there are two buttons on each sleeve (and, happily if rarely, sometimes only one), but for all too many shirts the sadist who made the creative decisions has decided to use as many as three buttons at each wrist.

One of my actual shirts

Mysteriously, when I’m purchasing a shirt it never occurs to me to count the sleeve buttons, and I certainly wish it did.  On bad days I can fumble through the fastening process for over five minutes, going from mumbling, to grumbling, to profanity in an ugly progression.  If, happily, my husband is home I often end up walking pitifully to him, wrists out, confessing failure, begging help.  If he’s not available our cats have, alas, proved useless in this regard.

Why do we use buttons at all?  What is their allure?

They’ve certainly been around a long time.  For thousands of years they were merely ornaments and not fasteners at all, but in the 1200s in Germany they were first used to connect parts of clothing together, and this became a fashion and custom that is still with us over 800 years later. 

Enough!  It’s time to stop.  It’s time for a new fastening fashion.  There are wonderful possibilities, and in this inventive new century there are no limits to what might be possible as button substitutions.  Obvious candidates are snaps, hooks, Velcro, magnets, and that old standby: the zipper.  Why aren’t these common replacements for buttons?  Think of the time we would save if we never had to struggle with buttons again!  [I also hate shoe laces, but let’s save that for a later blog post.]

Readers of this post: are you also fellow button-haters?  Are you with me?  Let’s start a movement!  Create slogans

We could put those slogans on buttons!  Wait a minute!  What did I say?  Buttons? 


(Whaley loses it and has to led from the room.)

Related Posts:

“Gephyrophobia: My Phobia of Crossing Bridges, September 28, 2011;

“Douglas Whaley, Deckhand,” December 22, 2010;

“A Guide to the Best of My Blog,” April 29, 2013;

Thursday, April 27, 2017

When Lawyers Fail Their Clients: My Cork Floor Litigation

Even though in theory I’m retired from teaching law, this spring I’m finishing up my 41st year of being a law professor at The Ohio State University (and my 47th year in this profession overall) by conducting a course in the law of Sales.  One of the classes I now schedule as part of the course is a detailed exploration of an actual lawsuit that I filed right here in Columbus, Ohio, in the Municipal Court in 2014 involving my purchase of cork flooring materials for my condominium.  I use what actually happened as a practical lesson in the lawyering of a dispute over the buying and selling of goods.  It teaches, I believe, a valuable lesson about the difference between conducting a lawsuit and finding justice for the parties involved.  My conclusion is that in the end the lawyers look bad and the lawsuit was a waste of time for everyone involved.  As someone we all know tediously says, “Sad.”  Read what follows and judge for yourselves.

In 2011 I decided to replace the carpeting on the first floor of my condominium with cork flooring.  I chose cork because Norman Anderson, a contractor friend who was experienced in this field, said it was both durable and handsome.  Norman and I went to a local Columbus retailer to look at samples, and, with him as my agent (and installer), I purchased the cork flooring that became the subject of the lawsuit I filed two years later.  In the description that follows I have changed the names of the major parties and the lawyers that became involved.

Perhaps it can all best be summarized by the December 23, 2013 letter I wrote to the manufacturer of the product and the retailer who sold it to me in 2011, and which was eventually attached to the Complaint I filed in the Franklin County Municipal Court:     

            When I retired from The Ohio State University where I was a law professor for over 30 years, I bought a condominium in Dublin, Ohio, and in late 2011 I decided to replace the original carpeting in the downstairs with a cork floor, which I had done some research on and was pleased to learn how durable such floors were reputed to be.  In October of that year I went to the premises of Superior Floor Coverings with the contractor who would install the floors, Norman Anderson, and we picked out some samples and then took them back to the condo.  We eventually picked out WonderFloors New Dimensions, Slate Cork, and on October 17, 2011, Mr. Anderson, as my agent, ordered 40 cartons to be sent to my home (I immediately reimbursed him for the expense, which was $6,474.73). 

            The cork arrived in late December and was installed by Mr. Anderson, with the job being finished in mid-January of 2012.  The flooring, which was almost black in color, is beautiful, and I loved it.  As time went on, however, problems developed from the fact that the cork surface was eggshell sensitive to things like scratches and the pressure of furniture.  I have two cats, both declawed (but possessing rear claws), and their routine running around the house produced major scratches and sometimes even scars in the portions of the floor open to much traffic, such as the halls.  Since under the very thin black surface is a tan base, even tiny scratches left obvious marks in my beautiful floors.  In the beginning I covered these with a black Sharpie pen, and that worked well enough at first.  But as time went by the large number of such markings became a major chore, literally requiring hours of work (spread out since installation) on one’s hands and knees.  If you look closely you can see where these cover-ups have occurred, and as their number mounted it’s become more and more obvious.  I spent much time working with that Sharpie pen because in the spring of 2013 I put the condo on the market and wanted the floors to look as good as possible for potential buyers.  But there were other problems as well.  Everywhere on the floor where they were placed, objects of furniture caused major indents (visible by moving any piece of furniture) and damage to the cork floors happened from any significant contact other than mere walking across them.  At one point I moved the living room sofa for a two week period and, when I moved it back to its original position, was astounded to realize that major deep indentations had been made in the cork during this very short period just from people sitting on the sofa.  I found myself trying to figure out how to hide the damage to the cork from future buyers, and feeling like a fraud as I did so.  That had to stop.  I took the condo off the market last month.  It’s clearly time to repair the floors, and this particular cork flooring is completely unsuitable in my home (or any home).

            As I mentioned at the start of this letter, I’m a law professor and, as it happens, I am one of the leading experts in the United States on the law of warranties and consumer rights.  If you doubt this, Google up my name or just go to Amazon and look at the many books I’ve written on Commercial Law, Contracts, Sales, Consumer Law, etc., seven of which are used as text books throughout the country.  Huge numbers of lawyers in Ohio are my former students either in the classroom or bar review lectures.  The Uniform Commercial Code [UCC], which is at the heart of this dispute, is my chief area of expertise.

            So I consulted the paperwork I was given to see what it said about the warranty on the cork flooring.  Superior Floor Coverings invoice says nothing about the topic, but WonderFloors, Inc. had given me a “Lifetime Residential Limited Wear Warranty.”  Let’s talk about the latter first.

            The lawyers who drafted it up had one goal in mind: disclaim almost anything that can happen other than the product being damaged by the manufacturing process.  Instead of being a warranty it’s mostly a disclaimer of liability for most of the problems that could occur with the product.  One interesting clause disclaims “Damage due to . . . scratches, gouges, scuffs, punctures, cuts, indentations, . . . lack of proper furniture rests or any intentional misuse of the product.”  Hmm.  Another disclaims liability for “abuse caused by items such as roller skates, golf shoes or pets.”  The “warranty” also requires that “the flooring must be maintained in accordance with WonderFloors maintenance instructions,” but none were given to me, nor is there a definition of “proper furniture rests.”  I can understand WonderFloors, Inc. not wanting to warrant against misuse of the product by the owner’s pets (say a dog who tries to dig through the floor), or misuse by running around in golf shoes or roller skates, but this warranty in effect says that routine use of furniture or routine activity by pets that ruins the eggshell finish of the cork is not covered.  Far from being durable, the surface on this flooring is very delicate.  Phrased another way this very limited warranty means that WonderFloors’s product cannot be used in homes with either pets or furniture.  No court is going to read the warranty disclaimer this broadly, and instead is likely to say that the warranty merely protects WonderFloors, Inc. from misuse by the owner.  I certainly will contend in future litigation that I in no way misused the product.

            No document from SuperiorFloor Coverings disclaims the implied warranty of merchantability created by UCC §2-314.  That section creates a very interesting warranty that is automatically part of the transaction unless disclaimed, which was not done here by either WonderFloors, Inc. or SuperiorFloor Coverings.  So let’s explore what the implied warranty of merchantability entails.

            According to the UCC section cited above this warranty is that the goods sold shall be “fit for the ordinary purpose for which such goods are used.”  I tell my law students this is the warranty that the goods will work.  In the lawsuit that I will shortly file in the Franklin County Municipal Court unless this matter is settled to my satisfaction, I will contend that a cork flooring that is so delicate that routine use by the owner leads to major surface damage within a period of under two years is not fit for its ordinary purpose.  I will then ask for damages in the amount of the purchase price of $6,474.73 and the wasted installation cost of $6,530, plus court costs.  These damages are all clearly allowed by UCC §§2-714 and 2-715.  I will be representing myself pro se, so I will have no attorney fees (though you certainly will).

            I will file the lawsuit by January 14, 2014, so let me hear from you before then.

Douglas J. Whaley

In my mind the lawsuit asked one simple question: was a floor covering that was this sensitive fit for its ordinary purpose?  I believed I could prove it was not.  The major legal defense I knew I would have to battle (and which caused me some worry) comes from UCC §2-607(3)(a) which states that “the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller or be barred from any remedy.”  Hmm.  I’d waited almost two years before I gave the sellers notice.  Was that within a “reasonable time”?  My argument was that during this period I was battling to live with the problem so no notice was proper until I finally concluded that this was impossible, and from the very beginning there was no “fix” for this defect other that complete replacement of the product.  Every single panel installed had the same unacceptable finish.  But the judge (who would be the judge of both the law and the facts) might decide otherwise, so I was concerned about how the §2-607(3)(a) issue would play out. 

Scratches---some covered with Sharpie Pen

Both the retailer and the manufacturer hired lawyers and they promptly filed Answers to my Complaint.  They raised a lot of non-issues (I had “misused” the product, or I was “negligent” myself, etc.) but—to my astonishment neither Answer mentioned the §2-607(3)(a) lack of notice within a reasonable time defense!  Amazing!  In my opinion this was malpractice on the part of both the defense attorneys.  They were not experts on the law of Sales, and so they just filled out Answers from form books and winged it. 

Superior Floor Coverings, the retailer, was represented by a lawyer from a small firm, and for purposes of this blog I’ll call him “John Smith.”  As things progressed I would meet him on three or four occasions at the courthouse when he continually moved for more time to “conduct discovery” and “prepare for trial,” but as far as I can tell he never did anything to help his client.  Certainly he did not request any discovery from me (such as a deposition).  At one point I offered him a settlement: I would knock $4000 off of my damages as compensation for the use I did get out of the flooring.  He said he would get back to me about that, but he never did.  Superior Floor Coverings’s owner (whom I’ll call Alex Jones) was astounded to learn of this offer when I told him of it at the end of the case (see below), since Smith never mentioned it to him at all.  Waiting in the seats outside the courtroom at each of the scheduled hearings I’d gotten friendly with Mr. Jones as we sat there for long periods until Smith belatedly showed up.  While we obviously couldn’t talk about the case, Jones told me about his ongoing divorce trial where he was fighting with his wife over custody of their daughter.  He confessed he was weary of lawsuits and lawyers.  I sympathized.  His lawyer, John Smith, nicely dressed and quite flashy, talked a good game, but appeared to me to be all appearance and no substance; I did not, however, say that to his client until much later (also see below).

WonderFloors was represented by one of the largest and most prestigious law firms in Columbus, here called Big Firm.  Its Answer missed the “no notice” defense but did raise the defense of “lack of privity” between the manufacturer and me.  “Privity” means sufficient legal connection to sue.  Here the manufacturer sold to the retailer and I bought from the retailer, so there is allegedly no “privity” between the manufacturer and me.  This is a ridiculous concept in a world in which the manufacturer provided a warranty along with the product and that warranty was clearly directed to the ultimate buyer—and, after all, the manufacturer is the entity that should bear the liability for the defective product that it produced (as opposed to the poor retailer, who did nothing more than pass on the product to me).  But the Ohio Supreme Court had issued a ludicrous opinion some years before adopting this “privity” defense protecting out-of-state manufacturers (at the expense of Ohio retailers like Superior Floor Coverings), and when I had first read the decision, I decided it was clearly wrong, an example of how the Ohio Supreme Court sometimes just didn’t understand commercial law, and forgot about it.  Now I was annoyed that it had come to life and that Big Firm had decided to use it.  I debated challenging that decision in our case and, on appeal, trying to talk the Court (which had some of my former students on it) into changing the result, but that would take years.  Hmm.  I phoned the lawyer at Big Firm who had created their Answer (also a former student of mine, but to whom I had not taught Sales) and we talked.

I told him about another section of the Uniform Commercial Code, §2-607(5), which creates a process called “vouching in.”  It says that if a retailer is sued for a defect created by the manufacturer then the retailer can give the manufacturer a notice to join the lawsuit.  If the manufacturer does not do so the manufacturer is then bound by the factual conclusions reached at trial.  Big Firm’s lawyer had never heard of this “vouching in” notice, but I assured him I would tell John Smith about it and thus such a notice would likely be coming to WonderFloors shortly.  “Does Big Firm really want Mr. Smith to try this case and have the result bind WonderFloors?”  The Big Firm lawyer said he would get back to me.  In the event, I never heard another word from him, and I did dismiss the Complaint against WonderFloors, but told Smith about the vouching-in notice and sent him the statutory language to use when sending this notice to WonderFloors (thus binding it to the outcome of our lawsuit).

The judge kept setting a date for trial and Attorney Smith kept getting extensions for “discovery” that he never conducted.  Finally the court announced a date for the trial and it looked like we were ready to go, but suddenly in the mail I received a pleading filed with the court by John Smith in which he withdrew from the case because the insurance company of the retailer that had been paying his fee had decided that the policy did not cover this sort of legal problem.  The court approved his withdrawal the week before the trial was to start!

Astounded I phoned Smith and asked him what this was all about.  He explained that once the insurance company withdrew he simply couldn’t continue.  I asked him if he’d looked at the policy to see if the insurance company was right or just trying to wiggle off the hook, but he said no, he hadn’t.  I asked him what he had done to get his client ready for the trial.  He said he couldn’t go into that.  I asked him if he’d sent the manufacturer the vouching-in notice I’d provided advising them of their duty to participate in the trial or be bound by the outcome.  No, he’d never gotten around to that.  [I also later learned he’d not told his own retailer client about my settlement offer either.]  I was furious and my anger came through in my voice.  “You’re just dumping your client on the eve of trial!  You can’t do this!  You owe your client a duty of zealous representation according the rule of professional conduct.”  “Well," he replied, “technically my client is the insurance company.”  “No, it’s not!” I thundered.  “Your name is listed as the attorney of record for Superior Floor Coverings!”  Smith was done with this conversation, so he tried to cut it off.  “What should poor Superior Floor Coverings do?” I asked him in perhaps too loud a tone.  “Get a good lawyer,” was his outrageous response, to which I replied, “That would be something new because they certainly didn’t have one in the first place.”  He started to reply but I terminated the call, fuming.

I called Alex Jones, the owner of Superior Floor Coverings, who, as I said above, I’d gotten to know and like.  He was depressed.  I told him he should send the vouching-in notice to WonderFloors, and that I would send him the language to use in an email, so that the manufacturer would know that they would be bound by whatever happened at the trial.  Alex Jones said he would send that notice and thanked me.  I asked him what he was going to do and he confessed that he didn’t have the money for a new attorney.  “Isn’t there any way to make this go away?” he asked me.  “Well, replace the floor,” I replied.  He paused and then said he’d get back to me.

Within a couple of days he phoned me and said he'd worked out a deal with WonderFloors by which they’d provide a new and better flooring to by chosen by me from their online site and he would use his workers to install that flooring, all at no cost to me.  I was delighted with this offer.  It was all I ever wanted.  I drafted up the settlement agreement and we signed it, and I dismissed the lawsuit.  Within a month the new flooring (bamboo and imperious to scratches, etc.) was installed and the whole thing was over.  The flooring has now been in my home for almost a year and a half and it is still beautiful.  All I was out financially was the filing fee of the lawsuit ($123).  I did provide Alex Jones with the relevant forms and information for filing a complaint with the bar association against John Smith, though I have no idea if he ever did so.

The New Bamboo Flooring

When I teach this lawsuit to my Sales students I ask them what really happened here.  Did the attorneys do their job?  Did the rules of law help or hurt?  Think about that.

My conclusion is that the law failed everybody involved (except me) horribly.

First of all the Ohio Supreme Court should never have handed down a decision that was clearly out of line with what Congress intended when it passed the Magnuson-Moss Warranty Act, a statute designed to make manufacturers live up to the warranties they make to consumers.  Instead the Court read the statute to permit manufacturers to make warranties and only be liable to the retailer, thus leaving the consumer with no immediate remedy against anyone other than the retailer.  Such a “warranty” by the manufacturer to the consumer is no warranty at all, but the Court never discussed (nor, apparently, considered) the practicality of what it was doing.  Instead its mindless decision put all the onus of the manufacturer’s warranty breach on the poor retailer who sold the product to the consumer.  Yes, in theory, the retailer could then pass the liability back to the manufacturer, but John Smith, the attorney for the retailer, at one point told me that the contract between the two required such a suit to be brought in Georgia where the manufacturer was located.  Superior Floor Coverings couldn’t finance that suit.  Thus the Court’s decision meant that entity creating the defective product escapes liability because a technical lack of “privity” (legal connection) with the consumer.  Some other jurisdictions have also reached this ludicrous result, but most have not and the legal commentators all say it’s dreadfully wrong.

Then along came the retailer’s attorney, John Smith.  He took the case without a basic understanding of the law of Sales.  That’s malpractice, and he exhibited it by missing his best defense (lack of notice within a reasonable time by me, the buyer), and not knowing or using the vouching-notice to the manufacturer to come in and defend.  Smith took the money that the reatiler’s insurance company paid him, but he never did a lick of work on the case other than filing an Answer.  He didn’t send the notice I provided him that would keep the manufacturer on the hook, he didn’t conduct any discovery (and misled that trial court about this), and he bailed on his client in an inexcusable way when the trial finally was unavoidable.

Big Firm does somewhat better, but it also missed the best defense (my lack of prompt notice), and that’s malpractice.  My students had no problem coming up with it, but that’s because they do understand the law of Sales.  Why would Big Firm take this case if it didn’t have similar expertise?  The answer, alas, is that most lawyers think of Sales Law as just an extension of the law of Contracts, which they did study in law school, and believe (wrongly) that they can just wing it by copying defenses out of a form book.  Big Firm did find the privity defense, but that had a bad result: it left their client’s ultimate fate in the hands of the retailer’s attorney, which (see above) was a major mistake. 

I ask my law students what should Big Firm have done.  Hands go up to mention the lack of notice defense, but I tell them that isn’t what I would have done if I were the manufacturer’s lawyer.  I make the students sit and think about it.  Then I give them a clue.  “What should the lawyer have asked the manufacturer at the beginning?”

Long pause.  Finally a student raises his/her hand and gets to the real issue.  I always emphasize in my classroom this question: “What’s really going on here?”  Forget the law.  Look at reality.  What’s in dispute?  Who is right and who is wrong?  Do we need a lawsuit at all?  The student who’s hand went up was right in phrasing the issue as follows for my case, “Was there really a warranty breach?  I mean, was the product defective or was the buyer misusing the product?”  Yep.  That’s the right question. 

The Japanese have a saying that is often repeated: “If all you have is a hammer everything looks like a nail.”  Lawyers aren’t advisors with only one weapon: a lawsuit.  Lawyers, I tell my students, are problem solvers, and a lawsuit should almost always be the last resort, not the first.  Was it wise to spend whatever large legal fees Big Firm charges battling Douglas Whaley, an expert on the law of Sales, if the manufacturer was in fact at fault here?  Were I Big Firm I would have wanted to know about the product that was sold.  Did it have an “eggshell” finish as Whaley contended.  You can bet in the trial Whaley was going to come into court with a sample of the flooring and demonstrate how very easily it was marred.  If the client’s response showed that this lawsuit was a loser, then for heaven’s sake settle the damn thing!  What you don’t do is throw up a legal barrage of non-defenses, miss the big one, and hope “privity” will somehow get rid of that pesky Whaley.

Law (including the Ohio Supreme Court of course) failed all of the clients here that hired lawyers, vainly counting on their help.  As soon as the lawyers disappeared from the suit the clients themselves settled it easily and quickly.

I worry that’s all too often the case.  For someone who has devoted his life to the law, it’s a depressing thought.

Related Posts:

"I Threaten To Sure Apple Over an iPad Cover," April 8, 2011;

"The Payment-In-Full Check: A Powerful Legal Maneuver," April 11, 2011;

"What Non-Lawyers Should Know About Warranties," October 11, 2011;

"How To Write an Effective Legal Threat Letter," October 19, 2011;

“How To Win Arguments and Change Someone’s Mind,” August 5, 2012; 

"Mortgage Foreclosures, Missing Promissory Notes, and the Uniform Commercial Code: A New Article," February 11, 2013;

"Legal Terms You Should Know,” September 13, 2013;

“How To Respond to a Legal Threat.” March 29, 2014;

“Clicking on 'I Agree': Sticking Your Head in the Lion's Mouth?” September 27, 2014;

“A Guide to the Best of My Blog,” April 29, 2013;