For the past 18 months I have served as an Associate Area Legal Counsel with a large non-profit organization that conducts significant operations in West Africa.  During that time I have overseen all real estate acquisitions and nearly all real estate litigation by this entity in 17 West African Nations.

It’s been a singular experience.  I’ve not lived overseas for many years, and I have never before been in Africa.  I’ve seen poverty here like I’ve not experienced before.  I’ve been impressed with African resourcefulness, with African ingenuity; with what I have seen of resolve, commitment, heroism, good naturedness, courage and grit in the most trying and difficult of circumstances.  It’s been a testament to the strength of the human spirit and the ability of people to see the best in themselves and each other when it would seem there is very little to look forward to.  Our time here is drawing to a close.  In two weeks our assignment here will be completed and then we will return to the United States; in October we will be back in the San Francisco Bay Area.

Africa is an expanding worldwide presence, and it continues to grow.  Experts project that by the year 2050 the population of the African major metropolitan areas will triple.  The age of the average African is 19; this means the continent is poised to experience explosive population growth in the upcoming years.

Conditions are different here than in the United States.  In West Africa there is no social “safety net.”  There is no welfare program to speak of; no state-sponsored financial assistance for persons in need.  People here must make their own way without help from governmental programs.  The African “safety net” consists of one’s extended family, or if one has no family then of one’s neighbors – or even of total strangers.  Africans look out for each other; they have each other’s backs; that’s their “safety net” and it’s one of the most striking features of the African social fabric.

Litigation exists in Africa, but it’s expensive.  Few people can afford it.  Disputes exist, but because people have little or no money for court proceedings they settle their differences in other ways.  Traditional rulers, or “chiefs” have substantial influence in their local communities.  Disputes are frequently resolved by these “chiefs” in traditional, informal settings with no involvement by lawyers or court systems.

Mediation does exist here, but just barely.  ADR in West Africa usually consists of binding arbitration; mediation is almost unknown.  In another 30 years it’s possible that mediation may be as common here as it is in California, but it will take some time before lawyers and judges become familiar enough with mediation that they will appreciate how effective it can be.

Even though mediation is essentially unknown here, the dynamics that contribute to successful mediations are nonetheless present in every day life, but the stakes are much smaller.  Vendors walk up and down lanes of traffic all day trying to sell drinks or other items for 15 or 20 cents U.S.  Every sale is a victory, but the amounts of such sales are so small that people are sweating a lot in order to make sales that might total up to two or three dollars a day.

We know one young man (with a spouse and several children) who cleans houses for a living.  He recently realized that the competition for cleaning jobs is increasing and he needed to branch out in order to support his family.  He rented part of a shipping container that had been dropped on the side of the road with a doorway cut out of the side.  He operates a small retail business where he sells beans, maize, canned tomatoes, cookies, soft drinks and – stationary.  He’s smart; he’s savvy.  There are many vendors in his locale who sell exactly the same products he does.  It’s a bit of a situation where people who have no money are trying to make a living by selling inexpensive items to other people who have no money.  And yet he has analyzed his market to identify opportunities.  If a competitor sells a pencil for 20 cents, he’ll sell the same pencil for 15 cents.  He’s seen that his customers are entirely driven by price (with very little value on customer service).  He undersells his competitors where he can, and then on some product lines he buys in bulk so that he can get discounts; he then wholesales these products to his competitors.  When he does this he stops selling these same items at retail so that his new wholesale customers (who were formerly his retail competitors) feel comfortable in buying product from him.  That way instead of competing with other retail vendors for sales, he partners with these other vendors by supplying them with their goods – and by removing one point of competition (himself) he helps promote sales by his other retail competitors, thereby driving up his own wholesale business sales.

Brilliant.  Determine what you need, identify what the other side wants, and see if you can provide the other side with what they want – so that the other side can in turn provide you with what you need.  Instead of beating the other side down, restructure things so that the other side’s success enhances your own.

It’s a tried and true strategy that works as well in business as it does in dispute resolution.  Savvy mediators consider this dynamic one of the best tools in their toolbox.  But our African friend intuited it from the business dynamics he saw at work in his local community, and he capitalized on it to bring himself up by his bootstraps.  And why shouldn’t he?  Human nature and dynamics are interchangeable to some extent between cultures – and if such an approach works well in the United States, why shouldn’t it work in Africa?  The answer is “It does.”  This kind of analysis works well in any situation where people with competing interests are involved, regardless of whether those competing interests exist in business or dispute resolution.

Soft Considerations

Before I became a mediator I participated in many mediations where I served as legal counsel for one of the parties.  Most of the time we talked only about money.  It seemed like the plaintiff always wanted too much and the defendant always wanted to offer too little.  After wrangling about facts, law and responsibility for several hours we would finally get down to the business of figuring out just how much it was going to take for the plaintiff to dismiss their claims, or just exactly how much the defense was willing to pay in order to buy peace.

That’s still a common model for many mediations.  But after becoming a mediator I discovered some things I’d never known about mediation.  For many years I had said that mediations are resolved due to two things: Risk and Cost. 

Risk and Cost are readily identifiable as key settlement factors.  No litigant is ever guaranteed any particular litigation outcome, and finding out who if going to win and who is going to lose a case can be an expensive (and time-consuming) proposition.  In order to save their time and their pocketbooks many plaintiffs will agree to “take a haircut” on their claims; likewise, many defendants will offer more than they feel is reasonable just so they can put this case behind them.

But sometimes the prospect of losing a case just isn’t enough to get a settlement over the finish line.  Sometimes there are other considerations that are just as important – maybe even more important – than Risk and Cost. These “other considerations” take the form of pride, ego, saving face, respect, a desire to punish the other side, a desire to “teach them a lesson,” a sense of fair play or substantial justice.  I sometimes refer to these as “soft considerations” (in contrast with cold hard cash, also sometimes referred to as a “hard consideration”).  The importance of these “soft considerations” cannot be overstated.

When you hear someone decline to settle because “It’s the Principle of the Thing” then you know you are dealing with “soft considerations.”  When people say “I don’t care how much I get; I just don’t want them to get more” you likewise know you are dealing with soft considerations.  Sometimes parties will openly admit they are motivated by “soft considerations.”  If asked whether their dispute is “about the money” or whether it’s about “what the money represents” they will sometimes admit that the dispute is about “what the money represents.”  In those situations the money is a way of “Keeping Score” or “Receiving Recognition” or simply just about being respected.  Sometimes people will acknowledge this directly, but other times they themselves may not fully appreciate just how important these “soft considerations” are to their settlement posture.

Why is all of this important?  For two reasons.  First, if you don’t identify important soft considerations you may not be able to reach a settlement at all.  If these soft considerations are the things truly driving the dispute, then unless you have a limitless supply of settlement money available (and nobody does) you don’t make any settlement headway unless you satisfactorily deal with them.  Secondly, even though money is always important, if the true issues underlying the dispute are a desire for respect, equality or fairness then if you identify that early on you may be able to satisfy those concerns other than with money – which may make it far more likely a settlement will actually be reached. 

I’ve seen a multimillion dollar deal fail not because the money involved was insufficient – but because there was a perceived lack of respect.  Money talks – but sometimes respect talks even louder.  Be oblivious to these concerns and you may find yourself on the short end of the stick with unresolved disputes that could have been resolved if these soft considerations had been adequately identified and addressed.

Working Within the System – West African Style

We have been living in West Africa now for just over a year – we will return to the United States in October of 2023.

Before we moved to Ghana I knew very little about West Africa.  But I know more now.  Living and working in West Africa has been a singular experience.  I previously lived abroad for several years in Canada, England and continental Europe.  But I’ve never before experienced anything like West Africa.

During the past year I’ve been working closely with local attorneys to acquire real estate all over Ghana (and throughout West Africa).  This has required me to become familiar with the Real Estate law of Ghana, and what I’ve learned has been fascinating.

When the British first moved into Ghana they encountered a legal system that consisted of a collection of independent tribal legal systems that had been developed and were being administered by the local chiefs, elders and councils.  As British influence in Ghana expanded the British recognized that the best way of developing and administering a coherent legal system was for the British to recognize the existing “customary” law of each independent tribe and to allow the chiefs, councils and principal elders of such tribes to continue administering and enforcing their “customary” (or traditional) laws – both civil and criminal – as had been done prior to the arrival of the British. However, in order for colonization to operate successfully, the British needed British law to both be operative and to have supremacy over the local “customary” law.  The British therefore didn’t revoke the local tribal or “customary” laws, nor did the British abrogate the authority of the trial chiefs, but instead the British confirmed the authority of the local tribal chiefs and made them subject to British authority. Then, in addition to recognizing the local “customary” law the British introduced English law as the Supreme law of the land.  To the extent that local “customary” law was consistent with and not repugnant to English law, the local customary law was recognized and enforced, but whenever the local “customary” law was either silent on or repugnant to English law then the English law would prevail.  The British legal system therefore consisted of two separate legal systems consisting of local “customary” law and English law, working side by side, with the English law having supremacy.  This legal system was used in Ghana for the 207 years during which Great Britain occupied Ghana; it continued until 1957 when Ghana became an independent nation.  Following independence Ghana maintained this “two- part” judicial system, but the new nation of Ghana replaced some portions of the English legal system with its own new Ghanian law.

After arriving in Ghana I began working with local attorneys on several legal matters.  I quickly recognized that much of the Ghanaian legal system (which apparently had been carried over from the British colonial era legal system) was very familiar.  Many of the legal doctrines and principles I encountered were very similar to those I had worked with in the United States. For example, following independence Ghana maintained the doctrine of Stare Decisis so that the many judicial decisions rendered in Ghana during British colonial rule would remain binding. This makes Ghana a common law nation; the country recognizes writs of Habeas Corpus and the Independence of the Judiciary.  (World Factbook of Criminal Justice Systems).  When I encountered in Ghanaian law many of the legal doctrines, principles and procedures I had used in the United States I was at first surprised.  I subsequently realized that Ghana and the United States both share a legal history that originated with England.  Once I realized that the two countries had a common source for the origin of their legal systems I was less surprised at the commonalities that exist.

A significant aspect of Ghanaian law which I did not expect to encounter was the recognition and use of “customary” tribal law.  In the United States essentially all of the law I worked with was either State or Federal law. But I soon learned that in Ghana a substantial part of the law governing real estate ownership and conveyances is governed by “customary” or local law.  This was completely unfamiliar to me. I learned that during the colonial era the British colonial governors allowed the tribal chiefs to rule their chiefdoms and administer their local tribal laws in both civil and criminal matters. I learned that the authority of the local chiefs to enforce local law and decide local matters was maintained after independence such that in rural towns and villages the chiefs and principal elders still decide some civil matters and also try both minor (and some felony) crimes without ever involving the judiciary operated by the national government (World Factbook of Criminal Justice Systems – see also The Historical Development of the Legal System of Ghana: An Example of the Coexistence of Two Systems of Law). 

Ghana has a constitution which expressly provides that the “Customary” laws of local towns and villages (which are often unwritten) form part of the common law of Ghana. The constitution provides for a Supreme Executive, a Legislature and a Judiciary.  However, chapter 22 of the Constitution also provides that the “institution of chieftancy, together with its traditional councils as established by customary law and usage, is hereby guaranteed.” The constitution establishes a “National House of Chiefs” to undertake a codification of “customary law” (among other things).  Huge tracts of land throughout Ghana are owned by local tribes (which in Ghana are knowns as “stools” or “skins”).  These lands are administered by the tribal Chiefs.

Between their legal functions and their economic standing these tribal Chiefs wield enormous power in Ghana.  Local chiefs are selected not by election in the sense that we think of them in the United States but instead by local law and custom. 

This tribal system that operates on “customary” (and largely unwritten) law is only part of the highly interesting (and rewarding) experience that comes with working within the legal system of a West African nation for more than a year.

Experience of a Lifetime

My parents were world travelers.
They didn’t always travel. But when they did, they went for a year at a time. My father taught English at Brigham Young University for 39 years. This meant two things:

  • Our family lived on a modest income, and
  • My father received periodic sabbatical leave, where he could be gone for a year at a
    time and be paid half-salary during his absence

In the 1950’s my parents took their first year-long sabbatical. They loaded up my four siblings and carted them off to Europe, where my father picked up a Volkswagen Microbus (the forerunner of the Vanagon) at the Volkswagen factory in Wolfsburg, Austria (thereby saving a few dollars). Because my parents had limited funds, they planned to camp (outdoors) with our family through Europe for an entire year in the Microbus and a tent – and they planned to do this during the winter. As the weather grew colder and the snow began to fall, they quickly realized their camping plan wasn’t going to work. So my father visited the local US army base in Germany to see if there was a need for any faculty for the college courses being offered to US servicemen and women. The army didn’t need any faculty in Germany, but they said there were openings at the US base in Spain – so with no reservations, no plans and limited funds my parents immediately drove to Madrid where my father accepted a teaching position at the US Army base and my siblings enrolled in school.

In 1964 our family returned to Europe for another yearlong adventure. This time I was now a participant (I was born after the previous trip) and I can recall attending a catholic school in Austria that was run by nuns, as well as attending a school in Vicenza, Italy (where I wore a smock).

In addition to these two year-long trips, my parents later spent the better part of a year travelling through Burma, Nepal, Indonesia and Asia. They also spent 18 months as volunteer missionaries in the England, London South mission. They spent a year teaching English in Xian, China and another year teaching English in Shanghai. All told, they spent something like 7 years living abroad during their many travels. So it was no surprise two years ago that Jerie, my spouse of 35+ years, turned to me one day and said “You know, we could sell our house and go on a mission.” The thought had never occurred to me. I had been practicing law for nearly 35 years. I had spent a number of years building my own practice and had recently started serving as a mediator nearly full-time. I instantly recognized what this meant: if we did this then I’d need to return all (or nearly all) of my remaining files to my clients; I’d need to find a home for my remaining legal clients and I’d need to wind down my mediation practice. Because mediation is generally a one-day event, I knew I’d be able to work right up until the day we left on our mission, and when we returned I’d likely be able to pick up my mediation practice almost where I had left off.

So I agreed.

We got our house spruced up, put in some new flooring, ditched all of the assorted jumble we’d acquired in the 20 years we’d lived in our home and then put our house on the market. It sold quickly and effortlessly. We soon found ourselves living at my mother-in-law’s home of nearly 60 years; we stored all of our worldly goods in two 10×10 mini storage units nearby. We accepted an invitation to relocate to West Africa where I would be serving – without pay – in a Church legal position helping with all the legal needs that accompany a fast-growing church in a developing area. After three days of international legal training in Salt Lake City and another week’s worth of training in Provo, Utah we soon found ourselves in Accra, Ghana – where I now serve as a real estate missionary overseeing all the Church real estate acquisitions (and most of the real estate litigation) in 17 developing West African nations. It has been (and still is) a singular experience.

A year ago, I knew next to nothing about West Africa. I now know a whole lot more. We have been privileged to serve with like minded couples from all over the world who come here to serve (at their own expense) building Africa and serving its people in a hundred different ways – everything from literacy training to music education; from teaching self-reliance to facilitating spiritual and religious education; from drilling bore-holes for clean water sources to training young men and young women for successful careers; from facilitating higher secular educational opportunities for young people to interviewing people throughout West Africa as a way to preserve their oral histories. We have grown to know – and love – our local West African friends. We’ve been to their weddings and their funerals. We’ve taken them to dinner and been to dinner in their homes. We talk with them; we laugh with them; we worship with them. We’ve come to know their strengths, their struggles, their concerns, their joys, their challenges, and their sterling characters.

It’s the experience of a lifetime.

The Mediator Who Wasn’t

He came late.

The mediation was all set to begin at 9:30 a.m. But by 9:00 a.m. there was no sign of the mediator. The plaintiff was present with two attorneys. The defendant was present with two attorneys. Everything was all set to go – but no mediator.

At 9:00 a.m. I grew concerned. Where was the mediator? I called his office. No answer. I checked my email. Nothing. No text from him either.

What to do? I couldn’t reach him, had no idea where he was, assumed he was coming but didn’t know for sure. The parties had exchanged briefs a week before and held a pre-mediation phone conference. But now the mediation was ready to start without a mediator.

Finally at 9:20 a.m. I called another local mediator to see if he could serve as backup and do a mediation on 10 minutes’ notice. No luck – he was in joint session with a large group. If my mediator didn’t show up soon, I was going to have to do some quick thinking.

Finally, while I was on the phone with the other mediator’s office our mediator showed up – five minutes late. Why didn’t he call? Why didn’t he take my call when I tried to reach him earlier that morning?

We started the joint session and the mediator began asking questions. I was floored. He was asking questions about everything in my brief. After several minutes I realized he hadn’t read my brief – not at all. We then spent the next hour (in joint session) educating him about all of the points in my brief.

After he got his arms around the issues, the mediator started asking questions. He didn’t walk on eggshells. He dove right in and started asking pointed questions about sensitive issues –issues I’d just as soon not discuss in front of the other side. He drove right through the sensitive issues in my case and started making comments and observations in front of everybody in joint session.

Why would he do such a thing? Here we were at the start of the mediation and he was empowering the other side. How did he ever hope to convince them to take less when he was spending precious time in joint session driving roughshod over the weaker, more sensitive parts of my case and emboldening the plaintiff? In reality, I think he was pleased with himself that he had accurately identified the weaker parts of my case. I think he felt he was really getting somewhere. It all happened so fast that it was difficult to put an abrupt end to the joint session –I did not want to appear to be concerned about the questions he was asking. And then he did the same thing to the other side – probing the weaker parts of their case in joint session. I don’t think it even occurred to him that he was encouraging both sides to dig in to their respective positions.

We broke for caucus. Within an hour our mediator told me he felt the parties would shortly be at impasse. No surprise there. He had just spent the last hour in joint session entrenching the parties into their respective positions.

Why would a mediator do such a thing? This mediator came well-recommended. Why would he think such an approach would persuade either party to move off their respective positions? He was a seasoned attorney with decades of experience.

Effective mediators don’t encourage the parties to dig in. They use tools of risk, cost and uncertainty to help the parties see that a negotiated result gives them power over the outcome of a case. Skillful mediators look for hidden values and priorities that serve as powerful tools in helping parties re-evaluate their positions.

Our case didn’t settle. Would it have settled with a mediator who skillfully probed the client values and explored alternative options in caucus? I believe so. The day wasn’t entirely wasted because the parties learned more about each other’s “dig-in” points. But was it an optimal mediation? Not at all. With even a marginal degree of mediator skill, this case should have settled.

The upshot from this experience? We were reminded (once again) that a mediator’s skills are critical to mediation success.

The foregoing article is provided for general information purposes and should not be used in connection with any specific legal matter. Persons with legal issues or matters should consult competent legal counsel.

Robert B. Jacobs is a mediator and arbitrator in the San Francisco Bay Area. He mediates cases throughout California. Reach him at [email protected]

The Younger Crowd

My kids are all grown. They all have their own children. It’s been a few years since we had children living at home. But these days our yard is often strewn with plastic toys. After dinner we have lots of small bits of food on the floor and we once again have car seats in our car.

One of my daughters has come back to live with us – this time with her husband and three young children. With the current shelter-in-place orders, I’m spending a lot more time at home these days.

Frankly, I’d forgotten what it’s like. Life had gotten quiet over the past several years – and I’d grown accustomed to it. Things stay put where you leave them. No Cheerios on the floor. No sudden bangs from objects crashing to the floor. No raised voices of protest, objection or indignation.

I’d forgotten what it’s like. Then overnight everything was back as before. Except this time it’s different. After our own children grew up I went through mediator training. As a result I’ve developed a deeper sense of dispute resolution; of power and negotiation. I’ve now mediated scores of cases. And this time around I see the noise, the howling, the crying, and the frustration through new eyes. It’s not all bad. My new young citizens are learning the art of negotiation and dispute resolution first hand (and in a safe environment).

It’s a fascinating exercise. I see these young people (my grandchildren) using available tools to get what they want. Their actions are a study in power and control. What they lack in size they make up in volume, tenacity and energy. I sometimes see them weaponize their voices. If they feel they have no say in a matter they will level the playing field by using volume – instantly. Prized objects sometimes become the subject of carefully orchestrated negotiation. People (both children and adults) are played off each other. These children are unbelievably affectionate. But they are also becoming skilled negotiators. They use charm and their available power so interchangeably it’s almost like an alternating current. They are learning motivation techniques, value identification and how to push buttons. It’s truly a study in power (and human dynamics).

One of my grandchildren recently asked me for an item (but they asked me in an unpleasant tone). I responded that I’d be happy to comply with their request if they asked me nicely. The response was instant and rather than asking in a nice, pleasant tone of voice they turned to their father and made the same request.

Fascinating. I was ready, willing and able to give them what they wanted. But they wanted it on their own terms – and rather than submit to my terms (i.e. asking in a nice tone of voice) they tested their available power with another adult who might provide them with what they wanted (without having to submit to my terms). It was a complete microcosm of human relationships – and a study in power.

The outfall of all this has not escaped me. Sometimes I mediate probate or trust disputes where children have grown up. A mediator might think that child-era relationships in a grown family would have been superseded by intervening adult relationships – but this isn’t always so. Many of the family dynamics that existed decades ago when people were young are still fully present in these mediations. With my grandchildren under foot I sometimes feel like I’m watching relationships form in real time that will be played out over a lifetime.

Nothing is more fascinating than the people around us. It’s easy to think that children are lesser citizens because they lack power. Not so. I see them skillfully identify and use available human relationship tools every day. They act rationally, capably and intelligently (if we don’ squelch them because of own power). I recognize that their soft spots (sugar and television) may be more pronounced than with some adults – but that doesn’t detract from the brilliance of these young citizens. They are fully skilled and capable within their own orbits – even at two years old and watching them observe, capture and then shape their world is not only a study in power – it’s a study in joy.

Robert B. Jacobs mediates business, real estate, construction, personal injury, probate and trust cases throughout California. He is a designated SuperLawyer. He holds an AV rating with Martindale Hubble and is serving as the chair of the Contra Costa County ADR section and the co-chair of the Alameda County ADR section. Reach him at [email protected].

A Christmas Gift

            One of my favorite Christmas movies is “Miracle on 34th Street.”  In that movie, a little girl wishes for some family togetherness that she just doesn’t think will ever happen.  But after she meets Kris Kringle, she gets the togetherness she was looking for.  After she receives what she hoped for, the family drives out to the suburbs where a real estate agent meets them and provides them with keys to a wonderful home that is fully furnished. It’s a gift from Kris Kringle.

            A big part of the movie concerns the motives – and actions – of corporate America during the Holiday Season.  In the movie, some of the big Christmas retailers seemed to have big hearts, others less so.  It’s a wonderful Christmas show, but at the end it can seem like there’s nothing more – and that this is just a “feel good” movie.  But there’s more to Christmas – and similar Holidays – than just the shopping that goes on. And the good things that happen during the Holidays aren’t limited to just Holiday movies.

            Several years ago, I got to wrap presents for underprivileged children.  Some local real estate agents had identified underprivileged children who could use a hand-up.  They had contacted families, purchased gifts, and brought them to a central location where a small army of us wielded scissors, tape, ribbons and bows and wrapped up a big group of gifts for these youngsters. It brought out the best in us – a free gift of time to bless someone else whom we’ll never know and never meet.

            That year I also had the choice opportunity to work with a group of young men ages 12-15.  There were six of them, and I was assigned to help them shop on a sub-for-santa basis for a young girl who wears size 7 pants who needed “warm clothes or a jacket.”

            We drove over to Target with our six young men and two adult leaders.  We got into the store, and an experienced sales associate immediately saw our plight.  “Do you need some help?” she asked.  “Yes,” I said, “a lot of it.”  I explained to her what we were doing and who we were shopping for.  “Come with me” she said, and she took us over to the girls section, where none of us had ever been before.  She started helping us find the few meager warm clothes that were on display – some thin sweatshirt tops and pants, nothing that looked very warm.  “These are all on sale,” she said, “thirty percent off.”  My young men had a $40 budget to work with.

            I spied a single rack of good looking jackets – some pink, some lavender with purple accents – heavy, thick and warm.  “How about these?”  I asked “are these on sale too?”  The listed pricing was over our budget.  Our sales associate said “Let me see” and she left us to keep shopping.  She was gone a long time.  She eventually returned with a more senior sales associate.

            I pointed to one of the jackets and asked “Is this on sale too?”  The senior associate looked for sale or discount information, but couldn’t find any.  “Yes,” she said, “this jacket is on sale too.”

            “But no,” the junior associate said, “I rang it up. It didn’t show any sales discount.”

            The senior associate eyed us carefully. She knew what we were up to. If we didn’t get this coat, then our sub-for-santa recipient would get a few smaller things, less warm and thin.  “Yes,” she said, “these jackets are on sale.  For you, they are on sale tonight.”

            I asked my boys “What do you think?  This girl needs something warm.  Should we get some smaller, thinner sweats, or something that will keep her really warm on cold nights outdoors?

            The vote was unanimous.  We chose the coat.

            “Come with me,” said the junior associate, “I’ll make sure you get your discount.”  She took us over to the jewelry register which was vacant, and rang us up.  The total with tax was $39.97 – nearly all of our allocated budget.  Three cents to spare.

            We took the coat back to a central location, where we wrapped it.  We don’t know the girl who got it.  And we don’t know what her situation was.  But somewhere, there was a little girl who was very, very happy on Christmas morning when she unwrapped a warm lavender coat with purple accents. And she wasn’t the only one who was helped: our opportunity to serve this unknown little girl was also a joy and a blessing to my six boys and myself. It’s a big part of what Christmas is all about.

Unreasonable Music

As defined by Webster’s II New College Dictionary, the word “nuisance” means “something that is inconvenient or vexatious: bother.”  That’s a concept that’s easily understood – when something (or someone) is a nuisance, then there’s an annoyance, or a bother.

But there’s a slightly different meaning in the law.  Webster’s also notes that in a legal context, a “nuisance” is “a use of property or course of conduct that interferes with the legal rights of others by causing damage, annoyance, or inconvenience.”

These two definitions are the only two definitions of the word “nuisance” that is given in Webster’s II New College Dictionary.

There are many kinds of dictionaries.  In addition to dictionaries of English words (such as Webster’s) there are also dictionaries that define and describe specialty words.  For example, Means Illustratrated Construction Dictionary gives definitions (and pictures) of many different kinds of construction terms.  And it’s possible for anyone to purchase Mosby’s Dictionary of Medicine, Nursing & Health Professions.

There are also Legal Dictionaries that define legal terms, words and phrases.  One of these is Black’s Law Dictionary (seventh edition).  Black’s definitions of “nuisance” occupies more than a one and a half pages of text.  That’s a fairly clear indicator that “nuisance” is a concept that is pretty well developed in the law.  Black’s defines “nuisance” as “A condition or situation (such as a loud noise or foul odor) that interferes with the use or enjoyment of property.  Black’s notes that a “nuisance” isn’t necessarily something that is offensive to all people.  For example, Black’s cites a United States Supreme Court case from 1926 for an example of a nuisance: “A nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard.”  But Black’s also observes that the concept of “nuisance” has a wide range of applications.  “There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word ‘nuisance.’  It has meant all things to all people, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie.” (The original source of this statement is a famous legal work entitled “Prosser and Keeton on the Law of Torts §86, at 616.”)

The concept of “nuisance” is not new.  It’s been around for many, many years.  In an entertaining case from 1939, a New York court described as follows one particular case of nuisance “Claremont Inn, at 124th Street and Riverside Drive, is an old institution rich in historical incident. Acquired by the City in 1872, it has been under the jurisdiction of the Park Department, leased at various times to private persons to conduct as a place of refreshment. Renovated in 1934, it was converted from an expensive to a popular establishment. It consists of an indoor restaurant and bar and also a large outdoor pavilion with an outdoor modern dance orchestra. The outdoor section is open from about June 1st to the end of September. And the band plays from 7 P. M. to 1 A. M. (on Saturdays and holidays to 2 A. M.). It is noteworthy that this is the only open air dance orchestra in a residential section in any part of the City.”

The neighbors filed a lawsuit, asking the New York Court to order the Inn to close earlier each night due to “loud music, excessive noise, heedless conduct of its operators and boisterous behavior of its patrons.”  The court noted that “Assurances have been given for the correction of many of the offending practices, such as rehearsals of the orchestra at 3 A. M.; the removal of refuse cans, and deliveries by tradespeople, with attendant clatter and rumbling of trucks, early in the morning; and congested traffic and parking, with resulting clamor and shouting, when the patrons of the Inn depart. But the defendants insist upon continuing the outdoor band to the hours above specified—and the residents of the district, claiming that their sleep is disturbed, insist on an earlier hour.”  The case is reported as Peters v. Moses (1939) 12 N.Y.S.2d 735.

This was evidently quite an event each evening.  The outdoor dance floor was located in a residential neighborhood.  The dance band held rehearsals at 3 a.m.  The band played until 1:00 a.m. each evening, except for weekends when it played until 2:00 a.m.  With all of the noise, disturbance, and clamour of an outdoor dance, the neighboring residents were understandably up in arms.

Open House Has Surprising Result

            On any given summer weekend, it’s possible to drive around suburban neighborhoods and see realtor signs out on the sidewalk.  It’s a known fact: Realtors hold open houses.  These open houses can be a great opportunity for buyers of real estate to check out a neighborhood, check out a potential new home, or even check out a realtor.  No appointment is necessary – all you have to do is get in a car, find an area you like and start driving.  If you’re lucky, you might even score some refreshments.

The history of theft, fraud, and abuse is as old as mankind.  Stories of theft, fraud and abuse go all the way back to the earliest recorded histories.  So it’s no surprise that sometimes people come up with new ways of doing an old thing – which is trying to get something for nothing; an effort to get something without working for it and without paying for it.  The problem is, people who try to make a fast buck illegally often underestimate the true costs of such activities – the emotional drain they experience from working outside the law, the risk and fear of getting caught, always looking over their shoulder, and then ultimately the consequences if and when they do get caught. It’s just bad every which way.

In the old days, Burglary was sometimes defined as breaking and entering into another’s dwelling at night with the intent to commit a felony.  The modern law is usually not so limited.  Burglary is no longer usually limited to an entry at night, and Burglary is generally no longer limited to entry into residential properties.  Therefore, an unauthorized entry into a commercial property with an intent to commit any larceny (i.e. theft) or with an intent to commit any felony can qualify as burglary.  Most people probably think of a burglar as someone who unlawfully enters into a property with the intent to steal something.  This might be the most common result of burglary – a theft of something — but a burglary can also exist where there’s an intent to commit any felony.

Differing degrees of burglary exist.  First degree burglary generally includes burglary of an inhabited dwelling house, or an inhabited floating home, or an inhabited trailer coach, or the portion of any building which is inhabited.  Second degree burglary is any burglary which is not first degree burglary.  There’s a long history in the development of the law concerning burglary.  These definitions aren’t the full story concerning burglary – but they are a starting point.

It seems that in June of 2010, a realtor was holding an open house in California.  Two individuals attended the open house.  Once inside the property being shown, the individuals split up.  One of the individuals spoke with the realtor for several minutes, and the other disappeared for a few minutes inside the property.

After the individuals left the house, the realtor realized her wallet was missing. Her wallet contained several credit cards, a gift certificate, and a lottery ticket.  The realtor looked about the property and her car for her wallet, and contacted her roommate at home to see if she had left the purse at home.  She couldn’t locate the wallet, and so she called the police.

An on-duty police Sergeant heard the radio dispatch about the stolen wallet while he was out working in the field.  He spotted a pickup truck that matched the description from the dispatch.  He made a traffic stop, searched the pickup truck and found the realtor’s credit cards in between the seats.  The realtor made a positive identification of the persons in the pickup truck.

One of the suspects was charged, and after trial was convicted, of first degree residential burglary, second degree commercial burglary and fraudulently using an access card.  On appeal, this individual claimed, among other things, that he was not guilty of first degree residential burglary because the occupants of the house were not present at the home at the time he was there.  He argued that first degree burglary can only exist for a dwelling which is occupied, and that because the residents weren’t there at the time of the open house, the property wasn’t “inhabited.”

The court of appeal disagreed, and found that the property was “inhabited” but that the occupants were “temporarily absent” at the time of the open house.  The court of appeal affirmed the judgment of conviction.

The single theft of the wallet from inside a residential property resulted in the individual being convicted of three crimes, one of which was first degree residential burglary.  It was a high price to pay for stealing a wallet.  The defendant was sentenced to 21 years and 4 months.

The case is reported as People v. Little (2012) DJDAR 7965.

This article only summarizes some of the main points of this case.  The complete facts and law involved in this case are more detailed and complex than those summarized here.  Nothing in this article should be relied on in any specific situation, because the considerations in any specific situation may require different considerations or may provide a different result.  Persons with questions or issues concerning the legal issues raised in this column should consult competent legal counsel.

Pirate Ship Sails On

            Several years ago, we visited the Paramount Theater in Oakland, California where I saw for the first time “The Black Pirate” starring Douglas Fairbanks.  The film was released in 1926. It was a “silent” movie that had been filmed in black and white.  While we watched the film, “The Mighty Wurlitzer” organ was played by a superbly talented organist. The “Wurlitzer” supplied all of the music that was necessary to accentuate the drama, excitement, and emotion that accompanied the film.

The film is about a young man who swears to avenge his father’s death against the band of pirates who were responsible.  Douglas Fairbanks infiltrates the pirate band, and eventually makes good on his promise of revenge.

After the movie was over, I called my own father to give him a report of the movie.  I thought that we had discovered something new with this movie.  After I said that we had just finished watching “The Black Pirate,” my father took me completely by surprise by describing in glowing terms a dramatic scene where Douglas Fairbanks leaps from the mast of the ship, plunges a knife into the sail, and slides completely down the sail to the deck, using the drag from the tearing mast to slow his descent.

I never knew my father to go back and watch old movies.  My father was born in 1918 and The Black Pirate was released when he was only 8 years old.  This meant that my father probably remembered this thrilling scene from his own boyhood, when as an impressionable 8 year old he saw The Black Pirate in a theater at the time it was first released.  He had remembered that scene for some 70 years, and recounted it to me after I told him we had seen the film.

Eight year old boys are impressionable.  No doubt about it.

News reports in recent years have shown that piracy has been a continuing problem in some parts of the world.  But it’s unlikely that most people are likely to ever have much interaction with piracy – unless they happen to run across the “BLACK PRINCE” (which “BLACK PRINCE” has no connection with the “Black Pirate” movie described above).

It seems that a company in Maine owned a vessel known as the “BLACK PRINCE.” It was “designed to resemble a pirate ship and to carry passengers on pirate-themed excursions.”  This company in Maine leased the BLACK PRINCE to a separate company that was headquartered in Florida.

The Florida company had the BLACK PRINCE transported to Florida via truck (it makes you wonder why they just didn’t sail the ship from Maine to Florida under its own power.  Perhaps pirate ships aren’t well-received these days along the eastern seaboard).  After the ship arrived in Florida, the United States Coast Guard performed an inspection, and found that the ship was powered by an outboard engine supplied by gas fuel tanks.  The Coast Goard issued a certificate of inspection that prevented the use of “open flames” aboard the BLACK PRINCE.

When it was sailing in Maine, the BLACK PRINCE periodically fired a “yacht signal cannon” as part of its “pirate theme excursions.”  However, the written lease didn’t say anything about a “cannon.”

The Florida company apparently wanted to use an onboard cannon as part of the “pirate” experience.  But the BLACK PRINCE was shipped from Maine to Florida without the cannon, so the Florida company ended up purchasing its own “Standard Black Winchester Cannon.”  (Incidentally, these “Standard Black Winchester Cannons” are apparently still available online).  The Florida company only paid 2 and a half months of lease payments and then discontinued making any further lease payments.

The Maine company repossessed the ship and sued the Florida company for breach of the lease agreement.  In its defense, the Florida company claimed that the Maine company breached the lease because it agreed to provide a pirate ship that could use a cannon, and the Coast Guard’s inspection certificate prevented any open flame aboard the ship.

The matter proceeded to trial, and the court found no evidence that the coast guard certificate prevented use of the cannon.  The court further found that even if the Maine company “breached” the lease agreement, that such “breach” wasn’t “material” and so the Florida company was left without excuse for not making its lease payments.

The end result?  The Maine company who owned the ship received a judgment against the Florida company for $67,386.79 for breach of the pirate ship lease.

So what was the cost to lease a pirate ship?  In this case, it was $3,700 per month, plus 5% of the gross sales.  The case is reported as Culebra II, LLC v. River Cruises and Anticipation Yachts, LLC (2008) 564 F. Supp. 2d 70.