TO-WIT: NAMES OF THE GAME

By S. Sponte, Esq.

I am not what one might call a specialist in the law, unless of course, you consider the ability to survive for more than 25 years a specialty. Yet from time to time I find myself treading into the more arcane areas of the law where I am neither as comfortable nor as knowledgeable as I am with more mundane matters. I think I read somewhere once that an attorney should not undertake a case in an area of law in which the attorney is not competent, but in the particular instance, I am about to relate I had the most compelling reason of all for doing so –- a paying client.

The matter involved preparation of a complex estate plan, and the client’s accountant had given me strict instructions to make certain I incorporated a “Crummie” provision into the trust document. I was about to retort that all of my trust provisions were crummy, but my experience with accountants and their senses of humor made me think the better of it. “But of course,” I responded instead, “I always do,” and as soon as I got off the phone, I called my own accountant. “Hey, Bob,” I asked, “what’s a “Crummie” provision?” “Judging by what I’ve seen, I’d say all the trusts you draft,” he replied. All right, so he’s unusual for an accountant.

After he had had his little chuckle, he explained it to me. It has something to do with tax-free annual gift-giving between parents and children by way of contribution to a trust, and it derived its name from a case in which a litigant named Crummie successfully challenged the IRS. I’d explain it in greater detail, but the truth is, I finished my work on this file well over a week ago and I just don’t remember it anymore.

Anyway, he faxed me the language of the provision and I incorporated it whole hog into the trust document I was working on. I then faxed the whole thing to the client’s accountant with a fax cover sheet that merely said “Satisfied now?”

It soon thereafter occurred to me that here was yet another example of a case name that has found its way into the jargon of the profession as an appellation for the holding of the case. Now “Crummie” stands together with such other notable examples as “Miranda,” as in “Miranda warning,” “Melzer,” as in “Melzerize,” “Lemon,” as in “Lemon test,” “Bobbit” as in, well, you know, and God knows how many others.

It’s that “God knows how many others” that gave me pause. There must be literally thousands of examples of such cases that have evolved into our lawyer’s rhetoric, some as well-known as the examples cited but many others obscure and not often used.

All of a sudden it struck me that what we as a profession need is a well-researched compendium, a modern dictionary of such cases, the better by which to illumine our way. Accordingly I have spent much of my time recently applying my vast intellectual resources to the task, and the examples that follow are the result of my exhaustive but certainly incomplete research.

VITO CLAUSE – Named for the Mafioso litigant who insisted that it be incorporated into his divorce settlement agreement, it provides that the husband shall retain full and exclusive use, ownership and enjoyment of all white neckties acquired during coverture.

HOPPIE ORDER – Another example from family law, this one awards sole custody of minor children to whichever parent more looks like Hopalong Cassidy.

GORNISCHT PETITION – A latter-day version of in forma pauperis developed by famed bankruptcy attorney Marvin Gornischt, it seeks leave of court on behalf of a destitute debtor to appear for trial dressed only in underwear.

CLAMMY BRIEF – From a landmark divorce case, it argues that a wife of 30 years should receive nothing by way of equitable distribution because throughout the marriage the very sight of her naked body made the husband cold and sweaty.

GEVALT ANSWER – From the guest passenger case of the same name, it responds to a claim for damages by admitting liability but suggesting that as a result of the combination of deep-seated guilt and congenital neurosis, defendant has suffered “enough already.”

Well, that should give you some idea of the rich and varied panoply of case-based phrases that have found their way into our idiom. If you have any examples of your own, please let me know so I may include it in my final draft. There’s no need to be shy, I promise you that if I use anything you send me, I’ll do everything in my power to keep your name out of it.

Copyright 1996, S. Sponte, Esq.