I think most weblog readers know that I am the updating editor for O'Connor's Federal Rules * Civil Trials, put out by Jones McClure Publishing in Houston. I got a call today from a person - allegedly a law student - with some questions about the book that I just had to pass along. I get these occasionally, but never one this entertaining. (The number's not from Texas, so thank goodness this is not a student at a local law school).
First of all, the caller identified herself as a law student with a question about the book and asked my paralegal if she had ever read the federal rules because they just did not make sense to her. (Can't really blame her, although in light of the 2007 style revisions, I bet Bryan Garner's feelings would be hurt). The question - I found out when I called her back - was whether I knew of a commentary on the federal rules that was more readable than O'Connor's because - get this - her profesor was giving a test on something and it was open book and they could use O'Connor's, and she wanted something that was better than our commentaries for use in an exam. Because, first of all, the professor already knew O'Connor's, so she wanted something different so it wouldn't look like she was copying from it. (You're thinking the same thing I am, aren't you?). So I told her I didn't know of anything else that would be better to read to help her draft her "original" - and certainly untainted by O'Connor's - answer. (I couldn't help but remember when I was in Practice Court at Baylor and we weren't even allowed to bring the book to class. Judge O'Connor was pleased beyond words to have been banned at Baylor. I attributed it to the centerfold with the deadlines for motions for new trial and yes, that is what would have made Professor Muldrow the maddest).
But also, she didn't think the commentaries were very useful because, like, there wasn't a section on every subsection of the rule. So, like where there's Rule 12(b)(6)(a)(1)(ii), there's, like, not a specific section on that subsection, see? So what does she do when the professor asks about what that section is and the book doesn't have a commentary on it? Well, I told her that the secret weapon in every really skilled attorney's arsenal is ... wait for it ... to actually read the rule itself. Don't start with the commentary or a case - just read the rule and tell the professor what it means. It's a pretty good bet that courts won't have interpreted the rule or statute to mean the opposite of what it says. But see Thermtron; but really see Tedford.
Well, that didn't make her happy - she said her worst nightmare was not writing down the right subsection of the rule, and what does she do about that? Does she just have to memorize the rules? I confirmed once again that this is an open book text, so just look at the number next to the section she's discussing and write that down carefully. (I swear, I am not making this up - I am not even exaggerating).
She then asked me what the difference is between 28 USC 1331 and 28 USC 1332 because well, they just look the same to her. I thought maybe I was remembering them wrong, so I looked them up, and yes, 1331 is one sentence long, and 1332 is, well, about three dozen paragraphs. I am not making this up - that's what she said. So I mentioned the little size discrepancy. No response. (In fairness, I'll bet she meant 1391(a) and (b), because those little buggers are pretty nearly identical. She didn't say she had the sections wrong when I brought it up, but that makes a lot more sense than what she said. And around here you get used to figuring out when a jury's request for def's exhibit 63 is really a request for plaintiff's 36).
But back to the call. She then asked what she does when the professor asks a question - what should she look at? Well, maybe an open book exam is not easy enough, I tell myself, so I try to think creatively, and suggest that she ask the professor if she can add to the open-book an option to "phone a friend" like on Who Wants to Be a Millionaire, and she could just give me a call. (I swear on my not-yet-dead mother's grave I said this, and I have a witness - my legal assistant Pam who's howling in the next office as all this is going on). She doesn't even figure out I'm joking, and thinks about it some more and after a few more questions says thank you for your time and we hang up.
Some days this job is just too much fun.