Legal realism (or why I should immediately be found incompetent and taken to the home for old folks)

I am still in Omaha. My civil case went to the jury yesterday afternoon. They left at 5:00 pm. I hope they return today. My instructions weren’t that bad.

Yesterday, at noon I was wolfing down a sandwich and doing research. Jim, my brilliant career law clerk, who helps me with jury cases, was doing the same thing. We were stressed. More about that important lunch later.

The case before us is a sad one with a lot of money at stake–an amputation of a leg after a crushing injury. The lawyers are good.

No, that’s wrong. The lawyers are some of the very best. They fight like hell for their clients, but they are civil and professional to each other and everyone else. I really like them as human beings. They are quick witted and wry. Better still, they tolerate my jokes.

Murray Ogborn and Mike Ogborn represented the plaintiffs (husband and wife). A great duo those two lawyers. (I have known Murray forever.)  Mike is Murray’s son. Sorry Murray, Mike just might be better than you are! They know how to appeal to a jury using ethos (an ethical (truth telling) appeal) rather than the weak pathos (appeal to emotion) that so many plantiffs trial lawyers use to no good end.*





On the other side, for the “monster” corporation (Murray’s description at closing), sits Chris Tjaden. He is from a venerable defense firm. All alone, Chris represents his client with the understated manner of a great defense lawyer who knows how to appeal to jurors by striking at the plaintiffs’ weak spots and avoiding entanglement with minutiae. Chris properly and skillfully uses logos (logic)to slice and dice.

Back to my lunch of yesterday. So, I am eating a ham and swiss sandwhich at noon, while trying to do research about something Mike brought up, when the prongs on my oral appliance for my fake front teath decide to impale the underside of my tongue.


Since I recently had two teeth taken out on the right lower jaw, the prongs on the right side of the appliance are free to engage my tongue. I haven’t had time to see my dentist to fix the prongs. Ultimately, I ripped the appliance from the underside of my tongue. I started laughing at myself in a manic way as blood mingled with a piece of ham and swiss that I spat out on the cherry wood desk the government bought.

Thank goodness my tongue stopped bleeding, and I was able to take the bench and get the case to our attentive jury. As I write this, I am sitting alone in a motel room in the early morning and wondering how in the world I became a Senior United States District Judge.

I can’t even eat a ham and swiss sandwich without stabbing myself in the tongue. Will somebody please help me?


*For more on the three modes of persuasion, see here.



11 responses

  1. Looks like a law suit to me. Hardware store, small file, dull sharp points. Worked for me.

  2. Why don’t you get implants? They are supposed to be better than the real thing, and must be a lot better than having to wear that contraption in your mouth. Reminds me of when I had braces, and then the retainer. I hated that thing!

  3. Of course, you could just leave your front teeth at home, and eat your sandwich with a knife and fork. If you can handle the pointy things on the knife and fork.

    Or you could stick to soup.

    Eric Hines

  4. Hockey smile! Implants might no be a great idea if your immune system is not up to snuff.

  5. I have one of those “appliances”, too. Never have impaled my tongue, but I dropped it about fours years ago and knocked it out of alignment – I fixed it myself and now it seems to fit even better. You would have been a great sight to the jury with blood pouring out of your mouth to complement your present “zombie” appearance. 🙂

  6. MOK, fixing it myself is next up. Trouble is the prongs are stainless steel and I doubt I have the tools to cut threw them. But we shall see.

    Thanks for being a fellow traveler. It is good to know that I am not the only fellow out there with screwed up toofs!

    All the best.


  7. Lucky you didn’t need stitches! I had stitches in my tongue when I was six years old – not fun.

  8. > Looks like a law suit to me.

    “The Honorable RGK vs. three lower left teeth” sounds a little like Scott’s recent uncivil forfeiture case.

    Or is it a criminal case, for a AUSA? — assault on Senior Judge, in public, with witnesses, no less.

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