Dr. Benjamin Brandreth’s Universal Vegetable Pills

I recently went to my grandmother’s funeral in Vermont and I thought some of my grandmother’s family history would be interesting to legal readers.

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Caroline “Joyce” Knepper was born to Ivan L. Stanton and Marion Ida Hunter on December 28, 1930.  Her first home was a cabin on Brandreth Lake. Eighteen months later, she became a big sister when her brother, Emlon, made his appearance. Her father, Ivan Stanton was an Adirondack guide and caretaker of the Brandreth family’s rural 30,000 acre retreat. Her mother, Marion Hunter, was a homemaker at the family’s Brandreth Lake home. When Joyce was growing up on Brandreth Lake, the only way to reach her house was by a train to Brandreth station, and then switching to station wagon for the long 7.5 mile trip down the unpaved road. In the winter, the family’s home  was only accessible on horseback or by sleigh.

Joyce was homeschooled by her mother at their kitchen table. On Sundays, they sat in the living room listening to a church service on the radio. Summers were spent swimming, boating, fishing, hiking and picnicking. She enjoyed picking blueberries and making homemade ice cream with ice that had been cut from the lake and stored in sawdust in the ice house. One of her fondest childhood memories was riding the railroad handcar to a fishing spot known as “St. Agnes’ Chapel.” In the winter, the family would ice fish and spent many long hours snowshoeing through the trails.

Rural living had its drawbacks, though. When Joyce was seven, her appendix ruptured. Her parents put a mattress in the station wagon and drove to the nearest train station, where they had to a take a train to get to the nearest hospital. The family moved to Worcester, Vermont soon after that, enabling the children to attend public school and have other children for friends for the first time. Later, my great-uncle Emlon would take over as caretaker and guide at Brandreth.

Here’s a little bit of history about the Brandreth Park, where my grandmother grew up:

Brandreth Park is the oldest family-owned forest preserve in the state of New York. Wikipedia entry here.

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Dr.  BenjaminBrandreth was born in England and came to this country in 1835. He was the son-in-law of an English apothecary who developed and patented the first laxative pill, thereby creating the family’s fortune. In 1851 Dr. Benjamin Brandreth, having made a fortune with his “Brandreth’s Universal Vegetable Pills”, bought Township 39 in Hamilton County  of upstate New York, consisting of 24,000 acres (97 km2) in the Adirondacks  of New York State; he paid 15 cents an acre. In this manner he established “Brandreth Park,” the first private preserve in the future Adirondack Park.  Included on the property is 890-acre (3.6 km2) “Brandreth Lake.” Consequently, Hamilton County is one of the least densely populated counties in the eastern United State. The property is mountainous and heavily forested.

A joint venture between Thomas Allcock and Dr. Brandreth led to the development of the Allcock Porous Plaster company in Ossining, NY (known historically as the village of “Sing Sing”). The name of the firm eventually changed to Allcock Manufacturing. After Brandreth’s death, control of the firm eventually moved to his great-grandson, Fox Brandreth Conner, who began manufacturing animal traps along with pills and plasters. After a pause in production for World War II, production of the traps resumed and the Havahart brand became a registered trademark. Conner sold the pill and plaster business in the 1960s thus ending Brandreth’s medical legacy, but continued making the Havahart traps. In 1979 the Havahart trap business was sold to the Woodstream Corporation of Lititz, Pennsylvania, and the remaining property in Ossining was sold to Filex Steel Products Company. The remaining 34 employees in Ossining were offered jobs in Pennsylvania with the new owner, but many retired, thus ending the 142-year legacy of Brandreth’s enterprise

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This undated photo is from my grandmother’s papers shows the plant in Sing Sing:

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My great-grandfather once made breakfast for General Patton, who came to Brandreth Park to meet with Fox Conner. There is an interesting article here about Brandreth’s role in the war.

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A building on Brandreth Lake, pictured above.

Here are some of photos from my family’s collection showing fun times at Brandreth:

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I think this might actually be my great-grandfather, but it’s hard to tell with the hat on.

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Throughout its ownership by the Brandreth family, the property has been managed in a way to preserve as much as possible its native character. In order to preserve the property’s primitive character, all development is limited to the north end of Brandreth Lake, and no motor boats are allowed on the lake. The family anticipated the concept of cluster development which became popular in the 1990s by concentrating all building on the north side of the lake, thereby ensuring pristine views toward the south. Property owners, all descendants of Dr. Brandreth, need to apply to the building committee of the Brandreth Park Association before building.

The property was not logged for many years, as the family desired to maintain it in a primitive condition. However in 1911-1919, a softwood harvest was performed by the Mac-a-Mac Lumber Corporation, of which John N. McDonald and Benjamin Brandreth McAlpin, son of Gen. Edwin A. McAlpin, were principals. This first harvest was extensive, with between 30-35 railcars of spruce logs shipped daily to the St Regis Paper Company’s plant in Deferiet. Additionally, Mac-a-Mac was storing an additional 70 carloads of cut logs in ponds and lakes for later transport off the property. A second harvest took place in the mid-1920s. Since then the family has permitted occasional selective harvesting.

In the 1950s, the Brandreths sold 6,000 acres (24 km2) and donated an additional 9,000 acres (36 km2) to Syracuse University while retaining recreational usage rights in perpetuity. Around this time the family created the Brandreth Park Association to provide a vehicle for each family member to have a voice in the management of the property, and to help pay for taxes and other operating costs. In 1992, the Association enrolled the property under the New York State Forest Tax Law which provides for an 80% exemption from property taxes in exchange for a commitment to sustainable timber production. In 2007, some members of the family established a nonprofit organization known as the Shingle Shanty Preserve and Research Station in order to preserve and protect the land adjacent to present-day Brandreth Park, on which the family still retains recreational rights. This tract was last owned by the Nature Conservancy.  The Shingle Shanty Preserve and Research Station makes the Shingle Shanty property available to outside parties for research subject to permit.

So, now you know something you probably didn’t know before!

Friday Funbag: The Craziest Named Places in Arkansas

Arkansas made the #1 spot in Buzzfeed’s “Places You Won’t Believe Actually Exist List” with Toad Suck, but that doesn’t nearly cover all the strangely name places in Arkansas here’s my list:

Bald Knob

Possum Grape

Booger Hollow

Rooster Poot

Goobertown

Greasy Corner

Smackover

Ben Hur

Apt-When railroad crews designated a junction site in Craighead County well over a century ago, local farmers wondered about a name. One man quipped that the “railroad people will be apt to name it.” The name Apt stuck.

Ink-Local tradition says that a Polk County school teacher sent out notes to patrons requesting possible names for their new post office. Fearing penciled entries might be difficult to read, she requested that they please “write in ink.” Many did…and Ink was the winner.

DeQueen (pronounced “DEE-queen)-the only town in America with this name, which was a poorly Anglicized Dutch name.

Snowball (which is mostly funny because it was the result of a paperwork mixup; residents petitioned to have it named “Snow Hall” after a Mr. Snow).

Turkey Scratch

Stamps-Also the only place in America with this name.

And a whole slew of places with the word “negro” in them (which were actually upgraded to be less offensive…):

Negro Bend, a historical populated place in Drew County
Negro Bill Point, Woodruff
Negro Branch streams in Howard and Yell counties
Negro Creek, Scott
Negro Head Corner, a populated place in Woodruff
Negro Head Slough, Greene
Negro Hill, in Faulkner, Izard, Van Buren and Pope

Anders Briefs: The Genius Behind Simply Telling the Court How Bad Your Client’s Case Really Is

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We must all be candid with the courts, this we know. But, how often is it that you get to tell an appellate court just how completely horrible a client’s position really is? Never, that’s how often. Unless…you’ve got a no-merit brief up your sleeve.

The Anders Brief

But, wait…how is that fair to an appellant? Even if you an appeal would be frivolous, it still seems kind of funny to just put it out there like that. BUT! That’s the genius of the Ander’s/no-merit brief. The client is protected in multiple layers, the attorney does not have to argue a frivolous appeal, and a little money gets saved along the way. Genius.

A no merit brief, commonly called an Anders brief, is definitely something I didn’t learn about in law school. The Anders moniker comes as a result of  Anders v. California, 386 U.S. 738 (1967), where an attorney filed a motion to withdraw from the court-appointed criminal appeal, based on his belief that any grounds for appeal were frivolous. The Supreme Court ruled that any such motion must be accompanied by a brief outlining the case and any potential (albeit possibly frivolous) grounds for appeal, that the appellate court must independently review the case, and that a defendant must be allowed the right to appeal either pro se or by through other counsel. In Arkansas, criminal briefs are also guided by Ark. Sup. Ct. R. 4-3(k).

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Basically, here’s how it works:

  • An indigent Appellant is appointed counsel. Case is tried in trial court.
  • Appellant tells counsel he wants to appeal.
  • Counsel files notice of appeal. Trial counsel may proceed as appellate counsel or new appellate counsel (usually) is appointed.
  • Counsel petitions for Transcript on Appeal (for State to cover costs of preparing the transcript).
  • Court reporter prepares record (Note: a two-day trial costs about $2,000; supplemental hearing transcript typically runs $300-$1000, but don’t think that court reporter doesn’t work for every cent of it…).
  • Counsel reviews record, determines any appeal would be based on frivolous grounds. (“The test for filing a no merit brief is not whether or not there is reversible error, but whether an appeal would be wholly frivolous.” Tucker v. State, 47 Ark.App. 96, 885 S.W.2d 904 (1994).
  • Counsel files a motion to withdraw and an Anders brief, which outlines the case and any possible grounds for appeal, even if potentially frivolous. You can read an example of a recent Anders brief here.
  • Appellant is given a copy of the motion and brief.
  • Appellant is notified of his right to file pro se points. You can read the pro se points in our example case here.
  • If he accepts, he files his own appeal. State can respond. You can read the State’s reply brief in our example case here.
  • Court of Appeals must review the record for potential error.
  • If the Court of Appeals determines that there is no merit to the appeal, it may issue a memorandum opinion relieving counsel and affirming lower court’s judgment. In re Memorandum Opinion, 16 Ark.App. 301, 700 S.W.2d 63 (1985).
  • Appellate attorney files for fee. In our example case, it was $1,800. Wait, he didn’t take the appeal because he thought it was frivolous! Yeah, but he still had to review the entire record (they are quite large, if you’ve never seen one) and make determinations about places of possible error, and write a brief about the same. That’s a lot of work.

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A Sad but Funny Memory from Law School

I had a funny recollection today of a conversation I had my third year of law school with one of my professors. We were discussing having children v. having a highly intense legal career. She said, in response to my question about whether you should put off having children, “Oh, that’s easy. One, you can only do for a little while; the other, you can do whenever.” 

I nodded slowly. Finally, I asked: “Just to be clear, which one is which?” 

“The kid is the one that you can only do for a while.” She didn’t even laugh at me. 

Now that I have two kids under three, I can see exactly what she meant. I’m not sure I would have the energy to do it at 40!

Defense Counsel Moves for Protective Order Based on Inability to Countenance “Poopyheads”

 

 

I mean, what is it with bodily fluids and pleadings? First the dog piss lady and now this:

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My reaction:

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Betcha can’t work an emoji and another reference to poop into that pleading!

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NAILED IT!

 

Yes, this is public record. The case number is 60CR-09-2434 if you care to see who wrote this gem for yourself.

 

An Interesting Opinion on Tort Reform from 1987

I found the dissenting opinion below in a products liability case from 1987. It really does make me stop to wonder if things wouldn’t be more equitable if everyone was informed of everything in a case: that there is insurance, that the victim has already been compensated x amount, etc.

HICKMAN, Justice, dissenting.

I dissent because the appellant did not manufacture nor supply the machine that took the hand of Jeff Green.
This case is typical of products liability cases, and in some respects demonstrates what is wrong with our legal system in the way it has come to treat torts.
First, the employer, Chicopee Manufacturing Company, built this machine, and if anyone or any entity should be blamed for negligent design, or failure to warn, it is Chicopee. Of course, Chicopee has workers compensation insurance and cannot be sued. The appellee, Jeff Green, has presumably collected his compensation. It will not, I am sure, compensate him for his loss, but it is not insignificant either. Then there is the carelessness of Jeff Green. Frankly, he should have known not to stick his hand in the machine. Common sense tells us all that that is dangerous. But, tragically, these accidents do happen regardless of the care and good intentions of employers, supervisors and employees.
Why this particular lawsuit? For money. If only a slight case can be made against someone or some company remotely connected with the accident perhaps a jury will make an award. The jury, of course, is not told the truth. They are not told Chicopee has workers compensation or Green has made a recovery. We are going to have to begin telling juries the truth if we intend to reform tort law. The simple fact is that we do not trust juries with the truth. Insurance companies fear that juries will make excessive awards if they know a defendant has insurance. Plaintiffs’ lawyers fear juries will reduce their awards if they know their clients are already compensated. So we keep from the jury the truth and have lawsuits like this: a defendant with a deep pocket is sued in hopes of more money.
The law, of course, can be stretched to bring such defendants into the realm of liability. Usually the theory is a failure to warn—that is the handiest charge of negligence.
Even hammers, axes and ladders have warnings on them, warning users to be careful. These warnings are put there because manufacturers have been sued because someone was dumb enough (and there is no other way to say it) to hurt themselves through carelessness. Carelessness causes many accidents, and all the signs in the world will not change that fact.
I regret joining the decision in W.M. Bashlan Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982). A safety belt, over 11 years old, failed while being improperly used, and we affirmed an outlandish verdict. It is such decisions as this which are, in a large part, destroying our ability to produce products in this country, and at the bottom of it all is simple greed.
There is tragedy in the lives of those harmed, but our system has adequate legal remedies for most wrongs. The quest for larger and larger verdicts is simply founded on greed. Why not tell juries the truth? Why not tell juries exactly how much the lawyers will get? Could we have any worse system?

Ark.,1987.
Hergeth, Inc. v. Green
293 Ark. 119, 733 S.W.2d 409, Prod.Liab.Rep. (CCH) P 11,551

Friday Funbag: This One Goes Out to All the Newbs

Today’s friday fun bag is more of an announcement: I will now be hosting a free page for civil litigation templates. So far, there’s a grand total of one template available on that page, but it’s going to grow, and grow fast.

The page is available from the main menu.

Let’s crowd source this thing and help the new lawyers amongst us build their template libraries. Send in your submissions, links, PDFs, recipes for crock pot meals that require 5 ingredients I already have on hand, etc. to hawglawblawg at gmail dot com.

Now, here are some funny pictures I saw this week:

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Have a good weekend!

The Post in Which I Break My Silence on My Former Boss…Judge Mike Maggio

Today, the JDDC has unanimously approved and released (courtesy of arkansasmatter.com) an agreed sanction against my former boss and current friend, Mike Maggio.

I will let Judge Maggio speak for himself here later (he’s agreed to an interview). He’s got a lot of thoughts on the matter and we’ve discussed them at length. Some I agree with, some I disagree with, and some that are just interesting for consideration. Today, I’ll simply offer some reflections outside of the substantive case.

Nothing prepares you for your daily reading of Gawker, only to see your former boss’s portrait splashed on the main page. And nothing prepares you for being so very disappointed by someone you otherwise admire.

I was Judge Maggio’s first law clerk. I was hired before I even passed the bar and I spent the first 18 months of my legal career working for him  in Faulkner, Van Buren, and Searcy counties. I started out an unmarried new grad; I got pregnant, then married, while I worked for him. I  finally left for private practice because the salary was a bit slim for my growing family. I would have stayed on as long as they let me, if the salary had been comparable to private practice, because I truly enjoyed working there.

The judge and I disagree about a lot of things: religion, politics, etc. That’s probably true of me and most of the 20th judicial circuit. But, Judge Maggio taught me the two legal practice rules that I still hold near and dear:

1. Never embarrass opposing counsel in front of their client, if you can help it.

2. Treat the legal process and the participants involved with dignity and respect, even if they are wrong.

Judge Maggio and I don’t see eye to eye on a lot of political issues, but, for all his faults, he was willing to hire the outspoken VP of the law school Young Democrats. We have always had very congenial discussions about controversial topics. I’ve never been afraid to give him my honest opinion on everything and anything, including his case.

I still don’t know how to reconcile the person I know with some of the things he’s said, but here’s what I’ve learned:

I’ve learned that sometimes the people we love and admire can disappoint us. I’ve learned that it’s really easy to say terrible things on the internet, whether you are an anonymous blog commenter or someone calling out a judge. I’ve learned that some things shouldn’t be open to politics and that I should never, ever be a judge.

I’ll be interviewing Judge Maggio soon and I hope to see you back here for that.