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Schrödinger’s Driver

December 19, 2016

Lesson of the Day: Just because you’re a lawyer and you know your rights doesn’t mean you should insist on those rights. It’s not always going to be the worth the trouble.

Milt Policzer

By Milt Policzer

Courthouse News columnist; racehorse owner and breeder; one of those guys who always got picked last.

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Lesson of the Day: Just because you’re a lawyer and you know your rights doesn’t mean you should insist on those rights. It’s not always going to be the worth the trouble.

That’s one of the lessons to be gleaned from a New Jersey Appellate Court ruling issued last week, State of New Jersey v. Powers, in which we get the following science lesson: “Just as Schrödinger's cat cannot logically be observed as both dead and alive at the same time, defendant could not be both inside and outside his vehicle at the same time.”

Unless, of course, the car door was open and the defendant was leaning in or out.

Or unless no one was looking at the defendant, and therefore he could have been both inside or outside or alive or dead at the same time.

Come on, scientist readers, back me up on this.

I’m pretty sure no one was wondering whether Schrödinger’s cat was inside or outside the box. They would have figured that out pretty quickly and then wondered why anyone was asking the question.

The more interesting question is whether the cat could drive a car.

By the way, what did Schrödinger have against cats? Why wasn’t there a rat or a cockroach or a terminal patient willing to sacrifice his life for science in the box?

So I’m a little confused, but maybe this is what thinking outside the box is really all about. Fortunately, there’s a much clearer statement in the ruling, at the end of footnote 4: “(O)ur jurisprudence does not view a person in possession of car keys but not actually inside the vehicle as a ‘driver.’”

I’m glad we’ve got that cleared up.

At this point, you’re wondering what this has to do with the Lesson of the Day.

We got the lesson because this remarkable ruling resulted from a guy getting a parking ticket and then refusing to get back into his car after a state trooper told him to.

Said the ruling: “(H)e told the trooper he was an attorney, knew his rights, and was waiting for ‘direction from someone on the phone.’”

This was followed by an arrest and three years of litigation that will continue because the case was remanded.

Someone may be regretting having gone to law school at this point.

While we’re sort of on the topic of lengthy pointless litigation, you may want to take a look at a Seventh Circuit ruling last week in Epstein v. Epstein, in which we learn of a couple that was married for 41 years before filing for divorce in 2011.

Litigation is ongoing and not just over the divorce.

The appellate ruling came in a suit filed by the husband against the wife for violating the Wiretapping and Electronic Surveillance Act by having hubby’s emails to assorted girlfriends automatically forwarded to her.

The image of judges shaking their heads in bewilderment immediately comes to mind when you read this sentence early in the opinion: “The allegations against Paula … technically fall within the language of the Act, though Congress probably didn’t anticipate its use as a tactical weapon in a divorce proceeding.”

Considering what politicians are like, I think maybe they did have it in mind.

But you have to go to Judge Richard Posner’s concurring opinion for the most interesting way of looking at this dispute: “We might compare Mrs. Epstein to a bounty hunter — a private person who promotes a governmental interest. She has uncovered criminal conduct hurtful to herself, and deserves compensation, such as a more generous settlement in her divorce proceeding.”

So we may all get to spy on each other as long as we can find a crime.

Shouldn’t be too hard.

Some of you may want to rethink ever using email or anything electronic ever again.

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