Typescript for a Homecoming performance entitled "Twitter Bird Seed Case", University of Florida John Marshall Bar Assoc...


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Typescript for a Homecoming performance entitled "Twitter Bird Seed Case", University of Florida John Marshall Bar Association (5 pages)
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John Marshall Bar Association
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Box: 1
Folder: University Archives Small Collections - John Marshall Bar Assocation - Skits and Programs


Subjects / Keywords:
Law students -- Florida -- History
Spatial Coverage:
North America -- United States of America -- Florida -- Alachua -- Gainesville

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Source Institution:
University of Florida
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All applicable rights reserved by the source institution and holding location.
Resource Identifier:
sobekcm - AA00003159_00001
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Full Text

Twitter Bird Seed Case 1

I am surely pleased to be able to be here this morning, and I am very much

complimented by the remarks of your master of ceremonies. I am also highly com-

plimented that in recognition of my vast knowledge of the law, I should be invited

to speak here on a subject which is peculiarly suited to my own personality and

attainments, abnormal jurisprudence. Your recognition makes me feel that I am

becoming a lawyer's lawyer. Blessed be he whoserves the..poor! I shall not

hesitate to speak freely.

Your committee has specifically requested me to review a case I tried some

...ttle time ago, my famous case of Daisy hniffle v. The Twitter Bird Seed Company.

New, of course, the members of the bar are completely familiar with the details of

that case. It created quite a sensation at the time in justice court circles.

For the benefit of our out-of-town guests and visitors, let me explain that it is

no-t my most recent case, but I wanted to bring up one of the few in which I have

been successful. So I am very grateful for the happy coincidence or rare tact,

whichever it was, that inspired your committee toselect that old case, Whiffle v.

The Twitter Bird Seed Company.

Although I realize that to many lawyers it is the most important considera-

tion of all, I am not going to tell you how I got the case. Suffice it to say

that it came to me under extraordinary circumstances -- practically an act of God.

Indeed, if it hadn't been for the pluck and the remarkable perseverance of my

client, Daisy Whiffle, a perseverance that sent her around from one law office:

to another, even after twenty or thirty lawyers had turned her down, I might not

have represented her at all. Such are the ways of chance.

The facts of the case are comparatively simple. Daisy Whiffle was a profes-

sional entertainer, a snake charmer in a circus. She owned in her own right a

baby rattlesnake, for which she felt the deepest affection, and which she generally

carried coiled around her neck. Now, on the day of the misfortune I am about to.

Twitter Bird beed Case 2

relate, Daisy was out riding in a convertible with her beloved pet around her neck

as usual. The day happened to be quite cold and the little snake had become stiff

from the cold. Daisy happened to glance down and thought the poor little thing

was dead. Horrified and woman-like, she released both hands from the steering

wheel and clutched the snake to her bosom. In the meantime, the driva of another

car, approaching from the opposite direction, in an effort to avoid a collision,

drove up on the sidewalk and tried to scale an adjoining building, but gravity

forced him down again in the path of the oncoming car, with the resulting collision,

Neither driver was hurt, but Daisy's rattlesnake, frozen and stiff as it was, and

therefore unable to relax, was fatally cracked in three places. So now, by a

strange twist of fate, the illusion of death which caused the accident became a

hideous reality.

I saw in these facts some of the elements of a perfect case. There was

Daisy Whiffle, a woman. I looked at her and for the first time I saw she was

beautiful -- ALL clients look beautiful to me. There was a strong emotional

appeal, a woman's love for her deceased pet. Plenty of damages -- after all,

you can't buy a live rattlesnake every day. But what the case obviously lacked

was a corporation defendant. In order to remedy this defect, I took the

deposition of the driver of the other car. I found that he owned his own car,

that he was unemployed at the time of the accident, and that never in his entire

life had he worked for a corporation. I also discovered, however, that eleven

years prior to the accident in question, he had purchased a package of bird seed

from the Twitter Bird Seed Company. It was a simple little transaction, to be

sure, and yet I thought I saw in it a sort of embryonic master and servant rela-

tionship, and I thought of that great maxim of the law, "olim proquerator semper

procurator," or once an agent always an agent, and that even more useful maxim,

"quid jurors non facient," or what won't a jury do, and I knew I had my corpora-

The Twitter Bird Seed Case 3

tion hooked.

I immediately filed suit against The Twitter Bird Seed Company, Now, this

company was represented by a very able corporation lawyer, a member of what in

certain respects was the largest law firm in our city. I say in certain respects,

because of the seventeen partners in the firm only two were living, so that the

size of the firm depends on your point of view, heaven or earth. I waited the

day of the trial with calm confidence. Only one thing happened to disturb my

equilibrium, and that only temporarily. The defendant offered to settle of $10.

Immediately I was precipitated into a great emotional conflict. Did I want a

trial reputation or did I want $10 cold cash? That was my dilemma. For several

days I was in the throes of agonizing indecision, and even now I know not how I

voun'd have decided if again fate had not intervened, as it so frequently does in

the lives of men ofdcstiny. The choice was taken from my hands. The defendant

withdrew his offer.

I made absolutely no preparations for the trial. It is my policy to

never look up the law in advance of the trial of a suit. I have learned that no

matter how strange and fatastic is my own notion of the law, it is safe to assume

that somewhere in the reports there will be a decision that will support it. I

really have, I confess, a singular aversion to looking up law. At one time I

seriously considered specializing exclusively inthat class of cases dealing with

what is commonly referred to as "the unwritten law," but I didn't seem able to

work up that type of practice.

I didn't coach Daisy for the trial. I didn't have to. When she stalked

into that courtroom with her superb animal magnetism, she was a sensation. She

was dressed in canary-yellow and sheer nerve. Immediately she started broad-

casing certain feminine psychical waves that made contact with the jury and the

Thw Twitter Bird Seed Case 4

judge with devastating effect.

And she was quick at repartee too. I remember that opposing counsel, try-

ing to ascertain the market value of her dead rattlesnake, very properly asked

her whether it was a male or a female, and she said, "Sir, that is a question

that should be of interest only to another rattlesnake."

But I know this learned audience is not so interested in the wit and humor

displayed at the trial, as in the judicial significance of the case itself, and

its place in the history of jurisprudence. I don't think there is anycase that

has gone so far as this one to clarify the laws of negligence relating to personal


The judge issued only one instruction, but it was unusually clear and lucid

and comprehensive. He charged the jury as follows: "If you find from the evidence

that plantiff was a woman, and the defendant was a corporation, your verdict will

naturally be for the lady." And it was. But isn't that a masterful instruc-

tion? Doesn't it completely express the realities of modern law? The law is ever

striving for certainty and simplicity, and there we have it in that simple little


We have here this morning several educators, several great law teachers. I

wish they would read the opinion of the justice in this case, Whiffle v. The

Twvitter Bird Seed Company. Let them read and reread it, and go back and tell it

to their students, because, if they will pardon my saying so, it seems to me

that our young law graduates commence the practice with a most grotesque

conception of what constitutes the lavT of negligence. In their misguided zeal,

they will read a great mass of authorities, trying to ascertain what a certain

mythical figure they call the reasonable man would do under these or those

circumstances. What an unnecessarily tdious way to practice lawl The are also

me- ered by fear, amounting almost to a phobia, that tgere won't be sufficient

The Twitter Bird Seed Case 5

evidence to take the case to the jury. Let them cross that bridge when they

came to it. There are lawyers who have traveled for years without even sighting

the bridge.

Now, in closing, I want to point out that, if there are present here this

morning any unusually eruditeindividuals, students of higher jurisprudence, who

whnt to consult with ne in private after the program is over, I shall be happy

to place my learning at their disposal. It is my considered opinion, based on

a certain amount of actual experience, that I am not very likely to be invited,

back again, and I want to do as much for them as I can while I am here.

Thank you very much.