plastic opinions
I just finished a two week seminar on Law and Literature. It was wonderful. Period. I told my professor that being in this class was pumping much needed life into my veins - it seriously has been like having an IV pumping intellectual awesomeness into me. Not that pure law isn't intellectual awesomeness. It just isn't as cool when it isn't paired with reading short stories or poems or plays (like the Merchant of Venice - I love Shakespeare!). Basically, the English major in me came alive again, and I am muchly grateful for that.
Also, for my class, I had to write a short story based on a real-live legal case. I chose to write mine on Christian v. Mattel, Inc. In a nutshell, it's a decision by the Ninth Circuit about a lady named Claudene who makes a USC Cheerleader/Song Girl doll named Claudene and sues Mattel claiming they infringed her copyright. Her lawyer, Hicks, was your stereotypical attorney, except for the fact that he was a little crazier and angrier than your stereotypical attorney. Yes, he did throw dolls across a table at a deposition (i.e. a pretrial, evidence gathering conference of sorts), and yes, he did yell at his client when she said some stupid things. The case itself doesn't actually get to the copyright infringement claims. Instead, Mattel asked the court to sanction Hicks under Rule 11, a federal rule that prevents attorneys and their clients from raising ridiculous and unfounded claims. Mattel, however, wanted Hicks sanctioned for behaving ridiculously in and out of court. The trial court agreed with Mattel, and fined Hicks over $500,000. The Ninth Circuit limited the trial court's sanction on Hicks to his raising of ridiculous and unfounded claims, and remanded the case for the trial court to re-sanction Hicks accordingly. From what I can tell, the case (and ultimately the real issue of the copyright claims) was settled out of court. The short story that follows is my fictional account of what takes place after the resolution of the case.
Christian v. Mattel, Inc
McKeown, Circuit Judge: “It is difficult to imagine that the Barbie doll, so perfect in her sculpture and presentation, and so comfortable in every setting, from “California girl” to “Chief Executive Officer Barbie,” could spawn such acrimonious litigation and such egregious conduct on the part of her challenger. In her wildest dreams, Barbie could not have imagined herself in the middle of Rule 11 proceedings. But the intersection of copyrights on Barbie sculptures and the scope of Rule 11 is precisely what defines this case.”
Claudene winced as she reread the first paragraph of the judge’s opinion. Then again, she had been wincing at things for a long time. Realizing she was wrinkling her face, Claudene did her best to smooth her brow. She wondered if plastic could develop permanent wince marks.
The phone rang. Claudene thought about letting it go to voicemail, but answered it anyways.
“Hello?”
“Hi! Claudene? Is that you?”
Claudene winced again. Only one person in the world could sound that chirpy at 7:27 in the morning. “Hi Barbie.”
“Oh! Claudene! I’m so glad you answered! I’ve been so worried about you! Are you okay?”
Claudene tried to wipe the wince from her face as she answered. “Yes, I’m fine.” It was laced with more coolness than she intended. “How are you?”
“I’m fine, thank you for asking.” Barbie paused, before continuing. “Paralegal Kelly just dropped by the Ninth Circuit’s opinion from Christian v. Mattel, Inc., and after reading it, I just wanted to make sure that you were okay. Anything you want to talk about?”
Claudene wasn’t sure what Barbie was hinting at. In fact, she wasn’t even sure which Barbie she was talking to. She was pretty sure she wasn’t talking to the Teen Talk Barbie with whom she was supposed to share a facial resemblance. This Barbie hadn’t interjected enough “like’s” or “totally’s” or complained enough about math in the first two minutes of conversation to give away her make. Claudene was also certain this wasn’t Cool Blue Barbie. Somehow the blue hairstreaks of that particular doll permeated everything, and though Barbie’s voice was always a little too sweet, it certainly didn’t sound like a dripping blue raspberry snow cone.
“Claudene? Hello? Are you sure you are all right?”
“Sorry, Barbie.” Claudene muttered an excuse about having early cheer practice. She was now starting to wonder if she was talking to Psychologist Barbie. Litigator Barbie hadn’t been this drippingly nice, even when they bumped into each other in the courthouse restroom.
“Really? Cheerleading practice? That’s wonderful!”
Claudene didn’t understand Barbie’s excitement. “What?”
“Well, I’m surprised you’ve been able to spring back into things so quickly! I thought after being flung across a table you would still be recovering. Then again, you are a flier, aren’t you? You’re probably used to being thrown around.”
Claudene’s wince slid off her face as her jaw hit the side of her armchair. The deposition had been years ago, and out of all of the USC Song Girl Dolls at the deposition, she was the only one who elected not to redshirt the following season. Besides, her plastic hadn’t sustained any injuries, aside from the wincing. Even then, she attributed that to the antics of the hick-of-a-lawyer her coach had hired when Litigator Barbie’s client decided to sue. She had even seen Litigator Barbie wince when the hick, in the words of the Ninth Circuit, “lambasted his client in plain view of Mattel’s attorneys and the video camera.” Claudene was pretty sure the judges had winced, too.
Claudene took a deep breath before quietly asking, “ Aren't we all?” She was starting to wonder if she was actually talking to Psychologist Barbie. Teen Talk Barbie was starting to sound like a more plausible theory.
“Well, I don’t know about you, but when I’m thrown around, I don’t end up in the trash.”
Claudene was surprised by the next zinger. “Excuse me?”
“You read the opinion, I assume? Or did you sing it, Song Girl?”
Claudene’s wince narrowed into a glare. She could feel the plastic around her eyes straining. “If you’re talking about Christian v. Mattel, Inc. and the Ninth Circuit’s decisions about sanctioning the hick attorney, I've read it. But I’m not sure what you’re getting at.” Her voice trailed off, but her glare stood firm. She was too angry to be ashamed now.
“Well, it’s not every day that an attorney litigates his client out of existence.”
If Claudene’s voice could shake with anger, it would have registered as an 8.4 on the Richter scale. Instead, Claudene found her zealous cheerleader’s cry drop to a growl. “The hick attorney was sanctioned under Rule 11 for being unethical, which includes throwing me across a table. It does not mean, however, that I no longer have a right to exist. I thought Paralegal Kelly would have explained that to you, Barbie.” The Richter scale increased its intensity.
“Hm. She did mention something along those lines. But no matter. Thanks to your attorney’s antics, we no longer consider you to be any sort of competition.”
Claudene clenched her phone. “Just who do you think you are? Derogatory Barbie?” But Claudene knew Barbie was right. Things had been tighter since the case was settled prior to remand, and not just because she had increased her consumption of plastic frosted donuts. Her pompoms were starting to look a bit fuzzy, not to mention the torn straps of her uniform. It would be awhile before the Song Girls recovered their momentum.
The voice on the other end of the line sniggered. “Really? Derogatory Barbie? Is that the best you’ve got?”
Claudene’s wince returned. She didn’t have a reputation for exchanging zingers, unless Little Debbie happened to show up at the neighborhood recipe exchange. Still, something seemed off about this Barbie. Claudene didn’t want to be insensitive, but she always felt uncomfortable when Schizophrenic Barbie showed up to play. Maybe that could explain why this conversation was so disjointed.
“I’m sorry, Barbie. I’m not in the mood to spar today.” Claudene didn’t know why she was apologizing. Then again, it was probably safe to cover her bases in case Momma’s Girl Barbie decided to tattle.
“I’m sorry, Barbie.” The voice mimicked. “Really? You still don’t get it, do you Song Girl?”
Claudene winced. “No.”
“Ha. I’m no longer surprised you hired a hick attorney that had less brains than Ken.”
Claudene’s wince snapped into a perplexed look. Barbie wasn’t the type to complain about Ken. At least, in all of Claudene’s years, she had never come across Menstruating, Post-Break-up Barbie. Then again, Claudene had yet to meet all of the variations of Surfer Barbie. Odds were that Jilted Barbie was probably somewhere in the mix.
The other voice continued. “You assume too much. I’m disappointed in you, Claudene. I thought us interlopers could be friends.”
“Interlopers?” Claudene felt the plastic in her head knot up. And then, something clicked. “Wait a second? You’re not Barbie. You’re one of those in-betweener dolls!”
“We prefer to be called Bratz.” The other voice was frighteningly crisp.
Claudene rolled her eyes. Whatever they were called, she had heard about Bratz through the litigation grapevine. No doubt Litigator Barbie had been busy. While Claudene was being drop kicked at depositions, Bratz had started their own fight with Barbie. Claudene secretly hoped it wasn’t going well.
“Oh. Sorry...” Claudene began, realizing she had no idea what the Bratz’s actual name was.
“Chloe.” Again, the voice was crisp. Almost too crisp in Claudene’s opinion.
Claudene had a hard time taking Chloe seriously. There had been that flap about Barbie being unrealistically disproportionate, and then there was Bratz. With their large heads, oval eyes, and tiny teeny bopper bodies, they were hard to ignore. Claudene had heard that if you went to the mall late at night, you could see hunchbacked Bratz dolls whose necks no longer had the strength to hold up their heads. She wondered how Chloe was fairing.
Resisting the urge to ask Chloe about her neck, Claudene decided to ask a weightier question. “You know, Chloe, I don’t even know why I’m talking to you right now. Why did you call me? And why were you impersonating Barbie?”
Chloe cackled. “Oh, Claudene, if only it were that simple.”
Claudene paused as she processed Chloe’s bite into understanding. The Bratz case must be going south, and not to a Caribbean beach party. It had to be bad if Chloe was fishing for gutted trout. Still, litigation didn’t have to turn into a head popping dilemma.
Finally, Claudene responded. “I think it can be simple.”
There was a pause on the other line. Claudene imagined Chloe’s eyes narrowing into slivered almonds as she fashioned her answer.
“It’s only simple if you bend to the ridiculous.”
It was a glossed response, yet Claudene knew it had been stripped of its glimmer and glitz. She knew about the ridiculous – the hick lawyer had stooped to it – and yet, it had been far from simple. The weeds of Rule 11 had nearly bankrupted the Song Girls. Only a fool would label unraveling that ball of yarn as simple.
“Maybe it depends on what type of ridiculous you are bending to,” Claudene replied.
“And maybe you should never have tried to bend!”
The phone clicked with an exclamation point. Claudene let it drop to the floor as she lay back in her chair. Her brain plastic swirled. She bent to pick up the scattered court opinion, wondering what type of ridiculous Chloe had become entangled in. Resuming her reading, Claudene found herself glad her fight settled with her brand of ridiculous. There were worse things to which she could have bent.
Claudene smiled. For once, she didn’t feel like wincing.
Also, for my class, I had to write a short story based on a real-live legal case. I chose to write mine on Christian v. Mattel, Inc. In a nutshell, it's a decision by the Ninth Circuit about a lady named Claudene who makes a USC Cheerleader/Song Girl doll named Claudene and sues Mattel claiming they infringed her copyright. Her lawyer, Hicks, was your stereotypical attorney, except for the fact that he was a little crazier and angrier than your stereotypical attorney. Yes, he did throw dolls across a table at a deposition (i.e. a pretrial, evidence gathering conference of sorts), and yes, he did yell at his client when she said some stupid things. The case itself doesn't actually get to the copyright infringement claims. Instead, Mattel asked the court to sanction Hicks under Rule 11, a federal rule that prevents attorneys and their clients from raising ridiculous and unfounded claims. Mattel, however, wanted Hicks sanctioned for behaving ridiculously in and out of court. The trial court agreed with Mattel, and fined Hicks over $500,000. The Ninth Circuit limited the trial court's sanction on Hicks to his raising of ridiculous and unfounded claims, and remanded the case for the trial court to re-sanction Hicks accordingly. From what I can tell, the case (and ultimately the real issue of the copyright claims) was settled out of court. The short story that follows is my fictional account of what takes place after the resolution of the case.
"Plastic Opinions"
Christian v. Mattel, Inc
McKeown, Circuit Judge: “It is difficult to imagine that the Barbie doll, so perfect in her sculpture and presentation, and so comfortable in every setting, from “California girl” to “Chief Executive Officer Barbie,” could spawn such acrimonious litigation and such egregious conduct on the part of her challenger. In her wildest dreams, Barbie could not have imagined herself in the middle of Rule 11 proceedings. But the intersection of copyrights on Barbie sculptures and the scope of Rule 11 is precisely what defines this case.”
Claudene winced as she reread the first paragraph of the judge’s opinion. Then again, she had been wincing at things for a long time. Realizing she was wrinkling her face, Claudene did her best to smooth her brow. She wondered if plastic could develop permanent wince marks.
The phone rang. Claudene thought about letting it go to voicemail, but answered it anyways.
“Hello?”
“Hi! Claudene? Is that you?”
Claudene winced again. Only one person in the world could sound that chirpy at 7:27 in the morning. “Hi Barbie.”
“Oh! Claudene! I’m so glad you answered! I’ve been so worried about you! Are you okay?”
Claudene tried to wipe the wince from her face as she answered. “Yes, I’m fine.” It was laced with more coolness than she intended. “How are you?”
“I’m fine, thank you for asking.” Barbie paused, before continuing. “Paralegal Kelly just dropped by the Ninth Circuit’s opinion from Christian v. Mattel, Inc., and after reading it, I just wanted to make sure that you were okay. Anything you want to talk about?”
Claudene wasn’t sure what Barbie was hinting at. In fact, she wasn’t even sure which Barbie she was talking to. She was pretty sure she wasn’t talking to the Teen Talk Barbie with whom she was supposed to share a facial resemblance. This Barbie hadn’t interjected enough “like’s” or “totally’s” or complained enough about math in the first two minutes of conversation to give away her make. Claudene was also certain this wasn’t Cool Blue Barbie. Somehow the blue hairstreaks of that particular doll permeated everything, and though Barbie’s voice was always a little too sweet, it certainly didn’t sound like a dripping blue raspberry snow cone.
“Claudene? Hello? Are you sure you are all right?”
“Sorry, Barbie.” Claudene muttered an excuse about having early cheer practice. She was now starting to wonder if she was talking to Psychologist Barbie. Litigator Barbie hadn’t been this drippingly nice, even when they bumped into each other in the courthouse restroom.
“Really? Cheerleading practice? That’s wonderful!”
Claudene didn’t understand Barbie’s excitement. “What?”
“Well, I’m surprised you’ve been able to spring back into things so quickly! I thought after being flung across a table you would still be recovering. Then again, you are a flier, aren’t you? You’re probably used to being thrown around.”
Claudene’s wince slid off her face as her jaw hit the side of her armchair. The deposition had been years ago, and out of all of the USC Song Girl Dolls at the deposition, she was the only one who elected not to redshirt the following season. Besides, her plastic hadn’t sustained any injuries, aside from the wincing. Even then, she attributed that to the antics of the hick-of-a-lawyer her coach had hired when Litigator Barbie’s client decided to sue. She had even seen Litigator Barbie wince when the hick, in the words of the Ninth Circuit, “lambasted his client in plain view of Mattel’s attorneys and the video camera.” Claudene was pretty sure the judges had winced, too.
Claudene took a deep breath before quietly asking, “ Aren't we all?” She was starting to wonder if she was actually talking to Psychologist Barbie. Teen Talk Barbie was starting to sound like a more plausible theory.
“Well, I don’t know about you, but when I’m thrown around, I don’t end up in the trash.”
Claudene was surprised by the next zinger. “Excuse me?”
“You read the opinion, I assume? Or did you sing it, Song Girl?”
Claudene’s wince narrowed into a glare. She could feel the plastic around her eyes straining. “If you’re talking about Christian v. Mattel, Inc. and the Ninth Circuit’s decisions about sanctioning the hick attorney, I've read it. But I’m not sure what you’re getting at.” Her voice trailed off, but her glare stood firm. She was too angry to be ashamed now.
“Well, it’s not every day that an attorney litigates his client out of existence.”
If Claudene’s voice could shake with anger, it would have registered as an 8.4 on the Richter scale. Instead, Claudene found her zealous cheerleader’s cry drop to a growl. “The hick attorney was sanctioned under Rule 11 for being unethical, which includes throwing me across a table. It does not mean, however, that I no longer have a right to exist. I thought Paralegal Kelly would have explained that to you, Barbie.” The Richter scale increased its intensity.
“Hm. She did mention something along those lines. But no matter. Thanks to your attorney’s antics, we no longer consider you to be any sort of competition.”
Claudene clenched her phone. “Just who do you think you are? Derogatory Barbie?” But Claudene knew Barbie was right. Things had been tighter since the case was settled prior to remand, and not just because she had increased her consumption of plastic frosted donuts. Her pompoms were starting to look a bit fuzzy, not to mention the torn straps of her uniform. It would be awhile before the Song Girls recovered their momentum.
The voice on the other end of the line sniggered. “Really? Derogatory Barbie? Is that the best you’ve got?”
Claudene’s wince returned. She didn’t have a reputation for exchanging zingers, unless Little Debbie happened to show up at the neighborhood recipe exchange. Still, something seemed off about this Barbie. Claudene didn’t want to be insensitive, but she always felt uncomfortable when Schizophrenic Barbie showed up to play. Maybe that could explain why this conversation was so disjointed.
“I’m sorry, Barbie. I’m not in the mood to spar today.” Claudene didn’t know why she was apologizing. Then again, it was probably safe to cover her bases in case Momma’s Girl Barbie decided to tattle.
“I’m sorry, Barbie.” The voice mimicked. “Really? You still don’t get it, do you Song Girl?”
Claudene winced. “No.”
“Ha. I’m no longer surprised you hired a hick attorney that had less brains than Ken.”
Claudene’s wince snapped into a perplexed look. Barbie wasn’t the type to complain about Ken. At least, in all of Claudene’s years, she had never come across Menstruating, Post-Break-up Barbie. Then again, Claudene had yet to meet all of the variations of Surfer Barbie. Odds were that Jilted Barbie was probably somewhere in the mix.
The other voice continued. “You assume too much. I’m disappointed in you, Claudene. I thought us interlopers could be friends.”
“Interlopers?” Claudene felt the plastic in her head knot up. And then, something clicked. “Wait a second? You’re not Barbie. You’re one of those in-betweener dolls!”
“We prefer to be called Bratz.” The other voice was frighteningly crisp.
Claudene rolled her eyes. Whatever they were called, she had heard about Bratz through the litigation grapevine. No doubt Litigator Barbie had been busy. While Claudene was being drop kicked at depositions, Bratz had started their own fight with Barbie. Claudene secretly hoped it wasn’t going well.
“Oh. Sorry...” Claudene began, realizing she had no idea what the Bratz’s actual name was.
“Chloe.” Again, the voice was crisp. Almost too crisp in Claudene’s opinion.
Claudene had a hard time taking Chloe seriously. There had been that flap about Barbie being unrealistically disproportionate, and then there was Bratz. With their large heads, oval eyes, and tiny teeny bopper bodies, they were hard to ignore. Claudene had heard that if you went to the mall late at night, you could see hunchbacked Bratz dolls whose necks no longer had the strength to hold up their heads. She wondered how Chloe was fairing.
Resisting the urge to ask Chloe about her neck, Claudene decided to ask a weightier question. “You know, Chloe, I don’t even know why I’m talking to you right now. Why did you call me? And why were you impersonating Barbie?”
Chloe cackled. “Oh, Claudene, if only it were that simple.”
Claudene paused as she processed Chloe’s bite into understanding. The Bratz case must be going south, and not to a Caribbean beach party. It had to be bad if Chloe was fishing for gutted trout. Still, litigation didn’t have to turn into a head popping dilemma.
Finally, Claudene responded. “I think it can be simple.”
There was a pause on the other line. Claudene imagined Chloe’s eyes narrowing into slivered almonds as she fashioned her answer.
“It’s only simple if you bend to the ridiculous.”
It was a glossed response, yet Claudene knew it had been stripped of its glimmer and glitz. She knew about the ridiculous – the hick lawyer had stooped to it – and yet, it had been far from simple. The weeds of Rule 11 had nearly bankrupted the Song Girls. Only a fool would label unraveling that ball of yarn as simple.
“Maybe it depends on what type of ridiculous you are bending to,” Claudene replied.
“And maybe you should never have tried to bend!”
The phone clicked with an exclamation point. Claudene let it drop to the floor as she lay back in her chair. Her brain plastic swirled. She bent to pick up the scattered court opinion, wondering what type of ridiculous Chloe had become entangled in. Resuming her reading, Claudene found herself glad her fight settled with her brand of ridiculous. There were worse things to which she could have bent.
Claudene smiled. For once, she didn’t feel like wincing.
This is my favorite line: "Claudene had heard that if you went to the mall late at night, you could see hunchbacked Bratz dolls whose necks no longer had the strength to hold up their heads." :)
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