New Jersey Civil Procedure

The New Jersey State Court Structure

• The Supreme Court's appeals as of right include the following issues: substantial issues of New Jersey constitutional law, dissent in the appellate division.
• Each Superior court (the trial court level) has the constitutional authority to exercise powers the powers of other Superior court divisions (civil, criminal, general equity, family, probate).

Subject Matter Jurisdiction

• The trial courts have general jurisdiction
• Unanimous juries are not needed. A 5/6 split is enough to render a verdict.
• For claims based on federal law, the adjudicating state court will apply federal substantive law and state procedural law. Think of this as the "reverse Eerie Doctrine."

Personal Jurisdiction

• There is no codified long arm statute. Apply a minimum contacts analysis: The party has minimum contacts with the state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. "Minimum contacts" requires purposeful availment or injecting goods into the stream of commerce with the expectation that it would be purchased in the forum state with some type of "reaching out to the state."
  
• Personal service is valid unless presence in the state is through fraud or force.
• Forum non conveniens requires a demonstration by the out-of-state plaintiff that a trial in New Jersey would be oppressive to the defendant or otherwise manifestly inappropriate.
• In Rem jurisdiction is only applicable to action relating to property located in the state.

Venue

• For real property actions, venue is appropriate at the situs of the property.
• Basic venue is appropriate where any party resides, where the cause-of-action arose, or where summons was served on a non-resident defendant.
• Corporations reside in the county where they are registered or where they are doing business.
• Transfer if actions is available for the convenience of the parties. Improper venue is any place where there is substantial doubt about receiving a fair trial.
• A party may object to a transfer of venue up to 10 days after time for service of last responsive pleading.

Commencement of an Action

• An action begins with the filing of a complaint and the assignation of a track number. The case track number is sent to the plaintiff within 10 days of filing. Any summons must be issued within 15 days from the track assignment notice.
• Service of process can be done by an adult not having a direct interest in the litigation. This includes the plaintiff's attorney or agent.
• Service of process follows the general rules of service of process in other states, so I won't regurgitate it here.
• For service of process to defendants in other states, so long service would be valid under New Jersey rules, it is valid service in that other state.

...

NY distinctions in Real Property

• The fee tail is abolished in New York, as it is in just about all states. A fee tail is "to A and the heirs of his body." In other words, the estate passes to lineal blood descendants.
• In New York, a fee simple determinable ("To A so long as ...") is called a fee on limitation.
• In New York, a fee simple subject to condition subsequent ("To A, but if X event occurs, grantor reserves the right to reenter and retake.") is called a fee on condition. This is less harsh than the reverter in the fee simple determinable.
  
• Under federal rules, ameliorative waste is not permitted unless all future interest holders are known and consent. However, in New York, a life tenant may make reasonable improvements unless the remaindermen object.
• Under federal rules, a remainder is contingent if it is created in an unascertained person or is subject to a condition precedent, or both. In New York, any future interest in a transferee that is subject to a condition precedent is called a remainder subject to a condition precedent. This includes shifting or springing executory interests.
  
• The RULE in SHELLEY'S CASE has been abolished in New York. The rule states that when O conveys to A for life, then, on A's death, to A's heirs, the present and future interests would merge into a fee simple absolute if A is alive. Instead, this conveyance leads to a life estate to A, a contigent remainder to A's unknown heirs, and a possible reversion to O.
• The DOCTRINE OF WORTHIER TITLE has been abolished in New York with respect to transfers taking effect after September 1, 1967. The doctrine voids a conveyance to O's heirs if O is still alive and leave A with a fee simple. Since New York does not follow the rule, O's heirs have a contingent remainder and A has a life estate.
• In New York, the vested remainder subject to complete defeasance is called the vested remainder subject to complete defeasance. Duh. But, sometimes, in other states, it is referred to as the vested remainder subject to total divestment.
• New York has adopted the common law rule against perpetuities with regard to any disposition other than a charitable trust and powers of appointment. This means it has rejected the cy pres doctrine of reforming a disposition that violates the RAP so that the grantor's intentions are as closely realize as possible without a RAP violation.
• Any age contingency in New York is reduced to 21 years if it would otherwise violate the rules against perpetuities.
• New York has modified the fertile octogenarian principle by presuming that a woman over 55 cannot have a child.
• New York's suspension rule adopts common law rules against perpetuities for suspension of the absolute power of alienation. Thus, an interest is viod if it suspends the power to sell or transfer for a period longer than "lives-in-being plus 21 years."
• In a joint tenancy, there must be four unities: time, title, identical interests, and the right to possess the whole of the property. To achieve a conveyance at the same time would require a straw man for a person already in possession of the property that wished to share it in joint tenancy. However, in New York, the need for a straw man to achieve the four unities has been eliminated.
• New York follows the "lien theory of mortgages," whereby a joint tenant's execution of a mortgage on his or her interest will not severe the joint tenancy. This is in opposition to the title theory, where a mortgage executed on a share of the joint tenancy severs the joint tenancy.
• New York recognizes the tenancy in the entirety created by a husband and wife.
• In New York, there is implied ouster, whereby a tenant in a tenancy in common is in exclusive possession for more than 20 years. This creates adverse possession of the land subject to the tenancy in common.
• In New York, the landlord who elects to holdover a tenant creates an implied month-to-month periodic tenancy, unless otherwise agreed.
  
• In New York, the landlord terminating a tenancy at will must give a minimum of 30 days written notice of termination.
• In New York, a landlord's acceptance of rent subsequent to expiration of the term will create an implied month-to-month periodic tenancy, unless otherwise agreed.
• Abesent tenant's express undertaking to restore the premises in the event of their destruction, if the premises are destroyed through no fault of the tenant, tenant may quit the premises and surrender possession without any further duty to pay rent in New York.
• In New York, self-help is flatly prohibited and entitles tenant to treble damages.
• New York does not require a landlord to mitigate when tenant abandons the premises.
• In New York, unless the lease provides otherwise, a residential tenant may not assign withut L's written consent. This is contrary to the general consensus, where a lease may be assigned of sublet freely absent an expres provision. But, by contrast to this rule, in New York, a tenant in a residential building having four or more units has the right to sublease subject to the landlord's written consent, which cannot be unreasonably withheld. If consent is unreasonably withheld, NY courts deem it to be consent anyway.
• The New York statutory period for an easement by prescription (by adverse possession) in ten years of open, continuous, actual hostile use.
• There are three forms of notice for an implied equitable servitude: actual, record, and inquiry notice. In New York, record notice does not encompass the contents of deeds transferred to others by a common grantor. As in, record notice does not encompass the neighbors deeds.
• For adverse possession, the New York statutory period is only ten years. Also, the New York Court of Appeals has held that a possessor's knowledge that a third party holds title is irrelevant.
• The doctrine of equitable conversion makes it so that once a contract is signed, the purchaser is the owner of land, even if he has not yet taken possession. New York does not follow this with regard to damages. In New York, so long as the buyer is without fault, the risk of loss remains with the seller until the buyer has title or has taken possession.
• New York is a race-notice jurisdiction
  

NY distinctions in Evidence (Part II)

• In New York, a witness must be allowed to address prior inconsistent statements while on the stand (intrinsically). Under the federal standard, the timing is flexible. Extrinsic evidence of a prior inconsistent statement may be introduced so long as the witness is alter given the opportunity to return to the sand and explain the statement.
• In New York, a witness' veracity may be impeached with a conviction for any crime. However, if the witness is the criminal defendant, there must be a Sandoval hearing, whereby a judge weighs the probative value of the conviction against the unfair prejudice.
  
  In the federal rules, a conviction used to impeach veracity must have been within ten years of the trial. These crimes must involve veracity or must not be misdemeanors and the probative value must outweigh the prejudice.
• When attacking a witness's character for truthfulness by prior bad acts that have not resulted in a criminal conviction, federal law permits asking about bad acts if they are related to truthfulness. In New York, the bads acts aren't limited to those related to truthfulness, but may include any that show a witness's moral turpitude. For impeaching truthfulness in this manner, only intrinsic evidence is allowed.
• Under the federal rules, any party may impeach any witness, even their own. New York subscribes to the "voucher rule," whereby a party vouches for the credibility of their own witness. The exception to the voucher rule, where impeachment of your own witness is allowed, is with prior inconsistent statements under oath or signed by the witness. In a criminal case, this exception can be used only if the current testimony is affirmatively damaging (rather than a mere "cloud on credibility") to the party who called the witness.
• Under the federal rules, a witness's prior statement of identification is admissible, even if the witness's credibility has not yet been attacked. In New York, the same rule is applied as a hearsay exception in criminal cases, but not in civil cases. In civil cases, the witness's credibility needs to be attacked in order for a prior statement of identification to be admitted.
• In New York, as with all character evidence, rehabilitation of a witness's truthfulness through character evidence can only be done with reputation evidence. Unlike federal, opinion evidence is not permitted.
• Under the federal rules, a prior consistent state can be used to rehabilitate a witness and as substantive evidence. In New York, this prior consistent statement can only be used to rehabilitate and cannot be used as substantive evidence.
• Federal law recognizes four testimonial privileges: attorney/client, husband/wife, clergy/penitent, therapist/patient. New York also recognizes the following three: doctor/patient, social worker/client, reporter/source.
• The Spousal Testimony Privilege: In a federal criminal case, the prosecution cannot compel the defendant's spouse to testify against the defendant. This applies only to criminal cases where the spouses are still currently married. It can be waived by the witness/spouse. New York does not recognize this immunity. Note: this is usually outside the scope of communications between spouses. Communications are covered in a separate spousal exception.
• In New York, a statement by an agent or employee can only be used as a vicarious admission if they had "speaking authority." The federal rules do not require this; instead they only require that the employee speak of matters within the scope of their employment during their agency or employment.
• Former Testimony is allowed as a hearsay exception when a witness is unavailable. Grounds for unavailability in New York include privilege, absence from jurisdiction, and illness or death. Federal grounds include the above list and lack of memory or a stubborn refusal to testify. In civil cases, New York recognizes two more exceptions: the witness is a doctor or lives more than 100 miles from the courthouse.
• In New York criminal cases, the former testimony by now-unavailable witnesses must have been given at a criminal trial, a hearing on a felony complaint, or at a conditional deposition. Defendant and charge must be the same in both the former and current case. Testimony given at a suppression hearing is not valid.
  
• When providing that evidence has disappeared by wrongdoing, the federal standard is is preponderance of the evidence. The New York standard is clear and convincing evidence.
• Dying declarations are allowed as a hearsay exception in any civil or criminal case in federal court. In New York, dying declarations are allowed in criminal homicide cases.
• In New York, a present sense impression hearsay exception requires corroboration. Under federal standards, it does not.
• A statement of then-existing mental, emotional, or physical condition is allowed as a hearsay exception under the federal rules if the statement is a contemporaneous statement concerning the declarant's then existing physical condition or state of mind. In New York, the declarant must be unavailable, and if offered to prove a third person's intent, corroboration is required.
• The hearsay exception for statements made for the purpose of medical treatment or diagnosis is refined in New York to exclude statements as to past symptoms and statements made solely to obtain expert testimony.
• In New York, the public records hearsay exception does not cover conclusions in the public record, only observations. The federal rule says that conclusions can be included.
• To lay the foundation for business records in New York, live testimony must be used for criminal cases. Written certification may be used only in civil cases and only for the business records of a non-party.

NY distinctions in Evidence

• In general, subsequent remedial measures are inadmissible to prove negligence, culpable conduct, product defect, or need for a warning. However, in NY, subsequent remedial repairs are admissible in a products liability action based on liability for a manufacturing defect (as opposed to a design defect).
• Under the federal rules of evidence, a withdrawn guilty plea is inadmissible against a defendant in a pending criminal litigation or subsequent civil case. However, a withdrawn guilty plea is admissible in New York for subsequent civil actions.
• Under the federal rules, a defendant may introduce evidence of his own good character for a relevant trait. This can include reputation or opinion evidence. This "opens the door" for the prosecution to use character evidence to rebut the defendant's evidence with reputation or opinion evidence. Under New York rules, only reputation evidence is allowed. New York excludes both opinion and prior acts from character evidence.
• On cross-examination, the prosecution may question witnesses about their knowledge of specific acts in order to impeach a witness testifying to a relevant character trait. In New York, the prosecution can go one step further: they can rebut the defendant's good character evidence by proving that the defendant has been convicted of a crime that adversely reflects on the character trait in issue. This is completely contrary to the federal rules, which do not allow the prosecution to prove convictions as rebuttal; the purpose of specific acts under federal rules is to allow the prosecution to test the witness' knowledge.
• Under federal rules, a criminal defendant may offer evidence of the victim's violent character to prove that the victim was the first aggressor. This can be either reputation or opinion evidence. New York does not allow evidence of a victim's character to prove that the victim was the first aggressor.
• Although New York does not allow the defendant to introduce evidence of the victim's violent character to prove that the victim started the fight, a defendant can introduce evidence of his knowledge of the victim's character for violence. Note: this is not a propensity use; instead the evidence is being offered for the purpose of showing that the defendant reasonably believed in the need to use self defense.
• In cases involving sexual misconduct, the defendant may not introduce evidence of the victim's reputation for promiscuity or prior sexual conduct. There are two exceptions to this under the federal rules: to show that the victim consented to sexual activity with the defendant and prove that someone other than the defendant was the source of physical evidence. New York also allows evidence of a conviction for prostitution in sexual misconduct cases if the conviction was within the past three years.
• Under the federal rules, propensity evidence is not allowed to prove conduct on a particular occasion. However, the habits of a person or business are admissible to infer how the person or business acted on the occasion at issue in the litigation. New York refines habit evidence more than the federal rules: it allows habit evidence relating to a business but does not allow evidence relation to personal habits unless it is to show a personal habit in the use of a product.
• When using MIMIC evidence (offering evidence of defendant's other crimes for some other purpose than propensity) the federal burden of proof standard is that the prosecution must product sufficient evidence for a reasonable person to conclude that the defendant committed the prior act act by a preponderance of evidence. In New York, the standard is higher: the prosecution must offer clear and convincing evidence that the defendant committed the prior act.
• The federal rules allow the prosecution to offer evidence of prior sexual assaults to prove the defendant's propensity to commit sexual assault. Such is not the case in New York. New York does not subscribe to the idea of "once a rapist, always a rapist."
• When authenticating a document, the federal rules allow authenticity to be inferred if the document is at least 20 years old, is facially free of suspicion, and is found where it would be expected. In New York, the document must be at least 30 years old.
• Federally, duplicates are allowed in lieu of original documents unless there is a genuine question about the authenticity of the duplicate or it would be unfair to admit the duplicate. In New York, photocopies and other duplicates are only acceptable substitutes if the duplicates were made in the regular course of business.
• In New York, a child under the age of nine can give unsworn testimony, but a defendant cannot be convicted solely on this evidence. The testimony of an unsworn child witness must be corroborated.
• There is no dead man's statute under the federal rules. New York has a dead man's statute, which provides that an interested party may not testify against a dead party about communications or transactions with the dead party in a civil action. New York has an accident exception to this rule: an interested party may testify about the facts of an accident (the transaction, if you will). But, the New York dead man's statute still prevents testimony about conversations with the dead.
• As a hearsay exception, a past recollection recorded may be read to the jury if the witness once had personal knowledge and can attest that the recorded recollection was accurate and made at a time when it was fresh in the witness' memory. This standard also presumes that the witness either made or adopted the recollection. Under the New York rules, this recollection can be offered into evidence by the party using the recollection. This is contrary to the federal rules, which stop short of offering the recording into evidence. But, under the federal rules, the opposing party can offer the recording into evidence.
• For scientific evidence, the federal standard is the Daubert standard which allows what might be considered questionable evidence if it has been tested, with known rates of error, peer review, and general acceptance in the scientific community. New York adopts the more restrictive Frye standard, which only asks whether the methodology has been generally accepted by the relevant professional community.
• Under federal rules, an expert witness may not testify whether a defendant had the requisite mental state to commit a crime. In New York, an expert can testify as to the defendant's state of mind.
• Under federal rules, a learned treatise in aid of expert testimony is allowed to be read to the jury as substantive evidence (as a hearsay exception). Contrarily, in New York and learned treatise is only allowed for showing the basis of an expert's testimony or to impeach the opponent's expert (if the expert acknowledged the treatise as a reliable authority or used the treatise in forming their opinion).
• In New York, prior inconsistent statements, even those given under oath as part of a formal proceeding, are not admissible as substantive evidence. They can only be used to impeach. Under federal, sworn statements as part of proceedings can be used as substantive evidence.
  

NY distinctions in Contracts

• NY tests article 2a of the UCC for lease of goods. Under federal, this is governed by common law of contracts.
• In NY, be sure to mention quasi-contract when there is an inequitable result.
• In NY, a signed, written promise not to revoke is enforceable, even without consideration. This echoes the UCC in regard to offers for goods. In other jurisdictions, an option is revocable without consideration.
  
• In NY, a unilateral contract can be revoked even if performance of the unilateral act has begun. Under federal rules, a unilateral contract cannot be revoked once performance of the unilateral act has begun.
• In NY, if someone sends you unsolicited merchandise in the mail, it is a gift and you are under no obligation to pay.
• In NY, there was a case where a house was haunted and this was a material fact that provided a misrepresentation defense to a contract.
• In NY, past consideration is binding if stated in a signed writing and can be proven.
• In NY, the pre-existing duty rule does not apply if modification is in a signed writing.
• In NY, you don't need consideration for an agreement to pay a disputed debt if the promise was signed and in writing.
• In NY, lifetime contracts do fall within the statute of frauds. Under federal law, they do not because one of the parties may die within a year.
• In NY, there is no main purpose exception to surety in the statute of frauds. As in, it doesn't matter if the main purpose of offering a surety was to benefit the offeror, it still needs to be in writing.
• Under Article 2a, a lease, the implied warranty of merchantability is the same as a sale.
• However, under a finance lease, there is no implied warranty. Banks are intermediaries.
• Under Article 2a, the lessor bears the risk of loss. However, if the lease is a finance lease (from a bank intermediary), the leasee bears the risk of loss.
• In New York, a gratuitous assignee of contract rights is irrevocable if it is in writing and signed by the assignor. This would override the federal rule, whereby the last gratuitous in time prevails because a later gift assignment revokes an earlier one.
• In NY, an assignment for consideration must be filed to be valid? This is a general notice requirement for two assignments for consideration.
  

Felled Oaks

"Ancient oaks survive about 900 years, of which 300 years are spent growing and 300 dying."


Kate Schuman "Robin Hood's forest is in trouble," Associated Press. Nov 4, 2007.

Ten minutes of thoughts:

Ten minutes of thoughts:

What attacks a banana to make it brown? Is it just decay? Dehydration? Fungus? Mold? Bacteria? I’m sure the internet will provide an answer.
…

It hasn’t but it has yielded some wonderful tangents: a wiki on the brown banana frog, and some inspiration website. The inspiration website asks us “...isn't it true that what unites us as souls is stronger than what separates us?” I guess it’s true if you want it to be true. But, then again, who wouldn’t want it to be true? As such, it’s not true if you want it to be true. Instead it is true if you can believe it is true. Let’s take apart the quote a little bit. First, let’s rephrase it so it doesn’t chose sides. Rather than “Isn’t it true,” let’s just simply ask “Is it true.”

“Is it true that what unites us as souls is stronger than what separates us?”

Next, I’m going to assume that the collective “us” is mankind. Though, it would be more funny if the quote was only talking about the souls of south paws or banana tree frog owners.

“Is it true that what unites mankind as souls is stronger than what separates mankind?”

Aah, ten minutes are up…maybe I’ll get back to this later.

Bobble Bowie

Cranford, 12:17

it's ok

the people all speak my language

and they are nice people

and full of tips and advice

31 Random Songs Played on 4/12/07

God Knows (You gotta give to get) – El Perro Del Mar / Pilot Can at the Queer of God – Flaming Lips / Chases – Mclusky / Map Ref. 41°n 93 °w – Wire / Roll Another Number (For the Road) – Neil Young / Montego Bay – Merle Haggard /Mezzanine – Massive Attack / Alison – Elvis Costello / Turn it up – Ugly Duckling / Side to Side – Blackalicious / Promising Light – Iron & Wine / Do you ever think of me – Laura Cantrell / One Mo’ Gin – D’Angelo / Long Division – Fugazi / If – George Shearing / I can’t give you anything – The Ramones / Who loves the sun – The Velvet Underground / The Natural Arc – The Places / Heirloom – Björk / Obstacle 1 – Interpol / No Lullaby – Jethro Tull / Don’t Bring Me Down – David Bowie / Invisible – Modest Mouse / The Last one Standing – Ladytron / Rallying the dominoes – Danielson / Pass it on – Ugly Duckling / Way out is the way out – Lungfish / Hare Krsna – Husker Dü / Watermelon Man – Herbie Hancock / On/Off – μ-Ziq / Loomer – My Bloody Valentine

LJ Carpenter

+=

He started writing with a furious intensity

He started writing with a furious intensity:

“He started writing with furious intensity. This is so rare to see these days. A man actually writing. Not typing. Writing. In a notebook. In his own penmanship. He brought a notebook with him. No, not a notebook, a journal. How old fashioned. How quirky. How inspired. Was that a special pen as well?”

The muse of public performance “struck him” while waiting for the train. He thought that people would take note. He thought that people would be curious. When he wrote, he dared not look up and around him. To do so would be a disruption to the intensity with which the muse struck him.

But he certainly hoped someone was taking note. He was hoping that someone was intrigued to find out what was on the page. To find out what the muse had given to him.

He finished writing the last word with flare, dashing the pen across the page with assertive finality. Then he violently tore the page from his journal, crumbled it up and threw it down on the ground. He turned his back to it and looked out into the distance until his train arrived. Then he boarded and was gone.

The coast is clear. Now those who were curious would have the opportunity to go and investigate. In his mind, a woman, perhaps the one with the long red scarf, would sidle up to the bench at the station, sit down, and nonchalantly pick up the page. She would stuff it in her pocket and board her train a few minutes later. Safely away from the scene of the crime, she would take the page from her pocket. She would uncrumple it as if she were savoring it. Then, she would flatten it out. Her eyes would be closed and then, after a long exhale, she would open her eyes and start to read.

But this isn’t what happened. The paper remained crumpled up under the bench. The glint of the gilded page drew the eye or curiosity of no passerby. The next morning, a janitor that spoke broken English mindlessly swept the page into a dust pan on a stick, dumped it in a trash bag, and later tied up that bag and threw it in the dumpster in the receiving dock behind the station below the tracks.

37

Sanford told me that god didn’t have his email address. Or, if god did, he wasn’t letting on. Sanford realized that god’s email, though requested in prayer, might seem unsolicited. After all, the email server couldn’t hear our prayers. He was worried that god might accidentally get filtered in with his spam. So, he started checking his spam each and every day. He was worried that god might not send email in English, so he used Babelfish to translate the foreign spam. But he stopped when he realized he was using a translation service that ultimately derived its name from a tower that angered god. If god sent him a message in a foreign language, he had a reason.

RR 32 I sat up in bed and tried to arrange my thoughts

We’ll talk of dosages and passing ships and how Staten Island doesn’t really look like much from a distance. The conversation hums along as good banter, witty white noise with which to fill empty space and allay fears of being awkward.

But, do you have a contingency plan? Software licensing doesn’t segue well into the career pitfalls and high points of Nicholas Cage. Does he even read the scripts anymore or is he just trying to break some record for the most movies made over a lifetime? I don’t know how a nautical thermometer works, is it just like a regular thermometer? Yes. It is; it just has an anti-glare matte finish. I never thought about how it’s sad that the lights on the bridges never go out. But, I can see how it makes them seem less special to those that see it every day. But, isn’t that true of anything? People live across the street from the Forbidden City and all they think is “Man, it would be great if I could cut through there to get to work faster.” Err, I mean “人, 它 會 是 偉 大 的 如 果 我 能 穿 過 那 裡 得 到 快 速 地 工 作” But wait, is that the right flavor of Chinese? I have no idea. It looks like Chinese to me. But, maybe this is more correct: “兄弟, 我能去快速地工作如果宫殿这里不是” Someone who reads Chinese will have to tell me if I’m even warm on this and what flavor looks more like Mandarin. Spell check is no help on this. I hope we get there soon. I don’t know anything about child psychology and have nothing to contribute to the conversation here.

Did they (the big giant they that designed the Forbidden City) ever think that those turtle statutes that face the residential palaces are wishing the emperor a slow death rather than a long life? I bet they smirked to each other when they did that.

Forsan et haec olim meminisse juvabit

Forsan et haec olim meminisse juvabit

RR 30 10/10/06

I catch a glimpse of a man wrapped in black lawn and leaf bag plastic sleeping on the side of the highway as I blow by to get to class. The air smells like tar and when you look at the city the air forms a high brown halo around it. I’m in this halo but can’t see the brown in front of my face. It’s only visible from a remote distance.

She's talking and I hear sibilant S’s added into her speech. I want to reach in to her mouth and give her tongue a massage so she can form the words correctly. Of course, I don’t and can only think of her sibilant saliva spraying in my food. Actually, is it her tongue or lips? I exhale the sounds myself as a test and I’m certain the sound comes from a tongue held near, but not pressing, the roof of the mouth.

Comics always talk about the DMV because of the limits of their experience. They need to associate to something familiar to everyone else, and the DMV is what they have to draw on. They don’t have nine to five jobs. They don’t sit in rush hour traffic. They have time to watch daytime television.

Who’s that singing? “You sold me what you want me to buy.” “What else would I ever want to sell?”

Inspected by 65 rr28

They strolled side by side, with about an arm's length between them, and spoke towards the ground. The intensity and intimacy in their voices showed familiarity with each other and, more importantly, with the subject matter. Again, they would try to talk it out. Again, they would make promises. Both are tired of it. Both knew they wouldn’t change.

She tells him about her emptiness and swears it had nothing to do with him. She says that she’s not happy, but she’d rather be unhappy with him than with anyone else. She’s being honest when she says it. Deep down, it isn’t the truth. But, deep down hasn’t yet been tested. So, the truth is the truth for now.

He feels her lie. He is uncomfortable with how angry his is about it. But, he doesn’t want to shake anything up. This isn’t the truth and he knows it. He wants to fight with her. He wants to say clear, incisive phrases with the hope that she’ll want him more for attacking her words. It’s fear that prevents the attack. He’s not much of a gambler and even less a debater. He won’t put stock in himself on his ability to successfully call her bluff.

single-handedly slab

The below message was delivered to one of my work email addresses onSunday 8/27/2006 at 2:13am. None of the wording or spacing has been altered:

I do like, said Anne, but I want to impress on your mind that wehave MUCH finer moons in Avonlea. Only yesterday Katherine had beenpositively insulting at a staff meeting. Do you think it doesnt hurt me toknow it? For the first time it camehome to Katherine that life might be beautiful, even for her. Only yesterday Katherine had beenpositively insulting at a staff meeting. You couldnthave known them when I got through with them. For the first time it camehome to Katherine that life might be beautiful, even for her. And a dog really is such a protection at night. Do you think it doesnt hurt me toknow it? And youll feel deliciously sleepy after this walkin the frosty moonshine =

Of stranger (RR 27)

Her words wandered though she was trying to be formal. I know her well enough to know she was fighting back her feelings.

“When they draw these caricatures, I don’t see it as a negative. Someone has taken the time to look at my face, to study it and pull out the nuances of it. That the result is ugly is immaterial. It’s a rendering. It’s how I am seen by this person. It’s one artist drawing another. I am important enough to be rendered by another. I am important enough to have that rendering printed in a magazine. It would be sadder if I were completely ignored.”

She didn’t look at me while she was saying this. Her eyes were looking down and to the left. If they had been focused, they would have been staring at crumbs from the croissant on the corner of the table. But, they weren’t. Her mind was focused enough to compensate for her eyes.

She read articles about Neil Young. She wanted to be as strong as he and let everything roll off her back. But, she couldn’t do what he did. She couldn’t go on tour and get booed every night while road testing Greendale. On stage, she had a habit of politely whispering ‘Thank you’ very quickly after every song as if she was in disbelief that we weren’t mad at her yet.

I said the only thing I could think of, “What’s wrong with letting it hurt your feelings? It’s natural. I would be hurt too.” Truth told, I don’t know if it would hurt. I’ve never had anyone take the time to render me. But, I can imagine being hurt. They picked on things of which she was already self conscious and gave her new things of which to be aware.

Was her neck that long? Was her posture so bad? Did her nose hook so much? Was her face so round? Did her teeth separate that much? Is this how everyone saw her?

On the way out

“These small napkins will never go out of style…unless the world finds there is no longer any room for a little decorum.” The loose folds of her neck shimmied as she spoke and betrayed a deep-rooted lament for a world gone lost.

Overly-polite, in hushed tones, we ate lunch with the ramrod posture and hesitation of youth desperately trying figure out “a little decorum” on the fly.

I usually eat lunch standing outside next to the day’s street vendor of choice.

I usually drink a wheat germ soy protein banana peanut butter shake for lunch while walking back from the gym.

I usually eat a salad at my desk while talking on the phone with my mother during my lunch break.

I usually close the door to my office and smoke a cigarette while watching joggers in the park during lunch break.

I usually microwave a Lean Cuisine and watch TV in the lounge for lunch.