Why Lawyers Are Nuts About Spotting Every Possible Issue

It's always a bit tough to predict the legal issue that will resonate with the judge or judges hearing your case. This is one of the reasons that many conscientious lawyers have big problems with page limits: you don't want to miss an issue that could win the case for you. That seems to be what happened in Barrasso v. Hillview Condo. Trust, Appeals Ct. No. 07-P-1057.

Judge Kantrowitz concurs and directs the full force of his exasperation at all comers in this slip-and-fall case. The issue, as he sees it, is whether a person of average intelligence would climb over three feet of snow to throw a small plastic bag of trash in a dumpster. Judge Kantrowitz makes it clear that he thinks the answer is no, a person of average intelligence wouldn't do such a thing. He compares it to diving into the shallow end of a swimming pool and sledding down snow-covered stairs.

Maybe the defendants didn't think this was an issue they could raise on summary judgment. One would hope that they'll at least give it a go on remand. "While it is difficult to imagine how, once raised, it would not prove successful," Judge Kantrowitz writes, "I leave that for another day."