Washington Lawyer - September/October 2020 - 56

A SLICE OF WRY
A: . . . to tell the truth, the whole truth, so
help me me.

'Act of God'
By Paul Kiernan

W

ith that impeccable timing
for which I am known,
I chose a pandemic to
launch a humor column.1 Of course
there is nothing funny about
COVID-19. A legacy of pain and
troubles. Events canceled, longcherished plans scuttled, jobs lost,
opportunities postponed, lives
derailed.
While there is nothing funny about the novel
coronavirus, we might find some things in the
law as a (dim) bright side. First, we had the sight
of partners learning to navigate the digital
world a.k.a. The Great Leap . . . sideways.
Second, we heard the Supreme Court go from
moot court to "you're on mute!" court.

Where does she come from? Only her
drafters know. When will she appear?
Impossible to say. Can she be stopped?
I'll prepare a memo about that.
From out of the past, when you were
nodding off in contracts, comes a
powerful new hero who will rock your
well-ordered, negotiated world!
Meet . . . FORCE MAJEURE in her first
solo picture: Small Print!
(Hollywood, call me. I got lots of ideas.)
Then again, the whole notion of an "act of
God" as a defense is anathema to lawyers.
If someone acted to hurt my client, then
someone should pay - even if that some-one
is the Supreme Being.
Imagine that a freak blizzard has caused your
client's produce warehouse to collapse,
resulting in squash. You bring suit against God
for his (her, their) act. You get ready for the big
deposition:

Contract lawyers at last got to see whether
those "act of God" clauses that they paste
everywhere actually amount to anything. And
lawyers got to trot out the phrase force majeure.
People would pause when they ran across that
term, and then pronounce it with this vaguely
French, maybe Belgian, accent that tries to
sound cultured but comes off clumsy. More
Clouseau than Camus.

Q: Please state your name for the record
and spell your last name.
A: G-O-D. I also go by Jehovah, Allah,
Elohim ...

Anyway, I think Marvel Comics missed a bet
by not extending its universe to include this
dynamic new hero:

Q: OK, I guess that means no venue or
jurisdiction challenge. In preparation for
this deposition, did you take steps to
inform yourself about the facts?
A: I have always known about the facts,
even before they happened.

From the people who brought you
Iron Man XIV: Rust Never Sleeps! and
Ant-Man: Colony! and Thor - Loser!
comes a "superior force" for good.
She wipes away contractual commitments with the scraping of her clause!
Able to leap tall commitments with
a single unwound.

56 WASHINGTON LAWYER

*

Q: Excuse me, but I don't need the whole
corporate structure. Where do you reside?
A: Here. Here too. And here. And over
there. And down the hall and through
there and . . .

Q: Did you conduct thorough and
complete ediscovery searches?
A: Hey, I'm God, not a miracle worker.
Q: Oh, wait a second, I'm sorry . . . I forgot
to have the court reporter swear you in.

SEPTEMBER/OCTOBER 2020

Q: Where were you during the overnight
hours of February 26?
A: Here. Here too. And here. And over
there. And down the hall . . .
Q: Let me rephrase. Are you familiar with
the big blizzard that night?
A: Yes, I always have been.
Q: In connection with that blizzard, did
you cause snow to fall?
A: There's a complicated answer. It requires
me to go back to the initial decision to
have water contain two hydrogen molecules and one oxygen molecule. Then
I will need to talk about the creation of
gravity, temperatures, atmosphere, and
this particular planet. You have seven days?
Q: Well, I only have seven hours for this
deposition. So let me ask it this way: Once
the snow was snowing and the wind was
blowing, did you think my client could
weather the storm?
A: I can tell you one thing - he didn't ask
me for help.
Fast-forward to trial when the defendant is
being cross-examined. Talk about never asking
a question that you don't know the answer to!
You would have to be one grand inquisitor to
stick that cross-examination.
What defenses would there be to a suit for an
act of God? Well, since it involves human
beings, I bet there would always be a handy
contributory-negligence or comparative-fault
defense. After all, one side of the case sins, and
the other side . . . not so much.
In Luke's Gospel, Jesus is quoted: "And you
lawyers, woe to you, because you load people
down with burdens they can hardly carry, and
you yourselves will not lift one finger to help
them." The jury might go for that. We can only
imagine the babble in the jury room as it
considers its verdict.
What if you got a favorable verdict in your suit
to recover for an act of God - how would you
go about collecting it?
Meanwhile, whom do I sue to recover the
hours I lost watching Tiger King?
	
NOTE

1	This column does not constitute legal advice.
Please consult a webpage disclaimer near you for
more details.
Washington Lawyer - September/October 2020

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