Judge John Hodgman - Hors d'oeuvres in the Court

Episode Date: August 19, 2011

Mike's three children were enticed to try a foreign food -- bacon-wrapped scallops -- by an offer from their father of $5. However, Mike now claims that since the boys enjoyed the food, he no longer owes them compensation. Mike's wife Ellen represents the boys in court.

Welcome to the Judge John Hodgman podcast. I'm bailiff Jesse Thorne. This week, hors d'oeuvres in the court. Mike brings the case. He has three sons aged 13, 11, and 9. He describes them as the three most finicky people in the world. At a recent family gathering, he asked them to try bacon-wrapped scallops. Despite the fact that they loved bacon and had never tried bacon-wrapped scallops, the three children demurred. He offered them $5 each if they would each eat one. They each tried one and loved it. The three young men came to Mike asking for five dollars each. Mike said that because they loved the bacon wrapped scallops, they didn't deserve five dollars. Their payment was in the form of a delicious treat and an informative life experience. and an informative life experience. Ellen, Mike's wife, represents the three children.

She says that $5 a scallop is $5 a scallop. Only one man can decide who will get $5 and who will get an important life lesson. Please rise as Judge John Hodgman enters the courtroom. Jesse, did you say bailiff Gessie Thorne or Jesse Thorne? John Hodgman enters the courtroom. Jesse, did you say Bailiff Gessie Thorne or Jesse Thorne? It's possible I said Bailiff Gessie Thorne. Are you pronouncing your J's differently now? It's over 90 degrees here in Los Angeles.

I know, boy, oh boy. My mind is clouded. It's the last day of school. I think everyone's a little giddy. Hey, guys, do you know what? I'm on the seafood diet. When I see food, I dispense justice. Swear them in.

Please rise and raise your right hands. Do you swear to tell the truth, the whole truth, and nothing but the truth, so help you God or whatever? Yes, I do. I do. I do. Do you swear to abide by Judge John Hodgman's ruling, despite the fact that his preferred hors d'oeuvre is bacon-wrapped bacon slices? I do. Yes, I do. Very well, Judge Hodgman. I call bacon slices mock scallops.

We're talking about one of my favorite topics. Not just seafood, but hors d'oeuvres. And also, the best, that's, you also, if you look at a food pyramid, that should be every step of the food pyramid, frankly. Hors d'oeuvres, hors d'oeuvres, hors d'oeuvres, hors d'oeuvres, the dessert of hors d'oeuvres. What is your problem, sir? I have two arguments in my defense, Your Honor, if you'll indulge me. The first is— I shall not.

Just make one. Make one, and then I'll decide. Okay, fair enough, fair enough. Wait, what's the problem? First of all, just tell me what happened. Oh, so we were at an Easter party, and my brother-in-law, who makes these particularly delicious bacon-wrapped scallops, the particularly delicious part is he rubs them in brown sugar first, brought out the tray. And I said to the guys, I said, guys, you've got to try these. They're delicious.

And they said, oh, that's disgusting. Scallops are involved. We're not going to test those with a 10-foot pole or something to that effect. Sure. I don't think your sons use cliches quite as often as you make them out. You might be right about that, Your Honor. Yeah. In any event—

I don't think they said, that involves scallops. I won't touch them with a 10-foot pole. What do you think they actually said? I think they probably said, that's disgusting, or scallops are disgusting, something like that. Sure, something along those lines that i would accept that sounds like something that children would say and so i said to him now come on guys give it a shot uh and they you know they they demurred a few times and and i said come on if you try it i'll give you five bucks and so they all marched over and and uh grabbed one and they made the you know the traditional kid face uh of disgust. And once they actually tasted them, they were surprised

at how much they liked them. And the three of them moved on to devouring just about the whole tray themselves. Sure. Well, I mean, forget about scallops. It's something wrapped in bacon and then dipped in sugar. It might as well be just a plug of rubber that has been wrapped in bacon and dipped in sugar at that point. When you say that your brother makes these scallops, by make do you mean he opens up a giant bag of frozen bacon-wrapped scallops from Costco? No, I actually think he goes to the trouble of buying them at the seafood counter and wrapping them himself. I think he makes these with particular tender, loving care.

And these are actual scallops, right? Not just cookie-cutter pieces of skate wing? You've got to watch out for that, you know. Yeah, we haven't tested that, but we assume that they're scallops. That is what an actual mock scallop is, and it's often sold as a scallop. They just take a little cookie cutter and cut out little round pieces of skate wing. So be careful. But what part of the country are you in? We are in Boston. Okay, fantastic.

So you actually have access, likely access to real scallops. You call them scallops or scallops? I call them scallops. Okay, where'd you grow up actually? Nashville, New Hampshire. Okay. Are we talking about bay or sea scallops here? These were, you know, I'd say they were either small sea scallops or large bay scallops.

Okay, or just pieces of junk fish shaped like scallops, because this is starting to sound very suspicious to me. It is very fishy. Oh. Sorry about that. No puns in my courtroom, please. Do you need me to pound him? Because I'll pound him into a scallop shape. Could you form him into a scallop and wrap him in some bacon? All right.

So you made this offer. How many sons do you have? Three sons. What are their ages? Nine, 11, and 13. What are their names? Quick, don't think about it. What are their names?

Quinn, Nathan, and Connor. And they all partook of the scallop challenge? Oh, they absolutely did. The $5 bacon-wrapped scallop challenge? All right. And now. The $5 bacon wrapped scallop challenge? All right. And now you don't want to pay them? Correct. Why? Money troubles, sir? Yes, but not to that degree. The economy is very bad. It is indeed, but perhaps this skate solution may help. I believe they understood my intent was to pay them five dollars to the extent that they didn't like and enjoy the scallops. And I make that argument because as a matter of fact,

when they were done devouring the bacon wrapped scallops, they did not ask me for five dollars. In fact, it wasn't until about three weeks later that they asked me for the money. And even then they only did so when they were prompt by their mom, Ellen. So what's wrong with that? They just, they provided the service that you contracted them for. They ate the scallops and then they took a little while to invoice you and someone reminded them to do it. How does that void your legal contract? took a little while to invoice you and someone reminded them to do it. How does that void your legal contract? Well, I think that, Your Honor, that strict interpretation of the words that I uttered could lead you there. But I'm sorry, was your offering of the was your offering five

dollars to your sons to eat scallops not intended as a factual statement? Well, there's context involved with all agreements. And I believe that the implied context here was that they would get the benefit of the compensation to the extent that they needed to be compensated for trying something that they ultimately did not like. Why would that be, sir? Why would that be the context? Have you had this arrangement before? Yes, we have had that context before. We have tried these incentives before to expand their pallets over time, and I've always compensated them for it. Have you tried using a mechanical pallet stretcher? You know, one of my kids actually had one of those early in his life when he needed to get ready for braces.

But I haven't myself tried it just for the purpose of expanding their palates. I see. So give me a situation where you had previously bribed your children with money to eat something that was disgusting. They thought it was disgusting, and then you paid them. Your Honor, you remember that Bailiff Gessley, Jesse described. Bailiff Gessley, please. Hey, Bailiff Gessley. He's starting a new life.

We have to respect his decisions. He noted that I described my boys as the three most finicky children in the world. And so an example is when my middle son. That's like a parent saying that my child is the handsomest boy in the world or the world. And so an example is when my middle son... That's like a parent saying that my child is the handsomest boy in the world or the smartest. They're those two. They're handsome and smart too. I think your experience may be clouded by your perspective, by your point of view. Well, I am angry about the litigation. About what litigation? Well, this litigation. I thought you were bringing this case. We've agreed to submit the matter to a mutually agreeable dispute resolution provider.

And so that's the structure. Frankly, I think you should feel lucky that your children did not take you to small claims court. It's very rare that I get to hear a case where there is actual financial compensation or nonpayment of promised monies involved. I'm very excited about it. Your Honor, the policy argument in support of my interpretation argument or defense is that, you know, if you are to rule in their favor and not recognize what I believe to be the sort of implicit element of our agreement is that, you know, anytime these guys try anything going forward, even things that are obviously likely to be of their liking, that they may seek to be compensated. It seems to me that it's only appropriate to compensate somebody when they suffer in some way.

Otherwise, they get double recoveries. They get the benefit of what it is that they tried and like, and they get incremental caps. Are you suggesting that there's a slippery scallop argument to be made here? Yeah, that is. That every time they eat something from now on, they're going to want $5? Well, I think they may argue that going forward, should they try something new and like it, they're entitled to some compensation just for trying. Well, they may make that argument, but that's ridiculous. How is my enforcing a clear verbal contract going to send you down the scallop slippery

slope that they're now going to extort money from you every time they eat food? You just don't make any more promises about offering them money. Well, I think going forward, we'll both work on a more clear set of details. Right, as opposed to the incredible muddled quality of if you do this, I will give you this money, and they do it. Yeah, it's hard to see. It's hard, yeah.

No, no, no, no. I can understand why anyone would be confused about that. Well, Your Honor. Ellen, all right, thank you. Thank you very much, Mike. I'm going to come back to you. Don't worry, you're going to have another moment to talk. But, Ellen, I want to talk to you for a moment.

You represent the children of the world. Well, I represent the internet. You speak for the voiceless. Yes, I do. And you encouraged these children to get money out of their dad's wallet in payment for their scallop eating? Yes, Your Honor. It could not have been more of a cut and dry contract. He said, if you eat this, I will give you $5. And for whatever reason, it was forgotten. And a few

weeks later, we were talking about money in another context. And I said to them, hey, did dad ever pay you that $5 for the scallops? And they all said, no, he didn't. No, he didn't. So when he got home from work that night, we asked him for the money. And then we were given his explanation that they received $5 worth of life experience and they did not need the cash. And I disagree with Mike on that matter. Well, frankly, I think eating a bacon-wrapped scallop

is about $0. cents worth of life experience. How many did they eat? Probably ten. He ate several. He had ten? Yes. What kind of crazy scallop party are you guys having? I don't think I've ever even seen ten scallops together.

And that was just a portion. Was there anything else served at this thing? Yes. Anything else served at this thing? Yes. Do you think that there was any implied, there was any context that would suggest that the deal was actually they would get $5 only if they didn't like the scallops?

No, absolutely not. Is it? Go ahead. No, he said it in front of a room full of people. We all heard him say, try it. You'll get, I'll give you $5, period. Can you think of any motive as to why your husband would want to withhold payment from his children other than to manufacture a dispute in order to be on a podcast?

No, I think that maybe he does believe that, you know, I don't know, they learn to like something they wouldn't have tried otherwise. I think it's kind of a weak argument, but he hasn't budged since the night we asked him for the money. All right. And how long ago was that? Oh, probably three or four weeks ago. Mike, when you offer to pay someone, for example, to paint your house, and the house is painted to your satisfaction, do you think the painter would accept your explanation that you are not going to pay him because he seemed to enjoy himself? No, Your Honor. I think that's distinguishable.

enjoy himself? No, Your Honor, I think that's distinguishable. There's significant opportunity cost to the painter to get up on a ladder and paint my house as opposed to other things he could do with his time. In this case, these guys were, there's no particular concession they were making other than to try something that had they been a little less finicky they might have otherwise tried well right but you you contracted them to perform a physical task put this thing in its mouth did you give them a specific outcome-based uh contingency that if they like it they would not be paid why if had, why would they accept that deal? No reasonable person would. Well, with all due respect, Your Honor, I disagree. I think that if I had said to them, as I will going forward more explicitly, as opposed to relying on what I believe to be an

implied contract or implied clause, I think if I had said to them, why don't you try this, and if you don't like it, I'll give you $5. It seems, it seems to say wrong from a policy standpoint, to pay them for something that they thoroughly enjoy. Ellen, has this happened in the past where Mike has offered financial incentive to your sons to try a food and then they when they did not like it he paid them the money you know i i can't remember i think if we've offered the money in the past they've gotten the money regardless of whether they liked it or not i really can't say do you disagree with that statement mike well i i don't disagree that i i just have a clearer recollection of the instances.

Well, give me. Oh, I don't think so. Oh, I'll have order here. I disagree. Order. Mike, specificity is the soul of narrative. Explain one situation where this contract act, this contract proceeded the way that you describe all should proceed. Sure. way that you describe all should proceed? Sure. My middle son has a, I think, irrational fear of tomatoes. And that has over the years...

Sir, sir, sir, they are the fruit of the deadly nightshade. Tomatoes were considered poisonous well into the 18th century. My assumption is that the modern tomato is not poisonous, or at least less poisonous than it was back then. I think it's largely safe, though not trustworthy, but maybe your son is a time traveler. It's conceivable. All right. So you disdain your son's fear of tomatoes.

Dislike or fear? Like when he sees one on the table, does he freak out and point at it and urinate himself or something? No, no, nothing like that. He just refuses to ingest them. Okay. You're quite right that, to my recollection, this is the first time that I've induced them to try something when they both ultimately like the food, but also sort of engaged in voraciously eating it afterwards. And so I do feel like that to the extent that I offered him five dollars, I've given them consideration of a value of five dollars or more. Notwithstanding your scallop reference before scallops may only be worth 90 cents or whatever you said.

only be worth 90 cents or whatever you said, but the experience of trying something and liking it and now being able to eat something, which I think we all acknowledge is a staple of the cocktail party circuit. These guys now have that in their repertoire. And I feel like that was a lesson that was well worth $5 in value, not necessarily in cash. Well, yes, but you're also teaching them another life lesson, which is that dad might change the term of the contract at any moment. I agree, Your Honor. Are there any children who can speak to this subject? Are any of your boys available to get on the phone and talk to me? Yes, we have Nathan here.

Nathan. And how old is Nathan? He's almost 12. Okay. I would like to hear him present his evidence. I call an expert witness to the stand. Hello? He's almost 12. Okay. I would like to hear him present his evidence. I call an expert witness to the stand. Hello? Is that Nathan? Yes, it is.

Hi, this is Judge John Hodgman. How are you? Good. How are you? Do you promise to tell me the truth if I ask you some simple questions about scallops? Yes. All right. Your father offered some money to get you to try some scallops. Is that true?

That is true. Describe the conversation you had with your father prior to tasting the scallops. Well, he said, I'll give you $5 if you eat the scallops. And I did. And then he said he was giving me the $5 tomorrow. He never did. Sir, did you say you would give the five dollars tomorrow? No, I dispute that fact. Are you calling your own son a liar? Challenging his memory. Son, I mean, Nathan, may I remind you that you are under fake oath to tell me the truth?

Yes, I know I'm under oath and I remember truth that you want to exist as opposed to the truth that is? Because one might have learned a lesson along those lines in your family. How many did you eat? And you want $5 for each or $5 for the set? $5 overall. How are you going to spend the money? You going to buy more scallops? Well, I'm not sure.

Nathan, the court thanks you for your testimony. I think I know my decision. I'm going to go into chambers and mull it over. I'll be back in a moment. Please rise as Judge John Hodgman exits the courtroom. Mike, you understand that you're just embarrassing yourself, right? I should have asked for permission to treat that last witness as hostile. I'll allow it.

Do you know what? I'm back. I'll allow that. I'll know what? I'm back. I'll allow that. I'll allow a cross-examination. Bring Nathan back. I'd like to see where this is going. He's coming out. This is us.

I'm back again. Let me swear you back in, Nathan. Do you promise to tell the truth, the whole truth, and nothing but the truth, so help you God or whatever? I do. Because you were brought as an expert witness, the complainant has asked for the chance to cross-examine you. He's going to ask you some questions, and he's going to treat you as a hostile witness. Your witness, complainant.

Thanks. Hi, Nate. Hello. So- Please address the witness as Mr. Son. So please, please address, please address the witness as Mr. Son. Mr. Son, can you explain to the court why it took three weeks to raise the question of getting paid for eating the scallops wrapped in bacon to my attention? Well, really, I just forgot that you were trying, that you were going to pay me.

And as it ends up, you weren't going to pay me. And so I don't know why. I think we were just talking around, and I realized that you hadn't paid any of us. Your Honor, I have no further questions. Really? I'm sorry. That's the best I could do. That was a derisive snort, by the way, if you're wondering what type of snort that was.

Thank you, Jesse. That was definitely derisive. I'll be right back. Please rise as Judge John Hodgman re-exits the courtroom. Well, Mike, you've got to be feeling pretty good after delivering that coup de grace in cross-examination. He was impossible to break, Jesse. Ellen, why are you here? Why didn't you just let Mike stab himself in the gut? This has been going on for three to four weeks. I have been begging him to pay them. And there just was no resolution until hopefully Judge Hodgman will agree with the boys and me because it's been rather difficult last few weeks. To be fair, as you know, there's not a lot of money in the financial services industry. I'm still holding out hope that Judge Hodgman will see it my way.

Are you looking for a bailout, Mike? Not yet. Please rise as Judge John Hodgman re-enters the courtroom. Well, generally speaking, as a parent and busybody and judge, I don't generally think that it's the best idea to offer to pay children to induce them to do things that they should do anyway without payment. And in that sense, I do agree with you, Mike. Your children should be encouraged to try new foods, and especially foods that are wrapped in bacon. And they should be encouraged to try them without bribery or compulsion

so that they may indeed stretch their own palates without mechanical aids. That said, I do believe very strongly in the force of contract and verbal contract. And I have to say, as much as I want to understand your double talk about double rewards and all of that sort of thing, it simply defies common sense that if you offer an incentive to do a thing that the person does not want to do, and they do that thing, and it turns out they didn't mind it so much, to then withhold compensation not only seems like a violation of what is probably the clearest contract that could be established, but also I think sets a terrible precedent

for any future contract that you might hold. I do think that it's reasonable if you went on to say at a cocktail party to your sons, remember sons how you tried that bacon-wrapped scallop? Now try this bacon-wrapped shrimp head. I will pay you five dollars, but if you enjoy it, and I will know that you enjoyed it by using this cumbersome enjoy-o-mometer, I will withhold that money and instead pay you in delicious shrimp head enjoyment. I think that that would be a reasonable contract to make that would support the argument that you're making now in terms of withholding the money. But I think that would be a strange thing to say in the midst of a cocktail party. And I don't think it would pass the smell test, as it were, and you would

be shunned from that cocktail party forever after. The basic contract that you suggested was very simple. And I think even if you had something different in mind in your head, no reasonable person would have been able to divine that strange fine print that you had written in your head, and certainly not a 9, 11, or 13-year-old child. That they took some time before finally invoicing you through whining demands to get their money, is immaterial. They provided a service, the motion of their scallop-clutching hand to their mouth, the chewing and the swallowing. You must provide the funds.

This is the sound of a gavel. Scallop, scallop. Judgment and Hodgman rules, that is all. And by the way, no more arguments. If I hear that you didn't pay this, I'm going to assign punitive damages to these children in the amount of $100,000. Please rise as Judge John Hodgman exits the courtroom. That's tough talk from the judge, Mike. How are you feeling? I said to the guys that I was completely comfortable with abiding by Judge Hodgman's ruling, and I look forward to giving them a $5 bill when I see them the next couple of days.

I look forward to giving them a $5 bill when I see them the next couple of days. What are you, are you leaving town? They're on vacation up in Maine, and I'm working. Oh, terrific. Well, I know you work hard, Mike, and I know that you've given this a lot of thought. I don't mean to ostracize you. I'm so happy.

Next time, I do encourage you, if you have any weird loopholes that are going on in your brain, I encourage you to be very clear before you make any scallop bets in the future. Your point is well made. You know, under fire at a cocktail party, it's hard to get out the details. But you're right. Well, maybe you should just simply draw up some boilerplate.

Some hors d'oeuvre boilerplate. I will. I'll carry that with me. Separate main course boilerplate. That will. I'll carry that with me. Separate main course boilerplate. That's how the best families operate, frankly. That's actually the source of the word boilerplate. Exactly. Exactly. A boilerplate is actually something that is usually used at a cocktail party to keep Scots warm. Wow. That is ironic.

Ellen, you really sound elated. I'm so happy. I'm so happy. They deserve their money, and I can't wait for them to get it from Mike. Bailiff Gessie, why don't you take us out, buddy? Mike, Ellen, thank you for joining us on the Judge John Hodgman podcast. Thank you. Thank you.

I have to admit, Judge Hodgman, now that we're back in chambers, I'm really glad that you ordered those bacon-wrapped scallops before we got started. They are delicious, and Mike's brother really knows how to do it. He dips them in, he wraps them in bacon, then rolls them in brown sugar, then dips them in maple syrup, then encases them in batter, then deep fries them, and then smothers them with honey. There's no, you don't taste the scallop at all. I guess I just didn't even realize that subpoena power extended this far. Oh, I can subpoena food anytime I want. Boy, but Jesse, can you tell I'm already on summer vacation?

I can tell. We'd better clear out the docket a little bit before we leave for the Cape. Summertime and the judging is easy. Travis writes, Dear Judge, my brother and I have been going to the movies together for quite some time. This is usually an enjoyable experience during and

after. There is, though, a problem that crops up when we're seeing a movie with action in it. My brother falls asleep during such sequences. Therefore, it falls to me to make sure he doesn't fall asleep or prod him awake when he does. Needless to say, this is irritating to both of us, though he just accepts it as a natural function of life. To this statement, I wholeheartedly disagree. I ask Judge John Hodgman to find a solution to our issue.

More family drama. I hate to break it to you, but sleep actually is a natural function of life. And you're waking a guy up from sleep is more or less akin to making Malcolm McDowell watch images of violence in A Clockwork Orange. Leave your brother alone. Maybe he has narcolepsy. The one exception would be if he's snoring or otherwise disturbing people around him, because that's a violation of the First Amendment. You can't snore in a movie theater. But otherwise, just leave him alone and enjoy the movie. You don't have to bother your brother. Let him sleep. Here's another family dispute from Patrick. He writes,

We've been arguing about this for the past 8.5 years and the rest of our family's getting sick of hearing about it the crux of of the case rests with a boston red sox cap here we go my brother and i the boys of summer summertime sports eight and a half years eight and a half years. Eight and a half again. This is getting weird. My brother and I had just landed in Providence on a flight from Denver. My legs were stiff and I had to ask him. Boy, oh boy. Talk about a cursed life flying from Denver to Providence.

I had to ask my brother who was in the aisle road to move so I could stretch my legs. He wanted to wait, but I insisted that he stand since the length of the flight had made continuing to sit down very uncomfortable for me. Once we were off the plane, he realized that his cap had been left on the plane and continued on to the plane's next stop, Amsterdam. To this day, he blames me for rushing him and causing him to forget the hat and insists that I buy him a new hat, which I refuse to do on principle. I appreciate that he stood up and said that this was a matter of principle.

He wants to be clear, he can afford a lousy baseball cap. Generally, anytime someone says they're doing something on principle, they're insufferable boobs. But in this case, I side with the boob. You know, that hat wasn't his property, nor was it his responsibility. And he clearly was suffering from deep vein thrombosis and had to move around. The brother who lost the hat needs to take responsibility for

his own hats in life and stop bothering his brother for recompense just because he forgot his own hat. I say that on principle. Hey, bro, I'm thrombosing over here. You know what it is? It's a thrombromance. I love it when I get Gassy going you realize listeners that we're both in hammocks at this point drinking lawnmower beer and drifting off to sleep let's move on

our final familial dispute comes from Aaron he says for years now my father and I have been arguing over what the proper name is for those little disgusting pieces of white yellow and orange striped Halloween candy is it corn candy or is it candy corn candy corn I'm not even gonna let you finish

candy corn is that decision final Hodgman Judge John what maybe this guy is related to Bizarro that would be the only explanation I could have for this grievous error Maybe this guy is related to Bizarro. That would be the only explanation I could have for this grievous error. Dad, if you're listening, Bizarro Dad, if you're listening, I'll speak in language you'll understand.

Me want no more Ray Corn Candy. Why backwards? Is it old timey? Is me confused? Or am you confused? Don't write in. That's Bizarro Talk for write in. Hodgman at MaximumFun.org.

Cow. Cow. Hey, happy summer, everybody. We will talk to you a little bit less frequently, but a lot, lot more loudly. We're making up for it with volume. This is the sound of a cool, gentle summertime breeze. Judge John Hodgman rules.

That is all. The Judge John Hodgman Podcast is a production of MaximumFun.org. Our special thanks to all of the folks who donate to support this show and all of our shows at MaximumFun.org. Our special thanks to all of the folks who donate to support this show and all of our shows at MaximumFun.org. The show is produced by Julia Smith and me, Jesse Thorne, and edited by Matt Gourley. His great podcast, by the way, is called Super Ego. You can find it in iTunes or online at GoSuperEgo.com. You can find John Hodgman online at AreasOfMyExpertise.com. If you have a case for Judge John Hodgman, email us and be sure and include your telephone number. The email address is hodgmanatmaximumfund.org. If you have thoughts about the show, you can always comment on it

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