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eyesroll Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Nov-25-06 03:16 PM
Original message
Post your off-the-wall torts or contracts questions here!
I need some practice for my upcoming finals.

(If you are a real lawyer, and want to ask me questions and then laugh at how ridiculous I sound, feel free. Oh, and my contracts class is common law/restatements only -- no UCC -- so don't go there please. If you ask me a question about something covered by UCC, I will answer it as though it's covered in common law.)

Note that I am NOT GIVING OUT legal advice. I am a first-semester law student and as such, I am often FULL OF SHIT. If you have an actual legal question, call a lawyer. The average person gets about 50% on the contracts exam; passing is about a 37%. Do you want to take legal advice from someone who is right less than half the time? No, I didn't think so.

(I will probably take a shower and come back...so if I don't answer you right away, please be patient.)
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Dangerously Amused Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Nov-25-06 05:16 PM
Response to Original message
1. What is the liklihood




...that Mrs. Palsgraf would have recovered for loss of consortium damages if she was, indeed, a fertile octogenarian, and if the Long Island Railroad Company timely filed a cross-claim against the dude carrying the unmarked fireworks, but then entered into a Mary Carter contract with him regarding his apportionment of potential damages? How would this result have impacted the development of proximate cause?



Ha ha.



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The Velveteen Ocelot Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Nov-25-06 05:23 PM
Response to Reply #1
2. ...or, what if Mrs. P. had died of her injuries,
Edited on Sat Nov-25-06 05:31 PM by ocelot
and left money in trust for her family but the terms of the trust say it can't be distributed until more than 21 years after the death of the last living beneficiary? (Sorry, that was evil.)

And what might have happened if Mrs. P. had injured her hand in the accident and she went to a doctor who guaranteed that after a skin graft the hand would be perfect, but the doctor screwed up and the hand was all hairy?

And what if Mrs. P., a New York resident, sued the guys with the fireworks, who lived in another state, in federal court, and they then impleaded the Long Island Railroad. Could the railroad get the case remanded to state court? :D (Sorry, that was even more evil.)
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Dangerously Amused Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Nov-25-06 05:41 PM
Response to Reply #2
3. Noooooooo! Not the Rule Against Perpetuities!





Oh bloody freakin' hell. Just shoot me now.



Heh.



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The Velveteen Ocelot Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Nov-25-06 05:44 PM
Response to Reply #3
4. Careful... or I shall unleash the Rule in Shelley's case and
the Doctrine of Worthier Title upon you.

BWAHAHAHAHAHAHA!
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eyesroll Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Nov-25-06 06:04 PM
Response to Reply #2
5. We get Property and Civil Procedure next semester.
Ask me again in May.

And can you believe we didn't touch Hawkins this semester? (Anyhow...Mrs. P could get contract damages for the difference between what she got and what she was supposed to get, as well as foreseeable expenses -- damages put the plaintiff where s/he would have been if the contract had not been breached ... she could also get tort damages (although I think my prof said you can't get both contracts and torts damages, but that won't be on either exam) but if this was a torts hypo, the prof would provide a monetary amout we'd have to divide up between the doctor and the railroad and the fireworks guy and perhaps Mrs. Palsgraf herself...)
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eyesroll Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Nov-25-06 06:06 PM
Response to Reply #1
6. Grrr.
:grr:

We didn't get into Mary Carter agreements anyhow.
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The Velveteen Ocelot Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Nov-25-06 08:50 PM
Response to Reply #6
9. Don't you use Pierringer releases in Wisconsin?
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eyesroll Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Nov-25-06 08:58 PM
Response to Reply #9
11. Pierringer releases came up in a bit of "recognize this, but it won't be on the exam..."
As far as apportionment goes, we should know contributory/comparative/49/50 rules and how assumption of the risk fits in, but she won't stick a release in there.
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Dangerously Amused Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Nov-25-06 09:04 PM
Response to Reply #6
13. Grrr? What grrr?



Too easy?


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flvegan Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Nov-25-06 11:59 PM
Response to Reply #1
22. Jeebus, but that gets me hot.
Meeeeee-ow!
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Dangerously Amused Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Nov-26-06 12:14 AM
Response to Reply #22
28. Boy howdy, handsome!




Now I'm all hot too; that's quite an impressive penal code you're wielding.



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flvegan Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Nov-26-06 12:16 AM
Response to Reply #28
29. Let's talk Discovery...
I want full disclosure, including pics...
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Dangerously Amused Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Nov-26-06 12:26 AM
Response to Reply #29
31. Fine, then I invoke the Best Evidence Rule.




So get your smokin' hot vegan butt up here. I have a wicked sweet direct exam of you planned.


And my cross is even better.



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flvegan Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Nov-26-06 12:32 AM
Response to Reply #31
32. Oooohhh...production of the original...well played.
If you find fault with said original and find judgment (no "e") in favor, you know I'm kicking that to a Writ of Cert.

Hope you brought your best game...
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Bullwinkle925 Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Nov-25-06 06:24 PM
Response to Original message
7. Good luck.
My sister passed the bar earlier this month (3rd try) and is ecstatic now. She's damned glad to be putting the books away (for awhile).

:hi:
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eyesroll Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Nov-25-06 07:14 PM
Response to Reply #7
8. Thanks! I actually like law school but I'm in that "is this even working?" phase...
I suppose I'll find out in a few weeks...:crazy:
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Bullwinkle925 Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Nov-25-06 08:54 PM
Response to Reply #8
10. I remember my sister thinking the same thing.
She loved it but found herself thinking: "What have I gotten myself into"? a few times. If you're liking law school already - I'm sure you'll do well. Which law school? My sister went to Pitt. in Pittsburgh PA.
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eyesroll Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Nov-25-06 09:09 PM
Response to Reply #10
15. I'm at Marquette.
And it's not even a "what have I gotten myself into?" thing for me...it's more "well, I think I know the material but there's no feedback and no sample exam and all of the supplements assume you know UCC so I guess I'll have to wait and find out how I do on the exam."

And a "holy crap are these people young" thing (I'm one of ten or so students over 30 in the day program...I didn't think 9 years was a big difference but it's turned out to be huge.)
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Bullwinkle925 Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Nov-25-06 10:30 PM
Response to Reply #15
18. Yes - my sis experienced the same thing. She was 40 when she entered
Pitt and one of her classmates was 65 - going for her 2nd degree. Both have passed the bar. You'll do well. My sis said it was the 20somethings that pissed her off - showing off all the time, etc.
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The Velveteen Ocelot Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Nov-25-06 10:57 PM
Response to Reply #15
19. I started law school at 28, had some classmates who were even older,
including a woman who was about 45 and had been a cloistered nun for 20 years, and a man of 65 who had just retired from his job as a corporate executive. The students who were right out of college, especially the Poli-Sci majors, tended to be obnoxious know-it-alls, but us old folks handed them their asses when the grades came out.

During the first year (I think it was in Contracts), some of us played a game called "Springbutt Bingo." We made up Bingo cards with the most annoyingly talkative students' names on them, and when a line of all students' names had been called, the holder of the card would say, in a loud stage whisper, "Bingo!"

I got out of the law biz a few years ago -- burned out after 17 years of litigation; went into a totally unrelated career. But I did think law school was kind of fun. Except for Corporate Taxation. Eww.
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mainegreen Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Nov-25-06 09:01 PM
Response to Original message
12. Should I get a cheese or raspberry tort for breakfast?
:P
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eyesroll Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Nov-25-06 09:15 PM
Response to Reply #12
17. There are, sadly, no torte torts in my book.
But why settle? Go for a raspberry-cheese torte.
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Elidor Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Nov-25-06 09:07 PM
Response to Original message
14. I read once that someone successfully sued a manufacturer
For producing a product which was impossible to use in a negligent manner. Are you familiar with that case? I've always wanted to know the details.
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eyesroll Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Nov-25-06 09:14 PM
Response to Reply #14
16. I've not heard of that case, but it wouldn't surprise me.
Although using the product negligently wouldn't be why someone would sue...they'd sue if the product was defective and using it (non-negligently, or at least not negligently in a pure contributory negligence jurisdiction/not comparatively more negligent than the manufacturer in other jurisdictions/blahblahblah) caused them harm.
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Connonym Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Nov-25-06 11:08 PM
Response to Original message
20. I'm walking my dog on a public sidewalk
Edited on Sat Nov-25-06 11:09 PM by Connonym
she sticks her head through a hole in a fence and the two German shepherds inside proceed to rip off half of her upper lip. Who is at fault and libel for the enormous vet bill?

This actually happened to my sister. She filed a claim in small claims court and actually was called by two separate TV judge shows and asked if she was interested in being on their show. She declined. The real hearing is next month.

ETA the dog had to have surgery but she's recovered nicely
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eyesroll Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Nov-25-06 11:53 PM
Response to Reply #20
21. Yikes. Glad the dog's OK.
Well...the outcome depends on the jurisdiction. Many jurisdictions are strict liability when it comes to dog attacks...the dog owner is liable, period, regardless of whose fault it actually was. Some of these jurisdictions restrict strict liability to places away from the owners' private property (or have other restrictions). (Keep in mind a dog is considered property, not a person, so you could recover for the cost of repairing the property damage but not for pain and suffering, loss of companionship, etc.)

We're going to assume, for the sake of this hypo (because lord knows my prof doesn't want me to write three sentences and stop), that we can't rely on strict liability.
(and to the other law people reading this: I know I don't have to address irrelevant stuff on my exam but I'm doing so here just to get my thoughts together.)

Generally, to prove the negligence claim, you need to prove that the dog owners had a duty to exercise reasonable care with regard to keeping their dogs from attacking your dog, and that the breach caused harm.

Negligence per se (basically, if you violate a statute, and the harm and victim are of the type the statute was addressing, you're presumed negligent) probably doesn't apply because even if there was a statute stating "dogs must be behind fences" or "dogs must be controlled" some such, the dog was behind a fence. So, we need to go on to the rest of negligence.

Animal owners have a duty to control their animals. However, the owners could say that they didn't breach that duty because they took reasonable steps to keep their animals under control -- they kept the German shepherds on their property (you weren't on public property or someone else's private property), and had a fence. To do more than that (keep the dogs inside all the time, or chained up, etc.) would be unreasonable -- the dogs need exercise, etc.

You could counter that the owners did breach their duty by not keeping their fence in good repair, which could foreseeably lead to people or animals sticking faces or hands in there. (The dog owners will probably argue that it was not foreseeable that their dogs would attack anyone -- they're sweethearts and have never ever bitten anyone.) They had safer feasible alternatives -- fence holes are cheap and simple to repair without compromising the utility of the fence. We can use the Learned Hand formula here: The burden of fixing the fence was less than the potential for loss.

The other party might also be able to argue that you and your dog were trespassers, in which case, in some jurisdictions, they could argue they only owed a duty not to intentionally harm you or your property (intent, in tort law, means either they desired to hurt you, or they knew it was substantially certain you'd be hurt). I don't think you could prove they intended to hurt you unless you heard "sic 'em!" ... so I think we'd be proving subsantial certainty, which would also be difficult -- were these dogs known to be vicious? Were they bred or trained to fight? If a judge in such a jurisdiction decides you were trespassers and owed no duty beyond that, you're out of luck.

I don't really know which way a judge would go on this...I would say (because it allows me to write more, which is what this instructor has said she wants), that yes, there was a duty that was breached. (My gut feeling is also that a judge would let this continue.)

Anyhow...if there is a duty that was breached, next, we need to show cause-in-fact: that but for the breach, things would have been different. This is pretty easy -- if the fence had been intact, your dog would not have been hurt. We also need to show proximate cause -- that the cause is not too far removed from the harm. (We can say: But for Osama bin Laden's mother giving birth, 9/11 wouldn't have happened, but that's way too far removed to hold her liable.) This is easy in this case -- the dog attack immediately caused the harm. There's no butterfly flapping its wings in Brazil.

So...once we get duty and breach out of the way, it's pretty easy to show the dog owners were negligent.

The other problem is: Were you also negligent in allowing your dog to poke her head through the fence? (again: You had a duty to exercise reasonable care in handling your animal. Did you breach it? Well...you could argue that the harm wasn't foreseeable -- that you had no way to know that there'd be vicious dogs on the other side of the fence. The dog owners could argue that, hey, see that "BEWARE OF DOG" sign, if they had one...but the dog owners' testimony that their dogs are sweethearts will help you here. The owners could show you had a safer feasible alternative -- keeping your dog on a leash -- but you might be able to argue that dogs are naturally curious creatures and you had your dog on a leash and that didn't help.)

ANYHOW. It's possible a judge will assign some liability to you.
In some jurisdictions -- pure contributory negligence jurisdictions -- if you were also negligent, even a tiny bit, you can't recover at all. In others, you can recover proportionate to the other party's fault, but only if you were less negligent (49%) (or not more negligent --50%) than the other party. In still other jurisdictions, you can recover, proportionate to the other party's fault, even if you were more negligent.

Let's say vet bills are $10,000.
Let's say the judge says you were 10% negligent in allowing your dog to poke his head in the fence. In a pure contributory negligence jurisdiction, you could not recover at all.
In every other jurisdiction, you could recover $9,000 -- the dog owners' proportion of the damages.

Let's say the judge says you were 50% neglgient. In a pure contributory negligence jurisdiction, you could not recover at all.
In a 49% jurisdiction, you could not recover at all, because you were no less negligent than the other party.
In a 50% jurisdiction, you could recover $5,000 (owners' proportion of the damages), because you were no more negligent than the other party (see the difference).
In a pure comparative negligence jurisdiction, you could collect $5,000 as well.

Let's say the judge says you were 75% negligent. In pure, 49% or 50% jurisdictions, you couldn't recover at all. In a pure comparative negligence jurisdiction, you could collect $2,500.

For the record, Wisconsin is either a 49% or a 50% jurisdiction, although I don't remember which. (It's not on the test.)

My gut feeling says she should recover most, if not all, of her damages either due to strict liability or because I don't think a small-claims judge will apportion the bulk of the damages to her.

DISCLAIMER: NOT LEGAL ADVICE. NOT A PROMISE. DON'T RELY ON THIS. I DID CRAPPILY ON MY PRACTICE EXAM. I MAY HAVE DONE JUST AS CRAPPILY HERE.

Best of luck to your sister.

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eyesroll Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Nov-26-06 12:07 AM
Response to Reply #21
25. I should add: We stuck to personal injuries, not property damages, in torts.
So...I guess...this could be completely wrong. It could be completely right, I suppose. I answered this as though property damage (without an accompanying personal injury) worked similarly to personal injury. (Damages to "chattels" won't be on the exam either.)

I'll ask my prof at some point (or if someone wants to chime in here, I'm all ears -- again, it's not on the exam so don't worry about leading me down the wrong path), if injuries to dogs are considered the same way with regard to negligence, esp. duty/breach.
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Connonym Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Nov-26-06 09:15 AM
Response to Reply #25
35. Thanks eyesroll
Not that I had any doubt before, but you're going to be an excellent attorney.
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eyesroll Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Nov-26-06 10:53 AM
Response to Reply #35
36. Thanks! And thanks for letting me play!
Your hypo was actually remarkably similar to something that could show up as part of an exam, only with, say, a 7-year-old getting his hand bit by the dog (then, we'd get to discuss negligent infliction of emotional distress on the parent who watched it, the standard of reasonableness for a 7-year-old, maybe attractive nuisance although I don't think it fits there). And there'd be a few more facts -- maybe throw in a second injury, like the kid ran out in the street to get away from the biting dog (which would normally be negligent but would probably be covered by the emergency doctrine here), and a driver, who was talking on his cell phone contrary to city statute, had to swerve to miss him, and hit a telephone pole that had been negligently installed by the phone company, and the telephone pole fell on a bystander who was standing in the street, again contrary to statute. (Question: Who could sue who, for what?)

I like torts. It's all Rube Goldberg.
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flvegan Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Nov-26-06 12:38 AM
Response to Reply #21
33. *APPLAUSE*
Well stated and played. Likely the homeowners insurance would settle out, thereby negating the need for such litigation, based on the "my property was damaged on your property because you failed to keep my property off of your property" angle.

That's just my opinion, though.

YOU, though, should be pleased. Not that it matters, but I'm impressed.
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Connonym Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Nov-26-06 09:13 AM
Response to Reply #33
34. yeah, homeowners insurance would seem to be the simple thing but
When my sister asked the owners of the fence if they would submit it to their homeowners' insurance they told my sister to fuck off, declined to accept a certified letter, and failed to appear at the first court date in small claims court(for which the judge made them pay my sister lost wages for half the day before he would consider rescheduling, hehe). The homeowner came outside at the time of the accident and saw the blood everywhere, saw the dog with it's face mauled.

It will be interesting to see how this ends up.
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kiahzero Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Nov-26-06 12:04 AM
Response to Original message
23. Does Pepsi still owe you a Harrier Jet? (n/t)
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eyesroll Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Nov-26-06 12:13 AM
Response to Reply #23
27. Hell yes. And a Carbolic Smoke Ball while we're at it.
:thumbsup:

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flvegan Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Nov-26-06 12:05 AM
Response to Original message
24. Here you go...
I live in the city. I find a dog, free roaming, no collar, tags, chip, tat, etc. I take the dog in and commit to her care. Come to find out, the first vet visit suggests that she's been abused, and has injuries to prove it. She's heartworm positive, too.

I post flyers in the area about the "found" dog. I file reports at the Animal Services and the Humane Society, both with pictures and written detail. I leave my contact information, as well (phone, cell, e-mail).

3 months pass. She's thankfully been treated for her heartworm, and will live to tell about it. She's been vetted, got her shots and spayed. She's become a part of the family. Suddenly, her previous "owners" show up and want her back.

My question: to whom does this dog belong?

(HINT: check your Westlaw, and remember that this is a Florida case.)
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eyesroll Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Nov-26-06 12:12 AM
Response to Reply #24
26. I can say that under common law and WI criminal statutes, you're not guilty of theft.
You took reasonable steps to reunite the lost property (which, in the vast majority of jurisdictions, dogs are) with its owner.

That's about as far as I can go.

I'm in WI, not Florida, so we didn't learn their laws... not gonna look this up on Westlaw as I have a million other things to do. I take Property (which really deals more in real estate, but anyway, I might learn something relevant there) next semester, and animal law-related courses are upper level.

Sorry you got burned (or at least, sorry it sounds like you got burned).
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flvegan Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Nov-26-06 12:26 AM
Response to Reply #26
30. AHA! Two things...
1. Good call, I took reasonable care to find the "owner" of the property, AND, they didn't take proper, reasonable care to proactively find same.

2. When I "find" an abused dog, I/we don't get burned. A lost dog is just that, and we're happy to help. However, mistreating a dog 'round these parts, and said dog finding his/her way to us is one sure fire way to pass Go! collect $200 and never worry about that again. This is one of those unique circumstances where civil cases and reality don't always meet.

Lastly, I'm going to say this in advance...I'm sorry. Remember this when you're taking your Real Property course. Real estate law/title is my life, and it's boring as shit...and not required learning. However, master it and you can do quite well by it for that very reason.
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leftofthedial Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Nov-26-06 11:03 AM
Response to Original message
37. I'm in a quandary.
I'll be baking a fig tort today

I'd like to put nuts in it, but the only nuts I have are either raw pecans or roasted, salted almonds. Which should I use?

I'm leaning toward the pecans, but the almonds also might be nice.
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eyesroll Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Nov-26-06 11:12 AM
Response to Reply #37
38. I like pecans with figs.
You could toast the pecans for a little more flavor. (Just a few minutes in a dry skillet -- until they brown a little, don't let them burn.)

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leftofthedial Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Nov-26-06 11:22 AM
Response to Reply #38
39. Thanks!
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eyesroll Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Nov-27-06 10:22 PM
Response to Original message
40. Kicking this...one week until finals, and this is actually kinda fun.
:kick:
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philosophie_en_rose Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Nov-28-06 12:46 PM
Response to Original message
41. Britney flashes public. Public sues for Intentional Infliction of Emotional Distress.
How much money, in today's dollars, does Britney Spears owe us for counseling costs. :)
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