Friday, April 2, 2010

"LAWYERED!": The Fight Over Assault and Battery on How I Met Your Mother


"I can't go to prison!  I mean, I could get a lot of reading done, finally write some short stories, work out all the time. . . ." -- Ted Mosby 

Let me begin by saying how much I love How I Met Your Mother!  I was not interested in watching it at first because the title was misleading.  I assumed that it was a typical family sitcom where the husband is fat and stupid and the wife is hot but nagging.  As it turns out, HIMYM is about a family - as Bridget Jones would say, an "urban family."  Five friends in their 20s and 30s in a big city, who have a regular watering hole, spend the holidays together, and both support each other and rib on each other.  It's often compared to Friends because of this, but for whatever reason I never saw myself in those characters the way I do in Ted, Robin, Marshall, Lily, and Barney (well, maybe not Barney).  While the premise of the series is how Ted meets the mother of his two children (told in flashbacks from the year 2030), it is really about how his 20s and 30s shaped him into the person he ultimately became.

Midway through Season 4, recently-left-at-the-altar Ted decides that he is tired of being the nice guy and wants to engage in the classic male rite of passage: a fight.  When three guys sit in the gang's regular booth at MacLaren's, an ill-tempered bartender suggests that they all take it outside.  By the time Ted and Barney get to the back alley ready to fight, the bartender has already knocked the booth-thieves out cold.  Crazy bartender, however, assumes that Ted and Barney were actively involved.  Greeted by free drinks for life and attention from all the ladies in the bar, Ted and Barney don't bother to correct anyone.  But, the next time they come to the bar, the guys sitting in their regular booth are process servers.  Ted and Barney learn that they are being sued for assault.

Assault and Battery

Whenever assault is mentioned in casual conversation, most lawyers are obnoxious enough to point out that punching someone in the face is not technically considered assault; if it involves a "touching" it is actually battery.  Assault (and battery) is both a tort and a criminal offense. 

The common law tort definition of battery is harmful or offensive contact to plaintiff's person.  Punching someone in the face would definitely be considered battery.  Assault, however, refers to the part where you swing back your hand, clench your fist, and stare down your victim.  The tort of assault is defined at common law as an act by defendant creating a reasonable apprehension in plaintiff of immediate harmful or offensive contact to plaintiff's person.  If the plaintiffs here thought that Ted and Barney punched them, they most likely would have sued for assault and battery. 

Marshall, the lawyer of the group, messes with Ted and Barney by telling them that they will likely face serious prison time, even though he knows it is a civil suit not a criminal charge.  The crimes of assault and battery are defined slightly differently than the torts of the same name.  Battery is an unlawful application of force to the person of another resulting in either bodily injury or an offensive touching. Common law assault, on the other hand, is either an attempt to commit a battery or the intentional creation of a reasonable apprehension in the mind of the victim of imminent bodily harm.  The doctrine of merger also applies here.  Merger prevents the prosecution of lesser-included offenses like attempt.  For example, you cannot be charged with murder and attempted murder of the same victim.  Since assault is essentially attempted battery, once a touching of the victim occurs, the defendant may only be charged with battery.  If Ted and Barney were prosecuted and these common law definitions applied, they would be charged with battery, not assault. 

However, the New York Penal Law differs from the common law in that it only penalizes "assault," which more closely resembles common law battery.  Most applicable to Ted and Barney is "Assault in the Third Degree": "A person is guilty of assault in the third degree when . . . [w]ith intent to cause physical injury to another person, he causes such injury to such person or to a third person."  New York Penal Law Section 120.00.

Luckily for Ted and Barney, they faced neither civil or criminal liability.  Plaintiffs dropped the lawsuit once Marshall explained that the defendants were wusses, supported by evidence that Barney gets weekly mani-pedis and that Ted played the hammered dulcimer in the Pre-Reformation Dance Society at Wesleyan.

As Marshall Eriksen would say . . . LAWYERED!

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