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Sunday, June 29, 2003

Column: Who is John Doe

John Doe has all luck. Every time you read about some sexy, cutting-edge legal issue, John Doe has his name all over it. He’s as bad as that Miranda guy.

Just last March, when the Pennsylvania Supreme Court heard arguments in a ground-breaking CyberSLAPP lawsuit, Doe was right there in the name of the case: Melvin v. John Doe.

In case you haven’t heard of CyberSLAPP lawsuits, they are defamation actions aimed at people who post anonymous messages on the Internet. Essentially, the plaintiff sues the anonymous defamer as “John Doe” and then uses the discovery process to get the identity of the John Doe from his Internet Service Provider.

John Doe is Everywhere – And Nowhere

Whatever the merits of CyberSLAPP suits, they do at least have the virtue of bringing us all a little closer to John Doe. Think about it: if you have ever posted a message on Yahoo, or Motley Fool, or – just hypothetically – the Greedy Associates message boards, you may well have communicated with a real live John Doe. Heck, you might be a John Doe.

If so, you’re in distinguished company. John Doe has his own private club: the “John Does Anonymous Foundation,” which is dedicated to (I am not kidding) “the concept of anonymity.” He has even broken into show business, with the new Fox series, John Doe, which is positively slaying them in the crucial 18-to-34 demographic. So who is this John Doe, and who writes his material?

Deer and Fish Eggs

The first mention of John Doe dates from 14th Century English law, when a fictional plaintiff was required to accomplish one of the most deliciously complex procedures in legal history, the action of ejectment.

Ejectment was a mechanism to get around rigid common law pleading rules that made it nearly impossible for a landowner to prove his title against a person squatting on his land. The landowner would bring a lawsuit in the name of a fictitious tenant, John Doe, who was said to have been ousted by the equally fictitious Richard Roe. Mr. Roe, according to the story, then went on his way and left the property in the hands of the man in actual possession, against whom the lawsuit would proceed. What could be simpler?

Using the name “John” for a fictional character is not surprising – John was a common name in England in the 14th Century, as it is now. Many early English courts named their fictional parties John-a-Nokes (i.e., John, who dwells at the oak) and John-a-Stiles (i.e., John, who dwells at the “stile,” or steps). These were the sorts of names that Englishmen actually used in the Middle Ages. But Doe and Roe? They do not even appear in the lists of early inheritable surnames in England; nor does England have many Doe’s or Roe’s today. A quick glance at the Manhattan phone book reveals only 11 Doe’s. Not exactly a household name.

It appears then, that these were nonsense names, simply referring to fairly common nouns: Doe (a deer, a female deer) and Roe (fish eggs). Except that “roe” could also refer to a species of small deer found in Europe, making it a little closer to “Doe.” Either interpretation of “roe” is possible, since both existed in Middle English, although I favor the latter, since the fish-egg roe was generally spelled roughe or row in the old days.

Roe, Roe, Roe your lawsuit

Somehow, Doe and Roe edged out their competitors to become the preferred fictional parties in the medieval ejectment action. Ejectment turned out to be a pretty good gig for those two – it took the British Parliament five centuries to abolish ejectment (hey, really, no rush guys). By that time, Doe and Roe had entered the general legal lexicon.

The uses of Doe and Roe have changed over the years. Whereas these names were originally applied to parties that did not exist, they now stand for parties who do exist, but whose names are not known, like the anonymous defendants in the CyberSLAPP lawsuits; or parties whose identities are shielded, such as the anonymous plaintiff of Roe v. Wade. At other times, Doe is used to stand for people who may or may not exist, as in those favorite whipping boys of the plaintiffs’ bar: John Does 1-100. And when plaintiffs run out of Doe’s and Roe’s, they sometimes bring in Peter Poe, a decidedly poorer cousin.

John Doe is so prevalent throughout the English-speaking world that, say, a Canadian and an Australian lawyer can happily pass the time by swapping John Doe stories over a glass of lager. But in non-English-speaking countries, they all seem to have dreamed up their own John Doe equivalents. In Germany, when bureaucrats need a generic name, they use Michael Musterman. Italian lawyers refer to unknown persons as Tizio, Caio, and Sempronio – always in that order (there are never more than three unknown persons in Italian law). The common man in Sweden is often referred to as Sven Svenson, whereas in Hong Kong, it’s Chan Siu Ming.

Fertile Octogenarians – and the Women Who Love Them

If John Doe seems like a strange invention, consider some of the law’s other fictional creatures. The field of estate planning, for example, features a delirious cast of make-believe persons, including the Precocious Toddler, the Unborn Widow and the Slothful Executor. The most intriguing of these has to be the Fertile Octogenarian – a hypothetical dirty old man who subscribes to the Rule against Perpetuities (but only for the articles) and who made his first appearance centuries before the invention of Viagra.

In tax law, the fair market value of property is said to be the product of negotiations between two imaginary people: the Willing Buyer and the Willing Seller. By all accounts, these two stalwarts never bargain in bad faith, never conceal information, and never back out of a deal. In short, they represent just the sort of frank, straight-shooting personalities that one so often sees in property transactions.

The most distinguished fictional person is the Reasonable Man, whose various adventures are chronicled in Torts books around the world. Like an uber-boy scout, the Reasonable Man provides a role model for all of us to avoid getting into trouble, negligence-wise.

When it comes to specifics, the Reasonable Man is almost as elusive as John Doe (come to think of it, the two have never been photographed together). The general idea is that he should embody the common-sense standards of the average citizen. He was famously described in a 19th Century British case as “the man on the Clapham omnibus,” Clapham being an ordinary part of London, and an omnibus being something that people with common sense, evidently, used to ride in.

In his book Uncommon Law, A.P. Herbert depicts a fictional English court grappling with the Reasonable Man standard in the imaginary case of Fardell v. Potts. In Herbert’s report, the court finally comes out and says what we all know to be the truth: the Reasonable Man is a dweeb.

“The Reasonable Man is always thinking of others; prudence is his guide and ‘Safety First’ ... is his rule of life. He is one who invariably looks where he is going ... who never mounts a moving omnibus [there’s that word again!], ... and will inform himself of the history and habits of a dog before administering a caress ... who in the way of business looks only for that margin of profit which twelve men such as himself would reckon to be ‘fair’ ...who uses nothing except in moderation and even while he flogs his children is meditating only on the golden mean.”

The problem in Fardell v. Potts was that the defendant, accused of negligently steering a motorboat, was a female and, therefore, not subject to the Reasonable Man standard. Having scoured all available precedents on the law of negligence, the judge reports that “there is no single mention of a reasonable woman.” The only logical conclusion the court can draw from this omission is that “no such being is contemplated by the law.”

But that, of course, was a fictional case.

(This column first appeared in the June 2003 issue of New York Law Journal Magazine)

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