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The Practice Corner: The Naughty List

by Daniel DeWoskin
Trial Attorney

You may find this cynical, but does Santa really have a naughty list?  I have been troubled by this ever since I was a child. Ironically, I was a Jewish child, so it may have been silly to be troubled by this. Then again, I was a Jewish child, so I suppose it was normal to always be troubled by something. Nevertheless, if the list was real, I could have used an address to the old man’s appeals division. Sure, it may sound like I am making things too complicated, but ever since I was a kid, I have never really known where I stood. What constitutes naughty? There is the kind of stuff that clearly fits the bill, such as stealing, hurting other people, and lying, but what about borrowing (without express permission), hurting a sibling (in self-defense, of course), and bending the truth to spare someone’s feelings (like my parents, who would be hurt to know what my real grades were).

Soon, I will be taking my kids to a “Meet Santa” event. I routinely tell them that although they have been naughty this year, I, as their daddy, I want them to have fun new toys to play with. I encourage them to distract Santa with their wish lists while I sneak out back to find some toys that fell off the sleigh, just for them. I then duck out while they drone on and on about what toys they want. He’s Santa, so shouldn’t he already know?

Last year, one of my little accomplices sat on Santa’s lap and told Santa what the plan was after about fifteen seconds. As much as I would like to say I was proud, I think I was too embarrassed at that moment to feel much else. Many other nearby parents were laughing, but I had to step out of the room because my face got too red. Maybe my little snitches made it to the nice list, but at what cost?  Selling out their daddy?

We have lots of these conversations around this time of year. We talk about how St. Nick climbs down chimneys to leave gifts. When they are older, I will explain how the jolly fat man’s intent is all that would distinguish this sort of behavior from being a burglary. Even my kids found it strange that he uses a chimney instead of the door. After all, he is certainly a welcome guest right? People don’t traditionally leave cookies and milk for intruders.

This year, I have told my kids to think about all the hard work that is put on Santa’s reindeer. I have encouraged them to recommend that Santa eat fewer cookies so as to reduce the weight of the load on the sleigh and thus make life just a little easier for the reindeer. I also told them to ask if the elves have a union or if Santa’s workshop is a right to work organization.

So, getting back to the naughty list, I am left to assume that it is a one year statute of limitations with complete record restriction afforded to the offender. For all those kids with enough lumps of stocking coal to erect a coal “snowman,” this really could be their year, starting December 26. In fact, that may be the very flaw of the list. If you punched your little sister before New Year’s Day, you may be in for another 360 days of sheer mayhem without fear of costing yourself any more of Santa’s treasure since you already blew it. It’s the “leave no witnesses” mantra of the Santa paradigm.

There are ways to fix this. If we treat the entire year as a spectrum, perhaps Santa can employ a federal sentencing model, complete with clear guidelines, mandatory minimums, etc. A minor offense, such as a tantrum, can reduce the expectation of a new bike to a small electronic. Acting out in school or fighting with siblings will result in toys that are age inappropriate, skewed downward of course. You would not want to reward an eight year old with Grand Theft Auto, but Duplo Legos are sure to disappoint. Then again, still better than what you would be eligible for if you broke Daddy’s favorite scotch glass or spilled juice on his laptop, requiring him to rewrite the motion that he was working on at the time. Then, you would only get clothes.

“But that was just an accident, Daddy!”  I’m sorry kids, but Santa has millions of children to summarily judge, and he just doesn’t have time for due process. You’re in for sweaters and socks come Christmas morning. I think we can get this worked out rather well. In fact, we can even employ probation, whereby the kids who have made the list get to open all the new presents, but cannot play with them until proving themselves dedicated to making the “nice” list come next Christmas. And, if you have one kid who is really a superstar of the nice list, you can allow them to oversee the probation of his or her sibling. Think of it as privatized probation. Sure, it will undoubtedly result in at least two kids who make next year’s naughty list, but what do you really expect of privatized probation, right?

You see, I am still in a very fortunate time, when my kids are still small enough to appreciate the sheer joy of opening present after present, regardless of whether or not there is a brick in the box or a fantastic new gadget. The holiday is filled with the stress of shopping, meeting with family, and somehow still getting everything done that needs to be done. Yet, when I get to play with my kids and share in their excitement, even a cynic like me knows it is all worth it.

My kids are fortunate in that, having parents from two different religious backgrounds, they get the benefit of celebrating both Christmas and Hanukkah. We light candles, decorate a tree, and enjoy all of the fun that the holiday season brings. And for those of you that think that I only take liberties with Christmas traditions, you really don’t know me very well at all.

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