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Tuesday, July 08, 2008

Enforcing the Federal Rules in Rhyme

From NPR comes this story of Judge Ronald Leighton of the United States District Court for the Western District of Washington, who sua sponte dismissed (and ordered refiling of) a 465-page complaint as follows:


"Plaintiff has a great deal to say
but it seems he skipped Rule 8-a.
Hiis complaint is too long, which renders it wrong.
Please rewrite and refile today.

Two questions:

1) Is this sort of light-hearted, not-quite-serious, jocular approach from a judge appropriate? This question arises frequently whenever judges throw humor (jokes, rhymes, tangents about sports, entertainment, pop-culture references, etc.) into their opinions--how much creative license are judges allowed in their writing?

2) Was Judge Leighton correct to dismiss an overly long complaint simply because it was overly long? Rule 8(a)(2) requires a short, plain statement as a minimum that a pleader must provide. But it does not necessarily mean that anything more than a short, plain statement is improper under the rules simply because it is long (apart from what is contained in the complaint).

Posted by Howard Wasserman on July 8, 2008 at 02:40 PM in Law and Politics, Odd World | Permalink

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» More Judges Who Think They are Funny: from The Volokh Conspiracy
Via Prawfs. My own plea to the federal judiciary: Please stop with the rhymes, pop lyrics, and other cute stuff. Thanks, a reader. [Read More]

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I fail to see how this is problematic. Having clerked for two judges, one each at the state and federal level, I would bet a significant amount of money that the 465-page complaint is from an aggrieved pro se litigant and is likely 99% gibberish (my apologies if there is truly 465 pages worth of wrong done to this litigant (and he has a lawyer)).

These types of things amount to a mammoth waste of time, effort, and expense (I was for example against the AEDPA in principle until I saw the utter frivolity that most every petition is based on). We had a similar situation where a pro se litigant filed a complaint that was *only* 75(ish) pages and we came to regret not utiliziing Rule 8 as the litigation progressed. Isn't this exactly the situation the rule contemplates; to bring unruly complaints/litigants under control?

Finally what, I ask, is wrong with a judge having a bit of fun? Why does legal writing have to be stale, pedantic, and (much of it) without much style?

Posted by: Calvin TerBeek | Jul 8, 2008 2:56:53 PM

According to the radio story, the complaint was filed by a lawyer. Rule 8(a) was intended to relieve plaintiffs of the burden of having to provide a lot of detail and information, which she may lack at the pleading stage. It was about clearing hurdles from plaintiffs' paths into the courthouse. It was not, at least initially, about bringing "unruly" litigants under control. And we are seeing such long complaints more and more--both civil complaints arising from the Duke lacrosse case ran in excess of 200 pages. Rule 12(e) (motion for a more definite statement) often is used by defendants against excessively prolix complaints; but for a judge to do this on her own strikes me as unusual.

Posted by: Howard Wasserman | Jul 8, 2008 3:39:54 PM

This question arises frequently

Then why are we asking it again? I don't begrudge the use of humor by a judge whose daily work involves pedantry and presiding over an inherently adversarial system, and I can't see why anyone would.

Posted by: J | Jul 8, 2008 3:41:05 PM

Question 2 is especially important post Twombly (to the extent one believes that Twombly changed the terrain).

Posted by: Rick Swedloff | Jul 8, 2008 4:06:24 PM

As far as the use of Rule 8(a), I can't imagine that this is an abuse of the judge's considerable discretion in managing his cases. If the claims are repetitive, incoherent, etc., why make the defendant and the court go to the trouble of separating wheat from chaff on Rule 12 motions when sending it back to the plaintiff for another try might let the task of stating the plaintiff's claims reside where the rules contemplate that it should?

As far as the use of nifty doggerel in judicial opinions, I sure wish they wouldn't. It's usually painfully stupid, and the judge comes off looking pompously bored. Also, judicial poems are rarely any more interesting as poems than this, which is basically a bastardized limerick. The judge (or his clerk) took enough time to get the syllabics worked out, but the meter's totally off, so the metrical feet of the first, second, and last line don't fit together at all, and the poem sort of stumbles around because of it. Considering how many folks can make these things up quite brilliantly on the fly, after far tee many martoonis, the judge's efforts (or his clerk's) are quite disappointing.

Posted by: Paul Killebrew | Jul 8, 2008 4:35:56 PM

For what it's worth, the Seattle Times makes it sound like this actually came up on a motion for more definite statement and was neither sua sponte nor a dismissal:

http://seattletimes.nwsource.com/html/localnews/2008033157_funnyjudge04m.html

Posted by: Paul Killebrew | Jul 8, 2008 4:50:33 PM

Can we stipulate the Duke lacrosse case is an anomaly that perhaps deserved a 200 page complaint?

I lost my (hypothetical) bet and have now listened to the NPR story. My apologies. Fair enough, it was filed by a lawyer. I'd still bet that it is not 465 pages of substance.

In any event, while Rule 12 is for *defendants*, there is no problem, to my mind, with a *judge* using Rule 8 "offensively" in extreme circumstances such as this.

Of course, no one is suggesting, least of all me, that district courts begin sua sponte striking complaints based on some arbitrary feeling that a certain complaint runs afoul of Rule 8. We could all agree that would be problematic.

Posted by: Calvin TerBeek | Jul 8, 2008 4:58:49 PM

On whether it's permissible to make light of litigants' plights, consider Steve Lubet's piece:
http://www.greenbag.org/Lubet%20Bullying%20from%20the%20Bench.pdf

With all these citations, I'm starting to act O'Donnellesque today.

Posted by: Dan Markel | Jul 8, 2008 5:01:12 PM

I remember reading Lubet's piece and I believe he makes many good points. Even setting to the side his "extracurricular" activities, Judge Kent's in-the-courtroom behavior is outside the bounds of professional respectability.

Conversely, isn't the worst one can say about Judge Leighton's limerick is that it is perhaps too blithe about what is likely an important matter to this plaintiff (otherwise, how do you arrive at 465 pages?!?).

Posted by: Calvin TerBeek | Jul 8, 2008 5:17:54 PM

What about Rule 8(d)(1)? "Each allegation must be simple, concise, and direct."

Posted by: Bruce Boyden | Jul 8, 2008 6:19:44 PM

Paul: Thank you for the correction as to how the issue came up. This answers # 1, in that the case was, in fact, procedurally typical.

Calvin: It is precisely that blitheness of the order that prompted my question. Many people (I actually am not one of them), find things such as limericks and puns and pop-culture references to be disrespectful, a sign that the court is not taking seriously what is likely important to the plaintiff. Plus, as Paul notes, most judges do not do this very well.

Posted by: Howard Wasserman | Jul 8, 2008 6:27:10 PM

So, does this ruling actually require the lawyer to rewrite and refile "today"?

If it does (and that's certainly what it says), and that's not standard procedure in such cases (and I doubt it is), then I'd say that's a problem.

On appeal:

"The judge's opinion is silly
With rhymes thrown about willy-nilly
And an absurd demand
Which we cannot let stand
And therefore we vacate and remand."

Posted by: JBL | Jul 8, 2008 6:51:01 PM

JBL: Great catch. Rule 12(e) states that the pleader has 10 days from notice of the order or other time set by the court (which presumably cannot be dramatically less than 10 days).

Posted by: Howard Wasserman | Jul 8, 2008 6:57:23 PM

Howard,

I get what you're saying and I know that is what prompted you to post in the first place. This stuff just is not something that irks me, for whatever reason. (Orin Kerr over at Volokh doesn't like this development).

I can see how a litigant might be put off that a judge is responding with an admittedly silly limerick when a simple three-sentence order would have accomplished the same purpose. But can't lawyers/judges have some fun while conduting otherwise serious business?

Anyhow, thanks for bringing this up. An interesting idea to bat around.

Posted by: Calvin TerBeek | Jul 8, 2008 7:14:00 PM

I am not a lawyer, but to me a legal complaint that is close to 500 pages long suggests that the seriousness has been lost in the quantity. Controlling the length of my writing is not one of my strong points, but I would not expect a serious reply to something of this length. Why is the amount of time somebody spends writing something, or the volume of ink used, an indication of the gravity of the complaint? Maybe it is all cut and paste, composing it taking a fraction of the time that reading would take.

The judge's writing is concise. There is a lesson in that. The quality of the meter or rhyme is not going to put him in the running for Poet Laureate.

I see the response being written in the same seriousness as the complaint.

Posted by: Rogue Medic | Jul 9, 2008 12:24:42 AM

The order was on a motion for more definite statement. The poem was only the conclusion and was preceded by a fairly conventional opinion. To look up the case on PACER, the docket number is 08-5298 (W.D. Wash.). The order is also posted at How Appealing, under the case name, Presidio Group v. GMAC Mortgage.

The substance and tone of the order both seem appropriate to me. For example, the order acknowledges the tension between "short and plain statement" and the need to plead fraud with specificity. It notes that the title of the complaint is 8 pages long and lists the statutory and precedential bases for all 54 claims for relief. The complaint also took 18 pages to list 6 defendants. It's as if some sort of merge program for generating complaints ran amok. The re-filed complaint was 195 pages, filed 6 business days after entry of the order.

The order is also a good reminder of the virtues of judicial humility. The order itself had to be amended because of a citation mistake in referring to Rule 9, and even the amended order is mis-dated (it says July 27 instead of June 27).

The damages sought, btw, are $3.5 billion.

Posted by: Jennifer Hendricks | Jul 9, 2008 2:23:15 PM

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