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Wednesday, July 13, 2011

Court Jesters: attempts at humor in judicial opinions

The Wall Street Journal recently ran an article on what appears to be a growing trend for judges to season their judicial opinions with "puns, rhymes, attempts at humor and cultural references."  Do readers of PrawfsBlawg agree that this behavior is increasing?  Do you think it is a good thing or a bad thing?  I am curious.  My quick take on it -- and my nomination for the cleverest judicial opinion -- after the break.

 

 

Understand that I am a fan of legal humor.*  I coedited a book collection of humorous law review articles titled "Amicus Humoriae: An Anthology of Legal Humor."  But on the subject of humor in judicial opinions, color me dubitante.  More often than not, judges simply are not as funny as they think they are.  I would advise judges to get a second opinion, so to speak, from a candid law clerk or a colleague to determine if the reader is going to laugh at the joke or at the judge.

My nomination for the most clever judicial opinion is United States v. Syufy Enterprises, 903 F2d 659 (9th Cir. 1990), an otherwise obscure appeal in a government antitrust action against movie theaters.  Alex Kozinski, currently the Chief Judge of the Ninth Circuit, wrote more than 200 movie titles into the opinion's prose and signaled a challenge to his readers with a footnote citation to a popular movie guide.  The BYU Law Review took the challenge and published "The Syufy Rosetta Stone" which carefully parsed the opinion to find the movie titles.

*Addendum: if you want to read further elaboration of my views of humor in judicial opinions -- complete with a top 10 list of clever opinions, see Thomas E. Baker, A Review of Corpus Juris Humorous, 24 Tex. Tech L. Rev. 869-89 (1993) (download the PDF here).

 

Posted by Thomas Baker on July 13, 2011 at 07:00 AM | Permalink

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Comments

I'm not a fan of this, and not just because most judges (or their clerks) are not as funny as they think they are. (That's true too, though.) Rather, I think it doesn't treat the parties with enough respect. Sometimes, of course, we don't think a party deserves much respect, but it still seems like the wrong way to show this. It also seems to show a willingness by judges to make the opinion about _them_ more than it should be. This doesn't mean opinions must be dust dry, but I do think the jokes and cultural references (which are often even more painful than the jokes) should be left out.

Posted by: Matt | Jul 13, 2011 7:49:39 AM

Matt, I am with you. There used to be a judge in the old Fifth Circuit, John R. Brown, who used to clutter his opinions with bad puns, corny subtitles, and other distractions. I often thought he was straining too hard to be funny without succeeding. Worse, his jokes came across as insensitive to the parties and the issues in the case.

In fairness to him, however, Judge Brown did manage to write a very clever opinion in which he included the names of dozens of soaps and cleaning products in a case about a local ordinance regulating labels on detergents. Chemical Specialties Manufacturers Association, Inc. v. Clark, 482 F.2d 325, 328 (5th Cir. 1973) (Brown, C.J., concurring).

Posted by: Thomas E. Baker | Jul 13, 2011 10:09:11 AM

Read this case: 789 F.Supp. 395.

I think, however, this may be a case of a clerk pulling one over an inattentive judge who just signed the order.

Posted by: Lance McMillian | Jul 13, 2011 10:49:08 AM

Lance,

I clerked in the old Fifth (1977-79) and I can tell you that Brown was his own writer. The fact that it was a concurring opinion flagged it -- the other two judges were unwilling to join his "soap opinion." The story I heard in chambers was that he did dispatch a law clerk to the grocery store to write down all the names of the products. He was a larger than life man, a colorful jurist. For example, when those Nehru jackets were in style [sic] he wore one under his robe and wore the large golden medallion out over his robe. A true character.

Tom Baker

Posted by: Thomas E. Baker | Jul 13, 2011 10:59:23 AM

Lance's comment reminded me of an incident when the law clerk did pull something over on his judge: the opinion in United States v. Abner, 825 F2d 835 (5th Cir. 1987) contains subtitles that are names of albums and songs of the rock band Talking Heads. The law clerk was hoping to score some free concert tickets, according to published reports at the time. I think that was inappropriate conduct.

Tom Baker

Posted by: Thomas E. Baker | Jul 13, 2011 11:07:05 AM

I see a tension between encouraging restraint and celebrating successful attempts. The odds that judges will seek and heed second opinions on their opinions, or that second opinions will be candid, are exceedingly low. Most attempts are poor, many are inappropriate, and those that succeed temporarily will age like bananas. Better that energy be devoted to writing clearly and succinctly.

Posted by: Ani | Jul 13, 2011 11:20:48 AM

One reason for the sense that the practice is increasing is, over course, the internet and blogs. Whereas a routine district court opinion historically did not become well known, the interwebs are likely to talk about that routine opinion if it did (or tried to do) something funny and the funny worked. I had previously suggested that the practice of lawyers getting funny with routine motions (asking for extensions of time to go to the Super Bowl) was increasing for the same reason.

Posted by: Howard Wasserman | Jul 13, 2011 11:29:32 AM

Note that this conversation is not limited to humor, but also to using sports terminology or references or other non-legal lingo to "spice" the opinion up.

Posted by: Howard Wasserman | Jul 13, 2011 12:01:35 PM

I think Howard Wasserman's observation is spot on: the internet functions to increase the awareness of these opinions. Back when I was in law school, before there was an internet, attention to these judicial jokers was mostly word of mouth. The curio opinion in Lason v. State, 12 So.2d 305 (Fla. 1943) (http://novalis.org/cases/Lason%20v.%20State.html)-- a piece of writing that would be considered seismically, politically incorrect today and for good reason -- was part of the oral tradition of the 1L legal research course.

Tom Baker

Posted by: Thomas E. Baker | Jul 13, 2011 12:36:28 PM

Today, one might not find the restraint shown by the Alabama Supreme Court in the decision reported at 237 So. 2d 479.

Posted by: Abe Delnore | Jul 13, 2011 1:32:24 PM

I second Wasserman.

Also, "Judge Brown did manage to write a very clever opinion in which he included the names of dozens of soaps and cleaning products in a case about a local ordinance regulating labels on detergents"

Masta Ace's "Soda and Soap" was no doubt inspired by this opinion.

http://www.youtube.com/watch?v=dbPPO1FxyYI

Posted by: GU | Jul 13, 2011 3:29:35 PM

Tom --

The opinion I referenced to was from Judge Paine, a district court judge in Florida, on a question of remand. The whole opinion is filled with Wayne's World references, including the conclusion that the plaintiff had to "party on" in state court.


Lance

Posted by: Lance McMillian | Jul 13, 2011 5:08:29 PM

I agree with the comment above regarding the lack of respect the "clever" opinions demonstrate for the parties. Judicial decisions should, most of all, be directed at the litigants. After all, that is the fundamental assumption of a judicial process that makes law on a retail and not aggregate basis. I have never been an attorney in a case where the judge waxed witty. But I can imagine that a client who has lost a case would not think it funny, or appropriate, that his dispute was an opportunity for a judge to work on his "stand-up" routine. By the way, I don't recall opinions authored by female judges succumbing to this temptation. Am I overlooking something?

Posted by: Keith Miller | Jul 13, 2011 5:36:38 PM

I clerked for Judge Harrison Winter on the Fourth Circuit, longer ago than I like to remember. I had one admiralty case that year, and inspired by Judge Brown, I included a couple of jokes and puns in my draft opinion. My judge was generally incredibly generous in the lightness of his edits. In this case, however, he removed the jokes. None of the litigants, he explained, thought this was a joking matter if they had pursued the case this far. It is easy to lose sight of the parties, especially at the appellate level. Judge Winter was careful not to do that, as he was also gentle in his treatment of the district court judges whose work he was reviewing (I'm sure that at least some of you who have argued a case in front of Judge Winter may have difficulty reconciling my mention of him and the word gentle in the same sentence, since he could be a fierce questioner, but he was truly respectful of the parties and the district court judges).

He had a sharp wit, which he didn't unsheath often, but I think he was right about when to use it and when to keep the humor to himself.

Posted by: Robert Strassfeld | Jul 13, 2011 5:53:10 PM

Prof. Baker -- When I clerked on the 5th Circuit about three years ago, a court employee told me that Judge Brown was known for bringing his hound dog to the Houston courthouse, where it would sometimes ride the elevators and otherwise roam the building unescorted. Do you have any recollection of that, or has the myth grown over the years?

Posted by: Jay | Jul 13, 2011 7:48:40 PM

And I don't even know what to say about the Lason case -- are the quotation marks around the question presented supposed to indicate that the defendant's lawyer phrased it that way? If so, I'm surprised they weren't sanctioned.

Posted by: Jay | Jul 13, 2011 7:51:12 PM

I enjoy seeing the "lighter side" of judicial opinions when they are clever and in context. For instance, a footnote by Judge Terence Thomas Evans, of the United States Court of Appeals for the Seventh Circuit, which can be found in United States v. Murphy, 406 F.3d 857, 859 n.1 (7th Cir. 2005), shows that the judge is "in tune" with the times.

Posted by: Andrea Canona | Aug 3, 2011 7:52:38 PM

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