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Tuesday, November 23, 2010

Knowing your audience or getting too cute

Last week, a criminal defense lawyer, Bennett M. Epstein, sent a letter motion to Judge Kimba Wood (S.D.N.Y.) in a case which is due to begin trial on November 29. Styled a "Writ of Possible Simcha," the letter explains that Epstein's daughter is due to give birth to her first child on December 3. The letter then goes on to explain the possible effects on trial scheduling:

Should the child be a girl. not much will happen in the way of public celebration. Some may even be disappointed, but will do their best to conceal this by saying, Has long as it's a healthy baby". My wife will run to Philly, immediately, but I will probably be able wait until the next weekend.    There will be happiness, though muted, and this application will be mooted as well.

However, should the baby be a boy, then hoo hah!J Hordes of friends and family will arrive from around the globe and descend on Philadelphia for the joyous celebration mandated by the halacha-' to take place during daylight hours on the eighth day, known as the bris.    The eighth day after December 3rd could be right in the middle of the trial.    My presence at the bris is not strictly commanded, although my absence will never be forgotten by those that matter.

Judge Wood granted the request with the following handwritten order on the bottom of the letter:

Mr. Epstein will be permitted ot attend the bris in the joyous event that a son is born. But the Court would like to balance the scales. If a daughter is born, there will be a public celebration in Court, with readings from poetry celebrating girls and women.

This is all in fun. In the letter, Epstein provided footnotes with Yiddish translations and explanations. And he even wrote out "tfu tfu tfu" in the letter to represent the sound of spitting to ward off the evil eye (I think I would have spelled it differently). So I am not trying to take this too seriously.

Some are seeing this as Judge Wood standing up to the perceived imbalance and unfairness of the different treatments of the births of boys and girls--the birth of a girl is a subject of disappointment and muted happiness, while the birth of a boy is hoo hah (which I never realized has its origins in Yiddish). Accepting for the moment that Epstein's attitude reflects widespread Jewish religious/cultural beliefs, should a judge be opining on that matter, even if only jokingly?

Is there an interpretation of the letter that does not truly suggest the birth of a girl is a lesser event that is less worthy of celebration? I tried to suggest that Epstein's point was that the public celebration of a girl would not be immediate; baby namings (the modern ceremony for welcoming girls into the Jewish faith and Covenant) often do not happen on the eighth day (our daughter's naming did not happen until she was almost seven months old) and thus could await the end of trial without the need for an off day. A generous reading of the letter, to be sure. But is it a fair reading?

Epstein's letter is the latest example of a lawyer gaining some attention (at least in the world of legal blogs) from trying to have some fun with a routine request to a court, dressing it up with legal jargon into a formal motion, written in a very tongue-in-cheek manner. You see something like this around big sporting events, where the attorney requests an extension because he has tickets to some big game (I recall one last winter from a lawyer in New Orleans on the eve of the Super Bowl) and has some fun creating a "legalistic" explanation for why he must attend the big game. I am all for making these sorts of law jokes in private settings (my former judge once signed a Writ of Habeas Corpus as part of one of his clerks proposing to his girlfriend) or even in the informality of this blog. Is it somehow different when it goes public and becomes part of the public litigation record? Especially when it turns into a mini colloquy on gender equality? And is "humor" such as this becoming more common in litigation, as blogs enable the routine paper filed in a single litigation to be seen around the world?

Again, please don't think I'm taking this too seriously. Just something to think about.

Posted by Howard Wasserman on November 23, 2010 at 09:01 AM in Civil Procedure, Culture, Howard Wasserman | Permalink


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Actually, a celebration related to the birth of girl, would not be a unique invention of Judge Wood but was known to Maimonides as “zeved HaBat” (see the commentary of Ramban to the verse: G-d has given me a zeved tov” (Gen. 30:20) Rambam explains the word zeved is comprised of two words: zeh bad. The meaning of the words zeved tov would thus be zeved bad tov, this is good material. The conventional interpretation (according to Onkelos as well) is “a good portion.” According to lbn Ezra Zevulun and Dinah were twins. This might be the original connection between the zeved ceremony and the birth of a girl.)

A Sefardic and Italian ritual called a zeved habat dates back to the seventeenth century. The name of the ceremony is derived from this verse. Special melodies were sung at the ceremony, and verses from the Song of Songs were recited, just as Judge Wood ordered should Mr. Epstein’s daughter give birth to a girl.

In early German Jewish communities, a baby naming ceremony was developed for both girls and boys called a Hollekreisch. The ritual took place after Shabbat lunch. The babies were dressed up, and boys were draped in a tallit. The book of Vayikra (Leviticus) was placed in the crib. The crib would then be lifted up and the following recited in German: Hollekreisch ! How shall the baby be called? Ploni Ploni Ploni (i.e. his or her name three times). Nuts, sweets and fruits were then distributed to the guests.

So hat’s off to Judge Wood for her flexibility and good humor, but Zeved HaBat is a purely Jewish custom with long historical antecedents.

Posted by: Davidf E Y Sarna | Nov 24, 2010 1:33:13 PM

In posing the question of whether such humorous or jaunty filings are appropriate, the possibility that they can unwittingly or unexpectedly become a focal point for a discussion of gender equality (which came not only from bloggers and others, but from Judge Wood herself--even if she was trying to be similarly jaunty) weighs against such attempts at humor. I am not suggesting that anyone did anything inappropriate, although I am at least hinting that what Epstein did was unwise.

Posted by: Howard Wasserman | Nov 23, 2010 8:31:38 PM

Howard, could you clarify what you meant by, "Especially when it turns into a mini colloquy on gender equality?" Your point might be that joking is all well and good, but not when it comes to serious matters like gender equality. Or your point might be that bloggers have (inappropriately) turned a humorous filing into a "mini colloquy" on gender equality. Or perhaps you meant that this is a religious matter to which the lawyer, the judge and/or bloggers (inappropriately) drew attention. Or perhaps you meant something else entirely.

Posted by: Bridget Crawford | Nov 23, 2010 6:46:44 PM

Not knowing the full context (the 'all in fun' part), I wrote a comment (as yet not posted) at the Constitutional Law Prof Blog in which I asked if the court would later follow through in the case of the girl becoming a bat mitzvah and hold yet another rite of passage celebration. Indeed, I asked if it would continute to follow through and intervene in a shidduch, attempting to broaden the pool of potential matches for a date or prospective husband. In short, I'm not too fond of the public nature of all this and think such things are best left to more private settings. (And no, I'm not humorless.)

Posted by: Patrick S. O'Donnell | Nov 23, 2010 9:44:07 AM

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