Judge Turns Triple Crown Plot Into Novella

Funny Cide

Triple Crown threat Funny Cide caught up in weird judicial opinion.

The total weirdness of Florida Court of Appeals Judge Farmer’s opinion in Funny Cide Ventures, LLC v. Miami Herald Publ’g Co. gets the case into Lawhaha.com’s Strange Judicial Opinions Hall of Fame.

Here’s a first in judicial writing: an appellate judge writes an opinion in an offbeat fiction-style based on a tune from Guys and Dolls, can’t get the other judges to go along with his approach, so decides to attach his creative opinion to the court’s per curiam opinion together with a lengthy preface explaining his unique approach to written adjudication.

Confused? Let’s back up. In 2003, Funny Cide won both the Kentucky Derby and the Preakness, one race away from the Triple Crown.

After the Kentucky Derby, the Miami Herald published an article implying that the jockey cheated by using some kind of illegal battery-powered device during the race. The Herald later admitted it made an error and retracted the story. Meanwhile, Funny Cide placed third at the Belmont, missing out on becoming only the twelfth horse in history to win the Triple Crown.

In a lawsuit for injurious falsehood against the Herald, Funny Cide’s owners claimed the article caused substantial damage, including the chance to win the Belmont because “the article caused the jockey to over-ride the horse in the Preakness in an attempt to vindicate himself.”

The defendant moved for summary judgment, which was granted on the ground that the plaintiffs had not alleged direct and immediate damages from the article. The appellate court affirmed in a brief per curiam opinion.

So far, so good.

Then the reader stumbles on Judge Farmer’s … not sure what to call it … tacked on at the end of the court’s opinion. It’s not a concurring or dissenting opinion, and is not labeled as an appendix.

His “attachment” to the majority opinion is not a dissent from the reasoning of his brethren’s opinion, but the boring way in which they expressed it.

Judge Farmer starts by assailing traditional stilted judicial opinion writing, then explains why a humanized, pot-boiler narrative approach might be better. He concludes by suggesting readers compare the two approaches–his and the majority’s–and decide which is better.

Basically, he seemed to be saying: “Hey, I labored over writing this really fun and wild opinion, but these dudes I work with on the court are too straitlaced to get it, so here it is for your reading pleasure.”

Here are excerpts, first, from his attack on traditional judicial opinion writing:

Most [judicial opinions are] … dreary and tedious. …

A surprising number are way too long. There is often a painstaking account of background and trial which turns out to be unnecessary to grasp the essential issues to be decided. Many have extended discussions of rules and principles no one really challenges, or few would dispute. Judges pile on needless details of date, time and place, modified by confusing identifying terms (appellant-cross appellee-defendant) without regard to clarity. Extended comparative quotations alternate with exposition of one sort or another. Legal issues are analyzed through mind-numbing, many-factored “tests”. Each factor is unloaded nit by nit, as though the judges actually decided the dispute in precisely that way. Arcane legal terminology is woven in and out, even though simpler, plainer words could be used. Simplicity, tone, style, voice, personality, levity-all are shunned.

Judge Farmer concedes he’s been guilty of what he describes, then sets out to change his opinion-writing ways:

From the very moment of my appointment as a judge, I have chafed under this norm for appellate opinion writing. How did it become conventional? Who made it required? Why hasn’t it been changed?

I struggled against it. There must be other styles, different tones, alternate voices. Not for every opinion. But for some.

One technique occurred to me. This idea would have an opinion in some of the forms, styles and characteristics associated with fiction. Good fiction is set in human experience. Good fiction illuminates.

***

I had decided that the style of some opinions could-and should-be unconventionally changed for greater openness to all readers. I would try to write some opinions in styles and tones calculated to make legal reasoning clearer for those without law degrees. Then came this case.

When the panel conferred after oral argument, I did not detect any disagreement. … So after thinking on the matter, I conceived of an unconventional approach. I would try a style, a tone, a voice to make apparent even to non-lawyers what I believed is the basic defect in their argument. The very style of the opinion itself would illuminate the legal analysis and outcome.

As it turns out, the other two members of the panel could not endorse the opinion or even some slightly altered version. They had concerns. Some other judges shared them. So I give this explanation for what I wrote, laying my version along side the panel’s substitute. Readers can compare a conventional opinion with an unconventional style-the pious with the impious.

Then comes the opinion. Here’s an excerpt, inspired by the opening song of Guys and Dolls, Fugue for the Tinhorns:

Then the horse won the Preakness Stakes. And it’s not even close. Wins by nearly ten lengths. The horse is so far out front, looks like he could make it past the wire and into the barn before they can take the photo. Hardly anyone asked if the horse ran out of gas for the Belmont. Are you kidding? Racing was all stirred up about the Crown. The feedbox noise grew hot.

Was it a dream, or did I hear stories about a guy who read in the paper the horse wins it all by a half? About another guy who said it was no bum steer, it was from a handicapper that’s real sincere? Even about a third guy who knew this is the horse’s time because his father’s jockey’s brother’s a friend?

Whatever. It’s a lock. Two jewels for the Crown. Make room for the third.

Only, wait a minute. Did I hear another story about this one guy who wasn’t so sure? Said it all depends if it rained last night?

For the life of me, I can’t understand why the other judges on the panel were hesitant to join in this opinion.

Funny Cide Ventures, LLC v. Miami Herald Publ’g Co., 955 So.2d 1241, 1243–47 (Fla. Dist. Ct. App. 2007). Thanks to Kevin McDowell and James Heelan.

1 comment to Judge Turns Triple Crown Plot Into Novella

  • This is unbelievable! I’ve just found your site- the horses, the talking cat, and experts that aren’t sure if a bird is a bird; hours of amusement. Thanks for all your posts!

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Andrew Jay McClurg is a law professor whose teaching and research interests include tort law, products liability, legal education, privacy law and firearms policy. He holds the Herbert Herff Chair of Excellence in Law at the University of Memphis Cecil C. Humphreys School of Law.
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