A federal judge in Oklahoma, obviously annoyed by protracted proceedings to carry out an order to commit a defendant to a medical facility, struggled successfully to maintain an even judicial temperament and sense of humor in responding to news that the parties had worked out their own agreement on a date for the defendant to report to the facility without telling the judge. His “on the one hand,” but “on the other hand”-order managed to express his frustration while remaining perfectly balanced.

“On the one hand,” the court was grateful that the government and the defendant were able to cooperate in setting a date for the defendant to report. “On the other hand,” the court said, “the court might be somewhat justified in experiencing annoyance at being left out of the loop in making a decision that is vested in its sound discretion. ‘Oh right, somebody better remember to tell the judge...’”

“On the one hand,” the court wanted to give due consideration to the fact that the defendant was 80 years old and was receiving treatment for a heart condition by a neurosurgeon.

“On the other hand,” the court asked, “how long may a defendant avoid imposition of justifiable court orders merely because of his age and medical condition? Where does it end? Anarchy? Dogs and cats living together?”

In the end, the court threw in the towel and agreed to let the defendant report on the date agreed to by the government. Or as the court put it: “[T]he court will be content to let imposition of its orders be held hostage by the vagaries of the schedule of some neurosurgeon in Oklahoma City.”

Good news if you're involved in a legal dispute with a monkey. The primate - not you, the other one - lacks standing to sue.

That's the short answer in a long opinion from the 73rd Judicial District Court in Bexar County, Texas in which nine chimps and monkeys sued their keeper.

Ohio State University (OSU) entered into an agreement with Primarily Primates, Inc. (PP), a Texas entity, to transfer ownership of nine chimpanzees and three new world monkeys. In return for PP agreeing to provide lifetime care for the primates, OSU agreed to pay a substantial amount to construct a facility for them and to provide an endowment to help care for them.

After the primates were shipped to PP, two of them died and a third escaped from its cage. A couple months later, attorneys purporting to represent the remaining primates (named Sarah, Harper, Emma, Keeli, Ivy, Seba, Darrell, Rain and Ulysses) filed suit against PP alleging breach of contract.

But the court held the monkeys did not have standing to bring suit and affirmed the trial court’s dismissal of the action. Adding three humans as "interested parties" didn't help save the monkeys' case.

Hope those chimps and monkeys are doing okay.

Meanwhile, Senior Judge James Barlow, San Antonio, TX, a longtime supporter of lawhaha.com and legal humor, commented in a letter that he "did not think we should encourage making Texas the dumping ground for a bunch of Yankee chimps to start with.” But, he added, that was a policy question.

A 1996 English libel case reminds me of the old Rodney Dangerfield joke: “My psychiatrist told me I’m going crazy. I told him, ‘Doc, if you don't mind I'd like a second opinion.’ He said, ‘Alright, you’re ugly too.’”

In Berkoff v. Burchill, an English court of appeals held that describing a person as ugly can constitute actionable defamation. No wonder U.S. citizens are flocking to England to take advantage of the country’s plaintiff-friendly libel laws.

The case arose from a Sunday Times article in which defendant Burchill reviewed the movie The Age of Innocence. Burchill described the film director, Steven Berkoff, as “hideous-looking.”

Nine months later, Burchill once again called Berkoff’s pulchritude into question, this time in a review of the movie Frankenstein. Describing “the Creature,” Burchill said: “It’s a very new look for the Creature—no bolts in the neck or flat-tap hairdo—and I think it works; it’s a lot like Stephen Berkoff, only marginally better-looking.”

Berkoff sued for defamation. The issue was whether calling someone hideous-looking is a defamatory statement capable of injuring a person’s reputation. The appellate court answered affirmatively.

The court said a jury could “conclude that in the context the remarks about Mr. Berkoff gave the impression that he was not merely physically unattractive but actually repulsive” and that this could injure Berkoff’s ability to make a living by “lowering his standing in the estimation of the public … [by] making him an object of ridicule.”

Is truth a defense? You be the judge. Run a Google image search for "Steven Berkoff."

U.S. District Judge Richard P. Matsch awarded attorneys’ fees and costs in a patent infringement case against a pair of high-echelon lawyers and their clients for trial misconduct “reflecting an attitude of ‘what can I get away with?’" and a “winning is all that is important approach” to litigation. A media report estimated the fees and costs could run several million dollars. Judge Matsch had previously thrown out the plaintiffs’ $51 million verdict in the case based on the same conduct.

The case raises interesting questions about a court’s obligation to control attorney conduct it finds objectionable during the course of a trial.

The facts are complicated and readers interested in the full story should consult the judge’s order. But basically, the judge was ticked off that the plaintiffs’ lawyers pursued a trial strategy in the case that the judge considered legally untenable, including attempting to establish a patent infringement by showing substantial similarity between the plaintiffs’ product and the defendants’ product.

Judge Matsch opined:

Upon reflection, this Court finds and concludes that the rulings on the claims construction issues adjudicated the fairly debatable issues in this case and that the manner in which plaintiffs' counsel continued the prosecution of the claims through trial was in disregard of their obligations as officers of the court. The fairness of the adversary system of adjudication depends upon the assumption that trial lawyers will temper zealous advocacy of their client's cause with an objective assessment of its merit and be candid in presenting it to the court and to opposing counsel. When that assumption has been contradicted by a trial record of conduct reflecting a winning is all that is important approach to the trial process, the court has a duty to redress this resulting harm to the opposing party.

Judge Matsch essentially took the position that the plaintiffs’ claims were frivolous, but he had denied the defendants’ motion for summary judgment, and the jury returned a verdict in the plaintiffs’ favor. Defendants argued that these events showed the claims had merit, but the judge disagreed.

Perhaps most interesting was the defendants’ argument that if the judge found the trial conduct to be objectionable, he should have done something about it during the trial. In the judge's words, the plaintiff's lawyers "argue that they should not be held responsible for what they were able to get away with during the trial presentation."

The argument does carry some persuasive force, particularly since the judge apparently denied objections by defendants’ counsel to some of the misconduct.

But Judge Matsch took the position that counsel were already aware of the court’s admonitions regarding the trial strategy, so he didn’t have any obligation to restrain it during the trial.

Calling it “an egregious and unprecedented abuse of judicial power,” the New York State Commission on Judicial Conduct ordered the removal of Niagra Falls City Court Judge Robert M. Restaino for an incident in which he bizarrely freaked out when a cell phone rang in his court. He ended up ordering 46 defendants into police custody when he couldn’t find who had the ringing phone.

It all started when a cell phone went off in the back of a crowded domestic violence courtroom in which 46 defendants were about to be released on their own recognizance. In addition to the defendants, lawyers, court personnel, and others were present—about 70 people total. The judge responded to the offending ring stating:

Now, whoever owns the instrument that is ringing, bring it to me now or everybody could take a week in jail and please don’t tell me I’m the only one that heard that. ...

Everyone is going to jail; every single person is going to jail in this courtroom unless I get that instrument now. … You are all going.

Instead of realizing his mistake and backing off, he proceeded to threaten and badger the poor defendants for two hours to find out whose phone it was. (He didn’t question the lawyers. Duh.)

He berated the group repeatedly about their selfishness:

As I have indicated, this troubles me more than any of you people can understand. Because what I am really, really having a hard time with, that someone in this courtroom who is so self-absorbed, so concerned only for their own well-being, they kind of figure they’re going to be able to establish the bail and it won’t matter so screw all of the rest of you people.

The court saw the irony in this diatribe:

It is also ironic that in repeatedly berating the “selfish” and “self-absorbed” individual who “put their interests above everybody else’s” and “[doesn’t] care what happens to anybody,” respondent failed to recognize that he was describing himself.

I feel kind of sorry for Judge Restaino. Apparently, this was the only blemish on his record. Commissioner Raoul Felder dissented as to the sanction of removal because the incident was a “total aberration from his character and demeanor as a judge for eleven years.”

On the other hand, the guy really did flip. The initial reaction no doubt would have been forgiven. What did him in was his decision to persist for two grinding, painful hours without reconsidering despite many reasoned pleas to do so.

Geoff Petis sent in this interesting case. I’ll let him tell you about it:

New York Judge Philip S. Straniere penned an opinion about "shrinkwrap" agreements—contracts that may or may not become valid upon the opening of the package. The agreements go by different names (shrinkwrap, clickwrap, etc.), but the rose still smells as sweet. Evidently, Judge Straniere—who apparently takes his pizza as seriously as his contracts — did not agree:

Before deciding the merits of this case the court must address a troubling issue. The computer industry and other courts have adopted the term "pizza box" to describe the package in which the document containing the terms and conditions of the agreement is shipped. As a matter of law in the State of New York, such a container is not a "pizza box." No self-respecting New York pizza would be caught soggy in such a box. The container may pass as a "pizza box" in those parts of the world that think food from Domino's, Little Caesars, Pizza Hut, and Papa John's is pizza. In this court's opinion such a classification cannot be recognized east of the Hudson River.

Judge Straniere, having fun with this case, goes on to quote Ira Gershwin, Mandy Patinkin, and Marie Antoinette, among others.

For reasons unexplained, a pro se inmate litigant apparently included a hard-boiled egg as part of his request for a preliminary injunction.

U.S. Magistrate James Muirhead ordered the egg destroyed. He did it in the style of Dr. Seuss, who may be on his way to being named poet laureate for the federal judiciary (scroll down for “Dr. Seuss on Bankruptcy Law” in which a federal bankruptcy judge also engages in Seussian rhyming):

No fan I am
Of the egg at hand.
Just like no ham
On the kosher plan.
This egg will rot
I kid you not.
And stink it can
This egg at hand.
There will be no eggs at court
To prove a clog in your aort.
There will be no eggs accepted.
Objections all will be rejected.
From this day forth
This court will ban
hard-boiled eggs of any brand.
And if you should not understand
The meaning of the ban at hand
Then you should contact either Dan,
the Deputy Clerk, or my clerk Jan.
I do not like eggs in the file.
I do not like them in any style.
I will not take them fried or boiled.
I will not take them poached or broiled.
I will not take them soft or scrambled
Despite an argument well-rambled.
No fan I am
Of the egg at hand.
Destroy that egg!
Today! Today!
Today I say! Without delay!
SO ORDERED (with apologies to Dr. Seuss).

Cute, although the "court"-"aort" rhyme seems a bit of a stretch.

According to North Carolina Judge David K. Fox, General Court of Justice, Transylvania County, “Teenaged boys were created to mumble darkly whilst doing yard work to justify their existence on earth and their room and board.”

That’s just one of many pearls offered by Judge Fox in a temporary support order in a divorce case, an order as hilarious as it is skillfully articulated.

The facts are extensive, but basically, the husband, a doctor, was seeking relief from support payments to his ex-wife, who, along with her kids, was living quite well on the ex-hubby’s income while declining to seek substantial work of her own.

The wife had been a nurse, a fact not surprising to Judge Fox, who commented “[t]hat, as predictable as death and taxes, doctors marry nurses for second and subsequent unions.”

Neither the wife nor husband, according to Judge Fox, had managed to adjust their respective lifestyles in light of the doc’s substantially declining income attributable to shifts in the healthcare industry. The result, said Judge Fox, was “an ongoing mathematical economic train wreck.”

Part of the problem was that, “since separation, the Parties have undertaken to continue their relationship based upon the constitution and bylaws of the Jerry Springer Show.” The wife's grown kids from a prior marriage weren't helping matters either, causing Judge Fox to remark that "[i]t is a mercy that [the husband's] children by his prior marriage are in Illinois."

The comment about teenage boys came in response to the fact that the wife was forking out $250 a month for yard work instead of making her healthy 17-year-old son get off his duff and push a lawnmower.

While Judge Fox’s sympathies seemed to lie with the husband, the doc didn’t escape unscathed. Judge Fox described him as “rotund" and "a vessel of ill health, both actual and potential."

But good news! The husband had "acquired a reciprocal, apparently romantic, interest in a local female (working in the health-delivery industry, of course)," causing the judge to speculate "that this relationship likely is the primary reason he has begun to address his weight problem with some increase in beneficial exercise, including the muscular effort of pushing aside the dinner plate more frequently.”

The judge granted the husband support relief and everyone else comic relief. This summary doesn't do justice to Judge Fox's order. The overall tone, while definitely somewhat sarcastic, is not mean-spirited. He seemed genuinely concerned about the parties' well-being, but also frustrated by their apparent inability to grasp their economic straits.

As a member of a mid-life crisis rock band and huge Beatles fan, I have a special appreciation for Montana Judge Gregory R. Todd’s order in a recent criminal case. After the defendant pleaded guilty to burglary, he was asked to fill out portions of a pre-sentence investigation report. In response to the question, “Give your recommendation as to what you think the Court should do in this case,” the defendant replied, “Like the Beetles say, ‘Let It Be.’”

Judge Todd took issue with both the defendant’s apparent plea for leniency and also his misspelling of the name of the Beatles, for who Judge Todd has great fondness. The judge penned a caustic sentencing memorandum, written to the defendant, that managed to work in the titles of these thirty-nine Beatles songs:

Act Naturally
Baby It’s You
Bad Boy
Carry That Weight
Come Together
Day in the Life
Do You Want to Know a Secret?
Fixing a Hole
Fool on the Hill
Get Back
Hard Day’s Night
Hello Goodbye
Help
Here, There and Everywhere
Hey Jude
Honey Don’t
I Don’t Want to Spoil the Party
I Feel Fine
I Should Have Known Better
I, Me, Mine
I’ll Cry
I’ll Get You
I’m a Loser
Let It Be
Long and Winding Road
Magical Mystery Tour
Misery
Mr. Moonlight
Nowhere Man
Run for Your Life
Something
Strawberry Fields Forever
The Word
Think for Yourself
Ticket to Ride
Wait
We Can Work It Out
When I’m 64
You Really Got a Hold on Me

Here’s a taste from the last paragraph of the memorandum:

Later when you thought about what you did, you may have said I’ll Cry Instead. Now you’re saying Let It Be instead of I’m A Loser. As a result of your Hard Day’s Night, you are looking at a Ticket To Ride that Long and Winding Road to Deer Lodge. Hopefully you can say both now and When I’m 64 that I Should Have Known Better.

Judge, what can I say, but Thank You Girl, er rather, Your Honor. Till There Was You, most judicial opinions were just so Yesterday. I hope we have a chance to Come Together for lunch or Something. Why? Well, just Because.

Here’s a first in judicial writing: an appellate judge writes an opinion in an offbeat fiction-style, can’t get the other judges to go along with his approach, so decides to attach his wacky 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. After the Preakness, 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 in 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 claim the article caused them 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.

But then the reader stumbles upon Judge Farmer’s … um, not sure what to call it … tacked on at the end of the court’s opinion. It’s not labeled as an appendix. It’s not a concurring opinion or a dissent. It begins with a diatribe against traditional stilted judicial opinion writing, then explains why a more human pot-boiler narrative approach might be better. He concludes by suggesting readers compare the two approaches as reflected in his and the court's opinions and decide which one's better.

Basically, he seems 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 join it, so here it is for your comparison and reading pleasure."

Here are some 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 pay pennance for it:

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. You should go read the whole opinion, or novella, but here’s an excerpt:

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?

I can't imagine why the other judges were hesitant to join this opinion, or at least option it for a major motion picture. Are we seeing the birth of a new judicial renegade? Go Judge Farmer.

Update: Thanks to James Heelan for pointing out that much of Judge Farmer's acid trip, er, I mean, opinion was inspired by the lyrics to the opening song from Guys and Dolls: "Fugue for the Tinhorns."

Judge Mark Painter, Ohio First District Court of Appeals, took some lawyers to task for moving to strike their opponent's appellate brief for exceeding the page limitations set by rule, apparently even redrafting portions of the brief in the process. I’ll let him tell you about it:

Not wishing to let stand a brief they consider too long, counsel for appellant … have moved this court to strike [appellees’ brief] … contending the brief (1) put the citations in footnotes (where they belong!); and (2) uses footnotes to “get around” the page limit. And counsel even goes so far as to redraft their opponent’s brief, inserting the jumble of letters and numbers into the paragraphs—even the references to the record. Thus bollixed up and unreadable, the brief comes out to 38.5 pages, instead of the regulation 35. Egad. …

Our dreary day has been enlivened by the thought that lawyers care about one another’s prose so much as to redraft it. And that this dispute is so close that it may turn on a few extra pages of a lawyer’s argument. We can’t wait to read the final version—or maybe we should wait for the movie.

As to citations, they belong in footnotes. Putting goofy letters and numbers in the
middle of paragraphs destroys readability. We had to do that with typewriters, just as we
had to use underlining because typewriters did not have italics. No more.

Judge Painter did agree with the objectors that the other side shouldn’t have used so many speaking footnotes. He “venture[d] a guess that this court’s eventual opinion resolving this dispute will be fewer than 20 pages,” and suggested to both sides that “less is usually more” when it comes to legal drafting.

Sometimes you just need to know when to fold ‘em. In a 1963 divorce case, the wife accused the husband, a dentist, of adultery with several of his patients. The husband vigorously contested the allegations. Fifteen hundred pages of testimony later, the case made it on appeal to the New Jersey Superior Court, which had to decide whether the evidence proved adultery.

The husband had creative explanations for every bit of damning evidence. For example, when the wife produced a film she found of the husband inserting a speculum into a nude patient in his office, he said he was conducting medical research. Remember, he's a dentist.

On another charge, the wife claimed she came into the husband’s office one day to find him having sex on his dental couch with a nude patient identified in the case as “Mrs. G.” The husband denied having sex with Mrs. G. He said he was merely carrying her to the couch because of her sudden loss of consciousness while he was removing a denture. (No explanation as to why she was nude.) He maintained his denial even in the face of a diary entry he made on the same date with reference to Mrs. G that said "[C]aught!” He explained that this was actually a medical entry meaning that the denture “caught” in Mrs. G’s mouth tissue while he was removing it.

The opinion is jammed with other elaborate, laughable denials that make for some interesting reading.

Lawhaha.com has great fondness for judges who liven up their opinions with humor and other writing spice, but a Ninth Circuit case shows why judges need to exercise care in stirring in these ingredients.

In a suit brought against George W. Bush and Donald Rumsfeld on behalf of all whales, dolphins, and porpoises, the Ninth Circuit had to decide whether animals have standing to sue on their own behalf under the Endangered Species Act and other federal statutes.

The plaintiff was “the Cetacean Community,” a name chosen by the Cetaceans' self-appointed attorney for all of the world's whales, porpoises, and dolphins. The Cetaceans challenged the U.S. Navy's use of low frequency sonar used to detect enemy submarines because the sonar harms marine life.

Bush and Rumsfeld moved to dismiss on the ground that the animals lacked standing to bring suit. The district court agreed and dismissed the action.

The animals appealed, relying on a statement made in a previous environmental case — Palila v. Hawaii Dep’t of Land and Natural Resources — in which the Ninth Circuit had indicated that an endangered member of the honeycreeper family, the Hawaiian Palila bird, had standing to sue on its own behalf. The specific language was that the bird "has legal status and wings its way into federal court as a plaintiff in its own right."

The court had to decide whether the Palila language was binding precedent or just loose dicta. It ruled it was the latter, calling the statements “little more than rhetorical flourishes.”

With respect to the substantive issue, the court added that “It is obvious that an animal cannot function as a plaintiff in the same manner as a juridically competent human being.” Hmmm, not so sure about that.

Think of all the reasons people choose to live in different locales: job opportunities, climate, family ties, economic conditions, the ability to wiretap one's spouse ... That last one might not have come readily to mind, but an Eleventh Circuit judge thinks it could play into some couples' relocation decisions. Read on:

An Alabama woman sued her former husband under the federal wiretapping act for taping her phone conversations made from within the marital home. The trial court granted summary judgment to the husband on the basis of a 1974 Fifth Circuit case, Simpson v. Simpson, which held that spouses can secretly tape each other’s conversations because of an implied interspousal wiretapping exception to the federal statute.

The Eleventh Circuit initially affirmed the summary judgment, relying on Simpson, but on rehearing en banc, reversed, overruling Simpson and the implied exception. It also ruled that the decision applied retroactively.

In dissent, Chief Judge Edmonson questioned whether it was fair to make the decision retroactive since some privacy-invading spouses might have relied on the exception in choosing to live within the Eleventh Circuit (which encompasses Alabama, Florida and Georgia). Edmonson wrote:

I am not trying to be facetious; but before today, some spouses might have chosen to live in the Eleventh Circuit because they could wiretap their own telephone without being liable under federal law. Even if we think it unlikely that someone would live in our Circuit to avoid liability under federal law for wiretapping their spouse, it is our job to ensure that someone cannot be punished retroactively for doing so, as the act was clearly lawful.

In his concurring opinion, Judge Carnes addressed the Chief Judge's concern satirically:

I suppose, then, a conversation between a couple sitting around their breakfast table in, oh say, Colorado (the Tenth Circuit having rejected Simpson years ago) might have gone something like this:

Jim: Honey, I've been thinking, we ought to move to Alabama.

Liz: But Sweetheart, I thought you liked living in Colorado.

Jim: I do, Sugar, but there's a problem.

Liz: What's troubling you, Sweetie?

Jim: Well, Punkin', Colorado is in the Tenth Circuit, and its federal appeals court has held that if I wiretap your private conversations without your knowledge and consent, I may have to pay you damages if you find out and sue me in federal court. But if we move to Alabama, which is in the Eleventh Circuit, its Simpson decision will allow me to invade your privacy electronically without having to worry about your having a civil claim against me in federal court.

Liz: But Honeybun, doesn't Alabama's criminal eavesdropping statute make it a crime to covertly record conversations without the consent of at least one of the parties to the conversation?

Jim: It does, Snookums, but all I'm worried about is the potential civil cause of action in federal court, not having to serve time in the state slammer.

Liz: You'll look so good in jailhouse stripes, my Love. When do we move?

Well, maybe not. A pro se litigant filed a Notice of Appeal in the U.S. District Court for the Western District of Washington stating:

I hereby am informing you that I am appealing the a------ Ronald B. Leighton’s decision in this matter.

You have been hereby served notice. You’re not getting away with this s---that easy.

Signed this 10th day of July 2006
George C. Swinger, Jr.
Plaintiff/Pro Se

In U.S. v. Byrnes, the defendant was convicted of making false statements to a grand jury investigating illegal trafficking in exotic birds. The issue involved the materiality of statements as to whether some illegally imported swans and geese were dead or live when the defendant received them.

To bolster its case, the government called a collector of Australian parrots who testified the defendant had delivered some swans and geese to her. Defense counsel cross-examined the witness, an immigrant from Germany who had difficulty speaking English, in an apparent effort to challenge her credibility as a bird expert. Here’s the interesting colloquy:

Q. Mrs. Meffert, do you recall testifying yesterday about your definition of birds?

A. Yes.

Q. And do you recall that you said that the swans and geese were not birds?

A. Not to me.

Q. What do you mean by that, "not to me?"

A. By me, the swans are waterfowls.

Shortly thereafter, Mrs. Meffert was cross examined as follows:

Q. Are sparrows birds?

A. I think so, sure.

Q. Is a crow a bird?

A. I think so.

Q. Is a parrot a bird?

A. Not to me.

Q. How about a seagull, is that a bird?

A. To me it is a seagull, I don't know what it is to other people.

Q. Is it a bird to you as well or not?

A. To me it is a seagull. I don't know any other definition for it.

Q. Is an eagle a bird?

A. I guess so.

Q. Is a swallow a bird?

A. I don't know what a swallow is, sir.

Q. Is a duck a bird?

A. Not to me, it is a duck.

Q. But not a bird.

A. No, to other people maybe.

The government stipulated that swans and geese are birds.

In an Arizona case, the plaintiff’s lawyer asked the defendant’s lawyer to go to lunch to discuss some pending issues. Defense counsel refused, so the plaintiff did what anyone would do when they get rejected for a lunch date: file a “Motion to Compel Acceptance of Lunch Invitation.”

Here’s what Judge Pendelton Gaines, Superior Court of Maricopa County, Arizona, had to say in granting the unusual motion:

Conversation has been called “the socializing instrument par excellence” (Jose Ortega y Gasset, Invertebrate Spain) and “one of the greatest pleasures in life” (Somerset Maugham, The Moon and Sixpence). John Dryden referred to “Sweet discourse, the banquet of the mind” (The Flower and the Leaf).

Plaintiff’s counsel extended a lunch invitation to Defendant’s counsel “to have a discussion regarding discovery and other matters.” Plaintiff’s counsel offered to “pay for lunch.” Defendant’s counsel failed to respond until the motion was filed.

Defendant’s counsel distrusts Plaintiff’s counsel’s motives and fears that Plaintiff’s counsel’s purpose is to persuade Defendant’s counsel of the lack of merit in the defense case. The Court has no doubt of Defendant’s counsel’s ability to withstand Plaintiff’s counsel’s blandishments and to respond sally for sally and barb for barb. Defendant’s counsel now makes what may be an illusory acceptance of Plaintiff’s counsel’s invitation by saying, “We would love to have lunch at Ruth’s Chris with/on . . .” Plaintiff’s counsel.[fn1]

[fn1] Everyone knows that Ruth’s Chris, while open for dinner, is not open for lunch. This is a matter of which the Court may take judicial notice.

Plaintiff’s counsel replies somewhat petulantly, criticizing Defendant’s counsel’s acceptance of the lunch invitation on the grounds that Defendant’s counsel is “now attempting to choose the location” and saying that he “will oblige,” but Defendant’s counsel “will pay for its own meal.”

There are a number of fine restaurants within easy driving distance of both counsel’s offices, e.g., [court lists fine restaurants in the Phoenix area]. Counsel may select their own venue or, if unable to agree, shall select from this list in order.

Each side may be represented by no more than two (2) lawyers of its own choosing, but the principal counsel on the pending motions must personally appear.

The cost of the lunch will be paid as follows: Total cost will be calculated by the amount of the bill including appetizers, salads, entrees and one non-alcoholic beverage per participant.[fn3]

[fn3] Alcoholic beverages may be consumed, but at the personal expense of the consumer. [McClurg note: Hmm, alcohol and feuding lawyers? Might be a bad mix.]

A twenty percent (20%) tip will be added to the bill (which will include tax). Each side will pay its pro rata share according to number of participants. The Court may reapportion the cost on application for good cause or may treat it as a taxable cost under ARS § 12-331(5).

During lunch, counsel will confer regarding [various matters in the case].[fn4]

[fn4] The Court suggests that serious discussion occur after counsel have eaten. The temperaments of the Court’s children always improved after a meal.

Then the judge gave the parties something to chew on by proceeding in the same order to strike the plaintiff’s proposed amended complaint.

Last month, a Florida judge ordered some squabbling lawyers to resolve a dispute by playing rock, paper, scissors. (Scroll down to “The Newest ADR Model: Rock, Paper, Scissors”) What’s next? Court-ordered couples therapy?

Bankruptcy Judge A. Jay Cristol (S.D. Fla.) was vexed by a bankruptcy statute saying that if an individual debtor in a voluntary chapter 7 or 13 case fails to file certain information within 45 days of filing his petition, the case shall be “automatically dismissed” on the 46th day.

Judge Cristol struggled with the statutory riddle of how a case could be automatically dismissed without court action or even a docket entry. He decided to analyze the question in the style of that noted bankruptcy giant, Dr. Seuss.

I do not like dismissal automatic,
It seems to me to be traumatic
I do not like it in this case,
I do not like it any place.

As a judge I am most keen
To understand, What does it mean?
How can any person know
what the docket does not show?

What is the clue on the 46th day?
Is the case still here, or gone away?
…

It goes on for several more verses, but you’ll have to consult the full opinion for the rest of the story. Rumor has it the Cat in the Hat appeared pro hac vice on behalf of the debtor.

Fed up with some wrangling lawyers, Federal District Judge Gregory A. Presnell (M.D. Fla.) came up with a novel dispute resolution procedure: the game of "rock, paper, scissors."

In what Judge Presnell called "the latest in a series of Gordian knots that the parties have been unable to untangle" without court assistance, the parties were unable to agree on a location for a deposition.

The judge directed the lawyers to convene at a neutral site, and if they couldn't agree on even that much, to meet on the steps of the federal courthouse. He further instructed that:

Each lawyer shall be entitled to be accompanied by one paralegal who shall act as an attendant and witness. At that time and location, counsel shall engage in one (1) game of "rock, paper, scissors." The winner of this engagement shall be entitled to select the location for the 30(b)(6) deposition ....

Actually, rock, paper, scissors resolutions are anything but novel. Although there are competing theories of the origin of the game, according to Wikipedia, it was invented in China during the Ming dynasty, where warlords allegedly played a similar contest called shoushiling, which can be translated to "hand-command." The warloads used the game to decide, among other things, where depositions would be held and whose head would get cut off.

So who won? It might not matter. Rumor has it there will be an appeal that will be decided by eeny, meeny, miny, moe.

In People v. Garcia, the defendant, a real piece of work, appealed his conviction on multiple charges arising from a domestic assault episode that included stomping on some poor kids’ pet goldfish. Judge James Catterson’s opinion explored the intriguing legal question of whether goldfish qualify as “animal companions” under statutes imposing enhanced felony penalties for abusing such companions.

The opinion commenced with an interesting history of animal domestication:

The earliest known domestic animal appears to be the dog, a companion to mankind as early as 15,000 B.C. Goats, sheep, pigs and cows followed in domestication in the next ten thousand years. Horses, however, did not succumb to the lure of mankind's presence until 4000 B.C. The domestication of fish is believed to have begun much later, in China during the Tang Dynasty, around 620 A.D. The common goldfish (Carassius Auratus), a member of the carp family that was first domesticated in China, is now the most commonly kept aquarium fish. The goldfish’s leap from domesticated fish to family pet and companion may have happened as early as 1368 during the Ming Dynasty. The goldfish's popularity in the West began as the first public aquarium opened in London in 1853. Keeping goldfish as companions and pets in the United States has been popular since that time.

The criminal statute at issue defined “companion animal” as any dog or cat or “other domesticated animal normally maintained in or near the household of the owner or person who cares for such other domesticated animal.” The defendant argued that goldfish don’t qualify.

Here's a healthy excerpt of Judge Catterson’s terse, well-reasoned analysis of the issue:

The defendant contends that a fish is not a companion animal because it is not domesticated and because there is no reciprocity or mutuality of feeling between a fish and its owner, such as there is between a dog or a cat and its owner.

[The defendant cites to Am. Jur. 2d, which] defines “domesticated animals” as those that “no longer possess the disposition or inclination to escape,” and claims that “if dropped in a pond and offered the opportunity to swim away, a goldfish will do so without any hesitation and not look back”. He maintains that the statute's reference to “any other” domesticated animal limits “companion animals” to those that are similar to dogs or cats, that is, those with a degree of sentience sufficiently elevated to enable them to enter into a relationship of mutual affection with a human being. Furthermore, “[b]eloved household pets (fish) may be, but ‘companion animals’ in the same vein as dogs or cats they are not”.

The defendant's contention that all household pets are equal but some are more equal than others is manifestly not derived from the statute. The Legislature simply did not require a reciprocity of affection in the definition of “companion animal.” To the contrary, the statutory language is consistent with the People’s contention that “domesticated” is commonly understood to mean “to adapt (an animal or plant) to life in intimate association with and to the advantage of humans”. Thus, a goldfish such as the one herein is a domesticated rather than a wild animal within the common meaning of the term. Moreover, the goldfish was, as the statute requires, “normally maintained in or near the household of the owner or person who cares for [them].” Indeed, acknowledging that the goldfish is one of the most common household pets, defense counsel stipulated at trial that there are “millions of fish owners throughout the country”.

The defendant's argument that goldfish are not domesticated animals because given the opportunity they would leave home is without merit. While this trait arguably distinguishes fish from dogs and, probably to a lesser extent cats, it fails to take into account that many other animals commonly considered pets, such as hermit crabs, gerbils, hamsters, guinea pigs and rabbits, would depart for less confining venues and greener pastures if given the opportunity. Loyalty, if that is what it is, is merely another characteristic urged by defendant-but not included by the Legislature-as a defining feature of a companion animal.

Moreover, [the statute] provides that “[n]othing contained in this section shall be construed to prohibit or interfere in any way with anyone lawfully engaged in hunting, trapping, or fishing ....” (emphasis added). This provision would be superfluous if a fish could not be considered a companion animal.

He’s no Judge Kent (scroll down toward the bottom for classic Judge Kent opinions), but another Texas federal judge recently expressed his emphatic exasperation with some inartful motion drafting in his court.

U.S. Bankruptcy Judge Leif M. Clark (W.D. Tex.) entered an order captioned “Order Denying Motion for Incomprehensibility” when he couldn’t figure out what the defendant was requesting in a motion titled, “Defendant’s Motion to Discharge Response to Plaintiff’s Response to Defendant’s Response Opposing Objection to Discharge.”

Judge Clark said: “The court cannot determine the substance, in any, of the Defendant’s legal argument, nor can the court even ascertain the relief that the Defendant is requesting. The Defendant’s motion is accordingly denied for being incomprehensible.”

Perhaps worried that the defendant might miss the essence of the order, Judge Clark appended a footnote in which he invoked the following quotation from the Adam Sandler movie, Billy Madison:

Mr. Madison [Sandler’s character], what you’ve just said is one of the most insanely idiotic things I’ve ever heard. At no point in your rambling, incoherent response was there anything that could even be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no point, and may God have mercy on your soul.

A dog-bite case against the dean of the Yale Divinity School by a divinity student gave U.S. District Judge Gerard Goettel a chance to “let the dogs out” in an opinion leaving no possible wordplay on dogs unpenned or unpunned.

The main issue was whether the Yale Divinity School could be held strictly liable under the Connecticut dog-bite statute as a “keeper” of the dean’s offending canine, Rocky, a Labrador, because the dog was permitted to roam free in common areas of the Divinity School residences and chapel. The court held the dean strictly liable, but let the school off because it didn't "control" the dog's activities.

Here’s a compendium of Judge Goettel’s fun canine puns:

“In this dog eat dog world, anything is fair game for litigation in the federal courts.”

“As compensation for her injuries, plaintiff seeks to take a bite out of the defendants’ pocketbooks.”

“[The plaintiff], now an Episcopal priest with her own ministry, obviously has a bone to pick as her injuries required substantial medical care, and Rocky is clearly in the doghouse.”

“In dogged pursuit of damages for her trauma, she filed this suit ….”

“Hounded by Connecticut’s [dog-bite statute] ….”

“The [individual defendants] do not deny that they were keeping Rocky who apparently was not licensed to anyone but had a nose for trouble.”

“Plaintiff’s analysis is essentially the tail wagging the dog.”

“Rocky’s having access to common areas, without more evidence indicating an intent to give refuge to the dog or to control the dog’s activities on the part of the School is not a sufficient basis to collar the Divinity School.”

As for Rocky, we don’t know his fate, but the judge did offer a weak defense for the nice face-biting doggie in a footnote:

1. There is no indication that Rocky, like the dog in Oliver Goldsmith’s Elegy on the Death of a Mad Dog, “to gain some private ends, went mad and bit the [wo]man.”

You know a judicial document is going to be a great read when it is captioned:

Order Denying MAAF’s Motion to Preclude the French Phrase ”Quel Jeu Doit-on Jouer Vis-à-vis des Autorités de Californie?” From Being Translated as “What Game Must We Play With the California Authorities?”

This opinion from U.S. District Judge A. Howard Matz (C.D. Cal.) stemmed from the judge’s frustration in overseeing a series of over-litigated lawsuits arising from the collapse of a California insurance company nearly 15 years ago. The motion giving rise to the order, after all, was the 20th motion in limine the judge had addressed in recent days.

Judge Matz seemed irritated that “some of the French litigants caught up in these complicated cases are still coping with the ‘mystifying’ peculiarities of American courts. They appear to assume, for example, that no judge is capable of using common sense (and perhaps some pre-existing familiarity with French) to understand a straightforward French phrase.”

The motion turned on the meaning of the French word “jeu” in a document addressed to one of the French defendants. The document posed a question: "Quel jeu doit-on jouer vis-à-vis des autorités de Californie?” The California Insurance Commissioner’s expert asserted the question translates to: “What game must we play with the California authorities?” The defendant’s expert claimed it means: “What approach must we take with the California authorities?”

Judge Matz accused the defendant's expert of playing games with the court [paragraph breaks inserted for reading convenience]:

If M. Simonet [composer of the document] was not speaking about a “game,” surely Ms. Zarelli [defendant’s expert translator] is playing one. The problems with her declaration are abundant. First, she relies only on a French-to-French dictionary. Wouldn’t the fairest, most reliable way to ascertain the correct English meaning of “jeu,” as M. Simonet used it, be to consult a French to English dictionary?

That’s what the Commissioner’s expert translator does: she points to Harrap’s Shorter Dictionnaire. . . . And what does that more reliable source reveal? Zut alors! Of the many definitions and examples of how “jouer” and “jeu” are translated, almost all are perfectly consistent with how “jeu” was translated in the document that MAAF seeks to keep out: as a “game,” and often with a connotation of “trickery.” Harrap’s even translates “jouer le jeu” as “to play the game.” It translates other examples of the use of “jeu” into such familiar, straightforward English words andphrases as “all this fooling around;” “what’s your game?;” “to play into one’shands . . ..”

Moreover, as the Commissioner’s language expert points out, the definition that Ms. Zarelli happened to choose — “manière d! agir” — includes, if one bothers to take the complete entry into account, which Ms. Zarelli did not do — “manège” and “stratagème.” The connotations of those terms are hardly helpful to MAAF; they mean “ploy” or “trick.” In short, both the literal meaning and the context in which M. Simonet asked his not-so-rhetorical question “Quel jeu doit- on jouer vis-à-vis des autorités de Californie?” is entirely consistent with “What game must we play with the California authorities?”

Judge Matz must have been enjoying himself by this point because he added a closing footnote comparing the bravery and last name of the plaintiff’s lawyer—one “Ney”—to “Ney, the Duc d’Elchingen and Prince de la Moskova,” an army commander who Napoleon once called “the bravest of the brave.” What did the lawyer do that was so brave? He had the nerve (“considerable fortitude,” as Matz put it) to file what the judge considered to be a ridiculous motion.

An appeal in a New Zealand case over a $100 fine for failure to register “a handsome German Shepherd named Ben” caused the trial judge and writing appellate judge to compare their status in the judicial hierarchy and wax whimsically (and perhaps regretfully) about the administration of justice.

In a memorandum filed with the high court, the trial judge, apparently annoyed by the appeal, sought to educate the high court about the process for administering justice in his humble court:

Your honour may not be familiar with the manner in which “Minor Offences” are dealt with in this Court. Notices of Prosecution . . . are surreptitiously placed in the Judge’s “In Tray” at frequent and irritating intervals, usually in his or her absence. They come in stacks and bundles … [The trial judge proceeds to describe the variety of matters crying for his daily attention, including applications for Massage Parlor licenses, truancy notices, underage drinking citations, etc.]

The Judge peruses the mountain of files with great care and then imposes whatever he or she deems appropriate. No hearing is held. No defendant or counsel are present. No submissions are made. No tears are shed. No howls of derision are heard from the gallery. … No anxious mother suckles a fretful child. There are no sideways glances or rolling back of eyes from counsel’s table and certainly no titters are heard to run around the Court.

The Judge sits alone in his chambers and affixes his facsimile signature to the Information Sheet perhaps muttering silent curses to himself as he does so. …

I hope this short memorandum may assist Your Honour in dealing with this appeal.

Justice Hammond, of the High Court, a bit chagrinned, contrasted the trial judge’s mundane existence with the grandeur of his own court, describing how on the day of the hearing over the $100 appeal, “[i]n full High Court regalia we processed bewigged and black-robed through several levels” of the court building.

Justice Hammond’s decision reduced the fine to $20 because the appellant had no money, but he clearly felt bad about "tinkering" with the trial judge’s work.

He closed with a quotation from Jeremy Bentham, who described court systems as “a fathomless and boundless chaos, made up of fiction, tautology, technicality and inconsistency, and the administration of it a system of exquisitely contrived chicanery which maximises delay and the denial of justice.”

Definitely ranking in the top 10 classic judicial opinions in all of tort law is Cordas v. Peerless Transportation Co., penned in 1941 by Judge Carlin (no relation to George) of the New York City Court.

The defendant was a chauffeur and the victim of an armed car-jacking by a fleeing robber who threatened to blow the chauffeur's brains out. In fright, the chauffeur slammed on the brakes and jumped out of the vehicle, which kept moving and hit the plaintiff pedestrian and her children (fortunately, injuries were slight).

The case stands for the unremarkable principle that under the basic negligence standard of reasonable care “under the circumstances,” people aren't expected to exercise as much care in emergency situations as in non-emergencies where they have time to weigh and deliberate. It also stands as a literary masterpiece of judicial opinion writing. You have to read the whole opinion to get a full appreciation for it, but here’s how it starts:

"This case presents the ordinary man-that problem child of the law-in a most bizarre setting. As a lowly chauffeur in defendant's employ he became in a trice the protagonist in a breath-bating drama with a denouement almost tragic. It appears that a man, whose identity it would be indelicate to divulge, was feloniously relieved of his portable goods by two nondescript highwaymen in an alley near 26th Street and Third Avenue, Manhattan; they induced him to relinquish his possessions by a strong argument ad hominem couched in the convincing cant of the criminal and pressed at the point of a most persuasive pistol.”

Carlin was a learned Shakespeare fan. In excusing the chauffeur from liability for jumping out of the moving vehicle, Carlin said:

“If the philosophic Horatio and the martial companions of his watch were ‘distilled almost to jelly with the act of fear’ when they beheld ‘in the dead vast and middle of night’ the disembodied spirit of Hamlet’s father stalk majestically by ‘with a countenance more in sorrow than in anger,’ was not the chauffeur, though unacquainted with the example of these eminent men-at-arms more amply justified in his fearsome reactions when he was more palpably confronted by a thing of flesh and blood bearing in its hand an engine of destruction which depended for its lethal purpose upon the quiver of a hair.”

Translation: It's not negligent to react in fright when a carjacker has a gun pointed at your head.

Doe v. Moe, a May 2005 Massachusetts appellate case, gives a whole new meaning to the idea of safe sex. A guy sued his long-time girlfriend (ex-girlfriend?) for negligence when an ill-advised change in position during consensual intercourse resulted in him suffering a fractured penis. (You'll have to go read the opinion to get the details about how the accident occurred.)

In a case of first impression, the court struggled to arrive at an appropriate and workable standard of care to apply to private consensual sexual conduct. The court noted:

There are no comprehensive legal rules to regulate consensual sexual behavior, and there are not commonly accepted customs or values that determine parameters for the intensely private and widely diverse forms of such behavior.

Accordingly, the court concluded that the general negligence standard of reasonable care under the circumstances was inappropriate for consensual sex-physical injury cases. Instead, the court said the plaintiff needed to show conduct rising to the level of “wanton or reckless." The court opined that while the trial record might support a finding that the defendant's conduct exposed plaintiff to a risk of harm, it did not support a finding of wanton or reckless conduct.

Changing venue because of a volcano? Sure, it sounds far-fetched, but don't blow your stack. It really happened in U.S. v. McDonald, a 1990 federal bribery prosecution in Alaska. Fearful that an unpredictable volcano named Mt. Redoubt would act up and disrupt the trial, Judge James M. Burns granted a motion to change venue for the trial from Fairbanks, Alaska to Tacoma, Washington.

Judge Burns noted he could find “no precedent for changing venue because of an earthquake, hurricane, tornado, flood, volcanic eruption, or other natural disaster,” but said Mt. Redoubt was “entitled to a modicum of judicial respect.”

Judge Burns might be a Jimmy Buffett fan. Usually, when you think of Buffett, you think frozen margaritas, not frozen tundra, but footnote 17 quotes the entire lyrics of the Jimmy Buffett song “Volcano,” observing that Buffett’s lyrics express feelings apropos to the circumstances of the case.

Buffett sang, “I don’t know, I don’t know where I’m a-gonna go when the volcano blow.” Here they knew. The judge sent everyone to Tacoma.

Check out this April 2005 opinion in which an Alabama Supreme Court justice, without a trace of irony, labels the U.S. Supreme Court as “presumptuous[ ]” while declaring Marbury v. Madison and its progeny to be “unconstitutional.”

The case involved a challenge to the constitutionality of certain statutes affecting taxation and the funding of the Birmingham, Alabama civic center authority. Justice Parker included this footnote in his concurrence:

21. . . . Despite everything in the text of the Constitution, its history, and the expressed intent of the Framers being completely contrary to the notion of judicial supremacy, the United States Supreme Court has presumptuously arrogated such a position for itself simply by declaring it so.

In Cooper v. Aaron . . . the United States Supreme Court stated: “[Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803)] declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.” Tellingly, this proclamation of judicial supremacy was made without citation to the Constitution or any other authority. The result of this unconstitutional doctrine of judicial supremacy has been an increasing shift of the balance of powers from the elected executive and legislative branches of the federal government to the unelected judiciary, thereby emboldening federal courts to rule upon constitutional questions based upon foreign law or perceived changes in public opinion instead of the Constitution and its history. . . .

The turning away from our national compact by federal courts now threatens our country with a constitutional crisis. (Italics added.)

There’s a constitutional crisis over Marbury?

Seventh Circuit Court of Appeals Judge Terence T. Evans is well-known for his opinions jammed with sports trivia. (Scroll down to “Everything You Wanted to Know (and More) About College Mascots” and “Judge Evans, It’s ESPN on the Phone.”)

But in a criminal case involving witness tampering and “too many Murphys” (the defendant, his son and the trial judge were all named Murphy), Judge Evans mined a different pop culture vein in an opening footnote necessitated by a court reporting error in the trial transcript:

1. The trial transcript quotes Ms. Hayden as saying Murphy called her a snitch bitch “hoe.” A “hoe,” of course, is a tool used for weeding and gardening. We think the court reporter, unfamiliar with rap music (perhaps thankfully so), misunderstood Hayden’s response. We have taken the liberty of changing “hoe” to “ho,” a staple of rap music vernacular as, for example, when Ludacris raps “You doin’ ho activities with ho tendencies.”

Give credit to Ludacris. Cited as authority by the distinguished Seventh Circuit Court of Appeals. Maybe his next release will be a hornbook.

As Paul Scott wrote when he sent in a recent federal district court opinion involving an excessive force claim against a Georgia police officer, it’s not too hard to figure out which side's going to win a case when the court's decision starts like this:

This case demonstrates the proclivity of American citizens today to search for legal causes of action to redress every imaginable wrong. As we commemorate the 60th anniversary of the Allied's invasion of Normandy during World War II, the Court must decide in this case whether the rights those thousands of American soldiers fought and died for on the beaches of France include legal recourse for a sprained wrist suffered by someone who was arrested for, and subsequently convicted of, the obstruction of a law enforcement officer.

Surprise! The court granted defendant’s motion for summary judgment.

Thanks to Oregon Circuit Judge G. Philip Arnold for sending in Franklin v. Oregon. The opinion details the plight of Oregon federal district Judge James M. Burns and a unique prison inmate named Harry Franklin back in 1983. Their longterm relationship was on the rocks when Burns penned these opening words:

This is another chapter in the Harry Franklin saga. No longer am I tempted to call it the final chapter, as desirable as that would be to me. I mention mournfully that only the finality of death—his or mine—would enable the other of us to use the term “final” in that way. And, of course, if mine comes first, I have no doubt that another judge will someday express lamentations such as these.

Franklin was a prolific litigator. Burns had already dismissed 37 cases he filed, only to receive two dozen more. These were on top of 45 other lawsuits filed by the inmate, which were dealt with by a different judge.

Here are some of the claims Judge Burns had to contend with:

– A claim for $3 million damages for mental frustration suffered by Franklin when a Portland television station allegedly misidentified a “14 wheeler tractor and trailer rig” as an “18 wheeler.”

– A claim for “Harassment by Water” arising from the Oregon State Prison’s sprinkling of the prison yard during summer months, which prevented Franklin from finding a dry place to lie down.

– A claim that the Oregon State Prison wrongfully bakes its desserts in aluminum rather than stainless steel pans.

How did Franklin decide which claims had merit? In his words:

FN1. “The Lord spoke to me, and he told me to file these lawsuits and said, ‘You will win big in your lawsuits,’” the heavy-set, white haired convict said. “He showed me an enormous elephant. He said that the elephant represents the big, gray courts, which is the government. Anyway, I was leading this elephant through every section of this penitentiary,” he said. “I was writing on a yellow legal pad. Each place we came to I’d jot something down and slap the sheet onto the elephant. And they all stuck. The Lord told me the sheets were suits. I never could get over that monstrous elephant.”

Legalese embraces redundancy. Legalese embraces redundancy. Legalese ... sorry, just getting in the spirit. In a convoluted dispute regarding a real estate conveyance, Judge Mark P. Painter, Ohio Court of Appeals, First District, offered his common sense take on the phrase “free and clear title” and other legal redundancies:

Free and clear mean the same thing. Using both is an unnecessary lawyerism. Free is English; clear is from the French clere. After the Norman Conquest, English courts were held in French. The Normans were originally Vikings, but after they conquered the region of Normandy, they became French; then they took over England. But most people in England, surprisingly enough, still spoke English. So lawyers started using two words for one and forgot to stop for the last nine hundred years.

So free and clear do not mean separate things; they mean, and were always meant to mean, exactly the same thing. Just as null and void and due and payable mean the same thing. All of these couplets are redundant and irritating lawyerisms. And they invite just what has happened here—an assertion that they somehow have different meanings.
The Norman Conquest was in 1066. We can safely eliminate the couplets now.

What’s your favorite legal redundancy?

Appellate Judge Joseph Hudock of the Superior Court of Pennsylania has blessed us with a new classic involving a poor little persecuted squirrel named Nutkin. For an alleged questionable motive (explained in the opinion), the state decided to prosecute Nutkin's owner for keeping the squirrel as a family pet in violation of Pennsylvania wildlife laws. The good news is that Nutkin and the owner won. The better news is Judge Hudock’s opinion. This one is worth reading in full. Here are the opening paragraphs to give you a taste:

1. This appeal revolves around the life and times of Nutkin the squirrel.
2. Nutkin’s early life was spent in the state of nature ferrae naturae, in the state of South Carolina, and, as far as we can tell, in a state of contentment. She apparently had plenty of nuts to eat and trees to climb, and her male friends, while not particularly handsome, did have nice personalities. Life was good.
3. Then one day tragedy struck: Nutkin fell from her tree nest!
4. But fate was kind. Nutkin was found and adopted by Appellant and her husband who, at that time, were residents of South Carolina. Appellant lovingly nursed Nutkin back to health, and Nutkin became the family pet. . . . Life was good again.
5. Nutkin's captivity and domestication were perfectly legal in South Carolina, possibly a reflection of that state's long tradition of hospitality to all.
6. In 1994, Appellant and her husband moved to Pennsylvania and brought Nutkin with them. Life was full of promise.
7. Dark clouds began to gather, however ... [when the mean old state of Pennsylvania came into the picture and tried to take Nutkin away].
. . .
9. Nutkin would then learn the shocking truth that the cheery Pennsylvania slogan "You've got a friend in Pennsylvania" did not apply to four-legged critters like Nutkin.

I won’t ruin the suspense. If you read it, keep an eye out for the funny analogy Judge Hudock draws between old squirrels and old appellate judges.

Think judges of the U.S. Tax Court are staid? Well, yes, probably. But in 1983, one of them cut loose with a rhyming opinion in a case involving country singer Conway Twitty's defunct "Twitty Burger" restaurants:

Twitty Burger went belly up
But Conway remained true
He repaid his investors, one and all
It was the moral thing to do.
His fans would not have liked it
It could have hurt his fame
Had any investors sued him
Like Merle Haggard or Sonny James.
When it was time to file taxes
Conway thought what he would do
Was deduct those payments as a business expense
Under section one-sixty-two.
In order to allow these deductions
Goes the argument of the Commissioner
The payments must be ordinary and necessary
To a business of the petitioner.
Had Conway not repaid the investors
His career would have been under cloud,
Under the unique facts of this case
Held: The deductions are allowed.

Interesting factoids in the opinion include the revelations that Conway Twitty’s real name was Harold Jenkins and that he began his career in rock and roll before crossing over to country music in 1965.

Warren J. Hays is still brewing up trouble with that official Ohio identification card issued to him in the name of Santa Claus, listing his address as 1 Noel Drive, showing his birth date as December 25, 1900, and bearing a picture of him in a false beard.

Scroll down to “Santa Clause is coming to courrrt” for the first installment of this adventure.

After being involved in a minor accident in his car, “which resembled a sleigh,” Hays presented his Santa Claus ID to the other party, who showed it to a police officer-friend of hers. The officer, suspecting that Hays might not really be Santa Claus, met with the prosecutor, who filed a misdemeanor complaint against Hays alleging that he provided false information in obtaining an the Ohio ID card.

The instant action was Hays’ suit for malicious prosecution and abuse of process, which he lost.

The burning question that remains is how a man in a false beard claiming to be Santa Claus could obtain an official state ID card? On the other hand, maybe he really is Santa Claus, in which case the state should quit hassling him so he can get ready for the holidays.

Should judges rhyme? A recent offering by Justice Michael Eakin (Pa. Sup. Ct.), one of the better rhyming judges, is submitted for your expert poetic analysis, preferably with reference to the late romantic period of Shelly, Byron and Keats. Sung to the tune of the theme song from “Mr. Ed,” the television sitcom about the talking horse, here is part of Justice Eakin's rhyming dissent from a ruling that the state's drunk driving law does not apply to people on horses:

A horse is a horse, of course, of course,
but the Vehicle Code does not divorce
its application from, perforce,
a steed, as my colleagues said.
“It’s not vague” I’ll say until I’m hoarse,
and whether a car, a truck or horse
this law applies with equal force,
and I’d reverse instead.

To which we can add, with all due respect to Justice Eakin:

Justice Eakin, we love you, man,
for trying to do whatever you can
to spice up the lives of bar and bench.
But although it’s a dicey subject to broach,
could you please consider another approach?
‘Cause that latest rhyme gives off a bit of a stench.

Just kidding around, Justice Eakin. Scroll down for other Justice Eakin rhymes.

Tax law is not known for its hilarity. But in Calarco v. Commissioner of Internal Revenue, Judge Holmes of the U.S. Tax Court decided to have a bit of fun in a case involving some challenged business deductions by a theater professor who wants to be a playwright. The opening paragraph gives a taste of the opinion (interesting footnotes omitted):

It is a truth little remarked on by scholars that tax law has been a fount of literature for 5,000 years. The oldest literary work still extant–the Epic of Gilgamesh–is a long narrative of a friendship begun during a protest against government exactions. In more recent times, some of our language’s most notable authors have used fiction to delve into tax policy: consider Shakespeare’s criticism of the supply-side effects of a 16-percent tax rate; Swift’s precocious suggestion of a system of voluntary assessment; and Dickens’ trenchant observation on the problems of multijurisdictional taxing coordination ....

The prof didn’t fare too well before the court. In an opinion divided into a Prologue, Act I, Act II and Epilogue, the court did find that petitioner “approached his playwriting in a business-like manner,” but disallowed many of his business deductions, including, for example, approximately 100 expenditures for “Performances, Viewing.” Petitioner testified at trial “that every time he listens to a CD or watches a movie, he is engaged in playwriting and not recreation.” The court found this to be a “less than candid” assessment of his business expenses.

The Third Circuit Court of Appeals reversed a district judge in Pennsylvania, finding impropriety in the fact that the judge’s opinion dismissing plaintiff’s claims was “nearly identical” to a proposed order and opinion submitted by defendants’ lawyers.

The court had previously expressed its disapproval of trial courts adopting proposed findings of fact and conclusions of law submitted by the prevailing parties in litigation, although it said that such copying would not be ground for reversal unless the findings were clearly erroneous. This situation was different, according to the court:

Here, however, we are not dealing with findings of fact. Instead, we are confronted with a District Court opinion that is essentially a verbatim copy of the appellees’ proposed opinion.

...

Judicial opinions are the core work-product of judges. They are more than findings of fact and conclusions of law; they constitute the logical and analytical explanations of why a judge arrived at a specific decision. They are tangible proof to the litigants that the judge actively wrestled with their claims and made a scholarly decision based on his or her own reason and logic. When a court adopts a party’s proposed opinion as its own, the court vitiates the vital purposes served by judicial opinions.

Certainly, the court seems correct in ruling that parties to litigation have a fair and reasonable expectation that the judge, not the parties, articulate the reasons for the decision. However, the court’s distinction between ghostwritten opinions and ghostwritten findings of fact and conclusions of law is, with due respect to the highly regarded court, a bit iffy. Opinions and Findings of Fact and Conclusions of Law are the same thing, differing only in format. Both documents dispose of the losing party’s claims and give the reasons why.

Finally, in fairness to the trial judge, it must be noted that he was following a common practice, as evidenced by the fact that the plaintiff's lawyer devoted only one footnote of the appellate brief to the issue. After my first trial as a young lawyer a million years ago, the judge called, said we had won and asked me to draft an opinion to send to him. Ghostwriting for judges is as old as ... well, ghostwriting.

A federal judge in Texas (no, not Judge Kent), fed up with petty squabbling among the lawyers in a case of unknown subject matter, let loose with a barrage that began by expressing doubt as to whether the lawyers had ever attended kindergarten and ended by telling them to “Get a life.” Check out this gem of an order from U.S. District Judge Sam Sparks:

When the undersigned accepted the appointment from the President of the United States of the position now held, he was read to face the daily practice of law in federal courts with presumably competent lawyers. No one warned the undersigned that in many instances his responsibility would be the same as a person who supervised kindergarten. Frankly, the undersigned would guess the lawyers in this case did not attend kindergarten as they never learned how to get along well with others. Notwithstanding the history of filings and antagonistic motions full of personal insults and requiring multiple discovery hearings, earning the disgust of the this Court, the lawyers continue ad infinitum.

[Court recounts current dispute in which, despite the court's order allowing a pleading to be filed on July 23, 2004, defendants’ counsel filed a motion for reconsideration, claiming the pleading should have been filed July 19.]

The Court simply wants to scream to these lawyers, “Get a life” or “Do you have any other cases?” or “When is the last time you registered for anger management classes?”

Neither the world’s problems nor this case will be determined by a ... [pleading] which is four days later, even with the approval of the presiding judge.

If the lawyers in this case do not change, immediately, their manner of practice and start conducting themselves as competent to practice in the federal court, the Court will contemplate and may enter an order requiring the parties to obtain new counsel.

Judge Sparks wrapped up by saying that if it wasn’t already clear from the tone of the order, the motion for reconsideration was denied. I think it was pretty clear.

Nothing funny about U.S. v. Pipkins, a case involving RICO convictions for several “pimps,” including convictions for using underage woman as prostitutes. But it certainly qualifies as “Strange,” given the Eleventh Circuit’s elaborate explanation of the complex hierarchy and jargon of pimping and prostitution, which in this case even included instructional videos for both pimps and prostitutes. Here are some excerpts:

“[E]ach pimp kept a stable of prostitutes with a well-defined pecking order. At the top of each pimp's organization was his "bottom girl," a trusted and experienced prostitute or female associate. Next in the pimp's chain of command was a "wife-in-law," a prostitute with supervisory duties similar to those of the bottom girl. A pimp's bottom girl or wife-in-law often worked the track in his stead, running interference for and collecting money from the pimp's other prostitutes. The bottom girl also looked after the pimp's affairs if the pimp was out of town, incarcerated, or otherwise unavailable.

“The pimps also recognized a hierarchy among their own. "Popcorn pimps," "wanna-bes," and "hustlers" were the least respected, newer pimps. A "guerilla pimp" (as other pimps and prostitutes considered Moore) primarily used violence and intimidation to control his prostitutes. Others were regarded as "finesse pimps," who excelled in the psychological trickery needed to deceive juvenile females and to retain their services. Finally, "players" (apparently, in this case, Pipkins) were successful, established pimps who were well-respected within the pimp brotherhood. ...

“The pimping subculture in Atlanta operated under a set of rules, presented in the video called Really Really Pimpin' in Da South. This videotape was made in Atlanta by Pipkins and Carlos Glover, a business associate. Really Really Pimpin' in Da South featured prominent Atlanta pimps, including Pipkins, explaining the rules of the game. This video, along with its companion piece, Pimps Up Hoes Down, outlined the pimp code of conduct, and was repeatedly shown to new pimps and prostitutes alike to concisely explain what was expected of a prostitute. The origin of Pimps Up Hoes Down is unknown. In essence, these videos taught that prostitutes were required to perform sexual acts, known as "tricks" or "dates," for money. ... Despite the pimps best efforts to subjugate their prostitutes, the rules allowed a prostitute to move from one pimp to another by "choosing." This was accomplished by the prostitute making her intentions known to the new pimp, and then presenting the new pimp with money, a practice known as "breaking bread." The new pimp would then "serve" the former pimp by notifying him that the prostitute had entered his fold. The former pimp was bound to honor the prostitute's decision to choose her new pimp. A prostitute who frequently moved from pimp to pimp was known as a "Choosey Susie." And, a prostitute might "bounce" from pimp to pimp by moving among different pimps without paying for the privilege of choosing."

The court also detailed extensive physical abuse against prostitutes as part of the “rules govern[ing] a prostitute's conduct,” mentioned that one defendant used his prostitutes to "entertain[ ] members of a municipal police force at his home," and noted that the pimps "operated as a price-fixing cartel" to regulate prices for prostitution services.

If you ever thought prostitution was a “victimless crime,” go read this opinion.

A $600,000 jury verdict for losing psychic powers? Sound ridiculous? Maybe, but maybe not. The name of the case is Haimes v. Temple University, and, like the grossly distorted McDonald’s coffee spill case, it's been used and misused as a tool to whip up on trial lawyers and the tort system. But as with the McDonald’s case, Haimes invariably gets twisted in the telling.

Plaintiff Judith Richardson Haimes brought a medical malpractice action against defendant after a CT scan allegedly caused her chronic and disabling headaches and prevented her from practicing her occupation as a psychic. A jury awarded her $600,000 after a four-day trial.

Always omitted from the news reporting of the case are two critical facts: (1) that the trial judge specifically instructed the jury it could NOT award damages for loss of her psychic abilities; and (2) that the verdict was overturned and a new trial granted.

Having cleared that up, the most interesting part of the case was the testimony pertaining to her psychic abilities. The plaintiff presented several police officers as witnesses who testified that plaintiffs’ psychic abilities had helped them solve cases. One special agent testified that he sought plaintiff’s advice in solving five to seven homicide cases and that information provided by plaintiff proved to be 80-90 percent accurate. The opinion describes detailed information plaintiff provided to help solve a variety of cases. It’s quite interesting.

In a new opinion involving controversy over “Chief Illiniwek,” mascot of the University of Illinois since 1926, Judge Terence Evans of the U.S. Court of Appeals for the Seventh Circuit once again establishes his dominance as a judicial sports buff. (Scroll down to “Judge Evans, it’s ESPN on the phone,” for more Judge Evans sports gems.)

A group of students and faculty who believe the mascot degrades Native Americans brought suit against the university chancellor, seeking a declaratory judgment that the chancellor's order banning all speech directed toward prospective student athletes without prior permission violated their First Amendment rights. The students and faculty wanted to contact prospective student athletes regarding the controversy.

The court found the policy violated the plaintiffs' rights, but before getting to the merits, Judge Evans took a substantial detour into sports mascot trivia:

"In the Seventh Circuit, some large schools--Wisconsin (Badgers), Purdue (Boilermakers), Indiana (Hoosiers), Notre Dame (The Fighting Irish), DePaul (the Blue Demons), the University of Evansville (Purple Aces), and Southern Illinois (Salukis)--have nicknames that would make any list of ones that are pretty cool. And small schools in this circuit are no slouches in the cool nickname department. One would have a hard time beating the Hustlin' Quakers of Earlham College (Richmond, Indiana), the Little Giants of Wabash College (Crawfordsville, Indiana), the Mastodons of Indiana University-Purdue University-Fort Wayne (Fort Wayne, Indiana), and the Scarlet Hawks of the Illinois Institute of Technology.

"But most schools have mundane nicknames. How can one feel unique when your school's nickname is Tigers (43 different colleges or universities), Bulldogs (40 schools), Wildcats (33), Lions (32), Pioneers (31), Panthers or Cougars (30 each), Crusaders (28), or Knights (25)? Or how about Eagles (56 schools)? The mascots for these schools, who we assume do their best to fire up the home crowd, are pretty generic--and pretty boring.

"Some schools adorn their nicknames with adjectives--like "Golden," for instance. Thus, we see Golden Bears, Golden Bobcats, Golden Buffaloes, Golden Bulls, Golden Eagles (15 of them alone!), Golden Flashes, Golden Flyers, Golden Gophers, Golden Griffins, Golden Grizzlies, Golden Gusties, Golden Hurricanes, Golden Knights, Golden Lions, Golden Panthers, Golden Rams, Golden Seals, Golden Suns, Golden Tigers, and Golden Tornados cheering on their teams.

"All this makes it quite obvious that, when considering college nicknames, one must kiss a lot of frogs to get a prince. But there are a few princes. For major universities, one would be hard pressed to beat gems like The Crimson Tide (Alabama), Razorbacks (Arkansas), Billikens [FN2]

"[FN2] What in the world is a “Billiken”? [End of FN]

"(St.Louis), Horned Frogs (TCU), and Tarheels (North Carolina). But as we see it, some small schools take the cake when it comes to nickname ingenuity. Can anyone top the Anteaters of the University of California-Irvine; the Hardrockers of the South Dakota School of Mines and Technology in Rapid City; the Humpback Whales of the University of Alaska-Southeast; the Judges (we are particularly partial to this one) of Brandeis University; the Poets of Whittier College; the Stormy Petrels of Oglethorpe University in Atlanta; the Zips of the University of Akron; or the Vixens (will this nickname be changed if the school goes coed?) of Sweet Briar College in Virginia? As wonderful as all these are, however, we give the best college nickname nod to the University of California-Santa Cruz. Imagine the fear in the hearts of opponents who travel there to face the imaginatively named "Banana Slugs"?

"From this brief overview of school nicknames, we can see that they cover a lot of territory, from the very clever to the rather unimaginative. But one thing is fairly clear--although most are not at all controversial, some are. Even the Banana Slug was born out of controversy. For many years, a banana slug (ariolomax dolichophalus to the work of science) was only the unofficial mascot at UC-Santa Cruz. In 1981, the chancellor named the "Sea Lion" as the school's official mascot. But some students would have none of that. Arguing that the slug represented some of the strongest elements of the campus, like flexibility and nonagressiveness, the students pushed for and funded a referendum which resulted in a landslide win for the Banana Slug over the Sea Lion. And so it became the official mascot.

"Not all mascot controversies are "fought" out as simply as was the dispute over the Banana Slug. Which brings us to the University of Illinois where its nickname is the "Fighting Illini," a reference to a loose confederation of Algonquin Indian Tribes that inhabited the upper Mississippi Valley area when French explorers first journeyed there from Canada in the early seventeenth century. The university's mascot, to mirror its nickname--or to some its symbol--is "Chief Illiniwek." Chief Illiniwek is controversial. And the controversy remains unresolved today. ..."

Even if you're not a sports fan, you have to appreciate a federal appellate judge who uses phrases like "pretty cool" and "pretty boring" in his opinions. I wonder if he talks like that during oral arguments. "Counselor, that was a pretty cool motion you filed the other day, but it was pretty boring." Thanks for another great opinion, Judge.

Great news for the diet-conscious. Frozen batter-dipped french fries are a “fresh vegetable” under the Perishable Agricultural Commodities Act, according to U.S. District Judge Richard Schell (Beaumont, Texas). And so are cheeseburgers!

Kidding about the cheeseburgers, but it’s true about the french fries. Although the court did not explicitly rule that french fries are fresh vegetables, that's the legal effect of the opinion. The ruling applies only to commerce, not nutrition, regulations, which focus on assuring buyers of agricultural commodities that they are getting what they paid for.

Thanks to former student David Eanes for sending in one of the funniest opinions I’ve seen in months. A pro se litigant in Arkansas appealed a trial court decision granting custody of her child to the biological father and ordering that the child’s birth name be changed. The trial court granted the custody change and ordered the child’s name be changed to “Samuel Charles.” Not a bad name, but why order a change? Personally, I liked the original name: “Weather’By Dot Com Chanel Fourcast.”

Here's the colloquy in which the perplexed trial judge asked the mother to explain the child's birth name:

The Court: I simply do not understand why you named this child -- his legal name is Weather'By Dot Com Chanel Fourcast Sheppard. Now, before you answer that, Mr. – the plaintiff in this action is a weatherman for a local television station?
Sheppard: Yes.
The Court: Okay. Is that why you named this child the name that you gave the child?
Sheppard: It – it stems from a lot of things.
The Court: Okay. Tell me what they are.
Sheppard: Wea