A large guy (280-90 pounds) ironically won a one-week trip to Hawaii as a reward for selling more than $20,000 in diet products. But in a lawsuit against Hanes, the underwear maker, he alleged his “dream trip” went awry due to allegedly defective briefs which “gaped open and acted like a sand belt on my privates,” causing injury.

We'll let the court elaborate on this interesting products liability case:

Plaintiff testified that by the second day in Hawaii he was in debilitating pain. However, … he ignored the pain until he returned to Pensacola two weeks later. He explained he was able to ignore the pain because he was enjoying himself so much on this long anticipated vacation that he did not dwell on or focus on the pain to any degree.

Plaintiff testified he believed sand that he picked up in his swim trunks while enjoying the Hawaiian surf had irritated his penis. Over the next few days he and his wife "walked all over the place" until his condition worsened to the point that he "could hardly walk." Plaintiff testified his inability to walk was caused by defendant's defective manufacturing of his underwear which caused his "fly" to gap open. The gap resulted in his penis protruding from his underwear, whereupon the edges of the opening abraded his penis like "sandpaper belts." …

Under cross examination plaintiff admitted he never examined his penis to assess the problem and/or treat the problem. He testified he is a "belly-man" and his "weight" prevents him from looking down and seeing his penis. He further testified he declined to use the hotel mirror to view the "injury" because that is "not something he would do." He also testified he did not ask his wife to examine his penis because he would never ask her to do such a thing, nor would he want to let her know about his pain because it would have "ruined her vacation" as well. …

So how does one prove a complex products liability case like this one? How else? Bring on the experts! Nothing like an in-court reenactment to drive home a point (will resist the obvious "if they do not fit, you must acquit" joke):

Both the plaintiff and the defendant's expert demonstrated the "tensions" that are placed on men's underwear. This was done by holding the allegedly "defective" underwear and placing it under various "stresses" while comparing it with similar briefs made by other manufacturers, as well as other old, worn out Hanes brand briefs owned by plaintiff.

The uncontroverted expert testimony was that once a man's genitalia are adjusted in his briefs, "vertical tension" is far greater than horizontal tension and there is no tendency for the fly to "gap."

Based on the expert testimony, the judge concluded that “it was clear to the court that plaintiff’s underwear would not have ‘gaped’ open as contended by plaintiff because the tension load on men's underwear is vertical and not horizontal.” The court speculated that it was more likely that plaintiff’s problems were caused by the “plaintiff’s manner of getting into his underwear,” which was to put them on at the same time as his pants.

For all you law students, the legal lesson of this case is that tidy-whities expert testimony qualifies as scientifically valid under Daubert.

I’ve always been a fan of Pennsylvania Supreme Court Justice Michael Musmanno (scroll down for several Musmanno opinions), but his rant over Henry Miller’s classic novel, The Tropic of Cancer, in Commonwealth v. Rubin, was not one of his better outings.

Miller penned The Tropic of Cancer, which is widely hailed as one of the greatest novels of the 20th century, in 1934. Published in the U.S. in 1961, the book, which contains several frank sexual passages, became the focus of a number of obscenity trials.

Commonwealth v. Rubin was an action to restrain the selling of the book. The trial court granted an injunction, which a majority of the Pa. Sup. Ct. overturned on First Amendment grounds. Musmanno dissented, unleashing a flood of hyperbole for which there may be no rival in judicial opinion writing. He didn’t just think the book was obscene. He hated on it with a vengeance. Here are some choice passages, courtesy of Lisa Lin:

‘Cancer’ is not a book. It is a cesspool, an open sewer, a pit of putrefaction, a slimy gathering of all that is rotten in the debris of human depravity. And in the center of all this waste and stench, besmearing himself with its foulest defilement, splashes, leaps, cavorts and wallows a bifurcated specimen that responds to the name of Henry Miller. One wonders how the human species could have produced so lecherous, blasphemous, disgusting and amoral a human being as Henry Miller. One wonders why he is received in polite society.

…

Policemen, hunters, constables and foresters could easily and quickly kill a thousand rattlesnakes but the lice, lizards, maggots and gangrenous roaches scurrying out from beneath the covers of ‘The Tropic of Cancer’ will enter into the playground, the study desks, the cloistered confines of children and immature minds to eat away moral resistance and wreak damage and harm which may blight countless lives for years and decades to come.

…

To say that ‘Cancer’ has no social importance is like saying that a gorilla at a lawn party picnic does not contribute to the happiness of the occasion.

…

The defendant would have reason to say that ‘Cancer’ is not hard-core pornography; it is, in fact, Rotten-core pornography. No decomposed apple falling apart because of its rotten core could be more nauseating as an edible than ‘Cancer’ is sickening as food for the ordinary mind. ‘Cancer’ is dirt for dirt's sake, or, more appropriately, as Justice Frankfurter put it, dirt for money's sake.

…

Then the defendants say that ‘Cancer’ is entitled to immunity under the First Amendment because court decisions have declared that only worthless trash may be proscribed as obscene. To say that ‘Cancer’ is worthless trash is to pay it a compliment. ‘Cancer’ is the sweepings of the Augean stables, the stagnant bilge of the slimiest mudscow, the putrescent corruption of the most noisome dump pile, the dreggiest filth in the deepest morass of putrefaction.

Probably good for Justice Musmanno that he’s not around today. He’d be stroking out every time he turned on the television.

In U.S. v. Ramirez Lopez, the defendant was convicted of smuggling aliens into the U.S. from Mexico. One died during the journey due to inclement weather. When border patrol agents interviewed fourteen members of the group, two of them said the defendant was the guide of the expedition while the other twelve exculpated him, denying he was the guide. The government deported nine of the twelve exculpatory witnesses back to Mexico prior to trial and the trial judge denied admission of the government’s interview notes with them.

It's fair to say Judge Kozinski was unimpressed by the fairness of the procedure. He began his dissent from the affirmance of the conviction with a satirical, fictional post-trial conversation between the defendant and his lawyer:

Lawyer: Juan, I have good news and bad news.

Ramirez-Lopez: OK, I'm ready. Give me the bad news first.

Lawyer: The bad news is that the Ninth Circuit affirmed your conviction and you're going to spend many years in federal prison.

Ramirez-Lopez: Oh, man, that's terrible. I'm so disappointed. But you said there's good news too, right?

Lawyer: Yes, excellent news! I'm very excited.

Ramirez-Lopez: OK, I'm ready for some good news, let me have it.

Lawyer: Well, here it goes: You'll be happy to know that you had a perfect trial. They got you fair and square!

[Colloquy continues in which the defendant questions the fairness of the trial and the judge explains the harmless error rule as “No harm, no foul.” The defendant takes issue with the “no harm” part, pointing out he had twelve witnesses who said he wasn't the guide, but the government sent nine of them back to Mexico. The lawyer assures him the government talked to all of them and took good notes about what each one said.]

Ramirez-Lopez: No kidding, man. They did all that for me?

Lawyer: They sure did. Is this a great country or what?

Ramirez-Lopez: OK, I see it now, but there's one thing that still confuses me.

Lawyer: What's that, Juan?

Ramirez-Lopez: You see, the government took all those great notes to help me, just so we'd know what all those guys said.

Lawyer: Right, I saw them, and they were very good notes. Clear, specific, detailed. Good grammar and syntax. All told, I'd say those were some great notes.

Ramirez-Lopez: And twelve of those guys all said I wasn't the guide.

Lawyer: Absolutely! Our government never hides the ball. The government of Iraq or Afghanistan or one of those places might do this, but not ours. If twelve guys said you weren't the guide, everybody knows about it.

Ramirez-Lopez: Except the jury. I was there at the trial, and I remember the jury never saw the notes. And the officers who testified never told the jury that twelve of the fourteen guys that were with me said I wasn't the guide.

Lawyer: Right.

Ramirez-Lopez: Isn't the jury supposed to have all the facts?

Lawyer: Not all the facts. Some facts are cumulative, others are hearsay. Some facts are both cumulative and hearsay.

Ramirez-Lopez: Can you say that in plain English?

Lawyer: No.

Ramirez-Lopez: The jury was supposed to decide whether I was the guide or not, right? Don't you think they might have had a reasonable doubt if they'd heard that twelve of the fourteen guys in my party said it wasn't me?

Lawyer: He-he-he! You'd think that only if you didn't go to law school. Lawyers and judges know better. It makes no difference at all to the jury whether one witness says it or a dozen witnesses say it. In fact, if you put on too many witnesses, they might get mad at you and send you to prison just for wasting their time. So the government did you a big favor by removing those nine witnesses before they could screw up your case.

Ramirez-Lopez: I see what you mean. But how about the notes? Surely the jury would have gotten a different picture if they had just seen the notes of nine guys saying I wasn't the guide. That wouldn't have taken too long.

Lawyer: Wrong again, Juan! Those notes were hearsay and in this country we don't admit hearsay.

Ramirez-Lopez: How come?

Lawyer: The guys writing down what the witnesses said could have made a mistake.

Ramirez-Lopez: You mean, like maybe one of those twelve guys said, “Juan was the guide,” and the guy from Immigration made a mistake and wrote down, “Juan was not the guide”?

Lawyer: Exactly.

Ramirez-Lopez: You're right again, it probably happened just that way. I bet those guys from Immigration wrote down, “Juan wasn't the guide,” even when the witnesses said loud and clear I was the guide-just to be extra fair to me.

Lawyer: Absolutely, that's the kind of guys they are.

Ramirez-Lopez: You're very lucky to be working with guys like that.

Lawyer: Amen to that. I thank my lucky stars every Sunday in church.

Ramirez-Lopez: I feel a lot better now that you've explained it to me. This is really a pretty good system you have here. What do you call it?

Lawyer: Due process. We're very proud of it.

The Kinks got it right in their song, “Destroyer,” when they sang that paranoia will destroy ya.

It certainly did so for the defendant in a case where, after getting paranoid at a 1999 Phish concert in Oswega, NY, presumably while under the influence of an hallucinogenic drug, he became convinced the police were following him and that the band was sending him messages through the music. Fleeing the concert, he traveled 250 miles on foot and by hitch-hiking, convinced the police were after him the whole way. (He believed that every car with an “A” in the license number contained police officers.)

Some thirty-six hours later, he finally turned up at the police barracks in Westport, NY, where he told an investigator, “You know who I am.” When the cops didn’t know who he was or why he was there, he told them he was growing marijuana plants back at his home in Rochester, NH. He then consented to a search of the house.

When the cops in Rochester searched the house, they found marijuana plants and liquid acid. Though a New Hampshire Superior Court ultimately ruled that the evidence should be suppressed (because of insufficient proof the defendant received and waived his Miranda rights), the University of Memphis law student who sent me this opinion correctly opined that it should serve as “a gentle reminder to any students planning to reunite with Phish over the summer break.”

A lawsuit brought by a woman who got a fishbone lodged in her throat while eating a bowl of fish chowder at a Boston restaurant moved the Massachusetts Supreme Court to write an opinion devoted more to the joys of New England fish recipes than actual law.

The legal dispute is an old one: to what extent is food containing a harmful ingredient a defective product when the substance is a natural one as opposed to a foreign one. Most modern courts apply a reasonableness test (was the substance one a consumer would reasonably expect to find in a prepared dish), but the Mass. Sup. Ct. in this 1964 case adopted the older approach that there is no liability for harm-causing natural substances (i.e. bones as opposed to pieces of glass) in food.

Reading the opinion, it wasn’t hard to predict the defendant was going to win in the end. The court reminisced fondly about the history of fish dishes, recounted several recipes for the same, and included statements such as “we consider that the joys of life in New England include the ready availability of fresh fish chowder.” The court went so far as to note that “[a] namesake of the plaintiff, Daniel Webster, had a recipe for fish chowder which has survived into a number of modern cookbooks and in which the removal of fish bones is not mentioned at all.”

The court concluded:

[W]e consider a dish which for many long years, if well made, has been made generally as outlined above. It is not too much to say that a person sitting down in New England to consume a good New England fish chowder embarks on a gustatory adventure which may entail the removal of some fish bones from his bowl as he proceeds. We are not inclined to tamper with age old recipes by any amendment reflecting the plaintiff's view of the effect of the Uniform Commercial Code upon them.

This is a must-read opinion for products liability lawyers and anyone looking for a good fish-chowder recipe.

In 1920, a New Jersey chancery judge was faced with a wife’s suit for marriage annulment on the ground of the husband’s alleged impotency during their five years together. The husband “vigorously protested his virility, but admitted the nonconsummation of the marriage.” The husband asserted he refrained from intercourse with his wife because he did not want to hurt her.

Interestingly, given the date, the judge thoughtfully considered whether the husband’s condition was psychological, especially since he had “submitted to an examination by one of his wife’s physicians, who testified that he was structurally a male, normal in the parts, and to all appearances capable of coition.”

The judge forged new legal ground in the U.S. by adopting from the English common law a rebuttable presumption of impotency after three years of marriage without sexual intercourse. In finding that the husband failed to overcome the presumption, the judge explained:

[T]he question comes to one of belief in his story of forbearance for five years, under most trying circumstances, simply because sexual intercourse was painful and distressing to her. I have misgivings. Such solicitude of a groom is noble, of a husband, heroic. Few have the fortitude to resist the temptations of the honeymoon. But human endurance has its limitations. When nature demands its due, youth is prodigal in the payment. Men are still cave men in the pleasures of the bed. The sex may be more temperate, but none the less passionate, and heedless of the penalty. They do not shirk the initiation nor shrink from the consequences. The husband’s plea does not inspire confidence. Common experience discredits it.

It’s not often that members of the world’s most powerful judicial tribunal have fun with their opinion-writing, but now, following in the great tradition of hard-boiled crime writers like Raymond Chandler, Dashiell Hammett, and Ross MacDonald comes … U.S. Supreme Court Justice John Roberts? Yup.

In Pennsylvania v. Dunlap, a mundane drug case, Justice Roberts, dissenting from a denial of cert review, explored his inner Joe Friday. Here’s how his dissent started out:

North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He’d made fifteen, twenty drug busts in the neighborhood.

Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn’t buying bus tokens. He radioed a description and Officer Stein picked up the buyer. Sure enough: three bags of crack in the guy’s pocket. Head downtown and book him. Just another day at the office.

Roberts proceeded, in a much more traditional fashion, to disagree with the Pennsylvania Supreme Court’s decision that the officer lacked probable cause to arrest the defendant.

In 1973, the Fifth Circuit struck down a Dade County detergent labeling ordinance, finding that the ordinance, intended to reduce pollution from ingredients found in household detergents, was preempted by the Federal Hazardous Substance Labeling Act. Chief Judge John Brown concurred, in a delightful fashion that managed to work in the brand names of just about every detergent product available. Here’s a taste:

As Proctor of this dispute … the Court holds that Congress has specifically preempted regulatory action by Dade County. Clearly, the decision represents a Gamble since we risk a Cascade of criticism from an increasing Tide of ecology-minded citizens. Yet, a contrary decision would most likely have precipitated a Niagara of complaints from an industry which justifiably seeks uniformity in the laws with which it must comply. Inspired by the legendary valor of Ajax, who withstood Hector's lance, we have Boldly chosen the course of uniformity in reversing the lower Court's decision upholding Dade County's local labeling laws. And, having done so, we are Cheered by the thought that striking down the regulation by the local jurisdiction does not create a void which is detrimental to consumers ….
…
… And so we hold. This is all that need be said. It is as plain as Mr. Clean the proper Action is that the Dade County Ordinance must be superseded, as All comes out in the wash.

In a convoluted libel case, the defendant, a lawyer, argued on appeal that the plaintiff’s counsel delivered a prejudicial, inflammatory closing argument. But the bigger problem was that the argument—which invoked Jesus Christ, Julius Caesar, and the Mennonites— was wrong on the facts. Here’s an excerpt:

You may remember when Christ was preaching the gospel, in the Holy Roman Empire that Julius Caesar was Emperor of Rome. As Christ was making his way toward Rome, the Mennonites and the Philistines stopped him in the road and they sought to entrap him. They asked Christ: ‘Shall we continue to pay tribute unto Caesar?’ And you will remember, in the Book of St. Matthew it is written that Christ said: ‘Render ye unto Caesar the things that are Caesar's and unto God the things that are God's.

Inspiring perhaps, but the lawyer made a few historical errors, including his timeline, which was a bit off. Not that much, just eight to six centuries. The court pointed out the faux pas:

The Holy Roman Empire did not come into existence until about 800 years after Christ. Julius Caesar, who was never Emperor of Rome, was dead before Christ was born. Christ was never on His way to Rome and the Philistines had disappeared from Palestine before the birth of Christ. The Mennonites are a devout Protestant sect that arose in the Sixteenth Century A.D. This phrase is noteworthy only because of the ease with which the speaker crowded into one short paragraph such an abundance of misinformation.

Where was Wikipedia when they needed it?

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 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 go overboard. 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 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 … um, 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 it's not labeled as an appendix.

It starts with a diatribe against 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 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 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: Weather'by -- I've always heard of Weatherby as a last name and never a first name, so I thought Weatherby would be -- and I'm sure you could spell it b-e-e or b-e-a or b-y. Anyway, Weatherby.
The Court: Where did you get the "Dot Com"?
Sheppard: Well, when I worked at NBC, I worked on a Teleprompter computer.
The Court: All right.
Sheppard: All right, and so that's where the Dot Com [came from]. I just thought it was kind of cute, Dot Com, and then instead of -- I really didn't have a whole lot of names because I had nothing to work with. I don't know family names. I don't know any names of the Speir family, and I really had nothing to work with, and I thought "Chanel"? No, that's stupid, and I thought "Shanel," I've heard of a black little girl named Shanel.
The Court: Well, where did you get "Fourcast"?
Sheppard: Fourcast? Instead of F-o-r-e, like your future forecast or your weather forecast, F-o-u, as in my fourth son, my fourth child, Fourcast. It was --
The Court: So his name is Fourcast, F-o-u-r-c-a-s-t?
Sheppard: Yes.
The Court: All right. Now, do you have some objection to him being renamed Samuel Charles?
Sheppard: Yes.
The Court: Why? You think it's better for his name to be Weather'by Dot Com Chanel --
Sheppard: Well, the --
The Court: Just a minute for the record.
Sheppard: Sorry.
The Court: Chanel Fourcast, spelled F-o-u-r-c-a-s-t? And in response to that question, I want you to think about what he's going to be -- what his life is going to be like when he enters the first grade and has to fill out all [the] paperwork where you fill out -- this little kid fills out his last name and his first name and his middle name, okay? So I just want – if your answer to that is yes, you think his name is better today than it would be with Samuel Charles, as his father would like to name him and why. Go ahead.
Sheppard: Yes, I think it's better this way.
The Court: The way he is now?
Sheppard: Yes. He doesn't have to use "Dot Com." I mean, as a grown man, he can use whatever he wants.
The Court: As a grown man, what is his middle name? Dot Com Chanel Fourcast?
Sheppard: He can use Chanel, he can use the letter "C."
The Court: And when he gives his Birth Certificate -- is it on his birth certificate as you've stated to the Court? Does his Birth -- does this child's Birth Certificate read "Weather'by Dot com" --
Sheppard: That's how I filled out the paperwork for his --
The Court: -- Chanel Fourcast?
Sheppard: Yes, and for his Social Security card, I filled it out as Weather'by F. Sheppard.
The Court: All right.

The Arkansas court of appeals upheld the trial judge’s ruling based largely on its finding that the birth name could subject the child to embarrassment.

Wait. That’s not right. It’s Judge Jacob Hart of the Eastern District of Pennsylvania. Can't be too careful about those typos. Just ask the plaintiff’s lawyer in Devore v. City of Philadelphia.

Judge Hart recently reduced his attorney’s fee award by $60,000 based on the poor quality of his written work, which, according to the judge, was “careless to the point of disrespectful.” The defendants described it even less charitably, as “vague, ambiguous, unintelligible, verbose and repetitive.” And those were the things they liked about it. Kidding.

The court noted that throughout the litigation, counsel identified the court as: “THE UNITED STATES DISTRICT COURT FOR THE EASTER [sic] DISTRICT OF PENNSYLVANIA,” adding that “[c]onsidering the religious persuasion of the presiding officer, the “Passover District” would have been more appropriate.”

The priceless part was the lawyer’s written response to the assertion that his fees should be reduced because of typos:

As for there being typos, yes there have been typos, but these errors have not detracted from the arguments or results, and the rule in this case was a victory for Mr. Devore. Further, had the Defendants not tired [sic] to paper Plaintiff’s counsel to death, some type [sic] would not have occurred. Furthermore, there have been omissions by Defendants, thus they should not case [sic] stones.

Judge Hart said that the above errors would have been "brilliant" if intentional, but that, based on the lawyer’s filings, “we know otherwise.”

Concluding that the lawyer’s filings wasted a lot of the court’s and the defendants’ time, the court halved the lawyer’s requested hourly rate from $300 per hour to $150. Non-lawyers might consider it amusing that a lawyer whose work is so poor that the court publicly disses him could still earn $150 an hour, but to be fair to the lawyer, he obtained a good result in the case for his clients. Also, the judge commended him for his in-court work.

May this case be a lesson to all law students out there who discount the value of their legal writing courses, not to mention their eighth grade English courses. Cheers for Judge Hurt.

Ninth Circuit Court of Appeals Judge Alex Kozinski is well known for sprinkling pop culture references throughout his opinions, particularly in his famous Syufy opinion, which wove in the titles of more than 200 movies. (Scroll down for “Movie Mystery Solved” and “Coming Soon to a Footnote Near You”)

A less noticed but just-as-fun pop culture laden-opinion is his dissent to an order denying rehearing en banc in White v. Samsung Electronics America, Inc., a case where the Ninth Circuit upheld a “right of publicity” claim by former game show hostess Vanna White against Samsung for using a robot resembling her game show persona in a television commercial.

Complaining that, “[u]nder the majority’s opinion, it’s now a tort for advertisers to remind the public of a celebrity,” Kozinski excoriates the court for over-extending intellectual property rights in an opinion jammed full of pop culture references.

Footnote 6 alone includes references to (in order): grunge rocker Tad Doyle, the Hell’s Angels, Marvel Comics, Breakfast at Tiffany’s, Breakfast of Champions, The Electric Kool-Aid Acid Test, Looking for Mr. Goodbar, The Coca-Cola Kid, The Kentucky Fried Movie, Harley Davidson and the Marlboro Man, The Wonder Years, Wonder Bread, Joseph and the Amazing Technicolor Dream Coat, Janis Joplin, Paul Simon, Leonard Cohen, Bruce Springsteen, Prince, dada, Monty Python, Roy Clark, Mel Tillis, the Talking Heads, Andy Warhol, REO Speedwagon, 38 Special, Jello Biafra and the Dead Kennedys.

How can you not love Judge William G. Young, chief judge for the U.S. District Court for the District of Massachusetts? Confronted with a motion for new trial based in part on his allegedly erroneous jury instructions, he stated candidly: “[D]espite case-specific guidance from the court of appeals, I botched the instructions to the jury.”

Even better, Judge Young began his opinion in Suboh v. Borgioli by setting forth the lyrics to “a derisive ditty going around the courthouse” set to the music of “Happy Together” by the Turtles. The original version of “Happy Together,” penned by Gary Bonner and Alan Gordon, reached number one on the Billboard charts the week of Mar. 25, 1967. I'm not sure this rewritten version, poking fun at the high-mindedness of federal judges, is going quite that far, but it's still fun. Here’s a taste of the song as set forth in Judge Young’s opinion:

Imagine me as God. I do.
I think about it day and night.
It feels so right
To be a federal district judge and know that I’m
Appointed forever.

...

[CHORUS]

I’m a federal judge
And I’m smarter than you
For all my life.
I can do whatever I want to do
For all my life.

Appointed Forever, Bar & Grill Singers.

Who are the Bar & Grill singers? Are they paying royalties to Flo and Eddie? In any event, kudos to Judge Young for being a down-to-earth judge who can admit a mistake and even poke a little fun at himself.

McClurg footnote. In answer to the question posed above, yes, the Bar and Grill Singers do pay royalties on their tunes. In fact, a new version of “Appointed Forever” will appear on their new (and third) CD. The Bar and Grill Singers are 12 lawyers from Austin. A portion of every CD sale goes to the Volunteer Legal Services of Central Texas, so buy one for the lawyers you love. Check out their website: barandgrillsingers.com.

A dispute over the quality of a breakfast sausage at a Denny’s restaurant adds to the burgeoning inventory of rhyming judicial opinions, but the ridiculous disagreement that gave rise to the case is much funnier than the prose.

Dissatisfied with the quality of some breakfast sausage, the appellant and his companion sent the sausage back to the kitchen. When the bill arrived, appellant demanded that it be reduced by the ala carte price for the sausage ($3.20), but the Denny’s assistant manager, obviously destined for full manager status, agreed to deduct only $1.20.

Appellant balked, left four bucks and departed, and thus arose the Great Two Dollar Theft Case. Denny’s had the appellant arrested for theft. After the charge was dismissed, appellant filed a civil action for malicious prosecution, which also was dismissed. Appellant appealed. Judge Cercone of the Pennsylvania Superior Court, in obvious frustration over having to expend scarce judicial resources over two bucks, was moved to wax poetic:

Sausage and eggs!
Sausage and eggs!
$2.02 he refused to pay
So now in court it's for us to say.
Sausage and eggs!
It wasn't the price
The parties contend
It's the principle, they pretend.
Sausage and eggs! $2.02 involved.
A sum so easily resolved
But no give or take here
They insist on a legal atmosphere.
Oh, in Uncle Sam's land
Any person in court may protest
But, dear Lord, the Judge says
From this test, please give me rest.

He concluded his opinion with the statement: “Preserve us from more of this!” We concur. Enough with the rhyming judicial opinions.

Good news. The U.S. Supreme Court has resolved the campaign financing case. (McConnell v. Federal Election Committee, decided Dec. 10, 2003) Thank goodness we finally got that big mess cleared up. Er, well, maybe not completely cleared up. Here’s the official voting breakdown:

STEVENS and O.CONNOR, JJ., delivered the opinion of the Court with respect to BCRA Titles I and II, in which SOUTER, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C. J., delivered the opinion of the Court with respect to BCRA Titles III and IV, in which O.CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined, in which STEVENS, GINSBURG, and BREYER, JJ., joined except with respect to BCRA §§305, and in which THOMAS, J., joined with respect to BCRA §§§§304, 305, 307, 316, 319, and 403(b). BREYER, J., delivered the opinion of the Court with respect to BCRA Title V, in which STEVENS, O.CONNOR, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed an opinion concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II. THOMAS, J., filed an opinion concurring with respect to BCRA Titles III and IV, except for BCRA §§§§311 and 318, concurring in the result with respect to BCRA §§318, concurring in the judgment in part and dissenting in part with respect to BCRA Title II, and dissenting with respect to BCRA Titles I, V, and §§311, in which opinion SCALIA, J., joined as to Parts I, II.A, and II.B. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part with respect to BCRA Titles I and II, in which REHNQUIST, C. J.,joined, in which SCALIA, J., joined except to the extent the opinion upholds new FECA §§323(e) and BCRA §§202, and in which THOMAS, J., joined with respect to BCRA §§213. REHNQUIST, C. J., filed an opinion dissenting with respect to BCRA Titles I and V, in which SCALIA and KENNEDY, JJ., joined. STEVENS, J., filed an opinion dissenting with respect to BCRA §§305, in which GINSBURG and BREYER, JJ., joined.

Whatever happened to “Appellant wins”?

How would the reasonably prudent person have behaved under the same or similar circumstances? The elusive answer to this question is one of the great imponderables of tort law. Jurors struggle with it. Law students struggle with it. Legal scholars struggle with it.

Now, as if we weren’t having enough trouble trying to apply the objective reasonable person standard to humans, we may have to start applying it to canines.

In Kirkham v. Will, an Illinois intermediate appellate court held that, in deciding whether the defense of provocation applied in a dog-bite case, the appropriate test to apply was the “reasonable dog” standard; that is, how a reasonable dog would have reacted to the plaintiff’s presence under similar circumstances.

If Chris Berman ever leaves ESPN, I have the perfect replacement candidate: Judge Terence T. Evans of the U.S. Court of Appeals for the Seventh Circuit. Here’s a guy with such a deep love for sports that he began his opinion in Hunt’s Generator Committee v. Babcock & Wilcox Co. expressing the wistful sentiment that he would rather be getting ready to watch the World Series than writing an opinion about successor liability for a landfill cleanup. He asked forgiveness if his mind wandered a bit in the opinion.

And wander it did. Reciting the dates of the landfill’s operation sparked fond baseball memories for Judge Evans.

So what that the landfill began operating in September 1959. That date has much more important baseball significance, as Judge Evans explained in this footnote:

FN1. September of 1959 was an exciting time. The San Francisco Giants--who blew off Manhattan's Polo Grounds after the 1957 season--were leading the Dodgers and the Braves (Milwaukee, not Atlanta) by two games with eight to go in the race for the National League Pennant. But the Giants were playing in old Seals Stadium (a minor league park), a place not suited for World Series play. If they made it to the Series, they thought, they might want to play in the yet unfinished Candlestick Park. They were in a pickle--which way would they go? Fortunately, their old friends, the Dodgers (who, like the Giants, had broken hearts the year before by running away from Ebbets Field) came to the rescue. The Dodgers beat the Giants three straight times over the weekend of September 19-20, sending the Giants reeling into third place. There would be no need to choose between Candlestick Park and Seals Stadium. ...

Another party operated the landfill until September 1970, but again, Judge Evans was distracted by the date’s importance to the national pastime:

FN2. In September of 1970, the Milwaukee Brewers were drawing the curtain on their maiden campaign in Milwaukee. Despite the fact that they finished 65-97, 33 games out of the race, baseball was back in town and Milwaukee fans were loving it.

Other important dates included April 8, 1975, the day asset acquisition on the landfill was closed, but more significantly:

FN4. April 8, 1975, was the one-year anniversary of Henry Aaron's historical 715th dinger which broke Babe Ruth's lifetime record of 714.

In Olinger v. U.S. Golf Ass’n, Judge Evans demonstrated that his sports knowledge is not limited to baseball. Olinger was a suit by a disabled professional golfer seeking to be allowed to use a golf cart in the U.S. Open, in conflict with the rule that all participants must walk (the U.S. Supreme Court later decided in golfer Casey Martin's case that the rule must give way under the ADA).

Judge Evans’ defense of the tradition that players must walk is not only impassioned, but provides enough golf factoids to fill a Trivial Pursuit game dedicated solely to golf (fitting, since the activity is one of the quintessential trivial pursuits). For example, did you know that the official “Rules of Golf” provide a two-stroke penalty for asking an opponent how far away he thinks the green is?

Thanks to Judge Evans for giving us his scholarly bent on sports in these two entertaining and interesting opinions.

Maybe it’s Michigan Circuit Court Judge Deborah Servitto, who rapped part of her recent decision dismissing a defamation case brought against Eminem.

Eminem’s 1999 CD, "The Slim Shady LP," included a song called "Brain Damage" in which Eminem accused one DeAngelo Bailey of bullying and battering him while the two were in elementary school: “Way before my baby daughter Hailey, I was harassed daily by this fat kid named DeAngelo Bailey ... He banged my head against the urinal until he broke my nose, soaked my clothes in blood, grabbed me and choked my throat.”

Bailey sued for defamation, denying that he ever bullied or battered Em. Servitto dismissed the complaint on the ground that the statements in the song were mere rhetorical hyperbole, rather than statements that could be construed as stating actual facts about a person.

Thanks to several loyal lawhaha.com visitors, we now have the full text of the attempted rap for you, which is found in the last footnote of Servitto's 14-page opinion:

11. To convey the Court's opinion to fans of rap, the Court's research staff has helped the Court put the decision into a universally understandable format:

Mr. Bailey complains that his rap is trash
So he's seeking compensation in the form of cash
Bailey thinks he's entitled to some monetary gain
Because Eminem used his name in vain

Eminem says Bailey used to throw him around
Beat him up in the john, shoved his face in the ground
Eminem contends that his rap is protected
By the rights guaranteed by the first amendment

Eminem maintains that the story is true
And that Bailey beat him black and blue
In the alternative he states that the story is phony
And a reasonable person would think it's baloney

The Court must always balance the rights
Of a defendant and one placed in a false light
If the plaintiff presents no question of fact
To dismiss is the only acceptable act

If the language used is anything but pleasin'
It must be highly objectionable to a person of reason
Even if objectionable and causing offense
Self-help is the first line of defense

Yet when Bailey actually spoke to the press
What do you think he didn't address?
Those false light charges that so disturbed
Prompted from Bailey not a single word.

So highly objectionable it could not be
--Bailey was happy to hear his name on a CD
Bailey also admitted he was a bully in youth
Which makes what Marshall said substantial truth
This doctrine is a defense well known
And renders Bailey's case substantially blown

The lyrics are stories no one would take as fact
They're an exaggeration of a childish fact
Any reasonable person could clearly see
That the lyrics could only be hyperbole

It is therefore this Court's ultimate position
That Eminem is entitled to summary disposition

Will Bailey appeal? Judge Servitto probably would advise him to just “peace out, dawg.”

David Cheifetz, lawhaha's friend from the far north, sent in this hilarious gem about the judicial pecking order. He writes:

Here is the pithiest and funniest summary of “stare decisis” ever written. Judge Cardozo's explanation in “The Nature of the Judicial Process" may be the best justification and explanation, but it doesn't hold a candle to what you're about to read for wit and succinctness. The below summary comes from a decision by a Master of the Queens Bench of Alberta, Canada. A Master is a judge in all but name whose role is deciding preliminary motions in civil matters. The Master involved, Master Funduk, is noted for his witty judgments. The Queens Bench is the trial division of Alberta's highest court. In the Canadian system, the highest court of any province is always the province's Court of Appeal, even if the highest provincial trial court is called the Superior or the Supreme Court of the province. Here’s how Master Funduk summed up his role:

Any legal system which has a judicial appeals process inherently creates a pecking order for the judiciary regarding where judicial decisions stand on the legal ladder. I am bound by decisions of Queen's Bench judges, by decisions of the Alberta Court of Appeal and by decisions of the Supreme Court of Canada. Very simply, Masters in Chambers of a superior trial court occupy the bottom rung of the superior courts' judicial ladder. I do not overrule decisions of a judge of this Court. The judicial pecking order does not permit little peckers to overrule big peckers. It is the other way around." [Sentences combined into one paragraph; no change to text.]

Thanks to Graham Bateman for turning lawhaha.com on to a real character: Justice Eugene F. Black, a judge who embraced inflammatory dissent-writing with a fervor seldom seen. Black served on the Michigan Supreme Court from 1956-72. He was a judge who took to heart the words of Benjamin Cardozo's famous ode to dissent-writing, which Black quoted in Guilmet v. Campbell, 188 N.W.2d 601 (Mich. 1971):

Comparatively speaking at least, the dissenter is irresponsible. The spokesman of the court is cautious, timid, fearful of the vivid word, the heightened phrase. ... Not so, however, the dissenter. He has laid aside the role of the hierophant, which he will be only too glad to resume when the chances of war make him the spokesman of the majority. For the moment, he is the gladiator making a last stand among the lions. (From Selected Writings of Benjamin Nathan Cardozo 353 (Fallon Publications 1947))

Justice Black may have been a gladiator, but I suspect his brethren had a few other choice names for him. He didn't just like to dissent. He liked to rip his colleagues to shreds in the process. Guilmet provides a good example. The majority held in favor of the plaintiff in a breach of contract action against a surgeon. Black’s dissent began like this:

In these early weeks of 1971 an exuberant new majority of a once great appellate court prepares to launch an unwarned, unprecedented, wholly gratuitous and destructively witless war of "contract liability" upon a brother profession ....

He was just getting warmed up. A little later, he said:

As against this there is no pretense of proffered authority or precedent. My Brothers five just say "This is the law." That they do with an arrantly dixitized vengeance, for all of the skilled research clerks of Lansing, working with no surcease and without food or drink, never could come up with any kind of respectable or even plausible authority [for the court's holding].

And then later:

Thus far there appears to the writer still another like bushment the Court should see but does not see, or perhaps is too absorbed to see, dead ahead.

Other examples of Justice Black’s unique method of making friends and influencing people include:

In re Apportionment of State Legislature, 197 N.W. 2d 249 (Mich. 1972) (Black, J., dissenting) (“too much of that heady stuff known as partisan politics has been steamed into the present proceeding and that this partisan-nominated court should disqualify itself ....”)

Plumley v. Klein, 199 N.W. 2d 169 (Mich. 1972) (Black, J., dissenting) (“The Court has chosen the sleaziest of pleaded causes as opportune for the nullification of [a prior case.] ... I cannot hold still before this latest judicial monster.”)

Jones v. Bloom, 200 N.W.2d 196 (Mich. 1971) (“[O]ur majority must have labored, conferred, caucused and searched ... to find some or any colorable way to overrule [jury’s verdict] ... Our reports ... are on the shelves of thousands of lawyers and judges. They bear now undeniable witness of both a profaning and deplorable fact; that this temporally seated and largely fledgling Court is bent purposefully upon progressive destruction of all or near all of the great canons and precedential precept which the nationally revered Cooley Court, and the succeeding Fellows Court, have bequeathed to Michigan.”)

In U.S. v. McPhee, the defendants were charged with conspiracy to import marijuana, after their boat, the Notty, was intercepted by Coast Guard cutters off the coast of Florida. A key jurisdictional issue was whether the boat was intercepted in the territorial waters of the Bahamas. Defendants argued it was on the basis that the interception occurred within 12 miles of Saint Vincent Rock, which defendants asserted is a Bahamian island. The government argued that Saint Vincent Rock is only a "rock" and does not qualify as an "island." The 11th Circuit agreed, although it conceded the question is not without its nuances:

FN 9. The Government argued that the Notty was in international waters or on the "high seas" because "Saint Vincent Rock is a rock. If it was an island, it would be called Saint Vincent Island, not Saint Vincent Rock." Ultimately, we must determine whether it is a rock or an island according to the statutory definitions provided by the Archipelagic Act. We note in passing that for some purposes, the label is not altogether satisfying. Thus, for example, in the metaphysical sense, we can discern no reason why something could not be both a rock and an island at the same time. See Paul Simon and Art Garfunkel, I am a Rock, on Sounds of Silence (Columbia 1966) ("A winter’s day, in a deep and dark December. I am alone, gazing from my window, to the streets below, on a freshly fallen silent shroud of snow. I am a rock, I am an island. I've built walls, a fortress deep and mighty, that none may penetrate. I have no need of friendship, friendship causes pain. It's laughter and it's loving I disdain. I am a rock, I am an island. Don't talk of love. Well I've heard the word before. It's sleeping in my memory. I won't disturb the slumber of feelings that have died. If I never loved, I never would have cried. I am a rock, I am an island. I have my books and my poetry to protect me. I am shielded in my armor. Hiding in my room, safe within my womb, I touch no one and no one touches me. I am a rock, I am an island. And a rock feels no pain. And an island never cries."). Of course, neither Simon nor Garfunkel has been identified as a nautical expert.

Maybe the government could have bolstered its jurisdictional case by citing John Mellencamp and arguing that the "R.O.C.K. [was] in the U.S.A.".

See also United States v. Horn, 185 F. Supp. 2d 530, 551 n.37 (D. Md. 2002) ("She blinded me with science!") (Thanks to Kevin Cross for providing this Thomas Dolby-influenced footnote to the McPhee case, in proper Bluebook-form no less).

The Fed. Rules of Civ. Pro. permit any electronic document to be e-filed until midnight on the due date. Microsoft electronically filed a motion for summary judgment 4 minutes and 27 seconds late on the night of June 26, 2003. Microsoft’s adversary in the litigation, Hyperphase Technologies, Inc., incensed by this grievous rule breach, filed a motion to strike the motion for summary judgment as untimely.

U.S. Magistrate Stephen L. Crocker, clearly annoyed, blessed us with this hilarious order:

In a scandalous affront to this court’s deadlines, Microsoft did not file its summary judgment motion until 12:04:27 a.m .... I don’t know this personally because I was home sleeping, but that’s what the court’s computer docketing program says, so I’ll accept it as true.

Microsoft’s insouciance so flustered Hyperphase that nine of its attorneys [names omitted] promptly filed a motion to strike .... Counsel used bolded italics to make their point, a clear sign of grievous inequity by one’s foe. True, this court did enter an order ... ordering the parties not to flyspeck each other, but how could such an order apply to a motion filed almost five minutes later? Microsoft’s temerity was nothing short of a frontal assault on the precept of punctuality so cherished by and vital to this court.

Wounded though this court may be by Microsoft’s four minute and twenty-seven second dereliction in duty, it will transcend the affront and forgive the tardiness. Indeed, to demonstrate the evenhandedness of its magnanimity, the court will allow Hyperphase on some future occasion in this case to e-file a motion four minutes and thirty seconds late ....

It turns out that the “f-word” holds a more distinguished pedigree in judicial opinion writing than most people realized. John Baker sent in an 1846 Missouri opinion reputed to contain the first judicial mention of the word.

In Edgar v. McCutchen, McCutchen sued Edgar for slander. The slanderous allegation was, according to the court, “carnal knowledge of a mare, and the word ‘f**k’ [asterisks added; court used unabridged version] was used to convey the imputation.” After the plaintiff received a verdict, the defendant made a motion to arrest the judgment "for the reason that the word used to convey the slander, was unknown to the English language.”

If only that were true. The court disagreed and affirmed the plaintiff’s judgment. (I included this opinion, which runs contrary to lawhaha.com's family-friendly policy, because THAT WORD occupies such a large space in our lexicon.)

McClurg footnote. Kevin McDowell wrote to confirm that:

It appears to be true that Edgar v. McCutcheon (1846)is the first case to discuss the "F" word. The Indiana Supreme Court relied on the case in Linke v. Kelley, 25 Ind. 278 (1865), finding that although the word is "not to be found in any vocabulary of the English language, [it]is as well understood as any other English word." The court said it isn't found in "standard lexicons" because of its "vulgarity." This was a case of a braggart saying he (you know what) to a woman "one hundred times." The court did it to him in turn.

In a copyright battle between two British rap bands, an English court ruled that rap lyrics should for practical purposes be considered a “foreign language,” requiring expert testimony as to their interpretation.

British band Ant’ill Mob sued another band, Heartless Crew, alleging the defendant disparaged the band’s copyright for its 2001 hit song, “Burnin’,” by remixing the song using lyrics the plaintiff considered objectionable because they allegedly refer to drugs and violence. They include “shizzle my nizzle,” “mish mash man,” and “string dem up.”

However, Judge Kim Lewison said that even after playing the record at half speed and consulting the Urban Dictionary, he could not determine the meaning of the phrases without an expert witness.

The amusing predicament of three uppercrust, white, middle-aged judges trying to unravel urban slang was not lost on Judge Kim, who commented on the “faintly surreal experience of three gentlemen in horsehair wigs examining the meaning of such phrases.”

According to the Urban Dictionary (urbandictionary.com), “shizzle my nizzle” means:

a bastardization of “fo’ sheezy mah neezy,” a bastardization of “for sure mah n---,” a bastardization of “I concur with you wholeheartedly my African-American brother.

The next time someone raises the age-old debate as to whether a tomato is a fruit or a vegetable, show off your legal acuity (or nerdiness) by informing them that you have it on good, make that great, authority that a tomato is a vegetable.

What authority? The U.S. Supreme Court!

More than 100 years ago, in Nix v. Hedden, Justice Horace Gray, speaking on behalf of a unanimous Supreme Court, ruled that a tomato is a vegetable as a matter of law.

As reported by Lihwei Lin, a regular lawhaha contributor, the Tariff Act of 1883 declared a 10 percent duty on all vegetables entering the country, but allowed fruit to enter duty-free. The New York Customs Collector saw an opportunity to increase revenue and declared the tomato to be a vegetable. Angry importers sued and their case reached the Supreme Court, where Justice Gray said: “[A]lthough botanists consider the tomato a fruit, tomatoes are eaten as a principal part of a meal, like squash or peas, (and all grow on vines), so it is the court’s decision that the tomato is a vegetable.”

Stressed out that you just lost a case and have weak grounds for appeal. Take cheer. It could be worse. What if your strongest argument on appeal was that your client’s name was typed in all capital letters in the trial court documents?

That was the situation in R v. Linehan, a case from the Alberta (Canada) Court of Queen’s Bench, where a defendant convicted for failing to file a tax return pinned his appellate hopes on the argument that his name should not have been spelled in all capital letters. Here’s a taste of his argument:

1. There is no jurisdiction to tax the flesh and blood, of the lawful natural person.
2. GORDON LINEHAN in the charges is a fictional artificial person's name.
3. GORDON LINEHAN is outside the definition of a proper noun.
4. A proper noun would spell my proper lawful name Gordon Linehan.
5. The new Oxford Dictionary of English published by the Oxford university Press, 1998, states:

Proper Noun. Noun. A name used for an individual person, place or organization spelled with an initial capital letter, e.g. Jane London.
Name Noun. Noun 1. A word or set of words by which a person, animal, place or thing is known, addressed, or referred to: my name is a Parsons, John Parson.

6. The Newbury House Dictionary of American English, published by Monroe Allen Publishers, Inc., 1999, states: “Name N. 1. (C) A word by which a person, place or thing is known. Her name is Diane Daniels.”
7. Plain English. A guide to Standard Usage and Clear Writing. Prentice - Hull Canada Inc. publishers. C. Edward Collins, and Hugh D. Reads, the authors. Both authors are from the Northern Alberta Institute of Technology, otherwise known by the acronym (NAIT). Chapter 2 states: Every noun can be classified as either a proper noun or a common noun. A proper noun names a particular person or thing. It begins with a letter. Examples are: Emily, Ford, and December, note capital letters for the first letter, lower case letter for the following. A common noun identifies a person or thing in a general way. It begins with a small letter unless it is at the beginning of a sentence. Examples are: month, car, and education.
8. I found no example in any recognized reference book that specifies or allows the use of all capitalized names, proper or common nouns.
9. The National Aeronautics and Space Administration (NASA), publication SP-7084 states at chapter 4 in the introduction 4.1 "First we should define terms used when discussing capitalization." ...

It goes on, but I’ll spare you the rest. Shockingly, this brilliant argument did not succeed.

For reasons never explained in the opinion, a man named Warren J. Hayes obtained an official Ohio Identification Card in the name of "Santa Claus." He also managed to get an official motor vehicle registration, AAA membership card, and checking account in Santa's name, all of them listing his address as 1 Noel Drive, North Pole USA.

Hayes/Claus ran into trouble when he was involved in a minor car accident and produced his Santa Claus ID to a cop. He was charged under an Ohio statute prohibiting the use of "fictitious" names.

Perhaps in the Christmas spirit (although the case was decided in the heat of summer), Ohio Judge Thomas P. Gysegem let Mr. Hayes/Claus off the hook with this reasoning:

[T]he court's dilemma is whether Santa's act of displaying this identification card under these circumstances and with this history (noted above) violated the law, to wit, Was this identification card "fictitious"?

Webster's Seventh New Collegiate Dictionary defines "fictitious." Its analysis of the word includes a synonym comparison with "fabulous," "legendary," "mythical," and "apocryphal":

"Fabulous stresses the marvelous or incredible character of something without distinctly implying impossibility or actual nonexistence; Legendary suggests the elaboration of invented details and distortion of historical facts produced by popular tradition; Mythical implies a purely fanciful explanation of facts or the creation of beings and events out of the imagination; Apocryphal implies an unknown or dubious source or origin for an account circulated as true or genuine. * * * Fictitious implies fabrication and suggests artificiality or contrivance more than deliberate falsification or deception."

Had Santa been charged with being "fabulous, legendary, mythical or apocryphal," he might well indeed be guilty facing up to 180 days in jail and a $1,000 fine. However, to sustain the burden of going forward, the state must make a showing that Santa knowingly displayed an identification card that was "fictitious." This the state has not done. The fact that Santa had an ongoing relationship for 20 years with the BMV is not indicative of "artificiality or contrivance," for, in fact, under the publicly held records of the Ohio Bureau of Motor Vehicles, Santa has been a "real person" since as early as 1982.

How in the world did the Ohio Bureau of Motor Vehicles allow this guy to obtain and renew official documents in the name of Santa Claus for 20 consecutive years?

A Utah resident upset with the fact that the Murray City, Utah, city council opened its meetings with a prayer, submitted a request to open the meeting with his own prayer, a free establishment protest prayer. Here are some excerpts:

OUR MOTHER, who art in heaven (if, indeed there is a heaven and if there is a god that takes a woman's form) hallowed be thy name, we ask for thy blessing for and guidance of those that will participate in this meeting and for those mortals that govern the state of Utah;

We fervently ask that you guide the leaders of this city ... so that they may see the wisdom of separating church and state and so that they will never again perform demeaning religious ceremonies as part of official government functions;

We pray that you prevent self-righteous politicians from mis-using the name of God in conducting government meetings; and, that you lead them away from the hypocritical and blasphemous deception of the public, attempting to make the people believe that bureaucrats' decisions and actions have thy stamp of approval if prayers are offered at the beginning of government meetings ...

Not surprisingly, his request was denied. He filed suit and the trial court granted summary judgment for the city, but the Utah Supreme Court reversed, holding that the city could not discriminate against the plaintiff's prayer just because it didn't like the content.

City of Canadian v. Guthrie is a strange tale of a one-eyed horse ordered by the town mayor to be executed by one Panhandle Pete, who took the mare’s life “by shooting her between the bad eye and the one not so bad.” In an opinion that makes you wonder whether someone laced the town’s water supply with acid, Chief Justice Hall explained “when Panhandle Pete’s pistol popped, she petered, for which the poundkeeper paid Pete a pair of Pesos.”

The owner of the horse sued for damages, claiming she was a prize mare. The court took issue with that assertion, describing the horse as follows:

From the record, we conclude that although she may not have had a skin you would particularly love to touch (though she had seen only fourteen joyous summers), yet she had a skin which clung like ivy to her rafters with a beautiful corrugated effect upon the sides of her lithe and spirituelle form.

The horse got in trouble for wandering onto neighboring property and eating the foilage, or as Justice Hall put it:

The record shows that upon at least two occasions
"When night drew her sable curtain down
And pinned it with a star,"
and
"Silence like a gentle spirit
Brooded o'er a still and pulseless world,"
the time lock on her corral mysteriously went off and so did she, in search of tulips, dahlias, and gladioli in the neighboring lawns and flower beds. ... Although she had only one eye, appellant contends she could find more edible shrubbery in a single night than an experienced landscape gardener could replant in thirty days. We may assume that in her midnight excursions she had been thrown with porch climbers, joy riders, orchard raiders, and other nocturnal prowlers, which may account for her waywardness and utter disregard for the property rights of others. ... It was not denied that she had "went hence" and was cut down in the heyday of her young and fitful life ... [because the mayor] personally ordered her gentle soul sent to the great beyond and the remainder to the municipal dump ground.

The court finally dismissed the case for lack of jurisdiction.

Have you ever noticed how nice people from Canada are? Well, it turns out that even the judges are super nice. In National Leasing Group, Inc. v. Top West Ventures, the plaintiff sued to collect a debt and the defendant filed some gawdawful counterclaim drafted by a friend consisting of 97 paragraphs and 26 pages. The Supreme Court of British Columbia could and should have launched into him, but Master Bolton, the writing judge, responded to the pleading with deft kindness. Here’s a taste:

On the face of the document, I had difficulty discerning any cause of action while the matter was being spoken to in chambers, but in view of its length and complexity, I concluded that I should reserve my decision in order to consider it in more detail. The first paragraph reads:

1. For the [DE]FENDANT with the knowledge of the David-Wynn:Miller; Language-Procedures (http://www.dwmlawprocedures.com; http://brucestellar.tsx.org) is with the damage: damage by the utilization of the fictitious-language/scribble as the foundation for the authority for the action/claim against the DE[FENDANT] damage by the criminal-rate of the interest [section: 347: Criminal-Codeof the Canada]; damage by the false-statements [section: 397.1(a); Criminal-Codeof the Canada]; damage by the completion of a fraud: constructive or actual [section: 380.1 of the Criminal Code of the Canada]; damage by the completion of a mail-fraud [section: 381 of the Criminal-Code of the Canada; damage by the bad-faith; by the PLAINTIFF and DEFENDANT by the COUNTER-CLAIM.

What did the judge have to say about this first paragraph of the counterclaim? With a generosity of spirit unparalleled in recorded judicial history, he said: “This is not too bad."

However, he added that, unfortunately, he could not recognize anything “in any of its remaining 96 paragraphs.”

Can you imagine what Judge Samuel Kent would have done to this guy? It wouldn't be pretty. (If you’re unfamiliar with Judge Kent, scroll way down to the likes of “Judicial Dis-Temperment” and “Could you love me a little less, Judge?”)

Speaking of Judge Kent, what happened to him? No discernible judicial rants or raves have emerged from Galveston in a year. Don't tell me he got nice. Please, Judge, say it ain't so. We need you.

Poopi the poodle and her owners sued their veterinarian after Poopi went under anesthesia for teeth cleaning and woke up with a three-inch scar on her abdomen. The vet mistakenly tried to spay Poopi, even though she had already been spayed as a puppy.

Poopi’s owners sought emotional distress damages for themselves as well as for Poopi, including expenses for Poopi’s psychological care. Plaintiffs conceded that under Ohio law dogs are considered to be personal property, but argued that the court should “do the right thing” by distinguishing pets from inanimate objects. They quoted from a law review article that equated the death of a “companion animal” to “the wrongful killing of any other family member.”

The Ohio Court of Appeals affirmed the trial judge, which had rejected the claim, although one member of the appellate panel concurred “reluctantly” and suggested that the legislature consider allowing damages for tortious injuries to pets.

Now that the suit has been wrapped up, I suggest Poopi retain independent counsel and sue her owners for the emotional distress of having to go through life being named “Poopi.”

In suppressing evidence in a drug case, the 9th Circuit had some harsh words for the federal drug agents who were involved. For one thing, the court did not like the way they talk, as it explained in detail in footnote 1 (paragraph breaks inserted for reading-ease):

1. The agents involved speak an almost impenetrable jargon. They do not get into their cars; they enter official government vehicles. They do not get out of or leave their cars, they exit them. They do not go somewhere; they proceed. They do not go to a particular place; they proceed to its vicinity. They do not watch or look; they surveille. They never see anything; they observe it. No one tells them anything; they are advised.

A person does not tell them his name; he identifies himself. A person does not say something; he indicates. They do not listen to a telephone conversation; they monitor it. People telephoning to each other do not say "hello;" they exchange greetings. An agent does not hand money to an informer to make a buy; he advances previously recorded official government funds.

To an agent, a list of serial numbers does not list serial numbers, it depicts Federal Reserve Notes. An agent does not say what an exhibit is; he says that it purports to be. The agents preface answers to simple and direct questions with "to my knowledge." They cannot describe a conversation by saying "he said" and "I said;" they speak in conclusions. Sometimes it takes the combined efforts of counsel and the judge to get them to state who said what.

Under cross-examination, they seem unable to give a direct answer to a question; they either spout conclusions or do not understand. This often gives the prosecutor, under the guise of an objection, an opportunity to suggest an answer, which is then obligingly given.

As a side issue, the opinion contains a lengthy discussion of an incident in which the trial judge humiliated one of the defense lawyers in court and threatened to send him to jail for raising questions about the court reporter’s fee. The court reporter, who charged by the page, indented the text on each page so it began in the middle of the page, used only 25 lines of type per page instead of the standard 28, and used a font that was larger than normal. The lawyer tried to present an affidavit establishing that the transcript was twice as long as it needed to be, and thus twice as costly. The judge's response? Here's a snippet:

MR. LANGER (defense counsel): You say you spoke to me?
THE REPORTER: No. [TO JUDGE:] He wouldn't even answer my phone calls.
MR. LANGER: Your Honor-
THE COURT: I know it. That is another thing. I ought to throw you in jail for not doing that, for not answering the phone calls of the reporter.

The 9th Circuit disapproved of the judge's conduct.

In 1997, the Danish band “Aqua” released a parody of America’s favorite anorexic, Mattel’s Barbie® doll, called “Barbie Girl.” Mattel, proving it possesses zero sense of humor, sued for trademark infringement and dilution. The federal district court in California granted summary judgment against the plaintiff, ruling the song was protected parody. The Ninth Circuit affirmed in an opinion by Judge Alex Kozinski. Here’s Judge K’s opening salvo:

If this were a sci-fi melodrama, it might be called Speech-Zilla meets Trademark Kong.

Barbie was born in Germany in the 1950s as an adult collector's item. Over the years, Mattel transformed her from a doll that resembled a "German street walker," as she originally appeared, into a glamorous, long-legged blonde. Barbie has been labeled both the ideal American woman and a bimbo. She has survived attacks both psychic (from feminists critical of her fictitious figure) and physical (more than 500 professional makeovers). She remains a symbol of American girlhood, a public figure who graces the aisles of toy stores throughout the country and beyond. With Barbie, Mattel created not just a toy but a cultural icon.

Forgot the song? Don’t worry. The court attached the lyrics as an appendix. Here’s the chorus to refresh your memory:

I'm a Barbie girl, in my Barbie world
Life in plastic, it's fantastic
You can brush my hair, undress me everywhere
Imagination, life is your creation
Come on Barbie, let's go party!

Mattel, this is more parody. Don't sue.

An alleged alien from outer space—a martian, to be precise—was outsmarted by the law. One Rene Joly filed three lawsuits in Canada against numerous defendants, including the CIA and then-President Bill Clinton, alleging the defendants had taken various steps that interfered with his ability to live freely as a martian. He asserted the only reason he could not prove his martian status was because the CIA tinkered with his DNA test.

Ironically, and perhaps unfairly, the essence of the plaintiff’s claim did him in. Judge Epstein explained:

Rule 1.03 defines plaintiff as "a person who commences an action". The New Shorter Oxford English Dictionary defines person as "an individual human being". Section 29 of the Interpretation Act provides that a person includes a corporation. It follows that if the plaintiff is not a person in that he is neither a human being nor a corporation, he cannot be a plaintiff as contemplated by the Rules of Civil Procedure. The entire basis of Mr. Joly's actions is that he is a martian, not a human being. There is certainly no suggestion that he is a corporation. I conclude therefore, that Mr. Joly, on his pleading as drafted, has no status before the Court.

Judge Epstein also found the claims to be frivolous, vexatious and “patently ridiculous.” However, the court did not find plaintiff to be mentally incompetent. To the contrary, Judge Epstein wrote that Joly “presented himself as polite, articulate, intelligent and appeared to understand completely the issues before the Court and the consequences should I grant the relief sought.”

Give credit to a sneaky law clerk to U.S. Circuit Judge Reynaldo Garza, who pulled off an adventurous Syufy-like prank all the way back in 1987. (U.S. v. Syufy is the opinion where Judge Alex Kozinski slipped in more than 200 movie titles. Scroll down to "Coming Soon To A Footnote Near You").

In United States v. Abner, a law clerk wove in twenty-five references to the names of albums and songs by the rock group Talking Heads, reportedly in an unsuccessful bid to win some concert tickets. The prank apparently escaped the notice of Judge Garza.

The lawyer friend who sent in this opinion wrote that it will “make you pee in your pants laughing.” Maybe he was just caught up in the spirit of the opinion, which begins:

This case decides the heretofore undecided question of whether the act of defecating in one’s pants upon being informed of a pending criminal charge is a relevant fact for the jury.

Judge Hardberger of the Texas Court of Appeals could have had a career in journalism. That’s a heckuva way to get your reading audience’s attention.

The prosecutor elicited testimony from the arresting officer that, upon being informed he was under arrest for sexual child assault, the defendant defecated in his pants (although he denied doing so at trial). Defense counsel objected on relevancy grounds and the judge sustained the objection. The judge told the jury to disregard the comment. Oh yeah, I’m sure the jurors were able to just completely forget that little tidbit.

The defendant appealed, asserting a mistrial should have been granted. On appeal, the prosecutor argued that the defendant’s unseemly accident was admissible as an “excited utterance.”

Judge Hardberger, writing for the court, did an admirable job of weighing the conflicting inferences that could be drawn from such an act. After rejecting defendant’s argument that the act had no relevance, he wrote:

On the other hand, defecation in one’s pants upon arrest does not necessarily indicate guilt. Such an act could be evidence of the innocence of a man accused of a heinous crime he didn’t do. ... Granted, it could also be the act of a guilty person being found out. Or it could simply be the act of a man sick to his stomach.

The court determined that the trial judge’s instruction to the jury to disregard the testimony cured any possible error.

People v. Arno was a Fourth Amendment case in which the California Court of Appeals, Second District, suppressed evidence in an obscenity case obtained as a result of the police peering into the window of defendant’s office suite with ten-power binoculars.

One judge—we’ll leave names out—filed a strong dissent. Actually, it was more than strong. It was strident.

Apparently it didn’t sit well with the majority, which attacked the dissenter in a bizarre footnote. Don’t bother to read the whole footnote. Just read the first letters of the seven numbered sentences. As Country Joe McDonald said at Woodstock: “What’s that spell? What’s that spell?”

We feel compelled by the nature of the attack in the dissenting opinion to spell out a response:
1. Some answer is required to the dissent’s charge.
2. Certainly we do not endorse “victimless crime.”
3. How that question is involved escapes us.
4. Moreover, the constitutional issue is significant.
5. Ultimately it must be addressed in light of precedent.
6. Certainly the course of precedent is clear.
7. Know that, our result is compelled.

How did the dissenter reply to this profane insult? Well, not surprisingly, stridently. In his own footnote, he said:

I have heretofore eschewed responding to footnote 2 of the majority opinion in kind since it would be beneath the dignity of this office. Although I still will not respond in kind, ... some comment is compelled.

I decry the lack of propriety, collegiality and judicial temperament displayed in footnote 2. I abhor the loss of public respect for the legal profession and the judiciary footnote 2 engendered by reason of [a L.A. Times story about the footnote]. ...

I construe the [footnote reference] as a personal affront to every California citizen and their duly elected representatives ... who have deemed it a wise public policy to enact our criminal obscenity laws .... It is no wonder that California had the odious distinction of being the porno capital of the world.

Come on, Your Honors. Play nice or we'll take your robes away.

Baseball fans will enjoy Ohio Court of Appeal Judge Mark Painter's latest opinion. In a taxpayer suit against the Cincinnati Reds and the City of Cincinnati alleging failure of the city to collect stadium rent from the Reds, Judge Painter managed to lighten up the complex legal analysis by sprinkling baseball phrases throughout the 20-page opinion.

Judge Painter offers this succinct play-by-play in the opening paragraph:

In keeping with the less than stellar history of stadium construction in Cincinnati is this lawsuit involving the Cincinnati Reds, Cincinnati, and Hamilton County. It has twisted and turned, parties have been thrown out and substituted, and none of the parties can agree on the rules of the game. The Reds, Cincinnati, Hamilton County, the taxpayer-plaintiff, and the trial court have become enmeshed in a series of procedural and legal double plays and errors. It is difficult to determine who, if anyone, is on first.

We resolve the case by calling the plaintiff out.

Judge James Barlow sent in an interesting case from the Great State of Texas. Salazar v. Texas was a grisly murder case in which the victim was an alleged dope dealer named Jonathon. His cohorts turned on him and killed him by beating him with baseball bats and strangling him with wire. At the punishment phase of the trial, over the objection of defense counsel, the state played a professionally edited video montage of Jonathon’s life, complete with music by Enya and Celine Dion! The defendant appealed on the ground that the videotape was prejudicial. Here’s how the appellate court described the videotape:

This video is an extraordinarily moving tribute to Jonathon Bishop's life. It consists of approximately 140 still photographs, arranged in a chronological montage. Music accompanies the entire seventeen-minute video and includes such selections as "Storms in Africa" and "River" by Enya, and concludes with Celine Dion singing, "My Heart Will Go On," from the movie Titanic. Almost half of the approximately 140 photographs depict the victim's infancy and early childhood. The pictures show an angelic baby, surrounded by loving parents, grandparents, unidentified relatives, and other small children. Later photographs show Jonathon as a toddler, playing the piano, frolicking at the beach with other friends, happily riding on a carousel, laughing in a field of bluebonnets, and cuddling with a puppy. The video also includes numerous annual school pictures showing Jonathon's progression from a cheerful child to a equally cheerful young man. It catalogs his evident and early prowess as a young soccer player and eventually as a football player. There is a picture of him and his date, presumably going to their prom, and more candid shots of the victim and his teen-age buddies. The video includes many family reunion portraits showing Jonathon's entire extended family. Understandably, this professional and polished production portrays Jonathon in a very positive light and it is entirely appropriate for a memorial service. The music, too, is appropriately keyed to the various visuals, sometimes soft and soothing, then swelling to a crescendo chorus. In sum, it is a masterful portrait of a baby becoming a young man. It is also extraordinarily emotional.

The court held it was reversible error to admit the videtape into evidence on the ground that its relevance was outweighed by its prejudicial value, stating:

[The] prejudicial effect is enormous because the implicit suggestion is that the appellant murdered this angelic infant; he killed this laughing, light-hearted child; he snuffed out the life of the first-grade soccer player and of the young boy hugging his blond puppy dog.

I think the court was probably right. On the other hand, it failed to consider the counterveiling prejudice the video must have generated against the state for forcing the jury to listen to Celine Dion and Enya.

In Ahmed v. Reiss Steamship Co., a federal judge held the plaintiff’s lawyer in contempt of court for failure to appear for trial. Judge Ann Aldrich (N.D. Ohio) was disturbed that the lawyer had “told two different federal district court judges that he was appearing before the other,” which I guess is sort of the legal version of the old childhood stratagem for a free night out in which each kid tells his parents he’s spending the night at the other’s house.

Things got more bizarre when the lawyer finally decided to explain his absence (in a way the court found to be “lacking taste and any respect for courtroom decorum”):

MR. JAQUES: I wasn't here because I couldn't be here. I was not here, Judge, because I had the screaming itches in the crotch. I was so badly in need of medical care that I had been in communication with my physician a lot. Judge, I wasn't here because I would have been scratching my testicles constantly if I had been here.
Judge–
THE COURT: Mr. Jaques–
MR. JAQUES: Judge, do you understand that?
THE COURT: You don't have to be so graphic. You could have simply let the Court know that for medical reasons you were not going to be here and you could have–
MR. JAQUES: Judge, it was not a medical reason that I would have been able to frame earlier. That's one thing.
THE COURT: It doesn't seem awfully difficult to me. Is there anything else?

The lawyer submitted a letter from his doctor to bolster his claim:

It has been recommendation (sic) ... that because of the nature, location and symptoms of this ailment he should avoid to be in public places and mainly court appearances all of which could jeopardize his professional appearance. ...

While the judge did not “question the intensity of [the lawyer's] discomfort,” she held him in contempt for not notifying the court of the problem and for representing that he couldn’t attend trial because he was appearing before another judge.

Where do scandals go when they die? Up to a U.S. Court of Appeals of course, at least if they’re scandals involving the never-ending saga of Bill Clinton’s sexcapades. Elise Hendrick sent in an opinion from 9th Circuit Court of Appeals Judge Alex Kozinski ruling on a defamation suit filed by Gennifer Flowers against Hillary Rodham Clinton, James Carville and George Stephanopoulos. With that cast of characters, you know it’s going to be an interesting opinion.

This is an opinion to be admired as much for its lucidity as for its colorful take on the events. Here’s a taste from the opening paragraphs:

Long after the public spotlight has moved on in search of fresh intrigue, the lawyers remain. And so we find ourselves adjudicating a decade-old dispute between Gennifer Flowers and what she affectionately refers to as the “Clinton smear machine”: James Carville, George Stephanopoulos and Hillary Clinton. Flowers charges that said machine destroyed her reputation by painting her as a fraud and a liar after she dis-closed her affair with Bill Clinton. We decide whether Flowers’s claims are timely and, if so, whether they survive a motion to dismiss.

Background and Proceedings Below

In the heat of the 1992 presidential primary campaign, the Star—that ubiquitous supermarket source for celebrity scandal—ran a story claiming that Bill Clinton had carried on an affair with an Arkansas woman named Gennifer Flowers. Clinton and Flowers both denied it at first, but a few days later Flowers (doubtless realizing that honesty is the best policy after all) sold her story to the Star. Clinton continued vigorously denying the allegations and appeared on 60 Minutes with his wife to say they weren’t true. The following day, Flowers responded by holding a press conference where she played recordings of intimate phone calls from Clinton that she’d secretly taped. Later news reports suggested that the tapes may have been selectively edited.

According to Flowers, Hillary Clinton and her two “henchmen,” George Stephanopoulos and James Carville, conspired to protect Bill Clinton’s presidential candidacy from Flowers’s damaging revelations. Flowers claims that during the 1992 campaign and in later political memoirs and interviews, Carville and Stephanopoulos defamed her and painted her in a false light by claiming that she had lied in her story to the Star and “doctored” the tape-recorded phone calls. Hillary Clinton, the alleged mastermind of the conspiracy, not only orchestrated the defamatory exploits, but also exposed private information about Flowers and organized break-ins of her residence. Flowers claims that, as a result of all this schemery, her reputation has wilted and her blossoming career as a Las Vegas lounge singer has been nipped in the bud.

The decision is a good news-bad news combo. The bad news is that the 9th Circuit panel felt compelled to reverse the district court, which had dismissed all of Flowers' claims. This means we might not be able to purge Gennifer Flowers from our memory until the next millennium.

The good news is that, as Elise astutely noted, Judge K gave us another Syufy-type opinion (see “Coming Soon to a Footnote Near You!" and “Movie Mystery Solved!” below) by burying an amusing reference in one of the citations. I won’t spoil the mystery. See if you can find it.

Ohio Court of Appeals Judge Mark Painter writes some of the funniest opinions around. Of course, it doesn’t hurt that, as a former municipal judge, he was presented with some rather unusual fact patterns. In State v. Kirchner, the defendant was charged with aggravated menacing and resisting arrest. It all started just because he wanted to hang out one night at home with some friends -- with a five-foot long snake nailed to his door. Read on and enjoy:

The evidence adduced presented, at the very least, a bizarre situation. Cincinnati Police Officers Randy Froehlich and Steve Means received a radio dispatch to an address ... in the "Over-the-Rhine" section of Cincinnati. The reason for the dispatch was "man nailing snake to door."

Upon the officers' arrival ... they did in fact discover a five-foot-long black snake which had been nailed through its head to the door of defendant's apartment. Though the record is silent on the point, assumedly the snake was deceased.

Quite naturally, the officers knocked on defendant's door, which defendant answered, and sought to question defendant concerning the snake. The officers asked if they could come in and talk with the defendant, to which he replied, "no." The entire situation deteriorated from that point forward, resulting in the events in this court.

Quite obviously, the defendant had a right, under the Fourth Amendment to the United States Constitution, to refuse to allow the officers to enter absent a warrant or perhaps exigent circumstances, which did not exist in this case. Of course, a prudent man would have talked with the officers to resolve the situation, but the Constitution applies to both prudent and imprudent men.

Defendant testified that the snake was not his, he had not nailed it to the door, and since it was not his snake, he did not believe it to be his responsibility to remove it. Defendant believed that the caretaker of the apartment building would eventually remove the snake, which had been hanging for approximately eight hours. Defendant did not wish to converse with any police officer, because he and his friends were engaged in a social visit, involving the use of Wild Irish Rose wine.

[A struggle ensued when the defendant stepped back and put his hands on his hips. A folding knife in a sheath was on his belt. The officers interpreted his movement as "going for" the knife. They drew their weapons, disarmed and arrested the defendant.]

The question remains as to what, if any, laws the defendant had violated. It might be noted that no charges were filed against anyone in connection with the mistreatment of the snake. Under Cincinnati Municipal Code Section 701-11, "[n]o person shall ... cruelly beat, mutilate ... any animal ....." An "animal" is defined ... as follows: "'[a]nimal' shall, for the purposes of Sections 720-11 and 720-13, mean and include every living dumb creature." The above definition would obviously include a snake, though the inartful wording might imply that it would be perfectly legitimate to torture a talking parrot. Be that as it may, since the defendant denied nailing the snake to the door, the officers were evidently not able to determine the identity of the nailor, the nailee obviously being unable to testify.

We do not find that defendant's actions ... constitute the crime of aggravated menacing. Perhaps the entire matter could be classified under "aggravated foolishness," though there is no section in the Revised Code proscribing such conduct. If there were, our jails would be a great deal more crowded than they are presently.

[Judge Painter found sufficient evidence to support a conviction of the defendant for resisting arrest.]

Scroll down to "Horsing Around" and "The Case of the Missing Nylon Square" for a couple of other Painter classics.

Good old Frank Zotter happened upon a little old case and I reckon I’m glad he did. In State v. Knowles, the Missouri Court of Appeals, a good old bunch of guys and gals from up in them parts, took up an appeal where the trial judge had tossed out a criminal information for receiving stolen property. Well, shucks, I’ll just let the court tell y’all what happened in its own words:

Old Dave Baird, the prosecuting attorney up in Nodaway Count, thought he had a case against Les Knowles for receiving stolen property, to-wit, a chain saw, so he up and files on Les.

Now Les was a bit impecunious, so the judge appointed him a lawyer, old Dan Radke, the public defender from down around St. Joe. Now, Dan, he looks at that old information and decides to pick a nit or two, so he tells the judge that the information old Dave filed against Les is no good .... Dan says Dave charged that Les “kept” the stolen chain saw and that’s not against the law. You don’t commit that crime by “keeping” the chain saw, says Dan; the law says you commit the crime of “receiving” if you “retain” the saw, and that’s not what Dave charged Les with, and the judge should throw Dave out of court. And that’s exactly what the judge did.

But old Dave was not having any of that. No, sir! ...

Bystanders could plainly see the fire in old Dave’s eyes. He was not backing down. Sure. Dave could simply refile and start over with a new information by changing only one word. Strike “kept”; insert “retained.” But that is not the point. Dave knows he is right.

And so he is.

So we’ll just send the case back to Judge Kennish and tell the boys to get on with the prosecution.

Ohio Appellate Judge Mark Painter combines humor and common sense in his opinions, with pleasing results. In Gibson v. Donahue, the plaintiff was injured after being thrown from her horse, which was spooked by two Irish Setters that the defendant allowed to run free in an area restricted to equestrian use.

Talk about creative lawyering. The defendant tried to escape liability by relying on an Ohio statute intended to provide tort immunity for riding stable owners and horse show operators for injuries resulting from the inherent risks of equine activity (a statute Painter said “is noteworthy mainly for using the word ‘farrier’ ten times”).

Judge Painter observed that the case was one of first impression, “probably because no one before has been audacious enough” to try to extend the statute to a situation like this one.

Defendant did have a slim statutory leg to stand on. The statute extends immunity to “an equine activity sponsor, equine activity participant, equine professional, veterinarian, farrier, or other person." However, Judge Painter said that for defendant’s construction to prevail, the statute would have to be read as applying to “any other person in the whole world.” Construed as defendant argued, “[a] person who negligently crashes an airplane into the crowd at an equine event would thus be immune to liability.”

By the way, a farrier is a blacksmith. Remember that if you’re a law student in Ohio. It might be on the bar exam.

Judge Mark Painter, a judge on the Ohio Court of Appeals, sent in a couple of his own funny opinions. Way to go, Judge! The first one he wrote back when he was a municipal court judge. Given this opinion and the most recent Judge Gardner offering (see "That's Entertainment!" below), I feel compelled to reassure visitors that lawhaha.com will always remain a family-friendly website. But it’s not easy to maintain that status when the primary source of Strange Judicial Opinions is that haven for adult-oriented material known as ... the National Reporter System.

In State v. Parenteau, the defendant was charged with public indecency. I’ll let Judge Painter explain what happened:

Defendant was part of a "lingerie fashion show" at a nightclub named "Scandals" in western Hamilton County. The charge arose from the modeling by defendant of a lace brassiere which was alleged by the officer to be "see-through," in that the officer testified he could observe a nipple area through the lace fabric. Defendant was apprehended after she had retired to a back room to change her clothing. The officers asked Parenteau for the clothing she was wearing, which they confiscated.

The evidence produced in court included a lace brassiere, a pair of underpants, stockings, and a small square of pantyhose fabric. The panties and stockings were not relevant, considering that the charge was not based upon anything in connection with the defendant's lower anatomy. Defendant testified that she wore the pantyhose fabric under the bra in order to be certain that it was not transparent in the area of the nipple. Defendant further stated that she was wearing two such squares, one on each breast, during the performance, but that only one was in evidence, since she had already removed her bra when she was arrested, and the other square had dropped out and was not recovered by the officers. An additional witness testified that she saw defendant cutting pantyhose to make the squares before she dressed. Much ado was made about whether one or two squares were worn, but in the court's view of the law, the existence or nonexistence of the pantyhose material within one side of the brassiere is not controlling.

The question presented is whether the defendant can be convicted of public indecency ... for wearing a lace brassiere which totally covered her breasts, but was partially transparent, or "see through." If so, does the insertion of pantyhose material, rendering the brassiere less "see through," change the result?

The result turned on the meaning of “private parts” as used in the public indecency statute. Judge Painter cited numerous sources supporting the proposition that “private parts,” as used in the law, refers to the genital area only. As such, he acquitted the defendant.

Don’t they have real crime to worry about in Hamilton County, Ohio? Someone should tell the Hamilton County prosecutors to save up all their arrest warrants and come to South Beach in Miami. Within 15 minutes, they will be able to arrest enough pedestrians to fill all the jails in Ohio.

Seems like California Court of Appeal Judge Robert Gardner had more than his fair share of bawdy subjects to deal with.

In People v. Sarong Gals, the owners of “Sarong Gals,” a bar featuring live nude dancers, appealed an injunction entered against them under California’s Red Light Abatement law, a 1913 statute declaring to be a public nuisance any place used for the purpose of lewdness, assignation or prostitution.

Defendant’s primary argument was that the Red Light Abatement statute can not be lawfully applied to “entertainment.”

Judge Gardner disagreed. He began his opinion with a long list of what he called “hilarious highlights” of the “entertainment” observed at Sarong Gals through police surveillance. The judge’s descriptions of these highlights are a bit too graphic for lawhaha.com, but one of them includes these ingredients: a naked female dancer and a customer’s sunglasses. Use your imagination or go look up the opinion for details.

With regard to defendant’s argument that the statute couldn’t be applied to “entertainment,” Judge Gardner said:

Lewdness is lewdness and covering it with a patina of “free expression” is a fiction which the law will not tolerate. Masturbating on stage, causing customers to openly masturbate, allowing patrons to peer into females’ innards, simulating sexual intercourse and in other ways titillating the customers sexually amounts to lewdness—even though it may be entertaining.
...

Presumably, the Romans of the First Century derived entertainment from witnessing Christians being devoured by lions. Given the right audience, the spectacle of a man committing an act of sodomy on another man would provide entertainment value. However, neither this spectacle nor the activities described in the instant case are invested with constitutionally protected values merely because they entertain viewers.

Well, I wonder what Judge Gardner would say about The Osbournes and all that other really fine reality “entertainment” on today’s airwaves.

U.S. Court of Appeals Judge Alex Kozinski graciously took the time to send in his praise for a couple of other judges who dared to be different. The first one is California Court of Appeal judge Robert Gardner. Judge K said Gardner is one of his heroes, and included his favorite Gardner quote, from People v. Benton. Although it involves profanity, as Judge Kozinski said, it's for a good cause:

Mrs. Barnhill and her daughter, Sainna Okeson, were seated at the kitchen table in Mrs. Barnhill's apartment on Keel Street in Anaheim on the evening of August 2, 1976. Around midnight, a ... man entered. With pistol in hand, he said, "Don't say a word, don't say a mother-fucking word." [FN1]

[FN1] It is a sad commentary on contemporary culture to compare "Don't say a word, don't say a mother-fucking word" with "Stand and deliver," the famous salutation of Dick Turpin and other early English highwaymen. It is true that both salutations lead to robbery. However, there is a certain rich style to "Stand and deliver." On the other hand, "Don't say a word, don't say a mother-fucking word" conveys only dismal vulgarity.

The speech of the contemporary criminal culture has always been a rich source of color and vitality to any language. Yet, when one compares the "bawds," "strumpets," "trulls," "cut-purses," "knaves," and "rascals" of Fielding and Smollett to the "hookers," "pimps," "Narcs," "junkies," and "snitches" of today's criminal argot, one wonders just which direction we are traveling civilization's ladder. "Hooker," at least, has traceable historical antecedents—although the descendants of General "Fighting Joe" Hooker would probably prefer that their famous ancestor be remembered for something other than his army's camp followers—such as the slaughter at Chancellorsville.

Judge Kozinski shared the interesting judicial tidbit that the legendary Justice Michael Musmanno (see excerpts from Musmanno opinions below under “More Must-Read Musmanno,” “Last Tango in Asparagus” and “Ode to Screwing Up”) has been his model since law school and that he consciously tries to emulate Musmanno’s writing. He laments that today's law school graduates have never heard of Musmanno and return only blank stares when his name is mentioned.

Goshgarian v. George involved warring neighbors, one of whom continually dumped dirty water from his swimming pool onto the other’s property. The water-dumping defendant came up with the imaginative, if not quite legally sound, argument that, since the County of Fresno had an easement on the property for the drainage and disposal of water, the individual defendant should have the same right.

The court was downright astonished by the creativity of the argument:

Only a mind unburdened by the ephemeral shackles of legal training and gloriously free of the stultifying pomposities of precedent and stare decisis could have formulated the epiphanous principle that what the public may do as an entity, so may individual members of the public do, acting in their individual capacities. Appellate counsel for cross-complainants, with an imagination dulled by years of legal training, evidently lacked the audacity to appreciate cross-defendants’ argument and misinterpreted (and diminished) it as a mundane attack upon the sufficiency of the evidence to support the jury’s finding of trespass. Not so. Cross-defendant Mr. George is on the wave front of the expanding legal universe, Prometheus unbound by the strictures of logic and reason that constrain lawyers and judges in their quotidian professional functions.

There is just one problem. The easement is for storm drain water, not mosquito infested swimming pool effluent.

Remember “Golden Guides”? We’ve all read them. They were sort of the original “Dummies” series, explaining a variety of scientific topics in succinct terms understandable by anyone. Professor Ken Swift of Hamline law school sent in the following funny opinion, which arose out of a dispute between the guy who wrote all of these masterpieces—one Dr. Zim—and the Golden Guides publisher, Western Publishing. Zim deserves a lot of credit for elucidating so many complex topics for popular audiences, but does he deserve as much credit as Judge Goldberg, a federal appellate judge, bestows on him? Read on and see:

In the beginning, Zim [FN1] created the concept of the Golden Guides. For the earth was dark and ignorance filled the void. And Zim said, let there be enlightenment and there was enlightenment. In the Golden Guides, Zim created the heavens (STARS) (SKY OBSERVER'S GUIDE) and the earth. (MINERALS) (ROCKS and MINERALS) (GEOLOGY).

FN1. Dr. Zim is a noted science educator with a Ph.D. in science education from Columbia University. His special expertise is in the presentation of scientific subjects to popular audiences. The major focus of his efforts has been the development of a multivolume series of books on scientific subjects, the "Golden Guides." ...

And together with his publisher, Western, he brought forth in the Golden Guides knowledge of all manner of living things that spring from the earth, grass, herbs yielding seed, fruit-trees yielding fruits after their kind, (PLANT KINGDOM) (NON-FLOWERED PLANTS) (FLOWERS) (ORCHIDS) (TREES), and Zim saw that it was good. And they brought forth in the Golden Guides knowledge of all the living moving creatures that dwell in the waters, (FISHES) (MARINE MOLLUSKS) (POND LIFE), and fowl that may fly above the earth. (BIRDS) (BIRDS OF NORTH AMERICA) (GAMEBIRDS). And Zim saw that it was good. And they brought forth knowledge in the Golden Guides of the creatures that dwell on dry land, cattle, and creeping things, (INSECTS) (INSECT PESTS) (SPIDERS), and beasts of the earth after their kind. (ANIMAL KINGDOM). And Zim saw that it was very good.[FN4]

FN4. According to Zim's brief before this court, well over 100 million of the Golden Guide books have been printed under Zim's name, earning him "millions of dollars" in royalties.

Then there rose up in Western a new Vice-President who knew not Zim. And there was strife and discord, anger and frustration, between them for the Golden Guides were not being published or revised in their appointed seasons. And it came to pass that Zim and Western covenanted a new covenant, calling it a Settlement Agreement. But there was no peace in the land. Verily, they came with their counselors of law into the district court for judgment and sued there upon their covenants.

And they put upon the district judge hard tasks. And the district judge listened to long testimony and received hundreds of exhibits. So Zim did cry unto the district judge that he might remember the promises of the Settlement Agreement. And the district judge heard Zim's cry, but gave judgment for Western. Yea, the district judge gave judgment to Western on a counterclaim as well. Therefore, Zim went up out of the court of the district judge.

And Zim spake unto the Court of Appeals saying, make a sacrifice of the judgment below. And the judges, three in number, convened in orderly fashion to recount the story of the covenants and to discuss and answer the four questions which Zim brought before them. ...

Melissa Williamson sent in a couple of great Strange Judicial Opinion entries along with a nice note that lawhaha.com “has summer associates across the globe filling in their timesheets with lots of ‘Other—personal study’ entries.”

A 1992 offering from the U.S. District Court for the Southern District of Florida finds Judge Paine taking pains to spice up an order rejecting federal removal jurisdiction by working in several references from the movie “Wayne’s World.”

These include subheadings like “Hurling Chunks” and “NOT!”, and the observation that the attempted removal of the case from state to federal court “is untimely and is a defect deemed ‘way’ improvident.”

The court concludes its wacky W.W. excursion as follows: “In short, Prime Time’s most bogus attempt at removal is ‘not worthy’ and the Defendants must ‘party on’ in state court.”

WHOA, Judge Paine, must be, like, a totally awesome judicial dude!

Lawhaha.com has collected several rhyming judicial opinions, but a judicial opinion set to music?

In Rimes v. Curb Records, Inc., country music sensation LeAnn Rimes sought to void a recording contract on the basis that she was a minor when she signed it. Judge Jerry Buchmeyer, a noted legal humorist in his own right, upheld a forum selection clause in the contract and granted the defendant’s motion to transfer the case to Tennessee—and he did it all to the tune of LeAnn’s hit songs! Here’s a sample (footnotes omitted):

STATEMENT OF FACTS
(To be sung to the tune of LeAnn Rimes, “How Do I Live.” Copr. & (R) 1997 Curb Records, Inc.)

LeAnn Rimes
A very rich and famous star
Wasn’t so rich in times afar
But what a talent she had!
Enter Curb
To sign a contract, they hoped
After her talent they scoped
They saw the cash in her eyes
But LeAnn
Who at twelve was hardly dumb herself
Wanted to retain her future wealth
Oh
If you could have seen
Baby those attorneys changed everything
But so many lines!
They missed one thing.

CHORUS #1
Why did you sign, LeAnn Rimes?
So long ago
Off on that choice of forum?
Your attorneys didn’t know?
They made lots of changes, but one thing survived ...
Forum clause, to that clause, what weight do we give?

INSTRUMENTAL INTERLUDE

VERSE #3
Many times
Back and forth from judge to attorney
Both in Texas and in Tennessee
There was so much to review
And LeAnn
With a guardian to oversee
She disavowed her own minority
Oh
Now she believes
Her age will invalidate everything
She ever signed
We must decide

CHORUS #2
How do we read the forum clause?
Binding or no?
How could she see, at age twelve
Or truly know
That the Curb-Rimes relations, would never survive?
Forum clause, to that clause, how much weight do we give?

Judge Buchmeyer wrote separate lyrics for the “Legal Analysis" and “Conclusion,” making the opinion a LeAnn Rimes Greatest Hits collection. If she appeals, we may end up with a complete Box Set.

Rumor has it that Judge Buchmeyer will be touring with Green Day this fall. His backup band, “The Rule 11s,” will sing the footnotes.

California lawyer Frank Zotter sent in Iverson v. Iverson, a California divorce case in which the trial judge, in Frank’s words, “demonstrates once again the wisdom of the old saying, ‘it’s best to keep your mouth shut and have everyone think you a fool than to open it and leave no doubt.’”

The case involved the validity of a prenuptial agreement and the question of which of the parties had initiated the idea of marriage. The trial judge concluded that surely the wife had pursued the marriage. After all, the judge said, she was “lovely,” but “[h]ad nothing going for her except for her physical attractiveness.” Specifically, she “did not have much of an education, and did not have much of a background in business, and did not have much by way of material wealth.”

The judge simply couldn’t fathom the notion that the husband, Chick Iverson, would have been crazy enough to pursue marriage when “[h]e had just gone through a divorce which cost him a million dollars.” Marriage, the judge said, “would be the last thing on his mind. And why, in heaven’s name, do you buy the cow when you can get the milk free, as we used to say. And, so, he’s getting the milk free. And Cheryl is living with him in his home.”

The Court of Appeals reversed, ordering a new trial before a different judge on the basis that the trial judge’s sexist perceptions of the couple’s relationship made it impossible for the wife to have received a fair trial.

Who the hell is Chick Iverson? The case makes it sounds like he’s a big deal and he must have been pretty important because he told John Wayne he wanted The Duke to be best man at the wedding. Internet research discloses Iverson was the first Volkswagen dealer in L.A.

McClurg footnote: A reliable source who wishes to remain anonymous sent in this really interesting follow-up information about the Iverson case:

Chick Iverson and John Wayne were best friends. That’s why John Wayne was the best man at his wedding to Mrs. Iverson. Mr. Iverson has since passed away and is actually buried next to John Wayne.

Chick Iverson owned the first VW dealership in Orange County, not LA. He imported the first Porsches to the west coast after WWII, and established a Volkswagen, Porsche, Rolls Royce, Audi and Chevrolet dealership in Newport Beach in the 60s which was sold in the 80s. It was the largest and best selling Volkswagen dealership in the United States.

Mr. Iverson made a hefty sum selling the wonderful bug to many a hippie. Mr. Iverson and Cheryl Iverson had a bitter divorce that would rival any Dynasty episode. The judge’s screw-up with his comments costs Mr. Iverson close to a million dollars in attorneys’ fees as he was paying for his attorney and Mrs. Iverson's. Eventually, Mr. Iverson won and the prenuptual agreement was upheld.

Judge Jim Barlow from San Antonio sent me State v. Terrazas, a 1999 case out of the Texas Court of Criminal Appeals, which turned on the meaning of a statement made by a state investigator to a defendant that led to the defendant confessing. Judge Barlow liked the “brain-teaser” in this footnote from the dissenting opinion of Judge Price:

1. This issue calls to mind the film "Let Him Have it" which was based on the famous Derek Bentley Confession case in post WWII England. Two boys who were trying to break into a building were cornered on a rooftop by a policeman. One of the boys had a gun. The policeman calmly reached out his hand and asked the boy to hand over the gun. The other boy said, "Let him have it." The boy with the gun pulled the trigger and killed the officer. What did the phrase, "Let him have it," really mean? There are two possibilities: "Hand over the gun!" Or "Shoot him!" A British jury decided upon the second possibility and the boy, a retarded young man named Derek Bentley was convicted of murder and hanged."

The legal rule from this case is to always use nouns and articles rather than pronouns when responding to police commands.

You gotta love an opinion that begins:

In this appeal we are asked to determine whether “.82" is the equivalent of “82%.” Having successfully completed grammar school, we are able to answer the question in the affirmative.

An unsuccessful bidder for an offshore oil and gas lease brought suit against the Secretary of the Interior for awarding the contract to a competitor. The plaintiff offered a royalty of “73.45689%” in its bid. A competitor offered a royalty bid of “.82165.” The Secretary construed the competitor’s bid as one for 82.165 percent, and awarded the contract to it based on it being the higher bid.

The plaintiff asserted the Secretary acted arbitrarily and capriciously in construing .82165 to be 82.165 percent. The trial court agreed and entered judgment for the plaintiff.

The Fifth Circuit reversed, relying on as its primary source of authority an eighth grade math book called “Growth in Arithmetic,” which the Court said asked and answered the pertinent question: “Do you know how to change a per cent to a decimal?” Ouch.

Any fan of judicial opinion writing needs to study the opinions of the Honorable Michael A. Musmanno (1897-1968). He was a remarkable man. Before joining the Pennsylvania Supreme Court, Justice Musmanno enjoyed an illustrious career as a lawyer, U.S. Congressman and author. Highlights of his career include serving as the presiding judge at the Nuremberg war crime trials and as a defense lawyer in the Sacco & Vanzetti trial.

His opinions are marvelous concoctions of deep-hearted passion and brutal common sense, delivered in highly literate and often hilarious prose. Scroll down to “Last Tango in Asparagus” and “Ode to Screwing Up” for a couple of examples.

Chris Nace recently sent in two other classic Musmanno opinions. In Bosley v. Andrews, 142 A. 2d 263 (Pa. 1958), a woman sued a neighbor whose cows trespassed on her farmland to eat her crops. After being chased away in the morning, the “bovine buccaneers” returned for lunch. “This time they came, eight of them, with reinforcements. They brought along their boy friend, a 1500-pound Hereford white-faced bull.” The bull took chase after the plaintiff, causing her to suffer a heart attack.

A majority of the Pennsylvania Supreme Court rejected the woman’s claim for negligent infliction of emotional distress damages, following the traditional rule that such a claim cannot be maintained in the absence of a “physical impact” with the plaintiff (the bull never actually touched the plaintiff).

In dissent, Musmanno ripped the majority for what he saw as an unjust result, closing his opinion by stating that the majority’s approach “is unsupportable in law, logic, and elementary justice – and I shall continue to dissent from it until the cows come home.”

In Pennsylvania Society for the Prevention of Cruelty to Animals v. Bravo Enterprises, Inc., 237 A. 2d 342 (Pa. 1968), the plaintiff sought to enjoin a bullfight, but the majority held that the organization lacked standing. Musmanno began his impassioned dissent this way:

If there is one commodity of which there is no need for a further supply, it is violence. If there is one school that the world can afford to miss, it is one for the tutoring of methods of violence, brutality and cruelty. ... [W]e can well do without a bullfight which is nothing less than an open air lyceum in the art of torturing helpless animals.

Add Justice Musmanno to my list of “four dead people with whom you would most like to have dinner.”

In this classic slip and fall case, plaintiff Joseph Rosenberg slipped on some asparagus while dancing at a wedding reception with his sister-in-law and fellow plaintiff, Ruth Schwartz. The issue was whether the defendant caterer had negligently spilled the asparagus on the dance floor. The trial judge had dismissed the lawsuit on theory that the offending asparagus could have been unwittingly transported onto the dance floor after becoming entrapped in the apparel of the dancers.

As with many of the judicial opinions posted on lawhaha.com, brief excerpts don't do this case justice. I recommend reading the entire opinion. But my favorite part is how the legendary Justice Musmanno of the Pennsylvania Supreme Court bluntly and rather contemptuously rejected the trial judge's theory of how the asparagus (which according to testimony formed a puddle three feet in diameter) got on the dance floor:

The trial judge, an ex-veteran congressman and thus a habitue of formal parties and accordingly an expert in proper wearing apparel at such functions, all of which he announced from the bench, allowed testimony as to the raiment worn by the banquetters. All the men were attired in tuxedos, the pants of which were not mounted with cuffs which could transport asparagus and sauce to the dance floor, unwittingly to lubricate its polished surface. Ruling out the cuffs of the tuxedo pants as transporters of the asparagus, the judge suggested the asparagus, with its accompanying sauce, could have been conveyed to the dance floor by 'women's apparel, on men's coats or sleeves, or by a guest as he table hopped.' The Judge's conclusions are as far-fetched as going to Holland for hollandaise sauce. There was no evidence in the case that anybody table hopped; it is absurd to assume that a man's coat or sleeve could scoop up enough asparagus and sauce to inundate a dance floor to the extent of a three-foot circumference; and it is bizarre to conjecture that a woman's dress without pockets and without excessive material could latch on to such a quantity of asparagus, carry it 20 feet (the distance from the tables to the dance floor) and still have enough dangling to her habiliments to cover the floor to such a depth as to fell a 185 pound gentleman with 35 years' dancing experience who had never before been tackled or grounded while shuffling the light fantastic.
...

It can be stated as an incontrovertible legal proposition that anyone attending a dinner dance has the inalienable right to expect that, if asparagus is to be served, it will be served on the dinner table and not on the dance floor.
...

Judgment reversed with a procedendo.

[Chief Justice Bell dissented:]

One cannot help wondering if plaintiffs had, in the alleged 35 years of dancing, ever been to any dance, let alone a wedding banquet dance. ... A dancer cannot, with legal sanction, look only into the captivating eyes of his lovely partner.

I certainly dissent.

The classic dilemma of the law. Which is more important: following the rules or dispensing justice? Being faithful to precedent or being willing to bend technical legal rules to reach the correct result? We struggle with these issues from the time we’re first-year law students. Rules won out in ugly fashion in In re Estate of Pavlinko.

Vasil Pavlinko and his wife, Hellen, immigrants who spoke little English, went to a lawyer to have separate wills drawn up. Both wills left their residual interest to the same person: Elias Martin, the brother of Hellen Pavlinko. Unfortunately, when it came time to sign the wills, the wills got mixed up and Vasil and Hellen each signed the other’s will.

After the couple died, Elias Martin—the sole residuary legatee under both wills—offered Vasil’s will for probate. Although conceding that the result was “unfortunate,” the Pennsylvania Supreme Court rejected Martin’s petition because Vasil had mistakenly signed Hellen’s will.

Judge Musmanno, dissented, in an impassioned Ode to Screwing Up:

Everyone in this case admits that a mistake was made: an honest, innocent, unambiguous, simple mistake, the innocent, drowsy mistake of a man who sleeps all day and, on awakening, accepts the sunset for the dawn.

Nothing is more common to mankind than mistakes. Volumes, even libraries have been written on mistakes: Mistakes of law and mistakes of fact. In every phase of life, mistakes occur and there are but few people who will not attempt to lend a helping hand to the person who mistakes a step for a landing and falls, or the one who mistakes a nut for a grape and chokes, or the one who steps through a glass so clear that he does not see it. This Court, however, says that it can do nothing for the victim of the mistake in this case, a mistake which was caused through no fault of his own, nor of his intended benefactors.

... I know that the law is founded on precedent and in many ways we are bound by the dead hand of the past. But even with obeisance to precedent, I still do not believe that the medicine of the law is incapable of curing the simple ailment here ....

We have said more times than there are tombstones in the cemetery where the Pavlinkos lie buried, that the primary rule to be followed in the interpretation of a will is to ascertain the intention of the testator. Can anyone go to the graves of the Pavlinkos and say that we do not know what they meant? They said in English and Carpathian that they wanted their property to go to Elias Martin.

Bless you, Judge Musmanno.

Miles v. City Council of Augusta, GA—starring “Blackie the Talking Cat”—is my kind of case: VERY WEIRD.

The plaintiffs were an unemployed, married couple who owned Blackie, a cat who allegedly speaks as many English phrases as most New York cab drivers. Kidding about the cab driver part, but Blackie really can talk, at least according to the trial judge’s disclosure of an ex parte communication he had with the cat.

The plaintiffs, Carl and Elaine Mills, were entrepreneurs in the true American mold. They made their entire living by marketing Blackie’s unique vocal abilities to the public. Although the closest Blackie ever came to making the big time was a $500 appearance on “That’s Incredible” in 1980, he generated steady income for Carl and Elaine by talking to strangers on the street in return for contributions.

After receiving several complaints, the Augusta Police Department warned Carl and Elaine that they needed to obtain a business license to continue peddling Blackie’s talents on the streets of Augusta. Plaintiffs sued the city, alleging the occupational license tax was unconstitutional.

The whole opinion is funny, but the most hilarious part is Judge Bowen’s disclosure in a footnote of his ex parte communication with Blackie [paragraph breaks inserted]:

In ruling on the motions for summary judgment, the Court has considered only the evidence in the file. However, it should be disclosed that I have seen and heard a demonstration of Blackie’s abilities.

The point in time of the Court’s view was late summer, 1982, well after the events contended in this lawsuit. One afternoon when crossing Greene Street in an automobile, I spotted in the median a man accompanied by a cat and a woman. The black cat was draped over his shoulder. Knowing the matter to be in litigation, and suspecting the cat was Blackie, I thought twice before stopping. Observing, however, that counsel for neither side was present and that any citizen on the street could have happened by chance upon this scene, I spoke, and the man with the cat eagerly responded to my greeting.

I asked him if his cat could talk. He said he could, and if I would pull over on the side street he would show me. I did, and he did. The cat was wearing a collar, two harnesses and a leash. Held and stroked by the man Blackie said “I love you” and “I want my Mama.”

The man then explained that the cat was the sole source of income for him and his wife and requested a donation which was provided. I felt that my dollar was well spent. ...

What I can’t understand is why a cat who can talk isn’t more famous. Is this cat still alive? Give him a talk show on FOX.

Federal Senior District Judge Kane of the District of Colorado offers curious readers of judicial opinions an excursion into the world of “adult-oriented” judicial opinions in Martin v. Cuny. In a case involving a copyright dispute over a photograph of a man and a woman engaging in oral sex, Judge Kane, in a funny footnote, offered readers a bibliography of judicial opinions that have titillated law students for decades:

Given its subject matter, this opinion may join certain cases with obscure citations found in well-thumbed volumes in law school libraries. These cases are favorites of second year law students imprisoned in libraries and seeking diversion from the boredom of yet another year of highly touted and low-yielding case method of instruction. Having known a law professor, now thankfully of emeritus status, who assigned students to locate these cases as an exercise in legal research, I list a few to bring them into the age of computers and political correctness through the back door.

List of citations is omitted.

[At the end of the citation list, the judge says:] If you find each of these cases you are entitled to join the law review; if your law school library doesn’t have all of them, you should transfer at once.

A professor actually assigned these cases? No wonder he’s an emeritus. I can’t give you the citations here. Lawhaha.com is much more family-oriented than the Federal Supplement.

Why waste words? Wouldn't it be nice if more judges could cut to the chase like Judge J.H. Gillis of the Michigan Court of Appeals?

J.H. Gillis, Judge.

The appellant has attempted to distinguish the factual situation in this case from that in Renfroe v. Higgins Rack Coating and Manufacturing Co., Inc. (1969), 17 Mich. App. 259, 169 N.W.2d 326. He didn't. We couldn't.

Affirmed. Costs to appellee.

The law is becoming increasingly well-settled that serious jurisdictional obstacles confront those who sue biblical beings. A suit against Satan and His Staff ran into trouble (scroll down for "The Devil Made Me Do It"), as did this lawsuit against his opponents:

McGLYNN, District Judge.

In what purports to be a civil rights action, the only defendants identified by name are God and Jesus. The complaint simply states "Treating Inhuman Sex." The papers were accompanied by a petition to proceed in forma pauperis and it would appear that plaintiff qualifies to do so.

Nevertheless, the complaint must be dismissed because quite apart from the question of service on the principal defendants, there is no factual basis for the exercise of this court's subject matter jurisdiction. Fed.R.Civ.P. 12(h)(3).

Whoa. Run that by me again.

As a University of Florida alumnus and Florida Gator fan, I couldn't help but be tickled by Wright v. State of Georgia Dep't of Natural Resources, from the Georgia Court of Appeals.

Few college football rivalries are as intense or long-running as that between the Florida Gators and the Georgia Bulldogs. Held in Jacksonville, Florida and billed as "The World's Largest Cocktail Party," the Florida-Georgia game is a sacred rite of Autumn in the two states. The Bulldogs ruled the series for what seemed like an eternity, inflicting untold suffering on the Gator Nation courtesy of players like Herschel Walker and Lindsay Scott. Then Coach Spurrier and Company came to the rescue, winning 10 of 11 games from 1990-2001.

Which brings us to Wright, a lawsuit in which the plaintiff claimed that certain actions by the Georgia Department of Natural Resources constituted a "taking" of some alligators that were born and raised on plaintiff's Georgia farm.

Judge Smith, obviously a jurist of keen sensibilities, included this great footnote:

1. Several times in this opinion, we refer to "Georgia alligators." We do so reluctantly and soley for the sake of convenience and brevity. We recognize that for literally millions of Georgians and Floridians, the term "Georgia Gators," or any approximation thereof, is an inherently offensive oxymoron. We apologize for any pain or distress caused by this unfamiliar and unfortunate juxtaposition.

We'll let it slide this time, Your Honor, but please, if you ever happen to take up a dog-bite case involving a pug-faced nonresident defendant to the south, please don't start talking about "Florida Bulldogs." It would be more than we could stand.

Thanks to Daniel Solzman for responding to lawhaha.com’s plea for a list of the movie titles secretly embedded in Judge Alex Kozinski’s opinion in U.S. v. Syufy Enterprises, 903 F.2d 659 (9th Cir. 1990). (Scroll down to “Coming Soon to a Footnote Near You!” for more explication).

It turns out that the website of the Tarlton Library at the University of Texas law school contains the full opinion with all the movie titles highlighted as part of its Law in Popular Culture Collection. Here’s a list of all the movies that Daniel assembled, in the order the titles appear in the opinion:

M, Suspect, Giant, Nevada, Illegal, Monkey Business, Platoon, David, 8 1/2, The Power, The Competition, Greatest Hurdle, Gone are the Days, Popcorn, Something for Everyone, Manpower, The Producers, Formula, Splash, Shame, Stir, Titanic, Easy Money, No Holds Barred, Upper Hand, Rivals, Rocky, Until September, September, Midway, The Big Picture, Do the Right Thing, Brass Knuckles, The Accused, Humongous, Little Big Man, Chances, Vice Versa, Always, Nuts, The Seven-Ups, Big, Ordinary People, Possessed, Foul Play, The Survivors, Personal Services, Time after Time, Challenge, Testimony, Riding High, Captured, Utopia, Dark Horse, Invitation, Major League, Against all Odds, Fighting Fire with Fire, Trading Places, The End, Country, Losing Ground, Short Circuit, Lock Up, Dead Heat, Personal Best, Absolute Beginners, Staying Alive, Big Business, Network, Shopworm, Witness, High Tide, The Law, Wisdom, The Hand, Guilty, Illicit, Satisfaction, The Victim, Raw Deal, The Evil, Above the Law, Down by Law, Off Limits, The Enforcer, Fear, The Villain, The Weapon, Champion, The Natural, Deliverance, The Disappearance, The Challenge, Running, The Other, Top Gun, Players, The Trial, Paid, Head, The Squeeze, Seven Days, Cold Feet, Gambit Backfire, Contract, Cold Turkey, Lost, Plenty, After Hours, The Judge, The Trap, Leviathan, Stick, Tough Enough, Making It, Risky Business, Squeeze Play, Sitting Ducks, Boomerang, Big Trouble, The Principal, House of Cards, Tribute, America, Target, Paper Tiger, Distance, Local Hero, Being There, Fire Sale, Abandoned, The Lawyer, You and Me, Avalanche, Surrender, The First Time, Hard Choices, Showdown, Fail-Safe, The Great Race, Relentless, The Fountainhead, Out, House, Volunteers, October, 1984, Over the Top, Ran, Trapped, The Gate, Hard Times, Partners, California, Barrier, Five, Colors, Exposed, Switching Channels, Checking Out, Fame, Great Expectations, Without a Trace, Perfect, Out of Bounds, Offbeat, Critic's Choice, The Longshot, The Sure Thing, Misunderstood, Boom Town, Static, Alien, Things Change, High Hopes, The Jackpot, Drive-in, Performance, New Faces, The Thing, The Crucible, Violated, All the Right Moves, The Creator, Interiors, Clue, Fashion, Winner Take All, Any Number Can Play, Insignificance, The Harder They Fell, Missing, Shakedown, Ruthless Predator, Dangerous, Critical Condition.

Congrats to Daniel, the Tarlton Library, and, of course, Judge Kozinski.

Judge Alex Kozinski, of the U.S. Court of Appeals for the Ninth Circuit, is known for his sparkling prose, but his most classic opinion has to be U.S. v. Syufy Enterprises, where the primary literary prize remains carefully hidden from most readers' scrutiny.

In Syufy, the federal government sued Las Vegas movie chain owner Syufy for antitrust violations. In affirming the trial court’s dismissal of the antitrust charges, Judge Kozinski reportedly slyly interwove more than 200 movie titles into his 14-page opinion.

But has anyone really counted them? Is this urban myth? Bourbon myth? Where did this number come from? Movies buffs, help us out! Unravel this legendary, mysterious opinion for us. Send in a list of the movie titles you find in U.S. v. Syufy. You'll be helping baffled lawyers everywhere. (Help arrives! See "Movie Mystery Solved.")

Mayo v. Satan and His Staff is an intriguing classic. Plaintiff filed a civil rights action alleging that Satan and his employees “on numerous occasions caused plaintiff misery and unwarranted threats, against the will of plaintiff” and “placed deliberate obstacles in his path and caused plaintiff's downfall.” Plaintiff asserted these transgressions violated his constitutional rights. He sought the court’s permission to proceed in forma pauperis.

U.S. District Judge Weber denied the application, noting several complicated legal issues the plaintiff’s lawsuit would raise:

Even if plaintiff's complaint reveals a prima facie recital of the infringement of the civil rights of a citizen of the United States, the Court has serious doubts that the complaint reveals a cause of action upon which relief can be granted by the court. We question whether plaintiff may obtain personal jurisdiction over the defendant in this judicial district. The complaint contains no allegation of residence in this district. While the official reports disclose no case where this defendant has appeared as defendant there is an unofficial account of a trial in New Hampshire where this defendant filed an action of mortgage foreclosure as plaintiff. The defendant in that action was represented by the preeminent advocate of that day, and raised the defense that the plaintiff was a foreign prince with no standing to sue in an American Court. This defense was overcome by overwhelming evidence to the contrary. Whether or not this would raise an estoppel in the present case we are unable to determine at this time.

If such action were to be allowed we would also face the question of whether it may be maintained as a class action. It appears to meet the requirements of Fed.R. of Civ.P. 23 that the class is so numerous that joinder of all members is impracticable, there are questions of law and fact common to the class, and the claims of the representative party is typical of the claims of the class. We cannot now determine if the representative party will fairly protect the interests of the class.

We note that the plaintiff has failed to include with his complaint the required form of instructions for the United States Marshal for directions as to service of process.

For the foregoing reasons we must exercise our discretion to refuse the prayer of plaintiff to proceed in forma pauperis.

If lawhaha.com made money, I’d probably have to share it with Lihwei Lin for his many contributions to the Strange Judicial Opinion page. His latest one is another winner. What would you do if you were a judge and had to reverse a case in which your boss had sat as the presiding judge? And what if your boss was none other than the legendary Richard Posner? Here is Lihwei's take on the situation:

Imagine yourself in this situation: You are a newly-appointed circuit judge sitting in a circuit with the likes of Frank Easterbrook, "Rick" Posner and other judicial demigods. One day, your Chief Judge, "Rick," apparently runs out of things to do in between being a chief judge, mediating the Microsoft case and writing 5000 books, and decides to make a guest appearance by special designation in the trial court. In the process, he makes a few clearly reversible errors in a case, Chicago School-style no less. The case has come up for review and you are the presiding judge. What would you do?

Judge Evans confronted this dilemma of judicial review in Bankcard America, Inc. v. Universal Bancard Systems, Inc., 203 F.3d 477 (7th Cir. 2000). His footnote only three sentences into the opinion leaves you with the feeling than reversing one's own Chief Judge is a bit more delicate than reversing your typical trial court:

It is a testament to the dedication of Chief Judge Posner that he volunteer to sit in the district court and hear this case which, at the time, needed the guiding hand of a new judge. Judge Posner, of course, carries a full load of cases on this court. He also discharges a multitude of administrative duties as the circuit's chief judge. But that's only part of what he does. He has written more books than many people read in a lifetime. On top of all this, in his spare time he is working as a court-appointed special mediator in the government's blockbuster antitrust suit against Microsoft. Obviously, Judge Posner has more on his plate than a long-haul trucker working an "all you can eat" buffet line. It is a tribute to Judge Posner's talent that he handles his many roles with such vigor, brilliance, and panache.

In Hormel Corp. v. Jim Henson Productions, Inc., Hormel sued the Muppet master for infringing the trademark of its delicious product SPAM® by naming a character in the 1996 movie, Muppet Treasure Island, “Spa’am.” The U.S. District Court for the Southern District of New York rejected Hormel’s claims and the Second Circuit affirmed. Among the highlights:

• Hormel was worried that sales of SPAM would suffer if they were linked with Spa’am, the movie character, a wild boar puppet allegedly depicted as “evil in porcine form.” Not to worry. An expert in children’s literature persuaded the court that Spa’am, although not “classically handsome” and introduced as a threatening character at the beginning of the movie, ultimately becomes a positive character when he befriends the Muppets and helps them escape from the film’s villain, Long John Silver. Thank God we had an expert in children’s literature to unravel that puzzle. Can anyone say Daubert?

• The court opined that Hormel should lighten up because, even though SPAM is a high-quality product, it is already the butt of jokes because of “the public’s unfounded suspicion that SPAM is the product of less than savory ingredients.” The court pointed out that in the television cartoon, Duckman, Duckman discovers the secret ingredient to SPAM as he gazes upon “Murray’s Incontinent Camel Farm.” The court also quoted a columnist who joked that SPAM contained all five major food groups: snouts, ears, feet, tails and brains. The court said that, given all the ribbing, “one might think Hormel would welcome the association with a genuine source of pork.”

• The court also rejected Hormel’s claim that Jim Henson Productions’ merchandising of the Spa’am character would interfere with Hormel’s own merchandising of SPAM, including its character, “SPAM-man,” a giant can of SPAM with arms and legs.

Well, even though it lost the case, Hormel gets the last laugh. Hormel holds 75 percent of the market in canned meat. It has sold more than five billion cans of SPAM . SPAM is eaten in 30 percent of American homes. I probably ate a thousand fried SPAM sandwiches when I was a kid.

Anyone who has ever worked as a staff attorney or law clerk to a federal judge or magistrate knows all too well the burdens of dealing with pro se inmate complaints. In Washington v. Alaimo, the pro se inmate plaintiff pushed his luck too far when he filed a “Motion to Kiss My Ass,” in which he moved “all Americans at large and [the judge in one of his cases] to kiss my got [sic] damn ass.”

Other motions filed by the inmate included:

“Motion to Behoove an Inquisition”
“Motion for Restoration of Sanity”
“Motion for Publicity”
“Motion for Psychoanalysis”
“Motion to Invoke and Execute Rule 15—Retroactive Note: The Court’s School Days are Over”
“Motion for Skin Change Operation”
“Motion for Catered Food Service”

The court imposed restrictions on all future filings by the inmate.

Six degrees of separation? Forget about it. In Wheat v. Fraker (Ga. App. 1963), there weren’t any. The plaintiff, Doug Fraker, sued the defendant, Judd Wheat, for damages arising from an automobile collision. The jury returned a verdict for plaintiff and defendant appealed on the ground that (pay attention because this gets complicated) the wife of the foreman of the jury was the first cousin to the plaintiff’s wife. But, get this, she was also the second cousin of the defendant! How could any judge pass up the opportunity to have fun with this soap opera? Here are excerpts from the poetic opinion:

“Foul, foul play,” the defendant cried.
“That I by kinsman be not trammeled
Let the issue again be tried
Before another jury impanelled.”
...

“With juror mine adversary durst
Try the cause, whose wife is second cousin to my wife
And to plaintiff's wife a first.
A new trial, sire, I demand to settle strife.”

“No foul play do I find or see,”
The judge replied. “Foreman's wife to thine
And to plaintiff's wife may kinsman be,
but to Doug and thee no kinship do I find.

“Thus, it doth not appear
For any cause or reason told
That the juror was not thy peer
The case to try and verdict mold.”

“Moreover, when kinships we sought to learn
It doth not appear that as best befits
One who would a kinsman spurn
Thou revealed that cousin did on the panel sit.”
...

A fellow Torts professor sent me the citation to this unusual case:

Plaintiff was a worshiper at Shepard's Fold Church in Louisiana, where moving or running in the aisles "in the Spirit" apparently is a common practice. During a revival, a fellow worshiper ran down the aisle where plaintiff was kneeling and praying and knocked her down, causing injury. Plaintiff sued the worshiper and the church for negligence.

At trial, the defendant worshiper testified he was "‘trotting' under the Spirit of the Lord" and was not in control of his actions at the time of the collision. He raised "Act of God" as a defense and also asserted the plaintiff assumed the risk of the collision and was contributorily negligent.

The trial court dismissed the case, finding plaintiff assumed the risk of the collision by praying in the aisle with her eyes closed, a decision that was affirmed by the court of appeals. However, the Louisiana Supreme Court reversed. The opinion is a funny read, primarily because of headnotes like these:

[1] Negligence: Notwithstanding that worshiper testified he was trotting under the Spirit of the Lord, "Act of God" defense did not apply in action by worshiper who was injured while praying in the aisle against second worshiper who was running in church inasmuch as "Act of God" meant force majeure.

[14] Religious Societies: It is not contributory negligence to bow one's head while praying in church, whether in the pew or in the aisle.

In Searight v. New Jersey, the plaintiff, bless his psychotic heart, sued the State of New Jersey alleging that the state unlawfully injected him in the left eye with a radium electric beam. As a result, he asserted that someone began talking to him inside his brain. The court rejected the claim as time-barred by the statute of limitations, but also observed that proper jurisdiction for unlicensed radio communications would lie with the FCC. The court also offered plaintiff a self-help suggestion. Here's an excerpt from the opinion:

The allegations, of course, are of facts which, if they exist, are not yet known to man. Just as Mr. Houdini has so far failed to establish communication from the spirit world ..., so the decades of scientific experiments and statistical analysis have failed to establish the existence of 'extrasensory perception' (ESP). But, taking the facts as pleaded, and assuming them to be true, they show a case of presumably unlicensed radio communication, a matter which comes within the sole jurisdiction of the Federal Communications Commission, 47 U.S.C. § 151, et seq.

And even aside from that, Searight could have blocked the broadcast to the antenna in his brain simply by grounding it. See, for example, Ghirardi, Modern Radio Servicing, First Edition, p. 572, ff. (Radio & Technical Publishing Co., New York, 1935). Just as delivery trucks for oil and gasoline are 'grounded' against the accumulation of charges of static electricity, so on the same principle Searight might have pinned to the back of a trouser leg a short chain of paper clips so that the end would touch the ground and prevent anyone from talking to him inside his brain.

McClurg footnote: Sounds like poor Searight was suffering from schizophrenia. Schizophrenia is a cruel and scary neurological brain disorder that affects 2.2 million Americans. Should the court have made fun of Searight? Probably not. On the other hand, it's a pretty funny opinion. To learn more about schizophrenia, visit http://www.schizophrenia.com/.

The Kansas Supreme Court publicly censured a rhyming judge in a 1975 case for a tasteless piece of doggerel in which he publicly humiliated a woman arrested for prostitution. His poetic order was deemed to be in violation of the judicial ethical canon that states: "A judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom he deals in his official capacity."

Rather than perpetuate the judge's misdeed by setting forth the offending rhyme here, I'll let you look it up yourselves. Suffice it to say the judge repeatedly called the young woman a "whore" (in addition to having bad judgment, he should be chastised for being a lousy poet; all he could come up with to rhyme with it was "1974" — the year of defendant's arrest).

Perhaps the most interesting aspect of the case was the Kansas Supreme Court's commentary on judicial humor. In defense to the censure proceeding, Judge Rome cited several poetic judicial opinions and argued he should not be censured for following this grand judicial tradition. The court observed:

Judges have long been enjoined from the use of humor at the expense of the litigants before them for reasons which should be apparent. Under the heading of "Ancient Precedents" in the canons of judicial ethics adopted in 1924 by the American Bar Association this appears:

"Judges ought to be more learned than witty; more reverend than plausible; and more advised than confident. Above all things, integrity is their portion and proper virtue ...."

"Patience and gravity of hearing is an essential part of justice; and an over speaking judge is no well-tuned cymbal ...." — Bacon's Essay "of Judicature." (198 Kan. xi.)

In 1967 a long time member of the supreme court of Arkansas in advising new judges on opinion writing had more to say on the subject. We quote:
". . . Judicial humor is neither judicial nor humorous. A lawsuit is a serious matter to those concerned in it. For a judge to take advantage of his criticism-insulated, retaliation-proof position to display his wit is contemptible, like hitting a man when he's down." (Smith, A Primer of Opinion Writing, For Four New Judges, 21 Ark. L. Rev. 197, 210.)

Judges simply should not 'wisecrack' at the expense of anyone connected with a judicial proceeding who is not in a position to reply. ... Nor should a judge do anything to exalt himself above anyone appearing as a litigant before him. Because of his unusual role a judge should be objective in his task and mindful that the damaging effect of his improprieties may be out of proportion to their actual seriousness. He is expected to act in a manner inspiring confidence that even-handed treatment is afforded to everyone coming into contact with the judicial system.

Judge Samuel Kent in Galveston, Texas, has garnered a lot of attention for his somewhat abrasive opinion-writing style (scroll down for Judge Kent opinions). Opinion seems split in the legal community regarding Judge Kent. Some lawyers consider them hilarious. Some consider them inappropriate. Still others probably view them as a combination of both.

Professor Steven Lubet of Northwestern University law school recently weighed in on the issue with a piece called “Bullying from the Bench,” which appears in the newest issue of The Green Bag. As the title suggests, Professor Lubet takes issue with some of Judge Kent’s humor, particularly his ad hominem attacks on lawyers. Here’s a brief excerpt:

Federal judges exercise enormous power over lawyers and their clients. Armed with life tenure and broad discretion, a judge can do great damage to an attorney’s reputation and career, while the lawyer has almost no recourse. So when Judge Kent decided to torment the hapless counsel in the Bradshaw case [scroll down to “Could you love me a little less, Judge?” for excerpts from this opinion]—who are identified by name in the published opinion—he was taking aim at people who could not defend themselves. ...

In litigation, the judge is the maximum boss. Everyone else is a supplicant, compelled to engage in stylized demonstrations of obedience. We stand when the judge enters and leaves the room. Our “pleadings” are “respectfully submitted.” Before speaking, we make sure that it “pleases the court.” We obey the judge’s orders and we even say “thank you” for adverse rulings. ...

By belittling the lawyers who appear before him, Judge Kent used his authority to humiliate people who—in the courtroom environment—are comparatively helpless. There is a name for that sort of behavior, and it isn’t adjudication. It’s bullying.

Whether you love or hate Judge Kent's opinions, Steve’s essay is a worthwhile read.

In connection with an earlier posted rhyming opinion, I posed the question, “What do you think the judges would do if a lawyer submitted a poetic brief?” and suggested the response would be something less than favorable. But in Mackensworth v. American Trading Transportation Co., a judge responded as a good sport to some poetic pleadings submitted by counsel.

In Mackensworth, the plaintiff’s lawyer submitted a poetic reply brief, stirring defense counsel to reply poetically as well. U.S. District Judge Edward R. Becker decided to join in the fun as shown from the excerpts below. Although not set out below, the West headnote writers once again had a good rhyme time with the case.

The motion now before us has stirred up a terrible fuss.
And what is considerably worse, it has spawned some preposterous doggerel verse.
The plaintiff, a man of the sea,
after paying his lawyer a fee,
filed a complaint of several pages to recover statutory wages.

The pleaded facts remind us of a tale that is endless.
A seaman whom for centuries the law has called "friendless"
is discharged from the ship before voyage's end
and sues for lost wages, his finances to mend.

***

Plaintiff's counsel, whose name is Harry Lore,
read defendant's brief and found it a bore.
Instead of a reply brief, he acted pretty quick
and responded with a clever limerick:
"Admiralty process is hoary
With pleadings that tell a sad story
Of Libels in Rem-
The bane of sea-faring men
The moral:
Better personally served than be sorry."

Not to be outdone, the defense took the time
to reply with their own clever rhyme.
The defense counsel team of Mahoney, Roberts, & Smith
drafted a poem cutting right to the pith:

"Admiralty lawyers like Harry
Both current and those known from lore
Be they straight types, mixed or fairy
Must learn how to sidestep our bore.

For Smith, not known for his mirth
With his knife out for Mackensworth
With Writs, papers or Motions to Quash
Knows that dear Harry's position don't wash."

Overwhelmed by this outburst of pure creativity,
we determined to show an equal proclivity.
Hence this opinion in the form of verse,
even if not of the calibre of Saint-John Perse.

[Court proceeds to wax poetic about long arm jurisdiction, concluding with:]

Finding that service of process is bona fide,
the motion to dismiss is hereby denied.
So that this case can now get about its ways,
defendant shall file an answer within 21 days.

It must have been a slow day in the bankruptcy courts of South Florida when Judge A. Jay Cristol took pen in hand to address the case of In re Love:

Once upon a midnight dreary, while I pondered weak and weary
Over many quaint and curious files of chapter seven lore
While I nodded nearly napping, suddenly there came a tapping
As of some one gently rapping, rapping at my chamber door,
"Tis some debtor" I muttered, "tapping at my chamber door—
Only this and nothing more."
Ah distinctly I recall, it was in the early fall
And the file still was small
The Code provided I could use it
If someone tried to substantially abuse it
No party asked that it be heard.
"Sua sponte" whispered a small black bird.
The bird himself, my only maven, strongly looked to be a raven.
Upon the words the bird had uttered
I gazed at all the files cluttered
"Sua sponte," I recall, had no meaning; none at all.
And the cluttered files sprawl, drove a thought into my brain.
Eagerly I wished the morrow—vainly I had sought to borrow
From BAFJA, surcease of sorrow—
and an order quick and plain
That this case would not remain
as a source of further pain.
The procedure, it seemed plain.
As the case grew older, I perceived I must be bolder.
And must sua sponte act, to determine every fact,
If primarily consumer debts, are faced,
Perhaps this case is wrongly placed.
This is a thought that I must face, perhaps
I should dismiss this case.
I moved sua sponte to dismiss it
for I knew I would not miss it
The Code said I could, I knew it.
But not exactly how to do it, or perhaps some day I'd rue it.
I leaped up and struck my gavel.
For the mystery to unravel
Could I? Should I? Sua sponte, grant my motion to dismiss? While it seemed the thing to do, suddenly I thought of this.
Looking, looking towards the future and to what there was to see
If my motion, it was granted and an appeal came to be,
Who would be the appellee?
Surely, it would not be me.
Who would file, but pray tell me,
a learned brief for the appellee
The District Judge would not do so
At least this much I do know.
Tell me raven, how to go.
As I with the ruling wrestled
In the statute I saw nestled
A presumption with a flavor clearly in the debtor's favor.
No evidence had I taken
Sua sponte appeared foresaken.
Now my motion caused me terror
A dismissal would be error.
Upon consideration of § 707(b), in anguish, loud I cried
The court's sua sponte motion to dismiss under 707(b) is denied.

Give credit to the headnote writers at West. The job must be pretty boring, but they never miss a chance to spice it up a bit. Here's the West Reporter headnote for the case:

Bankruptcy 48

Sua sponte dismissal would be error,
Though authority in Code is there,
To eschew abuse of consumer debt,
As presumption for debtor must be met.

Pennsylvania Judge Mike Eakin is a poetic soul who specializes in opinions that rhyme.

Take, for example, Zangrando v. Sipula. Zangrando was walking her miniature poodles, Angel and Autumn, on the roadside when Mr. Sipula struck one of the dogs with his car. Zangrando sued Sipula for payment of the vet bills. Here’s just a short excerpt from Judge Eakin's rhyming decision, affirming the trial court's award of damages:

The car was coming much too close, something inside told her; the next thing Mrs. Zangrando knew, a poodle flew over her shoulder.

To appellee this was nothing short of an unmitigated disaster; the wingless Angel'd taken flight and ascended quickly past her.

In this brace of miniature poodles, neither one wide nor tall; one may have been named Autumn, but t'was Angel took the fall.

Don’t worry. Poor little Angel recovered from her injuries. A fundamental rule of writing rhyming judicial opinions—of which there are several in the annals of law—is that the injury be slight. The opinion wouldn’t be funny if it read: “When the doggie got squashed under the SUV’s wheels; it put a quick end to his plaintive squeals.”

Here are a couple of rhyming opinions from Pennsylvania Judge Mike Eakin:

In Busch v. Busch, he upheld a pre-nuptial agreement with the observation, “They wanted to marry, their lives to enhance, not for the dollars—it was for the romance. When they said, 'I do,' had their wedding day kiss, it was not about money—only marital bliss."

... and in Liddle v. Scholze, he rejected a contract claim by a buyer of emus (Liddle) against the seller (Scholze) after the emus (Nicholas and Savannah) failed to propogate. He blamed the emus: “The fault’s the emus’, not that of Liddle, or Scholze, or the court placed in the middle. Fruitless in Pennsylvania and Louisiana, the blame’s on Nicholas and Savannah."

Here's another classic order entered by the curmudgeony federal judge from Galveston (see "Judicial Distemper-ment," "Judge Kent Strikes Again" and "Galveston Pride" for others). This time we have a maritime personal injury case in which defense counsel moved for summary judgment on behalf of his client Phillips Petroleum. He won, but he's probably not feeling too good about it. Note that Judge Kent emphasizes that the lawyers for both sides are “likeable” and that he has “affection” for them. In the words of Judge Kent, put away your crayons, boys and girls, and get ready for a wild ride:

[Judge Kent begins the order by stating the case, then proceeds as follows.]

[T]he Court notes that this case involves two extremely likable lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway into Galveston, an effort which leads the Court to surmise but one plausible explanation. Both attorneys have obviously entered into a secret pact—complete with hats, handshakes and cryptic words—to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed. Whatever actually occurred, the Court is now faced with the daunting task of deciphering their submissions. With Big Chief tablet readied, thick black pencil in hand, and a devil-may-care laugh in the face of death, life on the razor's edge sense of exhilaration, the Court begins.

[The court discusses summary judgment law, followed by several caustic remarks about the quality of defense counsel’s (representing Phillips) filings, including the statement that “[a] more bumbling approach is difficult to conceive.” Then the court tears into plaintiff’s counsel.]

Plaintiff responds to this deft, yet minimalist analytical wizardry with an equally gossamer wisp of an argument, although Plaintiff does at least cite the federal limitations provision applicable to maritime tort claims. ... Naturally, Plaintiff also neglects to provide any analysis whatsoever of why his claim versus Defendant Phillips is a maritime action. Instead, Plaintiff "cites" to a single case from the Fourth Circuit. Plaintiff's citation, however, points to a nonexistent Volume "1886" of the Federal Reporter Third Edition and neglects to provide a pinpoint citation for what, after being located, turned out to be a forty-page decision. Ultimately, to the Court's dismay after reviewing the opinion, it stands simply for the bombshell proposition that torts committed on navigable waters ... require the application of general maritime rather than state tort law. ... The Court cannot even begin to comprehend why this case was selected for reference. It is almost as if Plaintiff's counsel chose the opinion by throwing long range darts at the Federal Reporter (remarkably enough hitting a nonexistent volume!). ...

Despite the continued shortcomings of Plaintiff's supplemental submission, the Court commends Plaintiff for his vastly improved choice of crayon—Brick Red is much easier on the eyes than Goldenrod, and stands out much better amidst the mustard splotched about Plaintiff's briefing. But at the end of the day, even if you put a calico dress on it and call it Florence, a pig is still a pig. Now, alas, the Court must return to grownup land. [Court resolves issue on its own.] ...

Take heed and be suitably awed, oh boys and girls—the Court was able to state the issue and its resolution in one paragraph ... despite dozens of pages of gibberish from the parties to the contrary! ...

After this remarkably long walk on a short legal pier, having received no useful guidance whatever from either party, the Court has endeavored, primarily based upon its affection for both counsel, but also out of its own sense of morbid curiosity, to resolve what it perceived to be the legal issue presented. Despite the waste of perfectly good crayon seen in both parties' briefing ... the Court believes it has satisfactorily resolved this matter. Defendant's Motion for Summary Judgment is GRANTED. ...

Good old Judge Samuel B. Kent down in the Galveston Division of the Southern District of Texas can be pretty funny (see "Judge Kent Strikes Again" and "Galveston Pride"), but I doubt if many lawyers in Galveston are laughing after his latest noteworthy order. In June 2001, he entered an order on a motion to transfer for improper venue. In denying the motion, he ripped into the lawyer who filed the motion, stating:

[A]ny person with even a correspondence-course level understanding of federal practice and procedure would recognize that Defendant's Motion is patently insipid, ludicrous and utterly unequivocally without any merit whatsoever. Worse, it is just plain blatantly wrong in light of the unambiguous language of a decades old federal statute and veritable mountains of case law addressing venue propriety.

Sound bad? It gets worse. Judge Kent went on to state that "Defendant's obnoxiously ancient, boilerplate, inane Motion is emphatically DENIED."

Believe it or not, it gets even worse than that. For the coup de grace, Judge Kent ended the order by disqualifying the lawyer from further appearing in the case "for submitting this asinine tripe."

I have a feeling Judge Kent might be getting a whole lot more motions to transfer venue, but then again, maybe not.

Here's another hilarious opinion from U.S. District Judge Samuel Kent in Galveston, Texas. The governments of several foreign countries sued American tobacco companies for health care costs allegedly caused by the defendants' product. In his inimitable way, Judge Kent sua sponte transferred the case to the District of Columbia.

The governments of Guatemala, Panama, Nicaragua, Thailand, Venezuela, and Bolivia have filed suit in [several geographically diverse locales in the U.S.] Why none of these countries seems to have a court system their own governments have confidence in is a mystery to this Court. Moreover, given the tremendous number of United States jurisdictions encompassing fascinating and exotic places, the Court can hardly imagine why the Republic of Bolivia elected to file suit in the veritable hinterlands of Brazoria County, Texas. The Court seriously doubts whether Brazoria County has ever seen a live Bolivian ... even on the Discovery Channel.
Though only here by removal, this humble Court by the sea is certainly flattered by what must be the worldwide renown of rural Texas courts for dispensing justice with unparalleled fairness and alacrity, apparently in common discussion even on the mountain peaks of Bolivia! Still, the Court would be remiss in accepting an obligation for which it truly does not have the necessary resources. ...

[T]he capacity of this Court to address the complex and sophisticated issues of international law and foreign relations presented by this case is dwarfed by that of its esteemed colleagues in the District of Columbia who deftly address such awesome tasks as a matter of course. ... Such a Bench, well-populated with genuinely renowned intellects, can certainly better bear and share the burden of multidistrict litigation than this single judge division, where the judge moves his lips when he reads ....

[I]t is the Court's opinion that the District of Columbia, located in this Nation's capital, is a much more logical venue for the parties and witnesses in this action because, among other things, Plaintiff has an embassy in Washington, D.C., and thus a physical presence and governmental representatives there, whereas there isn't even a Bolivian restaurant anywhere near here! Although the jurisdiction of this Court boasts no similar foreign offices, a somewhat dated globe is within its possession.

While the Court does not therefrom profess to understand all of the political subtleties of the geographical transmogrifications ongoing in Eastern Europe, the Court is virtually certain that Bolivia is not within the four counties over which this Court presides, even though the words Bolivia and Brazoria are a lot alike and caused some real, initial confusion until the Court conferred with its law clerks. Thus, it is readily apparent, even from an outdated globe such as that possessed by this Court, that Bolivia, a hemisphere away, ain't in south-central Texas, and that, at the very least, the District of Columbia is a more appropriate venue (though Bolivia isn't located there either).

Furthermore, as this Judicial District bears no significant relationship to any of the matters at issue, and the judge of this Court simply loves cigars, the Plaintiff can be expected to suffer neither harm nor prejudice by a transfer to Washington, D.C., a Bench better able to rise to the smoky challenges presented by this case, despite the alleged and historic presence there of countless "smoke-filled" rooms.

Ouch! A defendant in a breach of contract case apparently insulted the hometown and Southern pride of a federal district court judge in Galveston, TX, when it filed a motion to transfer venue in the case from Galveston to Houston based on forum non conveniens. Defendant’s motion was based on the fact that Galveston does not have a commercial airport into which defendant’s agents could fly. The nearest airport to Galveston is Houston’s Hobby Airport, 40 miles away. I think it’s fair to say the judge was somewhat less than sympathetic to defendant’s plight. Check out this skewering from Judge Samuel Kent:

Defendant should be assured that it is not embarking on a three- week-long trip via covered wagons when it travels to Galveston. Rather, Defendant will be pleased to discover that the highway is paved and lighted all the way to Galveston, and thanks to the efforts of this Court's predecessor, Judge Roy Bean, the trip should be free of rustlers, hooligans, or vicious varmints of unsavory kind. Moreover, the speed limit was recently increased to seventy miles per hour on most of the road leading to Galveston, so Defendant should be able to hurtle to justice at lightning speed. To assuage Defendant's worries about the inconvenience of the drive, the Court notes that Houston's Hobby Airport is located about equal drivetime from downtown Houston and the Galveston courthouse. Defendant will likely find it an easy, traffic-free ride to Galveston as compared to a congested, construction-riddled drive to downtown Houston. The Court notes that any inconvenience suffered in having to drive to Galveston may likely be offset by the peacefulness of the ride and the scenic beauty of the sunny isle.

As to Defendant's argument that Houston might also be a more convenient forum for Plaintiff, the Court notes that Plaintiff picked Galveston as her forum of choice even though she resides in San Antonio. Defendant argues that flight travel is available between Houston and San Antonio but is not available between Galveston and San Antonio, again because of the absence of a commercial airport. Alas, this Court's kingdom for a commercial airport! (fn) The Court is unpersuaded by this argument because it is not this Court's concern how Plaintiff gets here, whether it be by plane, train, automobile, horseback, foot, or on the back of a huge Texas jackrabbit, as long as Plaintiff is here at the proper date and time. Thus, the Court declines to disturb the forum chosen by the Plaintiff and introduce the likelihood of delay inherent in any transfer simply to avoid the insignificant inconvenience that Defendant may suffer by litigating this matter in Galveston rather than Houston.

fn. Defendant will again be pleased to know that regular limousine service is available from Hobby Airport, even to the steps of this humble courthouse, which has got lights, indoor plummin', 'lectric doors, and all sorts of new stuff, almost like them big courthouses back East.

In Fisher v. Lowe, the plaintiff sued defendant for driving his automobile into plaintiff's oak tree, damaging the tree. The Michigan trial court ruled in favor of the defendant and the Court of Appeals affirmed. Here is the court's actual opinion:

We thought that we would never see
A suit to compensate a tree.
A suit whose claim in tort is prest
Upon a mangled tree's behest;
A tree whose battered trunk was prest
Against a Chevy's crumpled crest;
A tree that faces each new day
With bark and limb in disarray;
A tree that may forever bear
A lasting need for tender care.
Flora lovers though we three,
We must uphold the court's decree.
Affirmed.

The court’s opinion prompted the usually staid headnote writers at West Publishing Co. to take their own poetic license. This one’s worth checking out in the Northwest Reporter. I'm all in favor of adding some levity to judicial opinions, but what do you think the judges would do if a lawyer submitted a poetic brief? Admire his creativity? Laugh heartily. Chew him out, impose sanctions, refer him to substance abuse counseling?