Kentucky Judge Martin J. Sheehan was happier than a pig in … on second thought, we won’t try to imitate his unusual judicial writing style here. But he was darn happy that a case settled. How happy? Let’s hear it from him:
And such news of an amicable settlement having made this Court happier than a tick on a fat dog because it is otherwise busier than a one legged cat in a sand box and, quite frankly, would have rather jumped naked off of a twelve foot step ladder into a five gallon bucket of porcupines than have presided over a two week trial of the herein dispute, a trial which, no doubt, would have made the jury more confused than a hungry baby in a topless bar and made the parties and their attorneys madder than mosquitoes in a mannequin factor [the jury trial is cancelled].
Glad you’re pleased, Judge!
— Kisel v. Schwartz & Maines & Ruby Co., Case No. 09-CI-00165, Kenton Circuit Ct., Ky, Jul. 19, 2011. Thanks to Mary Mulherin, Andrei Bogos and others.
Ol’ Frank Zotter happened upon this little ol’ case and we reckon we’re mighty glad he did.
In State v. Knowles, the Missouri Court of Appeals, a good ol’ bunch of guys and gals from over in them parts, took up an appeal where the trial judge had tossed out a criminal information for receiving stolen property. Well, shucks, we’ll just let the court tell y’all about it:
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.
— State v. Knowles, 739 S.W.2d 753, 754 (Mo. Ct. App. 1987). Thanks to Frank Zotter.
Spouses now have to resort to old-fashioned eavesdropping in Alabama.
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 a U.S. Eleventh Circuit Court of Appeals 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?
— Glazner v. Glazner, 347 F.3d 1212, 1228 n.13, 1223 (11th Cir. 2003) (Edmonson, C.J., dissenting, and Carnes, J., concurring). Thanks to Lisa Lin.
David Cheifetz, Lawhaha’s friend from the north, sent in this Canadian court opinion about the judicial pecking order. David wrote:
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 (some paragraph breaks inserted):
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.
— South Side Woodwork (1979) Ltd. v. R.C. Contracting Ltd., [1989] A.J. No. 111, 95 A.R. 161 at 166–67 (Alta. Q.B.). Thanks to David Cheifetz.
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.
— Fleming Companies, Inc. v. U.S. Dep’t of Agriculture, 322 F.Supp.2d 744 (E.D. Tex. 2004). Thanks to Melanie Ware.
More appropriate publication vehicle than the Northeast Reporter?
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 that looks at whether the substance was one a consumer would reasonably expect to find in a prepared dish, but the Massachusetts Supreme Court 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 all products liability lawyers and anyone looking for a good fish-chowder recipe.
— Webster v. Blue Ship Tea Room, Inc., 198 N.E.2d 309, 312 (Mass. 1964). Thanks to Daniel Green.
U.S. Supreme Court Chief Justice John Roberts let loose his inner-Raymond Chandler.
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.
Because it’s the only case we know of where a U.S. Supreme Court justice, a conservative one at that, had fun in an opinion, this opinion joins the Strange Judicial Opinions Hall of Fame.
— Pennsylvania v. Dunlap, 129 S. Ct. 448, 448 (2008). Thanks to Joel Dipippa.
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. The motion giving rise to the order, after all, was the twentieth 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):
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.
— Garamendi v. Altus Fin. S.A., Case No. CV-99-2829 (CWx) (C.D. Cal, Feb. 10, 2005). Thanks to Michael Barclay
State v. Terrazas, a 1999 case out of the Texas Court of Criminal Appeals, turned on the meaning of a statement made by a state investigator to a defendant that led to the defendant confessing. The issue reminded dissenting Judge Price of a legal brainteaser from the movie Let Him Have It based on the controversial true story of a young man who was hanged for murder in 1953. Here’s Judge Price’s footnote on the matter (paragraph breaks inserted):
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 tip from this case is that it’s always smarter to always use nouns and articles rather than pronouns when responding to police commands.
— State v. Terrazus, 4 S.W.3d 720, 729 (Tex. Crim. App. 1999) (Price, J., dissenting). Thanks to Senior Judge James Barlow.
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 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 (and what elevated the case into the Strange Judicial Opinions Hall of Fame) 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.
— Devore v. City of Philadelphia, No. 00-3598, 2004 U.S. Dist. LEXIS 3635, at *7–8 (E.D. Pa., Feb. 20, 2004). Thanks to Cynthia Cohan and Professor Howard Wasserman.
