Court Crosses Line in Making Fun of Mentally Ill Plaintiff

In Searight v. New Jersey, the plaintiff 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 terribly insensitive 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.

Sounds like poor Searight was suffering from schizophrenia. Schizophrenia is a cruel neurological brain disorder that affects 2.2 million Americans.  Lawhaha.com is a fan of judicial humor, but this one never should have seen the light of day. Many of the most unusual and sometimes amusing judicial opinions occur because of the unusual or weird parties involved. But this court went out of its way to humuliate Searight. In fairness, it was 1976. Society has much more awareness of and sensitivity to mental illness, although we still have a long way to go. Schizophrenia.com is a good source info about the condition suffered by people like Searight.

— Searight v. New Jersey, 412 F. Supp. 413, 414–15 (D.N.J. 1976). Thanks to Lihwei Lin.

This Judicial Humor Resulted in Censure

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 “[a] judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom he deals in his official capacity.”

We won’t  perpetuate the misdeed by setting forth the offending rhyme here. Suffice it to say the judge repeatedly called the young woman a “whore” (in addition to showing bad judgment, he should be chastised for being a lousy poet; that’s what he came up with to rhyme with “1974” — the year of defendant’s arrest).

The most interesting aspect of the case was the Kansas Supreme Court’s commentary on judicial humor. In defense to the disciplinary proceeding, the censured jurist cited to several poetic judicial opinions and argued he should not be censured for following in 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.

— In re Rome, 542 P.2d 676, 685 (Kan. 1975). Thanks to Lihwei Lin.

Funny or Bully Pulpit? (Kent)

Before his flame-out, Judge Samuel Kent in Galveston, Texas, garnered a lot of attention for his abrasive writing style. Opinion was split in the legal community. Examples are here, here, here and here.

Some lawyers considered his sarcastic, often rude and insulting opinions hilarious. Some considered them very unjudicial and inappropriate. Probably many others viewed them as a combination of both.

Professor Steven Lubet of Northwestern University law school weighed in on the issue with a piece called “Bullying from the Bench,” in The Green Bag. Steve took issue with 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 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.

Steven got it right, of course. The relationship between judge and lawyers is about as one-sided as it gets.  The judge holds all the cards. Sometimes lawyers deserve to get chewed out, but Kent was over the top.

— Steven Lubet, Bullying from the Bench, 5 Green Bag 2d 11, 12 (2001).

I Thought that We Would Never See A Judge as Tolerant as Thee

With several rhyming judges having fun with people’s cases, one must wonder what the judges would do if the shoe was on the other foot–if lawyers submitted rhyming court documents in a case, perhaps a poetic brief. Now we know! Well, at least with regard to one tolerant judge.

In Mackensworth v. American Trading Transportation Co., a judge responded as a good sport to some poetic pleadings submitted by counsel. For reasons unknown, 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 be a good sport and join in the fun. Although not set out in this excerpt, the West headnote writers once again had a good rhyme time with the case. Here are some excerpts from Judge Becker’s order:

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.

— Mackensworth v. Am. Trading Transp. Co., 367 F. Supp. 373, 374–75, 377 (E.D. Pa. 1973). Thanks to Lihwei Lin.

The Haunting of Bankruptcy Law

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. The West headnote at the end is funny.  But first, Judge Cristol’s take on Edgar Allan Poe’s haunting poem, The Raven, as applied to bankruptcy law:

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.

— In re Love, 61 B.R. 558, 558–559 (Bankr. S.D. Fla. 1986). Thanks to Professor Glenn E. Pasvogel.

Rhymin’ Eakin

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

In Zangrando v. Sipula, Zangrando was walking her miniature poodles, Angel and Autumn, when Sipula struck one of the dogs with his car. Zangrando sued Sipula for payment of the vet bills. Here’s 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 many in the annals of law—is that the injury be slight. The opinion wouldn’t be as amusing if it rhymed: “When the doggie got squashed under the SUV’s wheels; it put a quick end to his plaintive squeals.”

— Zangrando v. Sipula, 756 A.2d 73, 75 (Pa. Super. Ct. 2000). Thanks to Professor Coleen Barger.

More Rhymin’ Eakin

Here are a couple more 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.”

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.”

— Busch v. Busch, 732 A.2d 1274, 1278 (Pa. Super. Ct. 1999); Liddle v. Scholze, 768 A.2d 1183, 1186 (Pa. Super. Ct. 2001).

“Could You Love Me a Little Less, Judge?” (Kent)

Another ad hominem-laced love letter to lawyers from former U.S. District Judge Samuel Kent, Galveston, TX. This one was a maritime personal injury case in which defense counsel moved for summary judgment on behalf of his client Phillips Petroleum.

Note that, in insulting the lawyers throughout, Judge Kent emphasized that the lawyers for both sides were “likeable” and that he had “affection” for them:

[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 …

— Bradshaw v. Unity Marine Corp., 147 F. Supp. 2d 668, 670–72 (S.D. Tex. 2001). Thanks to Ira Rosenau.

More Judicial Distemper-ment (Kent)

Some believe the writings of impeached U.S. District Judge Samuel B. Kent, Southern District of Texas, are quite funny, but probably not many lawyers in Galveston were laughing after his June 2001 order on a motion to transfer for improper venue. Being Juge Kent, he couldn’t just deny the motion. He had to rip apart the lawyer who filed the motion:

[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.”

For the coup de grace, Judge Kent ended by disqualifying the lawyer from further appearing in the case “for submitting this asinine tripe.”

— Labor Force, Inc. v. Jacintoport Corp., 144 F. Supp. 2d 740 (S.D. Tex. 2001) (opinion subsequently withdrawn from bound volume).

Only Judge Kent Could Insult Six Nations in One Paragraph (Kent)

Here’s another widely circulated sarcastic opinion from former U.S. District Judge Samuel Kent, Galveston, Texas. Say what you want about Kent, and there is plenty to say, he was a clever writer.  And who else could insult six entire nations in a single paragraph (the first one below)?

The governments of several foreign countries sued American tobacco companies for health care costs allegedly caused by the defendants’ product. Judge Kent, in his inimitable way, 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.

— Republic of Bolivia v. Philip Morris Cos., 39 F. Supp. 2d 1008, 1009–10 (S.D. Tex. 1999). Thanks to Bob Van Voris.