Poetic Judges Archives - Andrew McClurg's

No Trial Delay for Solar Eclipse

U.S. District Judge Steven “Not So” Merryday denied an Assistant U.S. Attorney’s (AUSA) motion to delay a trial because a witness employed by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) had prepaid for a trip to view the August 21, 2017 solar eclipse in totality.

The court reasoned that the delay would “subordinate the time and resources of the court … to one person’s aspiration to view a ‘total’ solar eclipse for no more than two minutes and forty-two seconds.”

Can’t take issue with the result, but instead of just saying that, the magistrate–perhaps seeking his own two minutes and forty-two seconds of fame–penned a silly too-cute-for-words order built around Carly Simon’s 1972 hit “You’re So Vain.”

You may recall that Simon’s anonymous, self-absorbed antagonist (suspected to be Warren Beatty) “flew [his] Learjet up to Nova Scotia to see the total eclipse of the sun.” (Speculation has it that Carly was referring to the 1970 total eclipse that was viewable along the East Coast of the United States).

In his order denying the motion to postpone, Judge Merryday mocked the AUSA who filed the motion for “boldly mov[ing] … where no AUSA has moved before” and for “oddly” describing the eclipse “‘scheduled to occur,’ as if someone arbitrarily set the eclipse, as an impresario sets a performer to appear at a chosen time and place.”

He unnecessarily ridiculed the witness for his prepaid “personal indulgence,” again invoking the Carly Simon song, which featured this line immediately preceding “the total eclipse of the sun” line: “Well I hear you went to Saratoga, and your horse naturally won.”

When an indispensable participant, knowing that a trial is imminent, pre-pays for some personal indulgence, that participant, in effect, lays in a bet. This time, unlike Carly Simon’s former suitor, whose “horse, naturally won,” this bettor’s horse has–naturally–lost.

Meanwhile, he diminished the significance of a total solar eclipse as “just another astral event.” The rare August 21 total eclipse will be the first to travel from coast to coast within the United States in nearly 100 years.

–Order, United States v. Joseph Bishop, U.S. District Court, Middle District of Florida, Tampa Div., Case No. 8:17-cr-266-T-23JSS (Aug. 18, 2017) (Thanks to David Barman.)

LeAnn Rimes Rhymes

judge rhymes leann rimes — Judge used Leann Rimes tunes to solve her contract dispute.

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, one of the original legal humorists, 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

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

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.

— Rimes v. Curb Records, Inc., 129 F. Supp. 2d 984, 985–86 (N.D. Tex. 2001). Thanks to Melissa Williams.

Federal Judge and the Turtles are Happy Together

How can you not love U.S. District Judge William G. Young, chief judge for the District of Massachusetts, for his candor and willingness to come clean on an error he made in a case?

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 No. 1 on the Billboard charts the week of Mar. 25, 1967. I’m not sure this version (from a group of lawyers who call themselves the Bar and Grill Singers) poking fun at the high-mindedness of federal judges, will reach that level of success, 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.

— Suboh v. Borgioli, 298 F. Supp. 2d 192, 194 (D. Mass. 2004). Thanks to Michael Hirschowitz.

Dr. Seuss on Bankruptcy Law

Collier on Bankruptcy — No, not this bankruptcy expert. The other one.

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 one of the foremost experts in bankruptcy. Nope, not Collier.

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. Rumor has it the Cat in the Hat appeared pro hac vice on behalf of the debtor.

— In re Riddle, 344 B.R. 702, 703 (Bankr. S.D. Fla. 2006). Thanks to Kevin McDowell.

Dr. Seuss Poet Laureate to Federal Judiciary?

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 (see “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.

— Wolff v. New Hampshire Dep’t of Corrections, Civil No. 06-cv-321-PB, 2007 WL 2788610 (D.N.H. Sept. 18, 2007). Thanks to everyone who sent this in.

The Judge Who Rhymed for a Reason

In Brown v. State, Judge Randall Evans, Jr. not only wrote one of the earliest in the long line of rhyming judicial opinions, he did it for a good reason. As he explained in a footnote:

This opinion is placed in rhyme because approximately one year ago, in Savannah at a very convivial celebration, the distinguished Judge Dunbar Harrison … arose and addressed those assembled, and demanded that if [I] ever again was so presumptuous as to reverse one of his decisions, that the opinion be written in poetry.

This back story puts the opinion a cut above the usual rhyming opinion. You gotta love a judge who takes on such a challenge from a colleague after a couple of drinks (I assume that’s what “a very convivial celebration” means) and honors it.

To his further credit, Justice Evans conceded he is “not a poet, and the language used, at best, is mere doggerel” and also insisted that it’s really hard to write a rhyming judicial opinion. Here’s a taste of the opinion (several verses omitted, but I tried to keep the general thread). But the funniest part is that he wrote it at all. He even specifically mentions Judge Harrison:

The D. A. was ready

His case was red-hot.

Defendant was present,

His witness was not.

He prayed one day’s delay

From His honor the judge.

But his plea was not granted

The Court would not budge.

So the jury was empaneled

All twelve good and true

But without his main witness

What could the twelve do?

…

‘What verdict, Mr. Foreman?’

The learned judge inquired.

‘Guilty, your honor.’

On Brown’s face—no smile.

‘Stand up’ said the judge,

Then quickly announced

‘Seven years at hard labor’

Thus his sentence pronounced.

‘This trial was not fair,‘

The defendant then sobbed.

‘With my main witness absent

I’ve simply been robbed.’

‘I want a new trial—

State has not fairly won.’

‘New trial denied,‘

Said Judge Dunbar Harrison.

…

So the case has reached us—

And now we must decide

Was the guilty verdict legal—

Or should we set it aside?

…

Was one day’s delay

Too much to expect?

Could the State refuse it

With all due respect?

…

We’ve considered this case

Through the night—

through the day.

As Judge Harrison said,

‘We must earn our poor pay.’

This case was once tried—

But should now be rehearsed

And tried one more time.

This case is reversed.

— Brown v. State, 216 S.E.2d 356 (Ga. Ct. App. 1975)

Should Have Ordered the Green Eggs and Ham

A dispute over the quality of a breakfast sausage at a Denny’s restaurant adds to the burgeoning inventory of rhyming judicial opinions. The ridiculous disagreement that gave rise to the case is more amusing 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.

On appeal, 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!

$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. Maybe judges should be required to attend poetry writing classes before being sworn in.

— Amicone v. Shoaf, 620 A.2d 1222, 1223 (Pa. Super. Ct. 1993). Thanks to Melanie Ware.

Should Judges Rhyme?

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. We love ya. Other Justice Eakin rhymes can be found here.

— Commonwealth v. Noel, 857 A.2d 1283, 1291 (Pa. 2004) (Eakin, J., dissenting). Thanks to Kelly Jordan.

Sing This Tax Opinion with a Twang

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.

— Jenkins v. Comm’r, 47 T.C.M. (CCH) 238 (T.C. 1983). Thanks to Professor Jose Gabilondo.

The Real Slim Shady Is Not a Michigan Trial Judge

Michigan Circuit Court Judge Deborah Servitto 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.”

— Bailey v. Mathers, Case No. 2001-3606-NO, slip op. at 13 n. 11 (Macomb County Circuit Court, Oct. 17, 2003). Thanks to Jason Blalock, Geoff Brown, Mark Rodan, and Melanie Ware.