Legally Speaking: When Judges Get Cute

John G. Browning Aug. 27, 2008, 6:59am

In authoring a 1967 guide for new judges, Judge George Rose Smith of Arkansas admonished against displaying judicial humor, calling it "neither judicial nor humorous."

By 1990, however, Judge Smith had had a change of heart, calling his previous disapproval "hereby overruled, set aside, held for naught, and stomped on."

And while I recognize that many appellate courts deal with groundbreaking legal arguments, important constitutional issues, disputes worth vast sums of money and other weighty topics, judges can occasionally lighten up a bit. As someone whose job involves reading a lot of judicial writing, I appreciate the effective use of humor.

For some, brevity is the soul of wit. Judge John Gillis of the Michigan Court of Appeals would seem to agree with that approach. In the 1970 case of Denny v. Radar Industries, he wrote one of the shortest judicial opinions on record.

It said, "The appellant has attempted to distinguish the factual situation in this case from that in [another case]. He didn't. We couldn't. Affirmed. Costs to appellee."

Other judges find humorous inspiration in the subject matter of the lawsuit that comes before them. In Selmon v. Hasbro Bradley, Inc., a 1987 federal case from New York, the case revolved around a game featuring "whats" and "wuzzles." The judge was inspired to include not only some amusing drawings, but puns as well; positing the questions, for example, "Just what's a "What," what's the similarity between a 'What' and a 'Wuzzle,' and 'Wuzzle' we to about it?"

In a 1982 5th Circuit case (City of Houston v. FAA) concerning the federal ban on nonstop flights between Washington National Airport and any airport within a 1,000 mile radius, the judge authoring the opinion somehow managed to find a way to work in references to as many airlines and their slogans ("Fly the Friendly Skies," etc.) as possible.

Maybe readers should have expected it. Back in 1973, the same judge (John R. Brown) had fun with wordplay in Chemical Specialties Manufacturers Association v. Clark. In this case about regulation of the detergent industry, Judge Brown went out of his way to include references to as many different names of soaps and detergents as possible.

By way of example, here's a direct quote: "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 Clean the proper Action is that the Dade County Ordinance must be superseded, as All comes out in the wash."

This seems to have been a pattern with Judge Brown. In another 1982 case, Croft & Scully v. M/V Skulptor Vuchetich, he managed to weave in the names of various sodas.

Not to be outdone, another 5th Circuit judge, Justice Goldberg, had fun in 1994 in a bankruptcy case about the IRS trying to collect an overpayment to a Chapter 7 debtor named "Kellogg."

He wrote, "This case makes plain the proposition that Kellogg does not have a monopoly on flakes. Indeed, it is Kellogg's opponent, the United States Government acting through the Internal Revenue Service…which has committed two scoops of errors, allowing a case which should have been a snap, to dissolve into a series of crackles and pops."

For other judges, popular culture is a source of inspiration in issuing their rulings. The Indiana appellate judge in the 1992 case of Reuther v. Southern Cross Club Inc., decided to issue his opinion as a variation on the theme from the TV show "Gilligan's Island."

Florida federal Judge Paine, meanwhile, must have been a big "Wayne's World" fan. The 1992 opinion in Noble v. Bradford Marine Inc. is written with the "Saturday Night Live" sketch-turned movies in mind. Sections of the court's opinion bear such Michael Myers-inspired titles as "Hurling Chunks" and "A Schwing and a Miss."

The rest of the opinion reads like it was written by Wayne Campbell himself, holding that the defendant's "most bogus" attempt at removing the case to federal court is "not worthy," "way improvident," and ordering the defendant to "party on" in state court.

And Maryland's highest court, the Maryland Court of Appeals, recently invoked "Seinfeld" to explain why noted author Tom Clancy wasn't allowed to harm a partnership with his ex-wife simply out of spite. In a footnote, the court recited dialogue from an episode in which Jerry tells a store clerk that he's returning a jacket because he doesn't like the salesman who sold it to him. The clerk retorts "I don't think you can return an item for spite."

Yes, courts are quoting "Gilligan's Island," "Wayne's World," and now "Seinfeld" episodes – not that there's anything wrong with that.

The biggest movie fan on the federal bench though, is most likely Judge Alex Kozinski of the 9th Circuit Court of Appeals. The 1990 case of United States v. Syufy Enterprises concerned alleged violations of federal antitrust law by Ray Syufy, the owner of a chain of movie theaters in Nevada.

Seizing the opportunity in a case involving the film industry, Judge Kozinski cleverly worked movie reference upon movie reference into his opinion – so many that no one is exactly sure of the exact number! I've heard various figures, and the case has acquired somewhat cult status among lawyers and movie buffs alike; a group of law review editors at Brigham Young University School of Law even claim to have scoured the opinion and come up with the names of over 200 individual films contained within the 14-page ruling.

Yet other judges employ a touch of the acid pen and sarcastic wit in issuing their rulings. Sometimes, this venom is directed at fellow judges with whom they disagree. Such was the case in the 1979 California appellate case of People v. Arno. Subtly expressing his displeasure with one of his dissenting brethren, Judge Thompson included a footnote with an itemized list.

Taking the first letter for each of the items listed, it spells out "Schmuck."

For the most part, however, judges reserve the best of their sarcasm for the lawyers who come before them. If you don't believe me, just check out the following snippet from the 1991 case of Bradshaw v. Unity Marine Corporation, in which U.S. District Judge Samuel Kent of Galveston (a master of the poison pen) takes two lawyers to task:

"Before proceeding further, the 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."

Finally, we come to a judge whose creativity didn't rely on movie references, sarcasm, or clever puns. In 2006, shortly before the opening of the movie "The DaVinci Code," British High Court Justice Peter Smith presided over a contentious copyright infringement lawsuit brought against "DaVinci Code" author Dan Brown by two authors of the book "Holy Blood, Holy Grail."

Apparently, it wasn't enough for Justice Smith to simply rule against the two plaintiffs. Instead, he had to do so in style, embarking upon a flight of cryptological fancy as he delivered a 71-page ruling that contained a puzzle of its own – "the Smithy Code."

The first clue appeared in the typeface of the decision; while most of the ruling appeared in regular Roman letters, some letters stood out from the rest in boldface italics. The first 10 letters spelled out "Smithy Code," while the remaining 30 or so letters made up a jumble; according to other clues from the judge, mathematical techniques and other code-breaking methods used by "DaVinci Code" protagonists would provide the key for figuring out the encrypted message.

Just what does the "Smithy Code" reveal? I don't want to spoil it for you. Let's just say that when asked why he made up his own code and chose to embed it in his ruling, Justice Smith gave an answer that many judges can certainly relate to: it was, he said, "a bit of fun."

John Browning is a partner in the Dallas office of Gordon & Rees, LLP. He may be contacted at:

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