Legally Speaking: Just Following Orders

John G. Browning Feb. 25, 2009, 3:31pm

An order from a court is a serious thing. It may direct the parties to a lawsuit to take certain action, or to refrain from conduct.

With a flick of his pen, a judge has the power to break up companies, seize assets, incarcerate individuals, and transform public institutions like schools and prisons.

Yes, court orders are serious things – but that doesn't mean that the judges writing them always take themselves too seriously.

Sometimes, the mandate from a court is unintentionally hilarious. In 2007, a criminal court in Naples, Italy, meant to take the case of an individual accused of counterfeiting Disney and Warner Brothers products very seriously. So seriously, in fact, that it issued summons for all damaged parties to appear at trial as witnesses.

Unfortunately, due to what was later described as a "clerical error," the list of witnesses ordered to appear included not only the companies and their legal representatives, but also such animated characters as Tweety Bird, Mickey Mouse and Donald Duck (whose images decorated the toys and other items that had been illegally reproduced).

While the court eventually rewrote the summons, Disney lawyer Cristina Ravelli was moved to quip "Let's hope the characters will not be prosecuted for failing to appear."

Usually, however, a judge knows just what he or she is doing when an order is issued, and can't help but inject a bit of levity into the proceedings. When he delivered his Sept. 18, 2007, order in a case denying a New Hampshire prison inmate's request for an injunction against certain culinary practices of the state Department of Corrections, U.S. Magistrate Judge James R. Muirhead could have chosen any number of approaches.

Inspired by pro se prisoner Charles Wolff's unconventional tactic of filing a hard-boiled egg as part of the injunction request, Judge Muirhead elected to channel Dr. Seuss:

"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!"

On other occasions, a judge may use his or her order as a way of getting the lawyers to stop taking themselves too seriously. Such was the case in May 2001 in a lawsuit involving the Citizens Coal Counsel and the National Mining Association.

Observing that a "recent heated exchange" between those litigants betrayed "a startling lack of sense of humor, or sense of proportion, or both," Judge James Robertson of the U.S. District Court for the District of Columbia ordered "that the parties lighten up."

Sometimes the court finds motivation in the childish behavior of the counsel themselves. In 2006, when the bickering attorneys on both sides couldn't even agree on a location for a deposition without asking the court to intervene, U.S. District Judge Gregory Presnell of Orlando, Fla., decided that the immaturity merited a solution worthy of a playground dispute. He ordered the lawyers to resolve their differences by playing a game of "rock, paper, scissors."

Frustrated by their inability to agree on a deposition site (even through both lawyers' offices were just four floors apart in the very same Tampa office building), Judge Presnell directed that, at a neutral site or on the courthouse steps, each "accompanied by one paralegal who shall act as an attendant and witness," the lawyers would engage in one game of "rock, paper, scissors," with the winner getting to choose the deposition location.

While there was no word on whether other forms of playground-inspired alternative dispute resolution were needed at trial, I can't help but wonder how effective the defense of "I know you are but what am I" would have been.

Judge Presnell isn't the only judge to step in to fill a void in civility. When confronted with a "Motion to Compel Acceptance of Lunch Invitation" in the 2006 case of Physicians Choice of Arizona, Inc. v. Miller, et al., Maricopa County, Ariz., Superior Court Judge Pendleton Gaines ordered the attorneys on both sides to go to lunch with each other.

Noting that plaintiff's counsel had extended a lunch invitation to the defense attorney "to have a discussion regarding discovery and other matters" (and even offered to pay), Judge Gaines first waxed literary in support of the motion. He quoted authors like Somerset Maugham and John Dryden in emphasizing the importance of conversation as a social tool.

Then the jurist got down to business, citing a number of restaurants "within easy driving distance of both counsel's offices," ordering that "[t]he lunch must be conducted and concluded not later than Aug. 18, 2006," and even specifying how the total cost of the bill - including appetizers, salads, entrees and a 20 percent tip – would be apportioned on a pro rata basis!

Some orders take the attorney to task over their lack of legal acumen instead of their civility. In his Feb. 21, 2006, "Order Denying Motion for Incomprehensibility," U.S. Bankruptcy Judge Leif Clark (Western District of Texas) bluntly stated that "The court cannot determine the substance, if any, of the Defendant's legal argument, nor can the court even ascertain the relief that the Defendant is requesting."

To add insult to injury, Judge Clark even added a footnote comparing the incomprehensible motion to the scene in the Adam Sandler movie "Billy Madison," in which a competition judge responds to a Billy Madison answer with the following lines:

"At no point in your rambling, incoherent
response was there anything that would even
be considered a rational thought. Everyone in
this room is now dumber for having listened to
it. I award you no points, and may God have
mercy on your soul."

Ouch! Of course, it might have helped if the defense lawyer had chosen a different title than "Defendant's Motion to Discharge Response to Plaintiff's Response to Defendant's Response Opposing Objection to Discharge."

Fortunately, frustration with lawyers doesn't always shine through a court's orders – sometimes it's school pride. Facing lawyers in a wrongful death case who couldn't agree on whether to take the deposition of Wal-Mart's corporate representative in San Antonio, Texas, or Bentonville, Ark., U.S. District Judge James Nowlin sympathized with Wal-Mart's hesitation at "being forced to enter the home state of the University of Texas, where the legendary Texas Longhorns have wrought havoc on the Arkansas Razorbacks with an impressive 55-21 all-time series record."

He also understood how the plaintiffs might feel trepidation about traveling to Bentonville, since "many residents of Arkansas are still seeking retribution for the 'Game of the Century' in which James Street and Darrell Royal stunned the Razorbacks by winning the 1969 National Championship."

Judge Nowlin ultimately ordered the deposition to take place at the Texas-Arkansas state line on the steps of the Texarkana Federal Building, with each party remaining on his or his respective side.

King Solomon would have been proud.

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

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