SOUTHEAST TEXAS RECORD

In earlier installments of this series ("When Judges Get Cute," "Lyrical Law"), we examined how judges have used song lyrics and humor in writing judicial opinions. In this final segment, we'll look at how judges over the years have employed rhymed verse in their opinions.

Before we do, however, let's acknowledge that the concept of judges displaying a lighter side in their writings � whether through humor, quoting from pop culture, or the use of poetry � has been a source of debate and controversy in the legal profession for years.

Writing in 1952, no less a figure than Dean Prosser opined that "The bench is not an appropriate place for unseemly levity. The litigant has vital interests at stake. His entire future or even his life, may be trembling in the balance, and the robed buffoon who makes merry at his expense should be choked with his own wig."

Echoing this sentiment, Justice George Rose Smith of the Arkansas Supreme Court wrote in 1967 that "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."

In 1975 the Supreme Court of Kansas publicly censured trial judge Richard J. Rome for writing an opinion in verse, holding that his ruling had not displayed the proper judicial courtesy to the litigant, and instead tended to hold her out to ridicule and scorn (the decision in question involved putting a prostitute on probation for soliciting an undercover police officer).

And the Supreme Court of Pennsylvania attracted national media attention in 2002 when it criticized one of its own, Justice Michael Eakin, for the propriety of using verse in his opinions, saying that could give the public the impression that the judiciary did not take the litigants' concerns seriously.

Chief Justice Zappala and Justice Cappy wrote separate concurring opinions taking Justice Eakin to task, with Justice Zappala cautioning that the use of rhyme "reflect[ed] poorly on the Supreme Court of Pennsylvania" and didn't reflect "the gravity of our constitutional responsibility to our citizens."

Other critics have asserted that when judges try their hands at being comedians or amateur poets, the result isn't that entertaining or funny anyway even as legal analysis gets shortchanged � resulting in failure on both fronts. Still other observers view the use of humor or verse by judges as a waste of taxpayers' money and an exercise in self-indulgence.

Marshall Rudolph characterized judicial humor as "an enfant terrible that, like any undisciplined child, amuses its inordinately tolerant judicial 'parents' at the expense and dismay of the rest of society." Mr. Rudolph even advocated amending the ABA Code of Judicial Conduct to ban humor in judicial opinions.

I submit, however, that employing humor, verse, or even popular song lyrics does not undermine the purpose of a judge's writing. One must keep in mind that judicial opinions are written to explain the resolution of a case, to place a case and its outcome in the context of past decisions, and to provide a precedent by which future rulings may be guided.

Unlike other lawyers, judges don't have clients for whom they are writing; their audience is the legal profession itself (the attorneys who will be guided by their rulings as well as the law students who will learn from them) and of course the public. In writing, judges should keep in mind that, as John Leubsdorf has observed, "A judicial opinion tells many stories and speaks with many voices."

Many opinions have been rightfully criticized for being dull or poorly written, with convoluted reasoning and impenetrable meaning. But they don't have to be that way. Far from rendering opinions an exercise in verbal narcissism or the judicial equivalent of a "kick me" sign for litigants, the use of humor or verse can help bring the dispute back down to earth and perhaps dispel some of the pre-conceived notions about the justice system.

In short, using humor, verse, or pop culture references humanizes judges and makes their opinions more accessible to the general public.

It can also capture the reader's attention. Writing in a nontraditional format makes a reader accustomed to a dry recitation of facts and reasoning take note and pay closer attention. For example, this October Chief Justice Roberts wrote a dissent in the U.S. Supreme Court case of Pennsylvania v. Dunlap, a fairly run-of-the-mill drug arrest case that raised issues about probable cause.

Had he written it in the legalese that pervades most opinions, scant notice would have been taken. However, Chief Justice Roberts chose to introduce the facts of the case as if he were channeling Dashiell Hammett or Raymond Chandler:

"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 15, 20 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."

Makes you want to read more, doesn't it? Clearly, the Chief Justice has a keen grasp of the concept that it's not enough for a judge to be right; to have an impact, he or she must also be read and remembered.

For many judges, then, employing poetry in crafting an opinion can seize a reader's attention while communicating a complicated fact pattern or legal concepts in a more accessible manner.

Consider, for example, how Judge Goldberg on the 5th Circuit set the tone for discussion of a dispute over a federal cotton subsidy program in U.S. v. Batson:

"Some farmers from Gaines had a plan.
It amounted to quite a big scam.
But the payments for cotton
Began to smell rotten.
T'was a mugging of poor Uncle Sam.
The ASCS and its crew
Uncovered this fraudulent stew.
After quite a few hearings,
The end is now nearing �
It awaits our judicial review."

In delivering the opinion in Fisher v. Lowe, a case involving property damage for an oak tree struck by a car, Michigan Court of Appeals Judge John Gillis paid homage to Joyce Kilmer's classic poem "Trees":

"We thought that we would never see
A suit to compensate a tree.
A suit whose claim in tort is prest
Upon a mangled tree's behest;
A tree whose battered trunk was prest
Against a Chevy's crumpled crest;
A tree that faces each new day
With bark and limb in disarray;
A tree that may forever bear
A lasting need for tender care.
Flora lovers though we three,
We must uphold the court's decree."

The previously-mentioned Pennsylvania Supreme Court Judge Michael Eakin incurred the wrath of his brethren for issuing opinions in verse, as in this excerpt from Porreco v. Porreco, about a prenuptial agreement and an engagement ring:

"A groom must expect matrimonial pandemonium
When his spouse finds he's given her a cubic zirconium
Instead of a diamond in her engagement band,
The one he said was worth twenty-one grand.
Our deceiver would claim that when his bride relied
on his claim of value, she was not justified
for she should have appraised it; and surely she could have,
but the question is whether a bride-to-be would have."

Sometimes, instead of introducing the reader to the facts of the case, judges sometimes use verse to explain its procedural history, as Judge Randall Evans did in Brown v. State of Georgia:

"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�
This case was once tried �
But should now be rehearsed
And tried one more time.
This case is reversed!"

Poetry is also occasionally employed to instruct or admonish attorneys, as in this limerick from federal judge Ronald Leighton of Tacoma, Wash. Reacting to a 465-page lawsuit (the title alone was 8 pages long) that was anything but the "short and plain statement" that the Federal Rules mandate, Judge Leighton wrote:

"Plaintiff has a great deal to say,
But it seems he skipped Rule 8(a).
His Complaint is too long,
Which renders it wrong,
Please rewrite and refile today."

That giant of American jurisprudence, Learned Hand, once described the work of a judge as an art, requiring the kind of craftsmanship and care one would expect from a poet or a sculptor. Like such artists, judges write with an audience in mind. A well-crafted opinion � the product of painstaking research and analysis � can only be enhanced when it communicates its reasoning in an understandable fashion to a broad audience.

Judicial opinions that use humor, poetry, or pop culture references show us that judges are just like us; their rulings are derived from an understanding of society and not a blind adherence to arcane legal principles, and consequently are more accessible.

As for those critics who still consider it unseemly or a breach of judicial decorum for judges to lighten up a bit in their writings, allow me to echo the sage advice of Justice Alex Kozinski.

In 2002, Judge Kozinski dismissed a complaint by Mattel (makers of the Barbie doll) that MCA Records had unlawfully used the name of its product in making and distributing the hit record "Barbie Girl." The concluding words of his opinion were "The parties are advised to chill."

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