SE Texas Record

Monday, January 27, 2020

Legally Speaking: Some Judges Have the Write Stuff

By John G. Browning | Apr 12, 2011

In previous columns, I've written about judges who have enlivened their opinions with literary references, quoted from song lyrics, movies, and television shows, and even put their judicial opinions into verse.

While some have been criticized by their colleagues for seemingly making light of issues important to the litigants and the public at large, I believe these jurists are simply finding a creative way of achieving what judges should be striving for anyway—a ruling that communicates about a legal issue or doctrine in a manner that is informative, accessible, and memorable even to readers without law degrees.

A couple of years ago, for instance, I wrote of U.S. Supreme Court Chief Justice John Roberts' opinion in a criminal law case that departed from the usual dry, "just the facts, ma'am" recitation of what happened and instead channeled hardboiled detective novelists like Dashiell Hammett.

Recent events have shown that the judges I wrote about have plenty of kindred spirits on the bench. In Canada, Judge David Watt of the Ontario Court of Appeals is attracting attention for his writing style of late, which seems to owe more to Mickey Spillane's and Elmore Leonard's private eye paperback potboilers than to dusty old legal treatises.

For example, in a murder case from 2010, Regina v. Simon, Judge Watt introduced the case in no-nonsense fashion, writing: "Handguns and drug deals are frequent companions, but not good friends. Rip-offs happen. Shootings do too. Caveat emptor. Caveat venditor. People get hurt. People get killed. Sometimes, the buyers. Othertimes, the seller. That happened here."

In another opinion that overturned a domestic violence conviction in Regina v. Flores, Judge Watt wrote, "Early one morning in June, 2008, Melvin Flores closed the book on his relationship with Cindy MacDonald. With a butter knife embedded in Cindy's back. Fifty-three blunt force injuries."

Still other rulings by Judge Watt have abandoned dense legalese for crime genre prose, like the following:

"On a cold weekend in late January, 2010, the lengthy but brittle relationship among Michael Luciano, Colleen Richardson-Luciano, and James Cooper ended. Abruptly and violently. First, in Woodbridge. Then, in Egmondville. Two deaths. Colleen Richardson-Luciano died first. In Woodbridge, stabbed to death. A day later, James Cooper died in Egmondville. By asphyxia from strangulation." (Regina v. Luciano, May 2010)

"Tung Duong and Dung Ton fell out over money owed and product misappropriated in their business ventures in drugs, prostitution, and money-lending. Duong decided that he wanted Ton dead. Killed, along with Ton's wife, Bon Bui, if they were together. Arrangements were necessary. Money to finance the job. A killer or two to carry it out. A weapon. A place away from public view. An escape plan." (Regina v. Yumnu, October 2010)

"Explosions damage and destroy things. Sometimes, their victims are people. Like here. An explosion damaged and destroyed several buildings. Hurt some people too. And killed others. The explosion was preventable. If only . . ." (Regina v. Enbridge Gas Distribution and Precision Utility, Ltd., January 2011)

Judge Watts' writing style has drawn fire from critics who feel he's trying to titillate and entertain with his opinions rather than to provide a careful, reasoned consideration of the facts.

University of Windsor law professor David Tanovich describes Watt as "out of control" and speculates that a judicial disciplinary action may loom in his future. He insists that Watts' "style of writing serves to sensationalize and desensitize tragic facts and serious social issues."

University of Ottawa law professor Rakhi Ruparelia shares these concerns. Criticizing Judge Watts' recitation of the facts in the Flores case, Prof. Ruparelia writes "While making judicial writing more accessible is a laudable pursuit, in my view, this judgment simply trivializes the murder of a woman at the hands of an abusive partner."

I have two words of advice for ivory tower legal academics (many of whom have never stepped foot in a courtroom) quick to criticize judges who write in a less formal, pedantic style: lighten up.

Unlike law professors, whose heavily footnoted, densely written musings about theoretical rather than practical legal issues will be read by a limited audience consisting mainly of other academics, judges write for an audience that includes not only the practicing lawyers who will be guided by their opinions, but also the public that will be impacted by them.

Judges owe it to the society that they serve to render opinions in prose that is clearly written, free of legalese, and that people can understand and relate to on some level.

A good example of this is Texas' own Supreme Court Justice Don Willett, who's been known to sprinkle in some pop culture wisdom along with his legal reasoning. In his June 2008 concurring and dissenting opinion in FKM Partnership Ltd. V. Board of Regents of the University of Houston System, Justice Willett opined that the Court's ruling had treated the university "to a classic Inspector Clouseau moment."

He explained in a footnote his reference to the classic comedy "The Pink Panther Strikes Again;" in the scene, Inspector Clouseau (Peter Sellers) asks a hotel clerk if his dog bites and the clerk says no.

When the bumbling Clouseau goes to pet the dog, the animal bites him, prompting the detective to exclaim "I thought you said your dog did not bite." The clerk drily replies, "That is not my dog." (For interested readers, Justice Willett even provided a link to the movie scene itself on YouTube).

In an opinion the following June in Edwards Aquifer Authority, et al. v. Chemical Lime Ltd., Justice Willett again channeled classic comedy, making a reference to the "Seinfeld-ian nothingness" of a party's position.

But Justice Willett got plenty of attention from Star Trek fans and sci-fi geeks everywhere when he boldly went where no judge has gone before in his October 2010 concurring opinion in Robinson v. Crown Cork & Seal Inc.

In considering the question of whether the Texas legislature had overstepped its police power authority, Justice Willett wrote that "we recognize that police power draws from the credo that 'the needs of the many outweigh the needs of the few' . . . while this maxim rings utilitarian and Dickensian (not to mention Vulcan), it is cabined by something contrarian and Texan: distrust of intrusive government and a belief that police power is justified only by urgency, not expediency."

The judge's reference to a line from the movie "Star Trek II: The Wrath of Khan" was a topic of discussion on science fiction and Star Trek websites, but Justice Willett shrugs off such pop culture references.

He acknowledges that "A lot of legal writing, including judicial writing, is clunky and soul-crushingly dull. In my view, legal humor is not an oxymoron. The law, in fact, sometimes can be fun."

Such TV and movie references, he says, can sometimes advance the legal point he's trying to make in a manner more easily grasped by the reader.

Speaking from the standpoint of someone who cares about the public's understanding of the judicial system, and who has to read a lot of judicial opinions that fall into the "soul-crushingly dull" category, I welcome more judges like Judge David Watt and Justice Don Willett.

The law doesn't have to be boring.

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