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Judicial opinions that entertain

As it is taught in law school, legal analysis and writing does not allow for a great deal of creativity from young lawyers.  Issue, Rule, Application, Conclusion (“IRAC”) is the modern roadmap and veering off the prescribed path is generally frowned upon for fear of appearing glib, insincere, or offensive.

The court’s opinion of our arguments and analyses ultimately carries the day, so lawyers are rightfully hesitant to do anything other than present those arguments clearly and concisely — or as a former writing professor always reminded us, “keep it simple, stupid.”

It is perhaps as a result of these limitations on legal practice that when lawyers ascend to the bench, they find freedom to introduce creativity and levity into their judicial opinions. I was reminded of this as I read a quote from Shakespeare while performing legal research recently.  See Huebner v. Dist. Ct. of Md., 62 Md.App. 462, 467 (1985) (tracing the history of trial by jury and noting that “Shakespeare observed that juries have been around ‘since before Noah was a sailor.’) (citing Twelfth Night, III (c. 1600)).

Briefly entertained by this narrative jaunt away from the likes of Judge Learned Hand and Dean Prosser, I dug deeper and discovered that judges and Justices across the country find inspiration from an eclectic group of muses.

It is a relief to find that despite the seriousness and importance of their roles, some judges still find time now and again to entertain.

  • Judicial Opinion as Detective Novel: From none other than Chief Justice Roberts of the Supreme Court came this dissent from a denial of certiorari in a case about probable cause:

North Philly, May 4, 2001. 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 fifteen, twenty drug busts in the neighborhood.

  • Judicial Opinions as Poetry: Many judges have taken to poetry to express their opinions, but my favorite was Judge Deborah Servitto of Michigan.  She granted summary judgment in favor of rapper Eminem against D’Angelo Bailey, a former classmate who claimed that Eminem invaded his privacy by rapping about him on one of his albums.  In an effort “to convey the Court’s opinion to fans of rap,” Judge Servitto summarized the case in her own 10-verse rap song, with such impressive lyrics as this:

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

  • Music Quotes: In addition to the rap above, courts have frequently resorted to musicians for lyrical assistance, though it appears to be a narrow slice of the music spectrum that is actually consulted: e.g., the Grateful Dead, Kerr v. Killian, 207 Ariz. 181, 182 (2004) (“We begin with a review of the ‘long strange trip’ that brought this case here.”) to Bruce Springsteen, Fleming v. Corr. Healthcare, 164 N.J. 90 (2000) (“[Plaintiff] remained the kind of person who ‘at the end of every hard earned day…[found] some reason to believe’]) to Jimmy Buffett, U.S. v. McDonald, 740 F.Supp. 757 (D.Alaska 1990) (agreeing to change the venue of the case because of a possible pending volcano and agreeing with Mr. Buffett that “I don’t know where I’m a-gonna go when the volcano blows”) to Jimi Hendrix, U.S. v. MHFA, 530 F.3d 980 (2008) (likening a false claims act claim to Hendrix’s “plaintive query: ‘Is this love, baby, or is it … [just] confusion?'”).
  • Movie Quotes: I expected a few tidbits of wisdom from the likes of Yoda in Star Wars, and was surprised when I found none.  I was more surprised by those who made the cut, such as Billy Madison, In re King, 2006 WL 581256 (Bkrtcy. W.D.Tex. 2006) (lamenting a nonsensical pleading by a pro se plaintiff by quoting a competition judge’s critique of Billy Madison’s debate answer, “Everyone in the room is now dumber for having listened to it.  I award you no points, and may God have mercy on your soul.”; Napoleon Dynamite, U.S. v. Kapp, 419 F.3d 666 (7th Cir.) (quoting Napoleon Dynamite as an example of the fascination in popular culture of the “liger.”); Caddyshack, Giuliani v. Duke Univ., L 1408869 (M.D.N.C. 20090 (“Plaintiff’s promissory estoppel claim, which was not argued in his brief, brings to mind Carl Spackler’s analysis from the movie Caddyshack (Orion Pictures 1980): “He’s on his final hole. He’s about 455 yards away, he’s gonna hit about a 2 iron, I think.”)

I suspect that most lawyers enjoy the occasional introduction of creativity and pop culture into judicial opinions, if for no other reason than to break the monotony of legal research.  However, I am sure there are many who believe that such opinions are not the appropriate forum for humor or self-indulgence.

Fortunately, there are opinions to entertain even those who do not desire to be entertained. Indeed, sometimes the best entertainment is no entertainment at all, such as with the straightforward, no-frills opinion in Denny v. Radar Ind., 28 Mich.App. 294 (1970), the embodiment of the “keep it simple, stupid” writing style.

That opinion, in its entirety, reads as follows: “The appellant has attempted to distinguish the factual situation in this case from that in Renfroe v. Higgins Rack Coating and Manufacturing Co., Inc. (1969). He didn’t. We couldn’t.”

4 comments

  1. For a funny footnote in a Maryland case, referencing The Pretenders, see Crosby v. State, 408 Md. 490

  2. Seems like a footnote or two from Judge Reinhardt’s recent dissent in Newdow deserves a mention.