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Most Self-Indulgent Legal Opinion?:
There seems to be a trend towards judges needing to prove oh-how-funny and oh-how-witty they are by writing legal opinions that just scream, "look at me! look at me!"

  The latest example is a separate opinion yesterday in a Florida state appellate court decision, Funny Cide Ventures v. Miami Herald. The opinion, by Judge Farmer, is a meandering waste of 8-pages of West Reporter. Its primary goal seems to be to impress readers with just how clever and entertaining Judge Farmer can be.

  Fortunately, the other two judges on the panel, Judges Stone and May, had the restraint and common sense not to sign on to Judge Farmer's wannabe Green Bag submission. As best I can tell, they forced Judge Farmer to write a two-page traditional opinion rejecting the lawsuit (which was completely frivolous). Farmer then labeled that opinion "per curiam," and added on his submission as a separate opinion along with an explanation of what happened.

  To be clear, I really enjoy clever and well-written legal opinions. Once in a while, a joke in a legal decision can be really well-done and harmless (and can even advance an argument). And yes, I'm sure a lot of people find this sort of thing entertaining. But legal decisions are government documents; they are statements from the judiciary as to the rules that govern our affairs. Maybe I'm just old-fashioned, but I would rather judges err on the side of writing clear, short, and direct opinions rather than trying to impress us with how funny they can be.

  Thanks to the WSJ Law Blog for the links.
BruceM (mail) (www):
I've always argued that all judicial opinions sould have to be in iambic pentameter.

I don't think the judge was trying to be funny (there are no jokes). Only different, breaking up the ennui of writing opinions. He tried to write it like a short story, not like a joke. If it were in iambic pentameter, it would have been great.
5.17.2007 2:40pm
a guest:
i'm of three minds

(1) he's wrong that all the procedural stuff and dates are useless. they are useless from the perspective of the parties and immediate readers. they are incredibly useful to future practitioners trying to nail down questions of process or procedure that aren't squarely presented in any case.

(2) i like the breezy style of the analysis section. i actually think it works fairly well. the usefulness of writig in the more ordinary way, though, is that practitioners know how to read it, know what to expect, etc. saves everyone time and effort. i think perhaps a 90%-10% ratio of cases written like this vs. cases written like usual might be a beneficial change.

(3) the facts section is simply goofy.
5.17.2007 2:42pm
FantasiaWHT:
Anybody know the case... it was in my Torts casebook (the blue kind) from a New York Supreme court judge, about a cab driver who was taken hostage at gunpoint and told to drive, but he jumped out of the car and the car hit a bystander? The case was written in a (bad) Shakespearean style, and referenced many many literary works... I always wondered if the judge just wrote like that knowing it was the only way a lowest-court opinion like his was ever going to be read.
5.17.2007 2:52pm
Eric @ New York Personal Injury Law Blog (www):
It was a good critique of judicial writing. The particulars of this case were of secondary importance.
5.17.2007 3:00pm
Zathras (mail):
Fantasia--
That's Cordas v. Peerless Trans. Co. The first 2 sentences:
"This case presents the ordinary man--that problem child of the law--in a most bizarre setting. As a lowly chauffeur in defendant's employ he became in a trice the protagonist in a breach-bating drama with a denouement almost tragic."
5.17.2007 3:00pm
TRE:
Short, clear, and direct opinions? Is there such a thing?
Aren't opinions naturally longer than they should be almost all the time? Judges don't want to leave anything out, and err on the side of length almost all the time don't they?
5.17.2007 3:01pm
elChato (mail):
Looks like a sad attempt at channeling Posner and Justice Blackmun (recall his Flood v. Kuhn opinion).

I am all for improving over the clunky old-school style of opinions padded with irrelevant background, or rote recitation of legal principles that don't control the outcome. However, Judge Farmer has not shown us a better way- and his per curiam was fine.

It's nice to occasionally see the sort of breezy essays we often get from Posner, Easterbrook, or Kozinski. They are a great vehicle for the writer's style, and usually explain the core issues very well. Every opinion can't be that way without sacrificing clarity however. Judge Farmer's opinion has none of the virtues of that style of opinion-writing however.
5.17.2007 3:04pm
Zathras (mail):
The length of judicial opinions has been an issue for almost a century now. See Leach, The Length of Judicial Opinions 21 Yale L.J. 141 (1991). In this article he quotes a New York state senator who says, "The mass of judicial reports . . . has grown so great that it begins to seem we shall have to burn our books like the Romans and being anew."

The article goes on with some refreshing common sense:
"...[R]estating settled law in new forms, however well it is done, complicates rather than simplifies the administration of the law, that the briefest of opinions usually answers the purpose of the original case...."

It's a great (and short--6 pages) article.
5.17.2007 3:15pm
Zathras (mail):
Oops--that article is from 1911, not 1991.
5.17.2007 3:15pm
Steve:
I dunno. I kinda like the fact that judges get quirky every once in a great while. Sure beats the heck out of judges who give you a boilerplate decision that makes you wonder if they even understood the arguments.
5.17.2007 3:18pm
anonVCfan:
Wow. I think this may be the worst judicial opinion I've ever read. It's not even funny.

For every Easterbrook/Posner/Selya/Scalia/Kozinski who can write a good, clear judicial opinion with a bit of style or an occasional zinger, there are tens or hundreds of people who try to add wit to their opinions and end up with results like Judge Farmer's
5.17.2007 3:20pm
anonVCfan:
Prof. Kerr's post title says it all, I think. This is self-indulgence at its worst, not style or wit.
5.17.2007 3:22pm
CrazyTrain (mail):
As anyone who clerked on the Ninth Circuit (except for those you clerked for Kozinski natch) can tell you (and I clerked for a very conservative judge), this is why just about all the judges on the 9th don't like Kozinski's opinions, and why most of them loathe the day he becomes Chief Judge. He always writes opinions like this -- at least four or five a year so it's not just in the occasional case. The best example is the one where he used movie names for everything --- in law school we were all taught how clever that opinion was. Apparently, one of the judges who signed it (conservative -- not my judge who was not on the panel) was super pissed about it because he didnt realize what kozinski was doing and would not have signed it otherwise. It was a multi-million dollar dispute affecting tons of people and jobs, etc., yet to Judge Kozinski it was all a big joke. Funny.
5.17.2007 3:25pm
alkali (mail) (www):
a guest writes:

he's wrong that all the procedural stuff and dates are useless. they are useless from the perspective of the parties and immediate readers. they are incredibly useful to future practitioners trying to nail down questions of process or procedure that aren't squarely presented in any case.

To the parties, I think they serve the purpose of making clear that the court understood the posture of the case, and wasn't making a decision based upon on a misreading of the record. That happens sometimes.

CrazyTrain recollects:

... It was a multi-million dollar dispute affecting tons of people and jobs, etc., yet to [the judge writing the opinion] it was all a big joke.

It's positively painful for a practitioner to have to explain a "quirky" opinion to a client. Clients can accept adverse results, but not if they think that the court didn't take their position seriously.
5.17.2007 3:38pm
Felix Sulla (mail):
If the judge wrote like that all the time, it would be a problem. The occasional opinion like that is harmless, particularly in a case where the legal theory was such a joke to begin with. I think a lot of people need to lighten up, they may be government documents, but that does not mean opinions have to be (as Mark Twain once called a certain religious text) chloroform in print.
5.17.2007 3:40pm
PithHead:
Does anybody other than law students and professors actually read the whole opinion? Most practicioners look for the holding and maybe some pithy supporting language. Apart from that, the judge (or clerk?) can be as amusing as he or she likes, but it's an intellectual masturbatory experience. Kind of like blog comments...
5.17.2007 3:47pm
Been there:
I think Cordas was written that way because the judge was a Damon Runyon fan back when people read Damon Runyon.

We read it in the casebook now, not because it's a seminal opinion but because it's not just another boring old opinion. That makes it easier to remember the point of the opinion (that a "reasonably prudent person" can act differently in an emergency).

This is the same reason we have four different cases of people slipping on banana peels to demonstrate circumstantial evidence of negligence, and all sorts of large items falling out of windows to demonstrate res ipsa loquitur.
5.17.2007 3:51pm
Benefit of the Doubt?:
How much of readers' reactions to this opinion would change if the author was "POSNER," and not "FARMER"? In other words, how much of our preconceptions of a person contribute to our ultimate judgment of them?

Judge Farmer is a state court judge --- that alone may cause some to think less of him (even before reading the opinion). Posner is a well-known and respected judge --- surely he'll get the benefit of the doubt (as he should) had he wrote this sort of opinion. I'm, of course, not suggesting that an unknown judge should get the same benefit of the doubt that Posner gets; but, at least, he shouldn't get a "cast of the doubt" based on one's perceptions of him. I just have a funny feeling that people's preconceptions of this judge (an unknown, state court judge) is playing a large part in their judgments of his opinion.
5.17.2007 4:15pm
Kenvee:
PithHead,

I read the entire text of every controlling case in my jurisdiction, at least in criminal law. (USSC, state SC, and my district) You can find some great gems hidden in there, and I think it's ineffective to do nothing but skim the holding of every case.

I thought Judge Farmer's introduction and discussion of the problems inherent in legal writing was very interesting. The opinion itself, however, is purely awful. I'm not surprised the other judges refused to sign onto it!
5.17.2007 4:17pm
Dave N (mail):
Unfortunately, Judge Farmer can't write like Judge Posner (or Judge Easterbrook or Justice Scalia). And I agree with OK that this was indulgent on Judge Farmer's part.

However, Judge Farmer does have a point in that many legal opinions are poorly reasoned and not particularly well-written. That said, Judge Farmer should have complained in a law review or a bar journal and not in a West Reporter.
5.17.2007 4:20pm
OrinKerr:
Benefit of the Doubt?,

Actually, I am even more annoyed when judges that are well-known pull these kind of stunts. But usually they are not this far off the reservation.
5.17.2007 4:25pm
BruceM (mail) (www):
I recently had a District Judge issue an opinion denying various motions to suppress in a multi-defendant, multi-count case full of poker terms. Each section of the opinion was subtitled "The Flop" "The River" "The Hand" "The Ante" "The Fold" etc. Poker terms were throughout the opinion. I co-represented one of the defendants. I thought it was clever, my co-counsel was really annoyed (for what it's worth he is much older than I am).

I don't have empirical evidence to support this, but I think appellate courts are more hesitant to overturn a cleverly written opinion, regardless of it's legal validity. An opinion written in a great rhyming scheme that obviously took a long time and a lot of thought to prepare simply is not going to readily be overturned.
5.17.2007 4:44pm
cmn (mail) (www):
CrazyTrain: If the judge who signed the Syufy opinion read it and didn't realize what Kozinski was doing, doesn't that simply indicate that the inside joke did not in any way detract from the content or facial clarity of the legal analysis? If an opinion fails to do a good job of addressing the issues and explaining the outcome, then it is a bad opinion. If in addition it appears that the judge failed to do these things because he or she was too busy being cute, then the litigants would indeed have a right to feel insulted as well as shortchanged. Or even if the opinion is facially sound, but expresses a flippant attitude toward the parties and their interests, I could see cause for offense. If an opinion commits neither of those sins, then the appropriateness of the humor I think depends on its quality. Jokes that are irrelevant, forced or that simply fall flat detract from the quality of an opinion as they do from that of any writing. If the use of movie titles in Syufy had been overt, it would have quickly become forced and groan-inducing. It's only the fact that it's so subtle you don't really notice it unless you're looking that makes it humorous. I don't think the addition of this extra layer to an inherently sound opinion is just cause for offense, though I don't doubt that the losing side took it as one. Anyway, Kozinski isn't the only 9th Circuit judge with his own stylistic quirks. I certainly don't hold Judge Fernandez's occasional bouts of overtly gratuitous wordplay against him, and indeed used to keep a running list for my own edification of the sesquipedalian vocabulary builders with which he likes to pepper his opinions. De gustibus, I guess.

(Full disclosure: I am an ex Kozinski clerk, though I wasn't there when Syufy was decided.)
5.17.2007 5:04pm
FC:
I'm always amazed more people don't think the law is a big joke. See e.g. Wickard v. Filburn.
5.17.2007 5:09pm
David M. Nieporent (www):
CrazyTrain: you must be thinking of some other case. Syufy was a meritless case brought by a U.S. Attorney with too much free time and not enough economics textbooks on his hands. (It's true, I suppose, that it had potentially serious consequences for Syufy himself, but since Kozinski ruled in his favor, I doubt he was offended by the little joke Kozinski played in writing the opinion.)
5.17.2007 5:23pm
bc:
maybe this was inspired by kurt vonnegut's recent passing. the style, if not the content, is similar.
5.17.2007 5:37pm
Random Lawyer:
I had a CrimLaw professor who used to say that the purpose of an opinion was to explain to the losing side why it did not prevail, at least in the immediate sense. I agree that they are helpful to lawyers in the future.

But the purpose of this opinion was to promote its author. The cavalier and informal style did not help the administration of justice, it did not help the losing party understand why it did not prevail, and it did not contribute a meaningful enough statement of law to be anything but an ordinary case to the rest of us. But, the judge obviously wanted to be in the spotlight, which is very easy for him to do, I suppose, because it is not his money, life, or liberty on the line. It's just another case that he decided to amuse himself with by putting his cleverness on exhibition for all to see.
5.17.2007 5:41pm
Lawyer Lal:
Kozinski is pretty self-indulgent, but then it looks like he paid the price for it when O'Connor resigned.
5.17.2007 5:53pm
David M. Nieporent (www):
RandomLawyer: I didn't think this was particularly funny or interesting or well-written, so I don't defend it. But this wasn't the opinion of the court, so the fact that it "did not help the losing party understand why it did not prevail" seems a little trivial of a complaint.

First, I would hope the losing party understood why it did not prevail: its theory of damages was frivolous. Second, the trial court presumably explained why the loser didn't prevail, and the per curiam opinion did also.

This was gratuitous and self-indulgent, to be sure, but it did not hinder the court's main purpose as your Prof identified it.
5.17.2007 6:03pm
Alex 2005 (mail):
Orin,
And what should we do about this? The 7th Circuit includes a footnote about easterbrook's brother and "monday morning quarterbacking" in a habeas opinion - perhaps not the right time for levity. And isn't it fair to say that your former boss is one of the biggest blowhards in the judiciary? So, we get people with talent who don't need to flaunt it, and we get the mediocre who try to pass showiness for talent. Big deal.
5.17.2007 6:05pm
Bruce:
Maybe we're all missing the point. This might be Andy-Kaufman-style humor. After all, the name of the horse was "Funny Cide" -- i.e., the death of funny.
5.17.2007 6:09pm
Alex 2005 (mail):
Actually, I may have misspoke - the 7th Circuit case I reference might have been on direct appeal - though that's not entirely clear. (The court addressed a Strickland claim which I understand is usually addressed in the context of habeas motion rather than on direct appeal.) Nevertheless, a man is going away for potentially 276 months (nearly 14 years), and I just don't see the appropriateness of levity in this context.

And if Orin really wants to harp on bad opinion writing by appellate courts, how about focusing a little of that anger on their frequent inattention to and misapplication of standards of reveiw.
5.17.2007 6:17pm
F. Reede (mail) (www):
The highlight:

8. See n.8.
5.17.2007 7:17pm
Alex Blackwell (mail):
I wouldn't limit it to this side of the pond. Remember the opinion in Baigent and Leigh v Random House Group (aka The Da Vinci Code Plagiarism Case), where Mr. Justice Peter Smith of Her Majesty's Courts Service (HMCS) High Court Chancery Division had a little fun of his own by hiding a coded message in the body of the opinion.
5.17.2007 7:20pm
OrinKerr:
Alex 2005,

I'm afraid I don't understand your point: I can't tell if you agree with me, disagree with me, or want me to write a post on a different topic.
5.17.2007 7:26pm
Durendale (mail):
The late Circuit Judge Richard Arnold: one of the all-time greats for clear, unpretentious legal opinions.

See also George R. Smith, A Primer of Opinion Writing, for Four New Judges, 21 Ark. L. Rev. 197, 210 (1967) ("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."). Justice Smith's opinion about humor mellowed somewhat later on, but the advice is still largely applicable.
5.17.2007 7:34pm
Scipio_79:
maybe the judge has some spare time and wanted to take a jab at being creative. he was also showing the absurdity of the case by being absurd himself.
5.17.2007 7:34pm
Alex Blackwell (mail):
Sorry for being not be clear, Orin. Actually I agree with you (viz., "...legal decisions are government documents; they are statements from the judiciary as to the rules that govern our affairs."). I enjoy reading judicial opinions laced with literary allusions, historical references, metaphors, or even sarcasm (e.g., a sharply-barbed Scalia dissent). Encoding messages, however, is a bit over the top.
5.17.2007 7:42pm
Alex Blackwell (mail):
Sorry for being not be clear, Orin.

Oops. I typed too quickly. Of course, that should read: "Sorry for not being clear, Orin."
5.17.2007 7:45pm
ReaderY:
It was an experiment, not all experiments turn out well, no need to do any hand-wringing or belaboring.

I personally think that when a party files a really and truly frivolous lawsuit or appeal, the judges are entitled to a few frivolous liberties at the party's expense, but that wasn't that sort of opinion.
5.17.2007 7:58pm
Q the Enchanter (mail) (www):
I agree only to the extent that Farmer's opinion suffers a lack of sufficiency of funny; I see no reason to think a serious and good legal opinion couldn't be written consisting entirely of jokes. (Apologies to Wittgenstein.)

At all events, I sure hope you don't ever end up in front of Judge Farmer, Orin.
5.17.2007 8:11pm
blackdoggerel (mail):
Alex Blackwell -- I don't think Prof. Kerr was referring to you.

Alex 2005 -- I do think Prof. Kerr was referring to you, and I think that was his subtle way of saying you don't call someone's former Justice a "blowhard." I admire his restraint in not ripping into you more explicitly.
5.17.2007 8:52pm
Alex Blackwell (mail):
Thanks, blackdoggerel. I realized that after I had posted.
5.17.2007 9:15pm
spectator:
It seems to me that this moral decay is very far-reaching, and many more symptoms from all sectors of society could be found. For example, the head of state publically insults himself at the White House Correspondents dinner every year.

Perhaps we are forgetting that power and authority are not the same, and that a government can lose the latter while keeping the former.
5.18.2007 3:58am
Alex 2005 (mail):
Orin: My point is there are a lot of other deficiencies in appellate opinion writing that you could focus your energies on. And some are more pressing than others (a lack of clarity, ignoring standards of review, employing levity at inappropriate times, making vague pronouncements about the mysteries of liberty, etc.) But griping about what this judge did in Florida is sort of silly. And my point about blowheart justices is this - if you do find self-indulgent opinion writing a problem, perhaps focus: a) on a judge who is far more important and b) one you have an intimate familarity with.

blackdoggerel: Publicly available sources (interviews he has given, as well as his "own" opinions) give me every reason to believe he is a self-indulgent blowhard. Since Orin's post touched upon a dislike of "self-indulgence" by members of the judiciary, it seems most apt to start with the biggest fish.
5.18.2007 1:08pm
Judge H. Lee Sarokin (mail):
Orin

For fun, I wrote a poem/opinion on one Chistmas Eve regarding a suit involving knock-off Care-Bears. The poetry was pretty awful, but the legal reasoning was fairly sound. I have never regretted publishing it in that form. On the other hand, I tried to be funny in writing a decision about a man who was fired for stealing a roll of toilet paper from his emplyer to clean off his windshield. I called it The Toilet-Paper Caper. I don't recall the exact details now, but a murder followed the incident. I received a letter from a member of the victim's family expressing outrage at my attempt at humor. I have always regretted that opinion---but fortunately it was not published---but did make the newspapers.
My colleague, the late Judge Edward Becker of the 3rd Circuit wrote an opinion as a parody on the Ancient Mariner. We frequently enchanged memos in rhyme. I am a great believer in humor and tried to use it frequently during the coure of a tense trial. However, I agree with you that the less it appears in formal opinions the better. Opinions are serious business.
5.21.2007 6:20pm