Judicial humor

“I was married by a judge. I should have asked for a jury.” — Groucho Marx

Dan Kelly
2023 January

To begin a discussion of judicial humor one should p.obably start at the top, so let’s start with the U.S. Supreme Court:

Mickey Spillane or Chief Justice John Roberts?

In a case where the Supreme Court of Pennsylvania concluded there was no probable cause for the defendant’s arrest, the State petitioned for a writ of certiorari. The U.S. Supreme Court denied certiorari with the Chief Justice dissenting.

In setting forth the facts, Chief Justice Roberts did so in much the same way a hardboiled crime novelist would:

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.

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.

(555 U.S. 964 (2008).)

Mickey Mouse 1, Hamlet 0

In Widmar v. Vincent, 454 U.S. 263 (1981), the U.S. Supreme Court held that a public university that had a public forum open for use by student groups could not exclude a registered religious group and that its regulation of speech should be content-neutral. Justice John Paul Stevens concurred in the judgment with this wry observation of why evaluation of the activity’s content is necessary:

I should think it obvious, for example, that if two groups of 25 students requested the room at a particular time – one to view Mickey Mouse cartoons and the other to rehearse an amateur performance of Hamlet – the First Amendment would not require that the room be reserved for the group that submitted its application first. Nor do I see why a university should have to establish a ‘compelling state interest’ to defend its decision to permit one group to use the facility and not the other. In my opinion, a university should be allowed to decide for itself whether a program that illuminates the genius of Walt Disney should be given precedence over one that may duplicate material adequately covered in the classroom.

Enough already!

Mattel, Inc. (maker of the Barbie doll) sued MCA Records (producer of the song, Barbie Girl) for trademark infringement. The Ninth Circuit held there was no infringement or dilution. In its decision, the Court noted that after suit was filed Mattel and MCA traded barbs (pun intended) with Mattel likening MCA to a “bank robber” and describing MCA’s action as a “heist,” a “crime,” and a “theft.” MCA filed a counterclaim for defamation which the Court held nonactionable. The last sentence of the decision was this admonishment: “The parties are advised to chill.” (296 F.3d 984.)

Life is like a song

Here are the basic facts of Butler v. Sheriff of Palm Beach County (11th Cir. 2012) 685 F.3d 1261: The mother, an armed corrections officer, came home early from work to find her 19-year-old daughter in flagrante delicto with the 19-year-old plaintiff. Upon mom’s arrival, the nude plaintiff decided he should try to hide in the closet. Fearing her daughter was being attacked, mom drew her service revolver, handcuffed the plaintiff and forced him to kneel, nude, on the floor. Eventually, plaintiff was allowed to dress and go home, which he quickly did.

Plaintiff sued the mother’s employer (the sheriff) under 42 U.S.C. § 1983, claiming the mother acted under color of her law enforcement title.

In rejecting plaintiff’s claim, the 11th Circuit began its decision as follows:

In one of his ballads, Jim Croce warned that there are four things you just don’t do: ‘You don’t tug on Superman’s cape. You don’t spit into the wind. You don’t pull the mask off that old Lone Ranger. And you don’t mess around with Jim.’ He should have added a fifth warning to that list: ‘And you don’t let a pistol packing mother catch you naked in her daughter’s closet.’

After a lengthy discussion of the meaning of “acting under color of law,” the Court dismissed plaintiff’s section 1983 claim stating: “If the allegations are true, the [mother]’s treatment of plaintiff was badder than Old King Kong and meaner than a junkyard dog. She might even have acted like the meanest hunk of woman anybody had ever seen. Still, the fact that the mistreatment was mean does not mean that the mistreatment was under color of law.”

I’ll drink to that

In 1855 (perhaps prior to the employ of law clerks), the California Supreme Court issued what it considered its shortest dispositive legal opinion on record: “If the defendants were at fault in leaving an uncovered hole in the sidewalk of a public street, the intoxication of plaintiff cannot excuse such gross negligence. A drunken man is as much entitled to a safe street as a sober one, and much more in need of it.” (Robinson v. Pioche, Bayerque & Co., 5 Cal. 460, 461.)

Barking up the wrong tree – poetically

The facts and law in Fisher v. Lowe were both clear: Plaintiff brought an action in tort when his “beautiful oak tree” was smacked into and damaged by defendant’s car. Michigan no-fault law only provided recovery to “injured persons.”

The Michigan Court of Appeal had fun affirming the trial court’s grant of defendant’s summary judgment motion:

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.

Affirmed.

(333 N.W.2d 67)

My exhaustive research into judicial temperament and judgment led me to the New York Judicial Commission and the following:

One ringy dingy, two ringy dingy

The Commission recommended the removal of a Niagara Falls City Court judge who committed 46 people into police custody after no one took responsibility for a ringing cellphone in his courtroom.

Picky, picky, picky

That same Commission recommended removal of the Ellenberg Town Court judge for “presiding over a trespass case in which his grandchildren were defendants, initiating an ex parte communication with a judge handling his relative’s case, and asserting his judicial office after a car accident.”

Not without controversy

As with most topics in the law, judicial humor has its proponents and opponents. Dean William Prosser in his 1952 book, “The Judicial Humorist,” felt that except for rare occasions, “the bench is not an appropriate place for unseemly levity.” As you might expect, law review articles have discussed the pros and cons of judicial humor. (See e.g., Marshall Rudolph, “Judicial Humor: A Laughing Matter?” (1989) 41 Hastings Law Journal 175; Laura E. Little, “Regulating Funny: Humor and the Law” (2009) 94 Cornell Law Review 1235; Adalberto Jordan, “Imagery, Humor and the Judicial Opinion” (1987) 41 Univ. of Miami Law Review 693.)

The judicial humor controversy is not peculiar to the Groves of Academe. Indeed, members of appellate court panels have teed off on one another over the subject. For example, in Porreco v. Porreco, 811 A2d 566 (2002), the Chief Justice of the Pennsylvania Supreme Court took to task an Associate Justice’s rhyming dissenting opinion, stating his “grave concern that the filing of an opinion that expresses itself in rhyme reflects poorly on the Supreme Court of Pennsylvania.”

In somewhat similar fashion, two members of the Georgia Court of Appeal publicly debated the majority opinion’s light-hearted approach. In a concurring opinion, a justice wrote: “I do not believe humor has a place in an opinion which resolves legal issues affecting the rights, obligations, and, in this case, the liberty of citizens.” But, that didn’t end the debate. In denying a motion for rehearing, the majority opinion writer stated “[a] sense of humor can…ward off the highly infectious disease ‘black-robe-itis.’” He concluded by criticizing the “scanty, shallow, swift, short shrift” opinions that the Court frequently issued.

So, the debate on the subject continues. Personally, I think my approach to judicial humor is the same as taken by Justice Potter Stewart on obscenity: “I know it when I see it.” (Jacobellis v. Ohio (1964) 378 U.S. 184, 197.) No matter how funny, some, be they lawyer or litigant, may find no humor in a case they lost.

Some concluding and cautionary comments on trial court humor

Most of the funny things that happen in a courtroom are unintentional humor – many times due to poorly stated questions or unpredictable responses. Here are a few examples to illustrate the point:

The Court: Is there any reason you could not serve as a juror in this case?

Juror: I don’t want to be away from my job that long.

The Court: Can’t they do without you at work?

Juror: Yes, but I don’t want them to know it.

* * * * * *

Attorney: What gear were you in at the moment of impact?

Witness: Gucci sweats and Reeboks.

* * * * * *

Attorney: How far apart were the vehicles at the time of the collision?

Witness: Huh?

These examples are funny and might warrant a smile or polite laugh but never a knee-slapping guffaw. The big laugh could have jurors conclude you were mocking them or the witness or ridiculing opposing counsel.

If the trial scenario involves a judge telling a joke or saying something funny, a polite laugh and smile may be OK, but keep in mind the following from the Utah Supreme Court:

“It is an immutable and universal rule that judges are not as funny as they think they are. If someone laughs at a judge’s joke, there is a decent chance that the laughter was dictated by the courtroom’s power dynamic and not by genuine belief that the joke was funny.” (In re Inquiry of a Judge: The Honorable Michal Kwan (2019) Utah Supreme Court no. 20171041.)

I started off this judicial humor exercise by quoting the U.S. Supreme Court. It is only fitting to close with that Court’s “Guide for Counsel” which states that “attempts at humor usually fall flat.”

Now, if you feel this article fell flat, please, out of courtesy, practice now your polite laugh and/or smile. And keep practicing both before your next trial. Your judge and jury will thank you.

Dan Kelly Dan Kelly

Daniel J. Kelly is a retired partner from the San Francisco firm of Walkup, Melodia, Kelly & Schoenberger where he specialized in representing plaintiffs in personal injury litigation and the mediation of personal injury cases. Mr. Kelly is a past president of the San Francisco Trial Lawyers Association, and is a member of the American College of Trial Lawyers, the American Board of Trial Advocates, the International Academy of Trial Lawyers and in 2003 was President of the International Society of Barristers. For years he co-authored the Rutter Group’s three volume Personal Injury Practice Guide.

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