Roger writing the LAWmag
01
Jun 2012

Levity in Judgments: To Be or Not to Be ... Funny.

Since time immemorial, the precincts of justice smack of the inside of a church, where "fun" is simply not welcome. The judge, as the presiding officer, more so than any other person, must set the example for dignity and courteous conduct, and that justice is not brought into disrepute.

Francis Bacon set the tone with this comment:

"Patience and gravity of hearing is an essential part of justice; and an over speaking judge is no well-tuned cymbal."

One area where cymbals are rarely if ever heard is in the written opinions or judgments of the court. This is because of a rule, if there is one, as expressed by Joyce George in his Judicial Opinion Writing Handbook:

"A judge's professional responsibilities require him to select carefully the language and phraseology necessary to communicate the decision and not to be humorous at the litigant's expense or to satisfy some personal need to be funny."

Humor in the CourtIn his article published in the Hastings Law Journal, law student Marshall Rudolph offered a sterner perspective:

"As clever and entertaining as a judge's humor may be, its use in the context of an actual case - where real parties stand before the court with a great deal to win or lose-raises serious questions of propriety: Is ridicule of a litigant reconcilable with the judiciary's obligation to avoid even the appearance of impropriety?....

"Judicial humor is ... an enfant terrible that, like any undisciplined child, amuses its inordinately tolerant judicial "parents" at the expense and dismay of the rest of society."

In this, he was joined by Alabama Justice George Rose Smith:

"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."

William Prosser ran both hot and cold on the topic of judicial levity in judgments:

"Judicial humor is a dreadful thing. In the first place, the jokes are usually bad; I have seldom heard a judge utter a good one. There seems to be something about the judicial ermine which puts its wearer in the same general class with the ordinary radio comedian. He just is not funny. In the second place, 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.....

"But on rare occasions there are litigants deserving only of ridicule, and situations that call only for mirth; and at long, long intervals our stately halls of ultimate conjecture are disturbed by the unfamiliar rumble of innocent merriment."

In spite of these warnings, levity does exist in judgments, many of them collected in the USFJDO law reports.

Justice Sol Clark of the Georgia Court of Appeals was well-known for his funny judgments as is Canada's Justice Joseph Quinn of the Ontario Superior Court (for two samples of Justice Quinn's "work", see Bruni v Bruni, [2010] USFJDO 1 and Pirbhai v Singh [2010] USFJDO 2).

Justice Clark once held court on the pronunciation of the word Houston even though it was completely irrelevant to the case. In Pfeffer v Dept. of Public Safety, these words;

"Pronounced How-stun, this county was named for a Savannah lawyer, John Houstoun, twice Georgia Governor. Houstoun was the nineteenth century spelling of today's Houston."

That case, a drunk driving case, started with:

"Not drunk is he who from the floor can rise alone and still drink more; But drunk is he, who prostrate lies, without the power to drink or rise."

Clark defended himself from distracters by publishing a scholarly article in Trial in which he wrote:

"I was convinced that humor could be used to enliven opinions if it was done in god taste and not at the expense of the litigants."

Judges who resort to humor in their judgments run the very real risk of answering a complaint to their judicial council, as was the case of Richard Rome, a Kansas judge who published this decision (personal information omitted):

"This is the saga of ____ ____ ____, Whose ancient profession brings her before us. On January 30th, 1974, This lass agreed to work as a whore. Her great mistake, as was to unfold, Was the enticing of a cop named Harold. Unknown to ____, this officer, surnamed Harris, Was duty-bent on ____'s lot to embarrass. At the Brass Rail they met, And for twenty dollars the trick was all set. In separate cars they did pursue, To the sensuous apartment of ____ ____. Bound for her bed she spared not a minute, Followed by Harris with his heart not in it! As she prepared to repose there in her bay, She was arrested by Harris, to her great dismay! Off to the jailhouse poor ____ was taken, Printed and mugged, her confidence shaken. Formally charged by this great State, With offering to Harris to fornicate. Her arraignment was formal, then back to jail, And quick as a flash she was admitted to bail. On February 26, 1974, The State of Kansas tried this young whore. A prosecutor named Brown, Represented the Crown. ____ ____, her freedom in danger, Was being defended by a chap named Granger. Testimony was presented and arguments heard, Poor ____ waited for the Judge's last word. The finding was guilty, with no great alarm, And ____ was sentenced to the Women's State Farm. An appeal was taken, to a higher court ____ went, The thousand dollar fine was added to imprisonment. 201*201 Trial was set in this higher court, But the route of appeal ____ chose to abort. And back to Judge Rome, came this lady of the night, To plead for her freedom and end this great fight. So under advisement ____'s freedom was taken, And in the bastille this lady did waken. The judge showed mercy and ____ was free, But back to the street she could not flee. The fine she'd pay while out on parole, But not from men she used to cajole. From her ancient profession she'd been busted, And to society's rules she must be adjusted. If from all of this a moral doth unfurl, It is that Pimps do not protect the working girl!"

In Re Rome, the Supreme Court of Kansas agreed with the complainants:

"Our code of judicial conduct and its implementing rules deal with a wide range of problems of varying degrees of seriousness. This particular proceeding does not present one of the greatest magnitude. Neither venality nor criminality is present nor can it be said the memorandum decision was written with deliberate intent to harm anyone. Yet, everything considered, we believe a violation of the canon in question has been shown. A litigant was not afforded the kind of treatment mandated. It is therefore ordered that respondent Richard J. Rome be and he is hereby censured by this court. He is further ordered to pay the costs of this proceeding."

Comedy and the writing of judicial opinions are simply not compatible. To many public observers and lawyers, a pun or a joke here or there in a judge's opinion may seem a welcome distraction from the sheer weight of so many long-in-the-teeth legal opinions, but that's missing the point of the opinion. It is not innocent merriment nor is it a vehicle for entertainment. It is law, binding on the litigants: and for that, it has to be a well-tuned cymbal and not a buffoon's kazoo.

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