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.
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.
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.
(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.
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."
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?
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.
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.
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
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.
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.
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.
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!
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.
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.
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.
(Full disclosure: I am an ex Kozinski clerk, though I wasn't there when Syufy was decided.)
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.
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.
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.
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.
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.
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.
Oops. I typed too quickly. Of course, that should read: "Sorry for not being clear, Orin."
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.
At all events, I sure hope you don't ever end up in front of Judge Farmer, Orin.
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.
Perhaps we are forgetting that power and authority are not the same, and that a government can lose the latter while keeping the former.
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.
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.