John G. Browning 2013-08-27 03:15:40
JUSTICE DON WILLETT OF THE SUPREME COURT OF TEXAS ONCE OBSERVED: “A LOT OF LEGAL WRITING, INCLUDING JUDICIAL WRITING, IS CLUNKY AND SOUL-CRUSHINGLY DULL. In my view, legal humor is not an oxymoron. The law, in fact, sometimes can be fun.” And while there are many who believe that judicial opinions that use verse, quote song lyrics, or make TV or movie references somehow detract from the dignity of the bench or disrespect parties who take the issues very seriously, let’s not forget that judges owe a duty to write opinions that are accessible to all. When writing for an audience that includes not only the practicing lawyers who will be guided by their opinions but also members of the public who will feel their impact, judges can hardly be blamed for turning to pop culture to get their message across. Sometimes, this translates to jurists channeling their inner Captain Kirk or Mr. Spock when exploring the final frontier of judicial humor. One of the best and most recent examples of this took place on Stardate May 6, 2013, in a well-traveled quadrant of the galaxy known as the U.S. District Court for the Central District of California. Judge Otis D. Wright II set his literary phasers to “kill” in entering an order sanctioning four lawyers $81,000 and referring them not only to their respective state and federal bars for discipline, but also referring the matter to the U.S. Attorney’s Office and the Internal Revenue Service for criminal investigation.1 The lawyers in question (three of whom were principals in Prenda Law, a copyright “troll” purporting to hold the copyrights to a number of pornographic films) pursued illegal porn downloaders and offered to settle copyright infringement claims for $4,000 each. But it was the questionable way in which the attorneys plied their trade that raised Judge Wright’s ire, leading him to observe: “... though Plaintiffs boldly probe the outskirts of law, the only enterprise they resemble is RICO.” In his opinion, Judge Wright decried the lawyers’ “vexatious litigation” and representations to the court that varied “from feigned ignorance to misstatements to outright lies.” He noted that the plaintiffs’ strategy of filing the same boilerplate complaint and threatening defendants with the public stigma associated with downloading porn meant that “resistance is futile.” He went on to state: “It was when the Court realized Plaintiffs engaged their cloak of shell companies and fraud that the Court went to battlestations.” Judge Wright peppered his opinion with Star Trek references that run the gamut from the classic ’60s series to its Star Trek: The Next Generation television successor to the movie franchise, as he characterizes one minor player as “just a redshirt”2 and the seemingly unstoppable litigation campaign as a Borg-like “porno-trolling collective.” Criminal charges against the plaintiffs would be likely, the court says, since “the federal agency eleven decks up is familiar with their prime directive and will gladly refit them for their next voyage.” Judge Wright even borrows one of Spock’s more memorable lines in justifying his punishment of a few badapple attorneys while protecting the rights of hundreds of accused downloaders. He begins his opinion by quoting Spock’s logical explanation of his act of self-sacrifice in Star Trek II: The Wrath of Khan: “The needs of the many outweigh the needs of the few.” (One can almost hear the plaintiffs’ attorneys’ anguished cry of “Wrrrriiigghhht!”) But Judge Wright is hardly the first to demonstrate his nerd cred with a Spock-inspired rhetorical flourish. Texas’s own Justice Don Willett proudly flew his geek flag in the 2010 case of Robinson v. Crown Cork & Seal Co., Inc.Willett cited Wrath of Khan, using Spock to illustrate a point about distrust of intrusive government and limitations on the police power of the state, or how “the needs of the many outweigh the needs of the few.” As he put it, this utilitarian maxim owes much to “Spock’s famous line from his moment of sacrifice, ‘Don’t grieve, Admiral. It is logical. The needs of the many outweigh ...’ to which Kirk replies ‘the needs of the few.’ ”3 And in a 2011 California decision concerning measures taken for salmon spawning grounds (South Yuba River Citizens League v. National Marine Fisheries Service), U.S. District Judge Lawrence Karlton cited the 1982 movie in echoing that “logic clearly dictates that the needs of the many outweigh the needs of the ... one.”4 And the Star Trek references hardly end there. For example, there are judges who have used the analogy of being as logical and free from emotions as a Vulcan to caution jurors. In a 2011 California case, Jackson v. Harrington, the court explained being objective to a prospective juror in Star Trek terms: Were you a fan of Star Trek? ... And you had McCoy, the doctor who was so emotional, who just ran off the wall at the drop of a hat whenever something emotional would occur. And you had Spock always standing there, placidly not affected at all by the emotion of the situation. And that’s what we want in this case. We understand that it’s not easy. It’s not easy. But to the extent that you possibly could dedicate yourself to doing exactly that, in other words, in being fair, you don’t say, well, I’ll be fair to the People. Similarly, in a 2011 New Jersey case, Jones v. South Jersey Industries, Inc., another judge invoked the iconic Vulcan science officer when instructing the jurors not to allow emotional witness outbursts to sway them. He said: Do you remember Star Trek, the original one with Mr. Spock? Mr. Spock could look at things totally logical. He was not influenced by passion. He certainly wasn’t influenced by prejudice, and that’s ... how you need to look at a case. You need to look at a case for the facts as you see them. You need to look at the case for the law ... You don’t allow sympathy to enter into your decision.” Judges have also been quick to throw around catchphrases from the classic TV series when they seem to fit the situation. In a 2007 California dispute over community property (In re Marriage of Ross), the court gracefully declined to make new law and “to boldly go where no [rational analysis] has gone before.” And in a 1992 Illinois bankruptcy case involving two Star Trek convention promoters, the judge couldn’t resist paraphrasing the show’s famous opening lines: [T]his action is the voyage of two Star Trek convention promoters into litigation before this bankruptcy court; they explore and mix strange legal theories and ask the Court to seek out justice and do equity in this lawsuit of their creation; they boldly go where very few wise litigants have gone before ... Meanwhile, in a 2011 Texas federal court case involving environmental claims (Aquifer Guardians in Urban Areas v. Federal Highway Administration), the court borrowed another Star Trek catchphrase, warning that: “Perhaps Homo sapiens will experience a Darwinian epiphany to take better care of their home before they return to it. The alternative is a Captain Kirk moment: ‘Beam me up, Scotty!’ ” Sometimes, judges make less obvious references in invoking Star Trek concepts or technology. In a 1992 New York federal court decision about glide paths for aircraft on county property (County of Westchester v. Town of Greenwich, Connecticut), the court wryly observed: “Aircraft regularly passing overhead during their landings and takeoffs are hard to miss. And defendants have offered no evidence ... that any of the aircraft used the infamous Romulan cloaking device.” And in a 2009 9th Circuit decision (Norwood v. Vance), the debate over a jury instruction using the word “deference” inspired the court to note that “deference” is a common English word, and is “not Urdu or Klingon.” For bonus geek points, the dissenting judge actually cited a Klingon-English dictionary (yes, there is one), pointing out that for the warrior Klingon race, “unsurprisingly, there is no Klingon word for ‘deference.’ ” Just as sports analogies, movie lines, and song lyrics have found their way into lawyers’ briefs and judicial opinions, Star Trek and its intergalactic wisdom have permeated our jurisprudence as well. Beam me back to the courthouse, Scotty! NOTES 1. The case is Ingenuity 13 LLC v. John Doe, Case 2:12-cv-08333-ODW-JC (Document 130, filed May 6, 2013). After the ruling, national legal blogs were abuzz, with at least one commentator trying to parse every single Star Trek reference. If you spotted more than what’s discussed here, then maybe it’s time to move out of your parents’ basement. 2. The “expendable” and largely anonymous crewmembers who frequently died off in the series almost invariably seemed to be wearing the red shirt of Star Fleet security. 3. Maybe the logical place for the next Star Trek convention would be the Texas Supreme Court. In a definite case of knowing your audience, the Property Casualty Insurers Association of America invoked Spock’s line, and cited The Wrath of Khan, in arguing that the needs of the many (Texas auto insurance consumers) outweighed the needs of the few (check-cashing establishments) when it came to the issue of insurers paying millions of dollars in attorneys’ fees to check cashers stiffed over bad checks. 1/2 Price Checks Cashed v. United Automobile Insurance Company. 4. The earliest reference seems to be in a 2004 order handed down by Indiana bankruptcy judge Philip Klingeberger, who ruled that certainty in the valuation of motor vehicles serves the needs of the many, or “as so aptly stated by Mr. Spock in the Wrath of Khan, ‘the needs of the many outweigh the needs of the few.’ ” In re Smith. JOHN G. BROWNING is the managing partner of Lewis Brisbois Bisgaard & Smith, L.L.P., in Dallas, where he handles civil litigation in state and federal courts in areas ranging from employment and intellectual property to commercial cases and defense of products liability, professional liability, media law, and general negligence matters. He also serves as an adjunct professor at SMU Dedman School of Law, where he teaches the course “Social Media and the Law.”
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