John G. Browning 2017-04-27 06:18:40
Express Yourself Lawyers and judges make their living with words. But the ways in which we use them to advocate for a client or to convey a ruling can vary considerably. Sometimes our words fall a bit further from the mark than we’d like. For example, Judge Jeffrey S. Sutton of the U.S. Court of Appeals for the 6th Circuit probably thought he was making a safe prediction in late November 2015, when he echoed the sentiments of long-suffering Chicago Cubs and Cleveland Indians fans everywhere. In a ruling on behalf of a unanimous three-judge panel of that court, Sutton observed that “[t]he risk that [the plaintiff’s child] would be subject to another such search is no more ‘actual and imminent’ than the Chicago Cubs (or, we fear, the Cleveland Indians) winning the World Series.”1 Little did he know that the very next World Series would feature the Chicago Cubs triumphing over the Cleveland Indians, ending a 108-year-long drought for Cubs fans. Of course, some judges stay away from playing sports prognosticator and instead channel their inner Broadway star. Georgia State Court Judge Dax E. López, fresh off a trip to see the smash hit Hamilton, must have still had the show’s songs running through his head when he attended the State Bar of Georgia Board of Governors meeting in January and nominated lawyer Michael Terry to the bar’s executive committee. López rapped his nomination of Terry, singing from the popular musical: “Oh the word’s got around/This lawyer’s insane, man/He’s winning verdicts and appeals like he’s Charlemagne, man,” according to the Daily Report. I don’t know if the judge has a future in hip hop or musical theater, but at least he’s not throwing away his shot. And then there are judges who can’t resist the urge to get “punny” in their opinions, like Chief Judge Ed Carnes of the U.S. Court of Appeals for the 11th Circuit. In his ruling in a January case concerning attempts by the Kardashian sisters—Kim, Kourtney, and Khloé—to compel arbitration of a makeup company’s claims of trademark infringement, Carnes seemingly couldn’t help coloring his opinion with cosmetics puns. Take, for example, this passage from the beginning of the opinion: At first blush, the issue appears to require application of Florida’s doctrine of equitable estoppel … But there is a wrinkle in this case: the arbitration clause which the non-party to the agreement is seeking to enforce is explicitly limited to disputes between the parties.2 He continued in this vein all the way to his conclusion, in which he wrote: “Like makeup, Florida’s doctrine of equitable estoppel can only cover up so much. It does not provide a nonsignatory with a scalpel to resculpt what appears on the face of a contract.”3 Naturally, judges aren’t the only ones who can have a little fun while expressing their position in a case. In a January response filed in a personal injury case in Greene County, Ohio, lawyer Timothy S. Chappars took exception with opposing counsel Nicholas Subashi’s contention that Chappars’ pleading violated civil procedure rules by “… including run-on sentences … conclusions, verbose exaggerations, and ‘stream of consciousness’ rhetoric.”4 But instead of getting mad, he decided to get funny. Chappars’ response was three pages long and consisted of one really long run-on sentence. Here’s a snippet: “but in any event I can’t believe that defense counsel in this case thinks that I would resort to stream of consciousness and verbosity or use run-on sentences he probably thinks he is really cool because he practically lives in the gym and he’s into rock-climbing and mountaineering like he’s the next Reinhold Messner making the first unaided ascent of Everest without supplemental oxygen and gets to go on these adventure trips out west when I’m stuck in the office responding to a defendant’s third set of discovery requests and attending multi-hour depositions of witnesses when they should only take thirty minutes.”5 Well, you get the idea. He even attached a “scholarly article,” a parody of a scientific paper that consisted of several confusing diagrams and the word “chicken” repeated for four pages straight. Subashi, the opposing attorney, told the ABA Journal that he thought Chappars’ motion was “one of the funniest and wittiest legal documents I have ever read,” and insisted that he and Chappars have a long history with only “the highest personal and professional regard for each other.” And that’s a good thing, because lawyers can certainly lighten up now and then. Notes 1) Hearring v. Sliwowski, 806 F.3d 864 (6th Cir. 2015). 2) Kroma Makeup EU, LLC v. Boldface Licensing + Branding, Inc. (11th Cir. 2017). 3) Id. 4) Vance, et. al v. Kelble, et. al, Case No. 2016 CV 0623, “Plaintiffs’ Motion to Strike Affirmative Defense,” Common Pleas Court of Greene County, Ohio (2017). 5) Id. ▶︎ THINK YOU’RE FUNNY TOO? PROVE IT! Send your humorous articles of 600 words to email@example.com. Send deposition and trial excerpts to firstname.lastname@example.org. JOHN G. BROWNING is a partner in Passman & Jones in Dallas, where he handles commercial litigation, employment, health care, and personal injury defense matters in state and federal courts. He is an award-winning legal journalist for his syndicated column, “Legally Speaking,” and is the author of the Social Media and Litigation Practice Guide and a forthcoming casebook on social media and the law. He is an adjunct professor at Southern Methodist University Dedman School of Law.
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