Chief Justice Roberts’ recent foray into Mickey Spillane prose in a certiorari decision (http://www.supremecourtus.gov/opinions/08pdf/07-1486.pdf) brings up the issue of judicial humor.
The first rule of thumb, is, of course, from the practictioners’ perspective, that anything that a judge says is hilarious (if the judge is going for that), while the practitioner plays in pretty dangerous territory if he tries something like that himself. Always laugh at the judge’s joke; don’t try to make one yourself.
But should judges try to be funny? It must be hard slogging sometimes, cranking out decision after decision, without ever letting those creative juices loose. Doesn’t every lawyer (and judges are lawyers, after all) secretly think he could write better than John Grisham, and isn’t life tenure enough to give at least federal judges sufficient comfort to vent their literary talents once in a while?
I know that Professor Wanderer over at the U. Maine Law School teaches judges how to draft opinions, so I asked her for her thoughts. Here’s her response:
Some people are delighted with the Chief’s Mickey Spillane-style prose; others find it inappropriate and insulting to the parties in the case.
A few years ago, in an article published in the Maine Law Review [Writing Better Opinions: Communicating with Candor, Clarity, and Style, 54 Me. L. Rev. 47 (2002).], I discussed the role of humor and figurative language in opinions. Below is what I concluded and why.
Sometimes judges are tempted to "spice up" their opinions with a dash of humor or figurative language. Most commentators, however, agree that judicial humor is "neither judicial nor humorous." According to William Prosser,
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.
Thus, humor is almost always inappropriate in opinions. Humor at a party’s expense is never appropriate, no matter how clever or witty it is. Litigation is a serious matter, the outcome of which has great significance for the parties. They are seeking justice and a level of sensitivity and concern on the part of the court. "Amusing" verse, puns, innuendos and gratuitous commentary, excessive brevity, spoofs, sarcasm, and ridicule are not appreciated by the parties or their attorneys and should be avoided.
Some commentators, however, believe that humor may be appropriate if it enlivens opinions and serves an educative function. Even Judge Cardozo seemed ambivalent on the propriety of adding a bit of humor or figurative language to opinion when he wrote:
Flashes of humor are not unknown, yet the form of opinion which aims at humor from beginning to end is a perilous adventure, which can be justified only by success, and even then is likely to find its critics as many as its eulogists. . . . I would not convey the thought that an opinion is the worse for being lightened by a smile. I am merely preaching caution. . . . In days not far remote, judges were not unwilling to embellish their deliverances with quotations from the poets. I shall observe towards such a practice the tone of decent civility that is due to those departed.
The use of humor and figurative language may help to demystify law, or crystallize a point, put it in context, and breathe life into the set of facts that the law has formalized.
In 1855, for example, the Supreme Court issued the following short opinion in which the humor injected may actually have clarified the opinion’s legal significance without being offensive to the parties:
If the defendants were at fault in leaving an uncovered hole in the sidewalk of a public street, the intoxication of the 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.
In another short opinion, the court seems to have said all that is needed in just a few words:
The appellant has attempted to distinguish the factual situation in this case from that in Renfroe v. Higgins Rack Coating and Manufacturing Co., Inc. He didn’t. We couldn’t. Affirmed. Costs to appellee.
The best examples of judicial humor seem to be characterized by two requirements: brevity and a genuine relevance to the case at hand.
Ultimately, in deciding whether to include imagery or humor in an opinion, a judge must consider his or her own audience and purpose.
Will the interjection of witty or figurative language help to demystify the law and explain the rationale more clearly to the reader? Dealing with legal principles can, at times, overly formalize a dispute; perhaps the use of imagery and humor can help bring the dispute down to earth.
Or will its use demean or ridicule the parties and actually prevent them from understanding that justice has been served? If so, it should be eliminated.
Well, that makes eminent sense, thank you Nancy.
My personal favorite opinions in this vein are both the trial and appellate court decisions in the case involving Blackie the Talking Cat: http://www.google.com/search?sourceid=navclient&ie=UTF-8&rlz=1T4GGLJ_enUS248US248&q=blackie+the+cat+decision
It doesn’t get any better than that.