Appellate Blogs,  Judges,  Legal Writing

A Quip Too Far?

The writing style on display in a Florida appellate decision, Funny Cide Ventures, LLC v. Miami Herald, Fourth Dist. Ct. of Appeal case no. 4D06-2347 (May 16, 2007) has attracted some attention today. The actual per curiam decision is run-of-the mill, but one of the judges took it upon himself to write a supplemental opinion that spends its first few pages complaining about the dullness of typical legal writing before launching into an unconventional style that, if read aloud, sounds like a dime store novel detective recounting the events of the case.

To be fair, Judge Farmer lays out why he wrote the supplemental opinion:

In my view nothing that is available in human experience ought to be banned by convention in judicial opinion writing.

I should state publicly my own resolution, made several months ago.  I had decided that the style of some opinions could — and should — be unconventionally changed for greater openness to all readers.  I would try to write some opinions in styles and tones calculated to make legal reasoning clearer for those without law degrees.  Then came this case.

Nothing, judge?  Admittedly, the somewhat far-out legal theory in this case invites some mirth.  Plaintiff owners of the thoroughbred Funny Cide alleged that as a result of a statement by the Miami Herald suggesting that Funny Cide’s jockey cheated in his Kentucky Derby win, the jockey rode the horse too hard in his Preakness Stakes win, leaving the horse with no reserves and unable to win the Belmont Stakes to complete the fabled Triple Crown.  ( covered the lawsuit here when it was filed.)

Judge Farmer concludes his introduction with this:

So I give this explanation for what I wrote, laying my version along side the panel’s substitute.  Readers can compare a conventional opinion with an unconventional style — the pious with the impious.

Several bloggers take the judge up on his invitation.

Professor Orin Kerr at The Volokh Conspiracy titles his post “Most Self-Indulgent Opinion?” Kerr makes clear in his conclusion that he is not against witty writing per se:

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.

The comments are worth browsing.

Nevada appellate lawyer Tami Cowden at Appealing in Nevada is way on the other side of the spectrum in her post, “A page turner of an opinion“:

I’ve long been a proponent of using fiction writing techniques in legal writing. But even I am bowled over by the gripping opinion created by Judge Farmer of the Fourth District Court of Appeals of the State of Florida in Funny Cide Ventures, LLC v. Miami Herald Publishing Co.  Alas, the rest of the court did not appreciate Farmer’s style, and so the first opinion is same old, same old. But read on. You’ll get to the good stuff.

I agree with both, to an extent.

I read (and recommend) Cowden’s piece in Nevada Lawyer on using fiction-writing techniques in brief writing.  She doesn’t so much recommend a style as she does technique in proposing that lawyers can be more persuasive by incorporating elements of fiction — theme, characters in conflict, a point of view and “showing rather than telling.”  And I think she makes a persuasive case for it.  I just don’t think Judge Farmer does a very good job of carrying it off.

The reason I think the opinion fails, despite its good intentions and my agreement with Cowden that fiction techniques can be effective, is that Judge Farmer is also trying to be cute. That’s where I agree with Professor Kerr. Notwithstanding the justifications Judge Farmer offers, I found it hard to read the opinion without thinking that he was being too “smart-alecky” in a bid to seek attention, rather than making a good faith effort to achieve his stated goal of making the opinion more readable to non-lawyers.

Finally, note two more takes on the subject.

The Wall Street Journal’s Law Blog takes note of the opinion’s novelty without taking a stand on it except to say, “If you’re going to read one opinion today, the Law Blog beseeches you to check out Funny Cide Ventures v. Miami Herald.

Florida appellate lawyer Matt Conigliaro of Abstract Appeal offers the briefest of comment here, but promises more later.

Update (5/24/07):  Matt Conigliaro has his promised update here, and it’s very good.  He’s the first I’ve seen raise the excellent question of whether judicial opinions can be made understandable to non-lawyers while still serving well in their function as precedent.  His argument is well worth reading.