Last month, I gushed about a brief in which the plaintiffs’ attorneys used snarky humor in opposing the defendants’ motion to dismiss or transfer the case to another district, opining that the brief at once grabbed the court’s attention and effectively made a rhetorical point about the strength of the defendants’ argument. Today we again look at humorous legal writing, this time from the other side of the bench.
In a four-paragraph opinion in Hyperphrase Technologies, LLC, et al. v. Microsoft Corporation, Magistrate Judge Stephen Crocker of the United States District Court for the Western District of Wisconsin pointedly put defense counsel in their place:
Pursuant to the modified scheduling order, the parties in this case had until June 25, 2003 to file summary judgment motions. Any electronic document may be e-filed until midnight on the due date. In a scandalous affront to this court’s deadlines, Microsoft did not file its summary judgment motion until 12:04:27 a.m. on June 26, 2003, with some supporting documents trickling in as late as 1:11:15 a.m. I don’t know this personally because I was home sleeping, but that’s what the court’s computer docketing system says, so I’ll accept it as true.
Microsoft’s insouciance so flustered Hyperphrase that nine of its attorneys, namely Mark A. Cameli, Lynn M. Stathas, Andrew W. Earlandson, Raymond P. Niro, Paul K. Vickrey, Raymond P. Niro, Jr., Robert Greenspoon, Matthew G. McAndrews, and William W. Flachsbart, promptly filed a motion to strike the summary judgment motion as untimely. Counsel used bolded italics to make their point, a clear sign of grievous iniquity by one’s foe. True, this court did enter an order on June 20, 2003 ordering the parties not to flyspeck each other, but how could such an order apply to a motion filed almost five minutes late? Microsoft’s temerity was nothing short of a frontal assault on the precept of punctuality so cherished by and vital to this court.
Wounded though this court may be by Microsoft’s four minute and twenty-seven second dereliction of duty, it will transcend the affront and forgive the tardiness. Indeed, to demonstrate the even-handedness of its magnanimity, the court will allow Hyperphrase on some future occasion in this case to e-file a motion four minutes and thirty seconds late, with supporting documents to follow up seventy-two minutes later.
Having spent more than that amount of time on Hyperphrase’s motion, it is now time to move on to the other Gordian problems confronting this court. Plaintiff’s motion to strike is denied.
The humor in both the Buzzfeed brief and the Hyperphrase Technologies opinion works only if you read those documents in context. In the case of the Buzzfeed brief, the humor works only if you’re familiar with Buzzfeed’s clickbait headlines. The context for the Hyperphrase Technologies opinion is revealed in the opinion itself: the court had previously ordered the parties not to “flyspeck” each other. Without that context, the reader might think opinion’s sarcasm was over the line, when a simple “de minimis not curat lex” would have made the same point.
There are competing schools of thought about the propriety of using humor (including sarcasm) in judicial opinions. In Judicial Jesting: Judicious?, legal writing expert Hon. Gerald Lebovits warns that
[l]ightening wit is typically unenlightening. A judicial opinion demands propriety and professionalism. Humorous opinions, written to satisfy some need to be humorous, can cross the line. Some humor offends by exclusion and false notions of superiority. Humor also deflects from accountable decision making and judicial responsibility. It’s one thing to have a sense of humor and grace on the bench, or to be clever during an after-dinner speech. It’s another to express humor in writing.
At the same time, he concedes that “humor is acceptable when it’s inherent in, relevant to, or complements the subject.” If this subject is of particular interest to you, you may also want to check out Judges’ use of humor as a social corrective, by Pamela Hobbs.