Saturday, December 10, 2011

Humour in Court: part 4


A free plug for one’s own book in a court judgment? It doesn't worry Mr Justicr Lehane of the Federal Court of Australia:

“The principle being, I think, to that extent uncontroversial, perhaps I may be excused for referring simply to Meagher, Gummow and Lehane, Equity Doctrines and Remedies 3rd ed 1992, paras 609 to 613.

Zaknic Pty Ltd v Svelte Corporation Pty Ltd [1996] FCA 1704 (Unreported, Lehane J, 14 August 1996) [138]

In 2004 the Nestle company appealed a decision that rejected its application to register the shape of its Polo mints as a trademark.

The matter came before Mummery J.

In dismissing the appeal he allegedly uttered (although the utterance is not recorded) “This is an appeal concerning Polos, the mint with the hole in the middle. This is an appeal with a hole in the middle. It is dismissed.

Société des produits Nestlé SA v Mars UK Ltd [2004] EWCA Civ 1008

There are numerous American judges who have presented, and who continue to present, judgments in poetic form. See, for example:

Before looking at one such poetic judgment, that of Mr Justice Eakin, an Associate Justice of the Supreme Court of the Commonwealth of Pennsylvania, some background is in order. This is especially so for those readers who have never known a time without iPads, mobile telephones and internet.

Between 1960 and 1966 there was a TV show about a talking horse, the horse and the show both being called Mr Ed. Mr Ed would talk only to his owner, a klutzy architect named Wilbur, when no one else was around. Wilbur was therefore the only one who knew that Mr Ed spoke. The TV show opening can be viewed at:

Of interest for today’s post is the opening theme song, which can also be heard at the above link. The lyrics of the opening verses are:

A horse is a horse, of course, of cours,
And no one can talk to a horse of course,
That is of course, unless the horse
Is the famous Mister Ed!

Go right to the source and ask the horse
He'll give you the answer that you'll endorse.
e's always on a steady course
Talk to Mister Ed.

Why is all that relevant to a judgment by Mr Justice Michael Eakin, who regularly delivers his judgments in rhyme?

In one recent case Eakin J dissented from the majority of the court judges in an appeal by a man who had been convicted of DUI, that is, Driving Under the Influence, for riding a horse while intoxicated.  The majority of the Supreme Court held that the offence did not cover riding, only driving.  Eakin J dissented and said the conviction should stand, that riding came within the words of the offence.

Eakin J’s judgment:

A horse is a horse, of course, of course,
And no one can talk to a horse of course
That is, of course, unless the horse
Is the famous Mr. Ed.

Go right to the source and ask the horse
He'll give you the answer that you'll endorse.
He's always on a steady course.
Talk to Mr. Ed.

A horse is a horse, of course, of course,
but the Vehicle Code does not divorce
its application from, perforce,
a steed, as my colleagues said.

"It's not vague" I'll say until I'm hoarse,
And whether a car, a truck or horse
This law applies with equal force,
And I'd reverse instead.

Because I cannot agree this statute is vague or ambiguous, I respectfully dissent

--Noel v. Travis, 857 A.2d 1283, 1289 (Pa. 2004)

Eakin J’s fellow judges are not supportive.

According to Chief Justice Stephen A. Zappala "An opinion that expresses itself in rhyme reflects poorly on the Supreme Court of Pennsylvania."

Justice Ralph J. Cappy has been quoted as stating that "Every jurist has the right to express him or herself in a manner the jurist deems appropriate, [but I am concerned about] the perception that litigants and the public at large might form when an opinion of the court is reduced to rhyme."

Justice Eakin has justified his so-called “poetic justice” by stating that "[Y]ou have an obligation as a judge to be right, but you have no obligation to be dull."

Justices of the Supreme Court of Pennsylvania:
Standing L-R: Justice McCaffery, Justice Baer, Justice Todd, Justice Orie Melvin 
Seated L-R: Justice Saylor, Chief Justice Castille, Justice Eakin

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