Bards of the Bench
Surely, many of us have played the old parlour game of “who would you rather have over for dinner” with literary figures: Virginia Woolf or Jane Austen? Charles Dickens or Ernest Hemingway? William Butler Yates or Bob Dylan? Michael Ondaatje or Ian Binnie?!
Wait a minute. Ian who?
Unless you are a Canadian lawyer, you can be forgiven for not knowing that Ian Binnie is a former judge of our Supreme Court, who sat from 1998 to 2011. So, while I’m guessing the more common response would be Michael Ondaatje, I ask you not to be too hasty to decide. Some judges, given their love of language and literature, can surprise. A passion for words can make judges appear more humane and accessible, and, yes, even interesting. Most people, unfortunately, are not familiar with their literary abilities, which means that they aren’t aware that some judges may be worth having over for dinner. The best might even give Ondaatje a run for his money as the preeminent Canadian literary dinner companion.
Our lack of knowledge about judicial traits is generally a good thing. Judges are supposed to be fair-minded, intelligent and, of course, honest; at the same time, they should be a little aloof, above the fray. We might even want to appoint those who are somewhat boring, dry, uncool and humourless, because these are character traits that allow them (or that are thought to allow them) to appear both impartial yet engaged, in the same way a chartered accountant might conduct an orchestra.
But judges, at least those at the appeal levels of our courts, are really just very specialized essay writers. What they do for a living is listen to arguments, then write lengthy decisions about what the legal answer should be. If all they had to do was announce a winner and loser in a case, they could simply do what all parents do when deciding whether a teenager’s clothes are appropriate. (Flip a coin?) In fact, appellate judges spend a lot of time thinking about how to justify their decisions. Then they spend even more time crafting the answer, based on reasons, into an essay.
For some judges, these essays aren’t just dry, legalistic decisions. These rare judges pen opinions that are stories; they employ well-crafted turns of phrase; their decisions contain gems related to popular culture; in some cases, they are actually laugh-out-loud funny. The judges who do this, do it to remain grounded, to use literature as a way to “sell” a legal story, to show some humanity, and to make themselves seem less lofty.
Take the idea of judge as storyteller. In the Anglo-Canadian legal world, a universally admired literary judge is Lord Denning, former Master of the Rolls in the United Kingdom. His style is unmatched. The first paragraph of his judgments usually tells us everything we need to know—setting, character and conflict are established, as he narrates a brief, humanistic story, and signals where he thinks justice will lie. In the case of Lloyds Bank v. Bundy, in which an unsophisticated gentleman farmer is out-maneuvered by the big, mean bank, Lord Denning begins: “Broadchalke is one of the most pleasing villages in England. Old Herbert Bundy was a farmer there. His home was at Yew Tree Farm. It went back for 300 years. His family had been there for generations. It was his only asset. But he did a very foolish thing. He mortgaged it to the bank. Up to the very hilt.”
Or consider the case of Hinz v. Berry, famous for establishing the concept that one family member can obtain damages for the shock of witnessing a tragedy befalling others in the family. Denning has the reader in thrall after just a few lines: “It happened on 19 April 1964. It was bluebell time in Kent. Mr and Mrs Hinz, the plaintiff, had been married some ten years, and they had four children, all aged nine and under. The youngest was one.… On this day they drove out in a Bedford Dormobile van from Tonbridge to Canvey Island. They took all the children with them. As they were coming back they turned into a lay-by at Thurnham to have a picnic tea. Mr Hinz was at the back of the Dormobile making the tea. The plaintiff had taken Stephanie, her third child, aged three, across the road to pick bluebells on the opposite side. There came along a Jaguar car out of control driven by Mr Berry, the defendant. A tyre had burst. The Jaguar rushed into this lay-by and crashed into Mr Hinz and the children. Mr Hinz was frightfully injured and died a little later. Nearly all the children were hurt. Blood was streaming from their heads. The plaintiff, hearing the crash, turned round and saw this disaster. She ran across the road and did all she could. Her husband was beyond recall, but the children recovered.” The only surprise is that a Hollywood agent never had the foresight to contact Lord Denning.
Canadian judges are generally more circumspect, yet they, too, occasionally loosen up the tabs on their judicial robes. Justice Binnie is one of those who loves an elegant turn of phrase, as evidenced by his words regarding a lawsuit involving Danier Leathers, where “the warm days of spring are not a blessing for everyone, it seems. As temperatures rise, the sales of leather clothing can lag…” In another instance, he deftly overturns a lower level judicial colleague: “the sentencing judge commented that ‘hard cases make bad law and this is a hard case’,” Binnie tells us, relying on an oft-quoted legal syllogism, which in this case led the sentencing judge to agonize over what form of sentence to assign to the accused. In overturning the lower court judge’s ultimate decision, Binnie’s gentle rebuke, elegantly, but almost inexorably, followed: “[i]n my view, with respect, it also made bad law. I would allow the appeal.”
Another is Justice Morris Fish, also of the Supreme Court. He explores the earth and the heavens through his love of language. The “seeds of this dispute were sown in a thick layer of manure spread by the appellant on a strip of his land,” he writes in one case, while in another, he notes that “in any constitutional climate, the administration of justice thrives on exposure to light and withers under a cloud of secrecy.”
Some of the more literary American judges, perhaps reflecting their national character, can be tough and in-your-face. In one instance, invigorated with the approach taken by the plaintiff’s lawyers seeking to approve a class action before the Christmas recess, Judge Buchmeyer decided to flex his literary muscle. “The acronym for the Army and Air Force Exchange Service—AAFES—rhymes, albeit very poorly and Ogden-Nashedly, with the words “gave us” (or, more correctly, “gafe us”)”, he begins. Recognizing that the plaintiffs felt frustrated by the delays of the “hard-working but overburdened Court,” Buchmeyer relates next how a balloon-toting messenger was sent to his court to seek information in song (to the tune of Let It Snow, Let It Snow, Let It Snow).
“Oh the case is Shafer v. AAFES/We recall the trial you gave us/Do you remember, yes or no?/Let us know/Let us know/Let us know.” Buchmeyer responds as Oscar Wilde might have. Relying on two precedent cases, the first from the U.S. Supreme Court called Falcon and the second from the 5th Circuit Court of Appeals titled Vuyanich, the remainder of his judgment is written as a poem, titled “The Falcon” in homage to Edgar Allen Poe’s “The Raven.” The first few lines read:
Once upon a backlog dreary, while I wrote on, weak and weary,
Opinions in class actions filed long ago, in days of yore,
While I pondered, nearly napping, suddenly there came a tapping,
As of someone gently rapping, rapping at my chambers door.
“’Tis some lawyer,” I muttered, “TRO’ing at my chambers door —
Only this and nothing more.”
Then he partially turns the screws, but lets them off at the end:
Ghastly grim and ancient Falcon wandering from the Vuyanich shore —
Tell me whether the Fifth, the Circuit, will approve class actions, do outpour.
And, quoth the Falcon, “Nevermore.”
Tell me truly, tell me truly, I implore
Are there—are there no class actions?—
tell me — tell me, I implore!
Quoth the Falcon, “Nevermore.”
Except in Shafer v. AAFES, and you should probably let them know.
While judicial poetry is about as common as a talking falcon, judges do frequently rely on popular music lyrics. As might be predicted, Bob Dylan probably wins out as the most often quoted songwriter. What does the rule on expert testimony have to do with Dylan? Well, the favoured lyric for many judges is “you don’t need a weatherman to know which way the wind blows.” This captures the legal notion perfectly: lawyers shouldn’t mess around and play games by subpoenaing an expert when the point they are seeking to establish is obvious. Dylan’s allusion becomes the basis for an evidentiary rule.
Finally, there are the judges who play law for laughs. In this respect, one of my favourite judgments is from Texas, where the judge offered a caustic rebuttal to a big city lawyer complaining about the parochial conditions in Galveston: “Defendant argues that flight travel is available between Houston and San Antonio, but is not available between Galveston and San Antonio, again because of the absence of a commercial airport. Alas, this Court’s kingdom for a commercial airport! The Court is unpersuaded by this argument because it is not this Court’s concern how the parties get here, whether it be by plane, train, automobile, horseback, foot, or on the back of a huge Texas jackrabbit, as long as they are here at the proper date and time.” In a withering aside, the same judge notes that he expects the Defendant will be “pleased to know that regular limousine service is available from Hobby Airport, even to the steps of this humble courthouse, which has got lights, indoor plummin’, ‘lectric doors, and all sorts of new stuff, almost like them big courthouses back East.”
Or take the Canadian example arising from a rather nasty family dispute involving a cuckolded man named Larry, his ex-wife Catherine and her new lover Sam. Justice Joseph Quinn sounds a little like American Idol’s Simon Callow in full flight: “Larry, who regularly drives by the residence of Sam and Catherine, ‘often shoots the finger’ at Sam and, on about three occasions has yelled ‘Jackass, loser.’ A finger is worth a thousand words and, therefore, is particularly useful should one have a vocabulary of less than a thousand words.”
The jury is still out on what these literary efforts mean for justice. We might cherish judges who tell stories, who speak to the people, who employ humour, and who make pithy observations and witty quips. But at the same time, a judge’s job is to decide legal disputes; any pretensions to literary stardom should be set aside if they interfere or obscure a correct decision. Nevertheless, a judgment is, in the end, a form of literature, and depends on many of the same rhetorical devices and narrative techniques other writers employ. At the pinnacle, developing our very own Canadian Lord Denning would, I believe, help humanize the judicial system.
But I’d settle for less—maybe for a judge to venture away from nasty sarcasm in a family dispute, while still painting a vivid picture of failed promises. Imagine if she wrote a line or two cobbled together from Dylan: “the sad-eyed lady of the lowlands, didn’t take long to realize her mistake, since her husband always had one hand tied to a tightrope walker while the other was in his pants.” I’d have that judge over for dinner, unless it was between her and Dylan.