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Poetic Decisions

The following is a guest post by Brandon Fitzgerald, project manager of a Law Library staffing contract, writer and student of poetry and literature.

As we come to the tail-end of National Poetry Month, I have been thinking about my earliest post on the relationship between law and poetry and my follow-up titled “Poetic Justice” that more narrowly explores poetry through the lens of the Supreme Court. We know that several Supreme Court justices had a penchant for poetry, including Oliver Wendell Holmes, Jr. who had been elected class poet as a student at Harvard; Melville Fuller; and most notably Joseph Story who was known as “the poet of Marblehead,” but whose works were poorly received both commercially and critically. Their creative pursuits, however, were largely confined to their formative years. Yet, some judges manage to weave their love of verse into their legal careers. In this post, let’s take a walk on the quirky side of law: court opinions written in rhyme.

Poetry affords judges opportunities for unconventional creative expression. As we will see, the more absurd or perhaps frivolous the case, the more eccentric the form of a decision can arguably take. Does a judge’s responsibility to be right necessarily preclude a judge’s ability to be witty? Or does the poetic form diminish the gravity and sincerity of a litigant’s grievance? Every legal professional can come to her or his own conclusion on this matter, but it is an unquestionably amusing exercise to visit some decisions rendered in verse. Let’s look at a few.

In Fisher v. Lowe (333 N.W.2d 67), the case is best described by the clearly amused staff at Westlaw in their publication of the case:

 

A wayward Chevy struck a tree

Whose owner sued defendants three.

He sued car’s owner, driver, too,

And insurer for what was due

For his oak tree that now may bear

A lasting need for tender care.

 

The Michigan Court of Appeals upheld the lower court’s decision ruling in favor of the defendants, offering its rationale by smartly imitating poet Joyce Kilmer’s well-known “Trees”:

We thought that we would never see

A suit to compensate a tree.

A suit whose claim in tort is prest,

Upon a mangled tree’s behest;

A tree whose battered trunk was prest

Against a Chevy’s crumpled crest;

A tree that faces each new day

With bark and limb in disarray;

A tree that may forever bear

A lasting need for tender care.

Flora lovers though we three,

We must affirm the court’s decree.

 

Among the best known judicial lyricists is retired Judge Michael Eakin who served on the Supreme Court of the Commonwealth of Pennsylvania. In Liddle v. Scholze (768 A.2d 1183), a contract claim in which the buyer (Liddle) of two emus (Nicholas and Savannah) sued the seller (Scholze) when the birds failed to procreate, Eakin placed the blame solely on the emus:

The emu’s a bird quite large and stately,
Whose market potential was valued so greatly
That a decade ago, it was thought to be
The boom crop of the 21st century.

Our appellant decided she ought to invest
In two breeding emus, but their conjugal nest
Produced no chicks, so she tried to regain
Her purchase money, but alas in vain.

Appellant then filed a contract suit,
But the verdict gave her claim the boot;
Thus she was left with no resort
But this appeal to the Superior Court.

Emu at Cleland Wildlife Park- Adelaide [photo by Col Ford and Natasha deVere, Used under Creative Commons license, https://creativecommons.org/licenses/by/2.0/ ]

The learned trial court, in well reasoned words,

held Liddle’s case was flightless as the birds,

and her appeal in turn we now must find

as barren as the breeders here maligned.

 

Finally, let’s see how a judge responds when the legal counsels submit poetic briefs. In Mackensworth v. American Trading Transportation Co. (367 F. Suppl. 373), counsels for both the plaintiff and the defendant submitted reply briefs that included limericks. Not to be outdone, U.S. District Judge Edward R. Becker decided to show off his own poetic prowess in his opinion:

The motion now before us

has stirred up a terrible fuss.

And what is considerably worse,

it has spawned some preposterous doggerel verse.

. . .

Overwhelmed by this outburst of pure creativity

we determined to show an equal proclivity.

Hence this opinion in the form of verse,

even if not of the caliber of Saint-John Perse.

 

Wallace Stevens once wrote that, “one is not a lawyer one minute and a poet the next.” I wonder what the great lawyer-poet would have thought of these poetic decisions. They certainly are some of the more curious examples of the marriage between law and poetry.

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