There is a rumor working its way through the courts: the Judicial Performance Commission is investigating a trial judge because he wrote limericks in a statement of decision. If this is true, I bet they were bad limericks, or were insulting to a litigant. A five-line poem that opens with “There once was a . . . ” where lines one, two and five rhyme with each other, and have three metrical feet, and lines three and four rhyme with each other and have two metrical feet, should be outlawed. I hold limericks in such contempt that I would never admit to writing several or even one.
A few years back, my wife and I attended the opera. We sawVerdi’s La Traviata. The program notes told of his lover, Guiseppina Strepponi, whom he eventually married. She was a superb soprano and starred in his early operas, notably Nabucco when it was first performed in 1842. Ms. Strepponi was an important influence on the great composer, and an obvious inspiration that gave rise to his masterpieces. I was so moved I immediately scribbled out a poem on my program.
At the intermission I read it to an elegant lady, who sat down next to me on a large couch in the salon where I was waiting for my wife who was in the restroom. She smiled and asked if I liked the opera. “Yes," I answered, and said, “I also found the program notes about Verdi’s lover interesting. Would you like to hear the beginning of a poem I wrote about Verdi and his lover?” Before she could answer I read it to her.:
Loved Verdi and spumoni,
Was his lover, not a crony,
His muse, his rigatoni.
Can you believe it, she got up from the couch without saying a word? And my poem was not a limerick. It is odd how poetry can upset people. But if a judgment causes a litigant to pay lots of money or lose his freedom, I suppose he does not want to read:
There once was a crook named Jones,
He got all his funds through loans,
His life was once sunny
When he took plaintiff’s money,
This judgment will make him atone.
We must not take words for granted. They are more than mere sounds from a throat or squiggles on a page; they can deliver great emotional force. The limerick, the lowest form of poetry could make any litigant feel demeaned. Because a limerick is short, when it mocks, the words can easily hit their target. But larger grouping of words in opinions or statutes are often regarded with so little care, that they are misinterpreted, or simply misunderstood.
Take for example California Penal Code section 1203 from which I tried to wrest some sense in People v. Holt, 226 Cal.App.3d 962, 966 (1999.) The first paragraph of the statute reads: "If any defendant who has been released on probation is committed to a prison in this state or another state for another offense, the court which released him or her on probation shall have jurisdiction to impose sentence, if no sentence has been imposed for the offense for which he or she was granted probation . . . . " So far it makes sense, but then it goes on and on to say "in the absence of the defendant, on the request of the defendant made through his or her counsel, or for himself etc." This one sentence continues with its meandering clauses to a 177 word confusing finish. Sentences in the statute's remaining four paragraphs are not any better.
Assume you read: “They are frightening judges.” What does that mean? Are the judges scaring the lawyers, or vice versa? Context may explain what the sentence means, but we should not have to guess what it means. Most importantly we should never take anything we write or read for granted. The following case illustrates my point. I use it as an exercise in a writing course I teach to judges.
Defendant, a writer of limericks asserts that plaintiff R. Frost has not taken the road less traveled. Plaintiff brings an action to prove that he has. The following is his testimony:
Two roads diverged in a yellow wood,
And sorry I could not travel both
And be one traveler, long I stood
And looked down one as far as I could
To where it bent in the undergrowth.
Then took the other, as just as fair,
And having perhaps the better claim,
Because it was grassy and wanted wear;
Though as for that the passing there
Had worn them really about the same.
And both that morning equally lay
In leaves no step had trodden black.
Oh, I kept the first for another day!
Yet knowing how way leads on to way,
I doubted if I should ever come back.
I shall be telling this with a sigh
Somewhere ages and ages hence:
Two roads diverged in a wood, and I--
I took the one less traveled by,
And that has made all the difference.
At the conclusion of plaintiff's testimony, defendant does not cross-examine, nor does he produce witnesses. He rests and argues plaintiff has not sustained his burden of proof.
Judgment for plaintiff or defendant? In a paragraph or two write a Statement of Decision supporting your ruling.
What do you think? Valedictorian speakers at high school graduations often use this case to conclude that we, like plaintiff Frost, should courageously strike out on her own and take the road less traveled.
But is that in fact what Frost did? Some judges decided yes. They argued that if, after seeing and hearing plaintiff Frost testify, they were convinced he was credible, he would have proven his case. The evidence he presented was not disputed and he was not impeached through cross examination.
Others argued that even crediting Frost’s sincerity, he failed to prove by a preponderance of evidence that he took the road less traveled. Through his own testimony he established that neither road had been exposed to more or less wear than the other. He thought one road might qualify as less traveled because it was “grassy and wanted wear.” Yet, he acknowledges that usage of these roads had worn them about the same. The morning Frost plaintiff saw the roads, they were covered with apparently the same amount of leaves, and neither road showed evidence of travelers setting foot on them “in leaves no step had trodden black.”
Retired San Diego Superior Court Commissioner James L. Duchnick offered a poetic analysis:
There once was a poet named Frost
Who claimed, in poor rhyme, he was lost
But those in the know
Could with ease clearly show
Both his syntax and purpose were crossed.
He admitted both paths were the same.
At the time no clear difference could he name.
But with hindsight he poses
We should laud him with roses
For a bravery of choice he would claim.
In summation, his effort is clear.
To engender a motive to cheer.
But the choice made that day
In an offhanded way
Was by a traveler who never knew fear.
"Judgment for Defendant."
Los Angeles Superior Court Judge David W. Stuart elevated the limerick to a new high with:
There once was a poet named Frost.
Who stood before two roads that crossed.
He looked at the first,
And thought it the worst,
Took the other and got himself lost.
I would argue that Duchnic and Stuart were justified deciding the case via rhyme. If the litigant uses poetry, why not the judge?
But, in most cases, poetry, and limericks, in particular, do not belong in a judge’s ruling. I know this because I listened to my inner voice for advice. This is what I heard:
There once was a judge not so solemn.
His opinion solved many a problem.
He often told jokes,
To all the good folks.
But limericks he saved for his column.