Attorney Dan Krisch
Attorney Dan Krisch ()

I am getting ex-cited. The heart of any well-crafted opinion is its citations—whether it’s Black’s or Blackstone, Corbin on Contracts or Hazard on Ethics, proper authority is the lifeblood of stare decisis. To resolve certain issues, however, a typical cite just won’t do, so judges put down the United States Reports in favor of other, less-august sources:

“Alice in Wonderland”: Rare is the judge with a literary bent (in this instance, former Chief Justice Warren Burger) who can resist citing Humpty Dumpty’s take on statutory construction: “‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean—neither more nor less.’” Tennessee Valley Authority v. Hill, 437 U.S. 153, 173 n. 18 (1978). Mind you, Lewis Carroll is no one-cite pony. See Parhat v. Gates, 532 F.3d 834, 848-49 (D.C. Cir. 2008) (“the fact that the government has ‘said it thrice’ does not make an allegation true. See Lewis Carroll, “The Hunting of the Snark 3″ (1876) (“I have said it thrice: What I tell you three times is true.”).

“The Wizard of Oz”: I eagerly await the forthcoming treatise, “Garland on Alienage Jurisdiction,” See Matimak Trading Co. v. Khalily, 118 F.3d 76, 88 (2d Cir. 1997) (Altimari, J., dissenting) (Court should have looked “no further than our own Constitution” on issue of alienage jurisdiction because “[a]s Dorothy said in the Wizard of Oz: “If I ever go looking for my heart’s desire . . . I won’t look any further than my own backyard.”)

“Billy Madison”: Only a stupefying amount of frustration with a litigant could have prompted a bankruptcy judge in Texas to quote an Adam Sandler movie: “Mr. Madison, what you’ve just said is one of the most insanely idiotic things I’ve ever heard. At no point in your rambling, incoherent response was there anything that could even be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.” In re King, 2006 WL 581256 at *1 n. 1 (Bankr. W.D. Tex., Feb. 21, 2006) (denying a motion “for incomprehensibility”). However, that fed-up judge is not alone. See Lopez v. Quarterman, 2009 WL 1325715 at *1-2 (S.D. Tex. May 12, 2009) (quoting same line).

Sherlock Holmes: The petty satisfaction of intellectual disdain notwithstanding, expert witnesses should eschew Holmes’ comment to Watson, “I am afraid that I rather give myself away when I explain . . . [r]esults without causes are much more impressive.” Barnette v. Grizzly Processing LLC, 2012 WL 293305 at *1 (E.D. Ky., Jan. 31, 2012) (granting defendants’ Daubert motions due to expert’s inadequate methodology).

“My Cousin Vinny”: Apparently, patent infringement actions make strange bedfellows. See Ring & Pinion Serv. Inc. v. ARB Corp. Ltd., 2013 WL 414220 at *1, n. 1 (W.D. Wash., Feb. 1, 2013) (quoting—at some length, mind you—Mona Lisa Vito on the meaning of “positraction” and the difference between limited slip and regular differential). The Federal Circuit Court of Appeals reversed, but not because the district judge was a Marisa Tomei fan.

Jimi Hendrix: The legendary guitarist was a lefty, but conservative federal appeals judge Janice Rogers Brown nonetheless began her opinion in a False Claims Act case: “Forty years ago Jimi Hendrix trilled his plaintive query: ‘Is this love, baby, or is it . . . [just] confusion?’” U.S. ex rel. K & R Ltd. Partnership v. Massachusetts Housing Finance Agency, 530 F.3d 980, 981 (D.C. Cir. 2008). (It was, in fact, just confusion, for anyone that stays up at night pondering False Claims Act jurisprudence.)

Alfred Hitchcock: The master of cinematic terror famously made a cameo in every one of his own films; he has (posthumously) branched out to judicial opinions. Oddly, Hitch appears most often in disputes over attorney fees. See Ray v. U.S. Department of Justice, 87 F.3d 1250, 1251 (11th Cir. 1996) (quoting his quip in an episode of “Alfred Hitchock Presents,” that “[f]ee shifting statutes seem to recognize the reality that ‘defending the underdog is fine, but it’s usually the upperdog who can pay the big fees’”).

F. Scott Fitzgerald: In a similar, leveling spirit, more than one family court judge has repurposed Fitzgerald’s view that “the rich are different from you and me.” Sykes v. Sykes, 35 940 N.Y.S.2d 474, 480 (Sup. Ct. 2012) (wistfully noting that “[f]air or not in terms of society as a whole, the fact remains that it is precisely because of the plaintiff’s great wealth that what might be a contempt under other circumstances is not one here”).

Auric Goldfinger: I leave the last word to the greatest of all James Bond villains, courtesy of the Texas Court of Criminal Appeals): “Once is happenstance. Twice is coincidence. The third time it’s enemy action.” Carrizales v. State, 414 S.W.3d 737, 745 (Tex. Crim. App. 2013) (rejecting defendant’s claim that repeated damage to his tires was accidental).

Now how to work some of these gems into my next brief … •