November 2013 Bar Bulletin
 
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November 2013 Bar Bulletin

To Boldly Go:

How the Bench Is Using a Sci-Fi Classic in Case Law

By John Browning

 

Justice Don Willett of the Supreme Court of Texas once observed: "A lot of legal writing, including judicial writing, is clunky and soul-crushingly dull. In my view, legal humor is not an oxymoron. The law, in fact, sometimes can be fun."

And while there are many who believe that judicial opinions that use verse, quote song lyrics, or make TV or movie references somehow detract from the dignity of the bench or disrespect parties who take the issues very seriously, let's not forget that judges owe a duty to write opinions that are accessible to all.

When writing for an audience that includes not only the practicing lawyers who will be guided by their opinions, but also members of the public who will feel their decisions' impact, judges can hardly be blamed for turning to pop culture to get their message across. Sometimes, this translates to jurists channeling their inner Captain Kirk or Mr. Spock when exploring the final frontier of judicial humor.

One of the best and most recent examples of this took place on Stardate May 6, 2013, in a well-traveled quadrant of the galaxy known as the U.S. District Court for the Central District of California. Judge Otis D. Wright II set his literary phasers to "kill" in entering an order sanctioning four lawyers $81,000 and referring them not only to their respective state and federal bars for discipline, but also referring the matter to the U.S. Attorney's Office and the Internal Revenue Service for criminal investigation.1

The lawyers in question (three of whom were principals in Prenda Law, a copyright "troll" purporting to hold the copyrights to a number of pornographic films) pursued illegal porn downloaders and offered to settle copyright infringement claims for $4,000 each. But it was the questionable way in which the attorneys plied their trade that raised Judge Wright's ire, leading him to observe: "... though Plaintiffs boldly probe the outskirts of law, the only enterprise they resemble is RICO."

In his opinion, Judge Wright decried the lawyers' "vexatious litigation" and representations to the court that varied "from feigned ignorance to misstatements to outright lies." He noted that the plaintiffs' strategy of filing the same boilerplate complaint and threatening defendants with the public stigma associated with downloading porn meant that "resistance is futile." He went on to state: "It was when the Court realized Plaintiffs engaged their cloak of shell companies and fraud that the Court went to battlestations."

Judge Wright peppered his opinion with Star Trek references that run the gamut from the classic '60s series to its "Star Trek: The Next Generation" television successor to the movie franchise, as he characterizes one minor player as "just a redshirt"2 and the seemingly unstoppable litigation campaign as a Borg-like "porno-trolling collective." Criminal charges against the plaintiffs would be likely, the court says, since "the federal agency eleven decks up is familiar with their prime directive and will gladly refit them for their next voyage."

Judge Wright even borrows one of Spock's more memorable lines in justifying his punishment of a few bad-apple attorneys while protecting the rights of hundreds of accused downloaders. He begins his opinion by quoting Spock's logical explanation of his act of self-sacrifice in "Star Trek II: The Wrath of Khan": "The needs of the many outweigh the needs of the few." (One can almost hear the plaintiffs' attorneys' anguished cry of "Wrrrriiigghhht!")


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