Funny Cide Ventures, LLC v. Miami Herald Publishing Co., No. 4D06-2347, Slip Op. (Fla. 4th Dist. May 16, 2007).
Funny Cide Ventures is not a Northern District opinion, nor is it about intellectual property, but it is worth reading. In a two-page per curiam opinion, the appellate panel dismissed Funny Cide Venture’s ("FCV") claims of injurious falsehood against defendants the Miami Herald and Knight-Ridder. FCV’s horse Funny Cide won the Kentucky Derby in 2003. After the race, the Miami Herald falsely reported that Funny Cide’s jockey admitted carrying something during the race and implied that the jockey had cheated by carrying an illegal, battery-operated device perhaps to shock Funny Cide. Funny Cide and his jockey went on to win the Preakness Stakes with a substantial lead over the field, completing two-thirds of the Triple Crown. But they lost the final race at Belmont and, with it, the Triple Crown. FCV filed suit against defendants claiming that the Miami Herald’s erroneous story caused the jockey to run Funny Cide too hard at the Preakness in an effort to prove his and Funny Cide’s superiority and, therefore, their innocence. As a result of that effort, Funny Cide lost at Belmont and, therefore, lost the revenue generated by a Triple Crown winner. The Court held that despite the "novelty and creativity" of the claims, the loss was not a direct result of defendants’ article.
While the opinion is timely (the Preakness was run last weekend), what is most interesting about it is Judge Farmer’s concurring opinion. His concurrence does not make any novel legal arguments or take issue with the substance of the per curiam decision. Instead, it leads with an argument against "dreary," "tedious" and unnecessarily long judicial opinions.
Judge Farmer argued that some opinions should be written in alternative styles to open the law to a larger audience, and he resolved to occasionally write in other styles:
In my view nothing that is available in human experience ought to be banned by convention in judicial opinion writing.
I should state publicly my own resolution, made several months ago. I had decided that the style of some opinions could–and should– be unconventionally changed for greater openness to all readers. I would try to write some opinions in styles and tones calculated to make legal reasoning clearer for those without law degrees. Then came this case.
Judge Farmer chose this case to act upon his resolution. He wrote his opinion as though he were telling a story/writing a novel — it has a plot (at least a loose one), avoided legal-ease or citation, and it used short, decisive sentences:
The horse won the Kentucky Derby. Decisively. Tenth fastest time in Derby history. First jewel in the Crown.
Sure, there was some racket in the press afterwards. The Miami newspaper said it saw something in the jockey’s hand, some illegal electric thing . . . .
* * *
Then the horse won the Preakness Stakes. And it’s not even close. Wins by nearly ten lengths. . . .
* * *
Whatever. It’s a lock. Two jewels for the Crown. Make room for the third.
I applaud Judge Farmer for making a point and taking a risk, even if his panel members refused to join his opinion because of its style. The law would lose something if cases that illuminated new or resolved uncertain legal principles were written in this style. But writing other opinions in a manner that makes them more readable is an excellent idea. Writing so that more of the people governed by the laws can understand the court’s opinions can only benefit society.
This case also brings to mind Evan Schaeffer’s recent post at his Illinois Trial Practice Weblog about the length of legal briefs. I fully agree with Evan, lawyers should hone their reasoning and writing skills in an effort to write shorter, more focused arguments. The clients, the courts and the lawyers themselves would benefit from an overall reduction in brief length.
Also, thanks to the Wall Street Journal Law Blog for identifying the opinion.