Latest Example of “Law Clerk Bingo”

LTB default 777x437

Whoever wrote the concurring and dissenting opinion for Judge Fernandez in Southern Union Co. v. Southwest Gas Corp. has scored heavily in the game of who can get the most ridiculous words into a judicial opinion.

The case involved whether a Mr. Irwin could present a defense that he had acted within the scope of his authority as a government official. The majority ruled that he could, but Judge Fernandez (or his clerk) wrote separately. He began:

I do agree with the majority’s pithy opinion that we have jurisdiction over this appeal and that a contrary rule would approach parody. Still and all, at the risk of being unduly prolix, I will say a few more words about my reasons for agreeing on this issue.

Already a good score, as we have “pithy,” “parody,” and especially “prolix” in the first paragraph. Triple Word Score. But the real points came near the end:

Let me be clear. I do not intend this opinion to be an elogium; I do not say that Irvin’s behavior deserves encomiums, but, whatever his failings, the evidence does not require the conclusion that he is a rapscallion. . . . Did Irvin behave as he should? Of course not . . . . But was Irvin actually flagitious? We do not know; the jury was not asked to decide that question. I would reverse and remand for a new trial.

Wow. Three words that would send almost anybody to the dictionary, and a “rapscallion” to boot. Yes, it’s too bad the jury was not asked to decide “Was the defendant flagitious?” We need to see that on more verdict forms.

There’s a “renascent” in there too, but that just seems like piling on.

Southern Union Co. v. Southwest Gas Corp., ___ F.3d ___, 2005 WL 1661107 (9th Cir. 2005).