Back when I was in law school, lo those many years ago, Prof. Fuller, who was always a gentleman and very genial, made a comment about jokes in a law school exam. He explained that professors, after staying up late, wading through hundreds of pages, are not in a joking mood. So, he warned us first year laws students, that if we made a joke in our answers, it better be “damn funny.” Law exams are always written and open ended. Prof. Fuller never swore, so his use of the phrase caught our attention.
The Fifth Circuit has its own version of Hoffman Fuller’s warning. In the case of Forum Subsea Rentals v. Elsharhawy, No. 14-20717 (5th Cir. 2/26/2016), a lawyer submitted a motion asking for a rehearing by the entire panel of judges. The lawyer was trying to tell the Court that it had overlooked an argument about personal jurisdiction. To make his point, he opened his motion with an imaginary conversation between the lawyer and the client. It went like this:
“Lawyer: I regret to inform you that the court of appeals affirmed.
Client: What reason did they give?”
The conversation then developed between the lawyer and the client that the Fifth Circuit did not address the argument concerning personal jurisdiction. The lawyer then concluded:
“Lawyer: Have faith. The Fifth Circuit has to tackle thousands of cases a year, so mistakes will happen once in a while, but the Court is conscientious about fixing them on rehearing.”
The Fifth Circuit did respond. It issued its decision this way:
“Judge 1: Did you see Appellant’s petition for rehearing?
Judge 2: No, what do they say?
Judge 3: Well, they begin with a strange hypothetical conversation between a lawyer and client.
Judge 1: I cannot imagine why thought that was a good idea.
Judge 2: What’s their argument?
Judge 3: They say we made a mistake by not expressly addressing their personal jurisdiction argument.
Judge 2: That’s silly. It goes without saying that there was personal jurisdiction here.
Judge 1: I agree. The company reached out to Appellee in Texas, traveled to Texas to negotiate the contract, and entered into a contract with a Texas corporation.
Judge 2: So, what do you think we should do about their petition?
Judge 1: Deny it.
Judge 3: I agree. deny.
Judge 2: Sounds right.
IT IS ORDERED that Appellant’s Petition for Panel Rehearing is DENIED.”
See Above the Law post here. So, the Fifth Circuit responded in kind to a silly technique used by the appellant. As Prof. Fuller said many years ago, if you make a joke when judges are tired and have worked very hard, it better be darn funny.