Laura Little (James G. Schmidt Professor of Law, Temple University School of Law), 15 October 2023
Humor is often edgy and sometimes crosses the line, becoming just plain mean. This may be particularly true when humor intersects with the law. Take for example the stumblings of former President Donald Trump’s lawyers. The many folks who are not fans of Donald Trump take dark amusement in the convoluted, over-the-top legalese in attorney Michael Cohen’s “hush money” contract, written to ensure that porn star Stormy Daniels remain silent about her sexual liaison with Trump. Likewise, the apparent failure of one of Trump’s lawyers to check the box for “Jury Trial Requested” prompted lawyerly smirks among those celebrating that this grave mistake ensured that Trump would lack the potential fan-backing of a juror or jurors deciding Trump’s fate in his New York fraud trial. One wonders whether folks were disappointed when the judge in the case announced that the case was preceding as a bench trial because it was not a “jury trial case,” and not the result of anyone failing to check a box. In any event, amusement still rides high that Trump is now forced to face the judge whom he has repeatedly excoriated in the press while judge deliberates and evaluates the weight of evidence against him.
A recent lawsuit filed by the son of Reverand Jerry Falwell inspires similar amusement (schadenfreude?) among lawyers. Recall that Reverand Falwell filed a damage-to-dignity lawsuit against Hustler Magazine, which gave rise to a pathbreaking U.S. Supreme Court decision declaring parody to be such an important feature of U.S. history and culture that it merited constitutional protection. Reverand Falwell was a well-known televangelist who began an evangelical school, Liberty University. After his death, Falwell’s son, Jerry Falwell, Jr. took over to run the school.
Acrimony between Falwell, Jr. and the Liberty University Board of Trustees followed, with Falwell, Jr. ultimately forced to resign in August 2020. Many sordid details surrounded the resignation. Now, three years later, Falwell, Jr. has sued Liberty University. His complaint asserts no less than TEN claims:
TRADEMARK INFRINGEMENT UNDER FEDERAL LAW
UNFAIR COMPETITION UNDER FEDERAL LAW
FALSE ADVERTISING UNDER FEDERAL LAW
FALSE DESIGNATION OF ORIGIN
TRADEMARK INFRINGEMENT UNDER VIRGINIA LAW
FALSE ADVERTISING UNDER VIRGINIA LAW
UNFAIR COMPETITION UNDER VIRGINIA LAQ
UNAUTHORIZED USE OF NAME, PORTRAIT, OR PICTURE
ANTICYBERSQUATTTING
BREACH OF FIDUCIARY DUTY
This type of scattershot attempt to nail an opponent is typical for lawyerly “let’s pile it on ‘em” tactics. But it does evoke the quip that “the law is an ass,” which is associated with Dickens’ Oliver Twist, but is apparently from a play published earlier by English dramatist George Chapman.
The part of the complaint that really has lawyers chuckling, however, is the drafting. Consider this sentence from paragraph 6 of the document:
But when, in the run-up to Mr. Falwell’s resignation, news broke that his wife, several years earlier, had an extramarital affair, members of the Board of Trustees and its Executive Committee used it as an opportunity to elevate their own positions of power within Liberty, for their own gain, and treated the Falwells in abhorrent fashion, including by seeking to temporarily oust Mr. Falwell when his health was failing by exaggerating his alcohol use when, in reality, Mr. Falwell was suffering from a nearly-fatal genetic lung condition; and then seeking to force Mr. Falwell’s resignation when the news of his wife’s affair broke, despite the fact that Mr. Falwell himself did not have an affair, in contrast to several highranking University officials (including a former President, a former Dean, a former Provost, and a current Executive Committee member) who the Board of Trustees or Executive Committee believed had affairs or related misconduct but, consistent with Dr. Falwell’s belief in forgiveness, were embraced by Liberty.
One does not need to be a grammarian to agree that this 166-word sentence qualifies as a difficult to read run-on. But what gets lawyers really giggling is how this sentence fares in light of a basic drafting rule mandated in the Federal Rules of Civil Procedure:
A pleading that states a claim for relief must contain:
. . . (2) a short and plain statement of the claim showing that the pleader is entitled to relief. . . .
Federal Rule of Civil Procedure 8
The sentence from the complaint quoted about asserts key components of Falwell, Jr.’s claim and is a far cry from “short and plain,” as Rule 8 mandates. As for the copious list of claims in the complaint, one could simply shake one’s head at this Rule 8 default and move on. And the overflow of legal theories in the complaint is relatively ordinary.
What, then, explains the focused, amused sniggers arising from these two qualities in Falwell’s complaint? Laughing at the cornucopia of legal theories listed in the complaint arises in part from the general human inclination for ridicule. Depending on your point of view, humor taking the form of ridicule can be cruel and not particularly funny. Augmenting the ridicule, however, is something else prevalent in American culture: a deep disgust with lawyers—including among lawyers themselves. Many theories exist for why disgust has developed: unreasonable expectations for the rule of law, the plethora of lawyers in the U.S., the lawyerly habit of aggressive adversarial behavior, the dominant status of lawyers in society, and the often-submissive posture of ordinary citizens who seek lawyerly expertise only in times of life tension or crisis—settling an estate, defending a criminal charge, purchasing a home, and the like.
As for whatever amusement arises from the possible violation of Federal Rule of Civil Procedure Rule 8, another explanation suggests itself. Those who are in the know understand that Rule 8’s admonition to be simple and short in legal pleading is an elementary and important rule for litigating attorneys. Sociologists and psychologists have documented that humor can bind together groups of individuals. Those who have unique knowledge to understand the details behind a mistake or a joke that is obscure to others often feel pride in being part of the “in group” who appreciates its true meaning or understands the significance of the mistake or joke. Thus, litigating attorneys presumably find pleasure in being part of a collective of shared technical knowledge regarding the rules of drafting (and of course in the relief that it was not they who made this egregious mistake).
Added to these somewhat cerebral explanations for the amusement arising from Falwell, Jr.’s complaint is an unadorned fact about humanity: whether we admit to it or not, we find special sizzle in narratives that include lascivious details. His wife had an affair, oh my! I leave it to you, however, to decide whether any of this is truly funny.
Falwell, Jr.’s full complaint can be accessed here: https://storage.courtlistener.com/recap/gov.uscourts.vawd.129120/gov.uscourts.vawd.129120.16.0.pdf