D.C. Circuit Review – Reviewed: “Vincent Gambini Taught a Master Class in Cross-Examination.”

by Aaron Nielson — Friday, Mar. 8, 2019@Aaron_L_Nielson

This week, Chief Judge Garland did something unusual, at least for him. He seasoned one of his decisions with a pop culture reference. I suspect he has done it before. (I’m certain he has if one counts Lewis Carroll as pop culture, though I suspect most folks do not.) But I can’t remember any off the top of my head. If you know of such an opinion, please list it in the comments. It isn’t an easy Westlaw search to run.

In particular, in Novato Healthcare Center v. NLRB, Chief Judge Garland (joined by Judges Griffith and Edwards) denied a healthcare company’s petition for review because the NLRB had substantial evidence to conclude that the company committed unfair labor practices. In so doing, he opened his opinion this way:

That’s an unusual way to start an opinion — who in the world is Vincent Gambini? So look at footnote 1:

It seems that in Novato, the administrative trial turned on the testimony of a supervisor who photographed certain employees asleep on the job. But was the timing accurate? Here is Chief Judge Garland’s analysis:

And what does footnote 5 say?

In Novato, there was a similar question: “The problem with this timeline is the sheer number of tasks Gilman claimed to have completed between stopping at the stop sign at 3:50 a.m. and arriving at Station 4 just 5 to 10 minutes later.”

The Court’s opinion is fun to read. Even so, courts should use pop culture with caution. That is especially true for the Supreme Court, where opinions have a very long shelf life. But in all courts, judges must be careful not to trivialize cases. Pop culture has a place on Twitter, sure,* but a judicial decision is different.

Here, Chief Judge Garland — a talented writer — was able to pull it off. He backed up the reference with enough explanation to demonstrate why the reference was applicable. But that isn’t easy to do. Judges would do well to proceed with caution before trying. Perhaps there is a place for, say, Billy Madison in a particular court decision. But boy, be careful.

To illustrate how hard it is to pull off a pop culture reference, this week I decided to do something different. I’ve scribbled my own first paragraph to each opinion, complete with a pop culture reference, and then combined my new opening with the opinion’s real first paragraph. I think you’ll quickly see why such references are tricky.

Let’s begin with Siegel v. Administrator of the FAA:

I don’t think adding the reference would hurt the opinion. But it certainly wouldn’t help it.

It gets even harder when a case’s facts are not conducive to pop culture. Consider Jane Doe 2 v. Shanahan, which we have seen before, and which concerns the military’s transgender policy. Both Judges Wilkins and Williams today filed separate opinions to explain their votes. Here is what a modified version of their respective openings might look like:

Cultural references do nothing here — and if anything, they cheapen the analysis. Indeed, it would have been very hard to find a pop culture reference for either of their opinions. The ones I came up with are no good, and I don’t think “Hail to the Chief” even counts as pop culture anyway.

Finally, consider United States v. Kelsey. I confess; I couldn’t think of a reference, pop culture or otherwise, and I didn’t even want to try. The best I could come up with was a section from The Brothers Karamazov, and, frankly, it felt ugly. So for Kelsey, I’ll let Judge Pillard’s actual opening speak for itself:

My conclusion: Pop culture sometimes may be used appropriately in judicial opinions. But be careful.

Enjoy your weekend.

UPDATE (a few minutes after posting): Via Twitter, I learned about a 2014 pop culture reference from Chief Judge Garland:

 

* On the subject of pop cultural references on Twitter ….

 

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. All views expressed are the author's alone. Follow him on Twitter @Aaron_L_Nielson.

4 thoughts on “D.C. Circuit Review – Reviewed: “Vincent Gambini Taught a Master Class in Cross-Examination.”

  1. William M Yeatman

    on the one hand, I love this post. This is what blogging is all about, & I’m a big fan of blogging as a medium for communication.

    on the other hand: boo! party pooper! for my part, i love the effort to humanize the stuff of black robes. i get that judiciary has no sword. but, tbh, that’s why i’m highly sympathetic to the posture ascribed to CJR. politics matters when it comes to something as social as “legitimacy.” i’m not saying I prefer such calculus, tho i might if i ever spend a month thinking about it. what i am saying is that I 100% get the logic, & i think it’s reasonable. to these same ends, i think pop culture references, on the whole, would only serve to enhance the court’s legitimacy, given the state of the electorate, for better or for worse.

    Reply
    1. Aaron Nielson Post author

      The phrase seems relevant to his analysis and I suspect helped framed his thinking. I don’t want to overstate my position here. Opinions don’t have to be boring. I like good writing and I think Judge Williams — like Chief Judge Garland — is a talented writer. My point only is that sometimes folks try to hard to inject pop culture into opinions, even when it is not helpful or relevant.

      Reply
  2. Jeff Thaler

    I always like to use in my class on statutory interpretation the movie poster (film clips stretch the obscenity line, thank you Samuel L) of “Snakes on a Plane, when I use Judge Srinivasan’s decision in U.S. Association of Reptile Keepers v Zinke, 852 F.3d 1131 (D.C. Cir. 2017). A lot of potential with the facts of that case.

    Reply

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