Up Around the Bend and Between the Lines

By Charles D. Harrison

Editor’s Note: The use of song lyrics and musical references to emphasize a legal point is infrequent but not unheard of.1 Two prominent Arkansas decisions using musical references are Chief Justice Howard Brill’s dissent in Trujillo v. State2 and Judge Mike Murphy’s concurrence in Griffith v. Juarez 3 Other examples are more subtle like Charles Harrison’s previously unpublished backstory to a published opinion.4

While most lawsuits are serious business, some are more so than others. Matters in federal court have long been viewed in that light. Jimmy Durante, a comedian and radio personality best known from the 1940s and 1950s, is credited with coining the phrase “don’t make a federal case out of it.” It’s fair to say that cases pursued in federal court typically involve disputes that are of considerable import, especially to the parties and often to the public at large. But that does not mean that the federal courts must have a funereal atmosphere or that the work product of those courts should always be staid and formal.

I had the pleasure and privilege to serve as law clerk to United States District Judge Elsijane Trimble Roy for 14 years. I can truly say that I’m no fortunate son, but I’ve had my fair share of advantages in my life. Although she never came out and said as much, I had a strong suspicion that I got the job with Judge Roy thanks in no small measure to a recommendation from her fellow District Judge Henry Woods (father-in law to my late brother Paul). I appreciated the gravity and significance of the work we did in federal court, but at times I could not help finding humor and amusement in some of the cases. Accordingly, on occasion the other law clerk and I tried to inject a bit of jocularity into certain opinions and orders. The following is one such example.

In late 1994 Judge Roy presided over a seven-day jury trial in the case of Consolidated Sawmill Machinery International, Inc. v. Hi-Tech Engineering, Inc., which resulted in a defense verdict. The major issues in the case involved claims of copyright infringement. A form judgment stating, among other things, that “each party shall bear its own costs” was entered the day following the verdict. Thereafter, Hi-Tech Engineering filed motions to amend the judgment and for attorney’s fees and costs under 17 U.S.C. § 505. My research revealed a very new and on-point opinion from the Supreme Court of the United States, Fogerty v. Fantasy, Inc.5 The Supreme Court opinion authored by Chief Justice William Rehnquist set out this background information:

Petitioner John Fogerty is a successful musician, who, in the late 1960’s, was the lead singer and songwriter of a popular music group known as “Creedence Clearwater Revival.” In 1970, he wrote a song entitled Run Through the Jungle and sold the exclusive publishing rights to predecessors-in-interest of respondent Fantasy, Inc., who later obtained the copyright by assignment. The music group disbanded in 1972 and Fogerty subsequently published under another recording label. In 1985, he published and registered a copyright to a song entitled The Old Man Down the Road, which was released on an album distributed by Warner Brothers Records, Inc. Respondent Fantasy, Inc., sued Fogerty, Warner Brothers, and affiliated companies in District Court, alleging that The Old Man Down the Road was merely Run Through the Jungle with new words. The copyright infringement claim went to trial and a jury returned a verdict in favor of Fogerty.

After his successful defense of the action, Fogerty moved for reasonable attorney’s fees pursuant to 17 U.S.C. § 505. The District Court denied the motion, finding that Fantasy’s infringement suit was not brought frivolously or in bad faith as required by circuit precedent for an award of attorney’s fees to a successful defendant in a copyright infringement case. The Court of Appeals affirmed, 984 F.2d 1524 (CA9 1993), and declined to abandon the existing Ninth Circuit standard for awarding attorney’s fees which treats successful plaintiffs and successful defendants in such cases differently. Under that standard, commonly termed the “dual” standard, prevailing plaintiffs are generally awarded attorney’s fees as a matter of course, while prevailing defendants must show that the original suit was frivolous or brought in bad faith. In contrast, some courts of appeals follow the so-called “evenhanded” approach in which no distinction is made between prevailing plaintiffs and prevailing defendants. The Court of Appeals for the Third Circuit, for example, has ruled that “we do not require bad faith, nor do we mandate an allowance of fees as a concomitant of prevailing in every case, but we do favor an evenhanded approach.” Lieb v. Topstone Industries, Inc., 788 F.2d 151, 156 (CA3 1986).6

Based on Fogerty, Judge Roy and I decided that in our case Hi-Tech Engineering was entitled to an award of fees and costs and that the judgment should be amended. While drafting the order granting Hi-Tech’s motions I was moved, perhaps subconsciously compelled, to include something of an Easter Egg tribute to a legendary rock and roll band in the document. I should add that I did this without the knowledge of Judge Roy, whose musical tastes at that time in her life were more along the lines of what one might hear on The Lawrence Welk Show, which featured “family fare” made up of old standards, show tunes and polkas. So, working on my own and confident that Judge Roy would not catch on to what I was doing, here’s how I worded what I considered the best part of the order granting the motions:

The decision of the Supreme Court to give credence to Fogerty’s argument and to clear the water on this issue represents a significant revival of the interests of a prevailing defendant in recovering costs and fees under federal feeshifting statutes.

After reading it over and over again, I finally concluded that I had incorporated the entire name of Creedence Clearwater Revival into one sentence in a way that both seemed acceptable from a legal writing perspective and was subtle enough to qualify as a bona fide Easter Egg. As I anticipated, Judge Roy approved and signed the order without noting my attempt at scrivening humor.

The order and an amended judgment were soon entered awarding substantial attorney’s fees and costs. I was expecting to get a telephone call about the order from someone on the legal team of the prevailing party, but no such call was received. When 10 days or so had passed since the entry of the order and I had heard nothing from anyone, I called the attorney on the defense team that I had known for more than 20 years. As soon as he answered I asked if he had anything to say about the order. He replied that they appreciated the Court’s prompt ruling on the motion and were pleased with the result. When I asked if that was all he had to say about the language of the order, he advised that he had skipped most of it and simply jumped to the end to see the Court’s decision. Upon hearing that I asked him to get a copy of the order in his hands and to read the contents of the second page. After nearly a minute of silence he finally let out a “Hey, I see what you did there. That’s pretty good.” I thanked him for his belated acknowledgement of my treasured sentence and hung up while muttering, mostly in jest, that I would think twice in the future before casting pearls before swine.

Endnotes:

1. See generally Mark W. Klingensmith, Lyrics in the Law: Music's Influence on America's Courts (Lexington Books 2019).

2. Trujillo v. State, 2016 Ark. 49, at 8–9, 483 S.W.3d 801, 806–807 (Chief Justice Howard Brill, dissenting, quoting Johnny Cash, Starkville City Jail (Lyrics © BMB Rights Management, Sony/ATV Music Publishing LLC)).

3. Griffith v. Juarez, 2022 Ark. App. 206, at 9, 645 S.W.3d 339, 344 (Judge Mike Murphy, concurring, citing AC/DC, Dirty Deeds Done Dirt Cheap (International Edition 1976)).

4. The article’s title is a reference to John Fogerty’s Up Around The Bend (Fantasy Records 1970), which contains the line “There’s an ear for what you say.”

5. 510 U.S. 517 (1994).

6. Id. at 519–521. ■