Dear Florida Supreme Court: We need your help. Among other much simpler issues, this case presents a knotty and important state-law contract question that is more appropriately answered by you than by us. Accordingly, after clearing away some underbrush, we will respectfully certify to you the following question:
Is a contractual “exculpatory clause” that purports to insulate one of the signatories from “any … damages regardless of kind or type … whether in contract, tort (including negligence), or otherwise” enforceable? Or, alternatively, does the clause confer such sweeping immunity that it renders the entire contract in which it appears illusory? Or, finally, might the clause plausibly be construed so as to bar some but not all claims and thus save the contract from invalidation?Each possibility finds at least some support in Florida law, each comes with its own equitable pros and cons, and each has dramatically different implications for the case before us.
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This is far from the worst of the recent string of cutesy opinions that judges have taken to writing. But I have this quote fresh in mind, and will take this opportunity to share it.
ReplyDelete"Although a judge is not required to check his or her sense of humor at the courthouse door, we must be mindful that the parties rely on the judge to give serious consideration to their claims." See Sovereign Mil. Hospitaller Order of St. John of Jerusalem of Rhodes & of Malta v. Fla. Priory of the Knights Hospitallers of the Sovereign Order of St. John of Jerusalem, Knights of Malta, the Ecumenical Order, 702 F.3d 1279, 1297 (11th Cir. 2012).
Dear Judges: stop trying to be cute in judicial opinions. Legal writing is, first and foremost, technical writing.
When judges fill their opinions with pop culture references and ridiculous puns, they diminish the clarity of their opinions for future generations and they cheapen the seriousness of the judicial system.
939
ReplyDeleteYou can be conversational in technical matters. So long as we (lawyers and the public) understand what is being said, what's the big deal?
939
ReplyDeleteYeah! And go back to parchment and handwriting in ink like Sam and Brianne.
And bring back judicial wigs! And barristers! And mourning coats!
And stay off my lawn!
There certainly has been a trend lately along the lines you describe (looking at you Judge Rosenbaum, and Newsome has had his moments, and E. Carnes lately, too) but I don't think this particular opinion really merits that criticism. "Florida Supreme Court, we need your help" is a petty crime when compared to some of the cutesy/folksy stuff that's been coming out of Atlanta lately.
ReplyDeletewho's on first, i don't know, no he's on third base, who is not first but I think what is, what?, what is on first, where did you hear that?, some of it from where, where has where been, I don't know-ask I don't know, he's not around-he is not pitching today, ................
ReplyDelete