A Long Time Ago, in a Courtroom Far, Far Away

ev JOHN G. BROWNING

MY RECENT ARTICLE "TO BOLDLY GO WHERE FEW JUDGES HAVE GONE BEFORE," PUBLISHED IN THE SEPTEMBER 2013ISSUE OF THE TEXAS BAR JOURNAL, took a lighthearted look at Star Tiek reference: .:,.:-r.:-.- up in judicial opinions. The response was overwhelming, with national legal b,Lrts :--r ^:l publications of other states picking up the story and even reprinting it. I hea:j .: -r- lawyers and judges all over the country as they confessed their own secret Star Trek r..:r j.-::. \,t, I also received emails from fans of that orher science fiction mega-franchise. Sra: ,..::. demanding to know when I was going to show a little geek love for Luke Skr.u aLk.:. H:.--- Solo, Princess Leia, and the other denizens of the Star \il/ars universe. Being a ler,':..- : Star Wars as well as Star Trek, I'm happy to oblige.

IIL.]SIFAI (]N BY EDD PATTI]I.I

158 Tcxds Bar Journal . Fec'tar1 2014 texasbar com And really, when you think about it, why shouldn't claimed that his female supervisor referred to him while there be a look at how George Lucas's "galaxy far, far walking the hallway as "Chewbacca."u And in perhaps away" has subtly influenced lawyers and judges? No, I'm the oddest case, a solution engineer for a business soft- not talking about a Clerks-like debate on the use of inde. ware company alleged violations of the Americans with pendent contractors in building the Death Staq the Disabilities Act over failure to make reasonable accom. numerous OSHA violations in jabba the Hutt's palace, or modations for his dwarfism and claimed that his former even whether a Thtooine "stand your ground" law would employer made "offensive and dismissive" references to have gotten Han Solo off the hook for shooting Greedo his being "an Ewok."'lJnfortunately for the plaintiff, the in the cantina. Nor am I referring to the numerous judge was a fan of the truth serving as a good indication reported cases involving Lucasfilm's atmy of lawyers pro' that there was no discrininating motive. Holding for the tecting the company's intellectual property rights against employer, the court noted that the plaintiff, a former lil/ars would-be infringers with the zeal of X.wing pilots making actor, "actually was an Ewok in three Star movies," the Death Star trench run (and in the process, even tak' and that a website created by a friend of the plaintiff ing exception with political groups' use of the term "Star "shows a picture of plaintiff in an Ewok costume, rvithout \7ars" in association with the Reagan-era Strategic Defense the Ewok head."'o

An employee of Lucasfilm itself even $ued for alleged diserimination on the basis of gender and national origin, claiming that a supervisor had referred to her as an Ewok.

Initiative).' Instead, I'm focusing on the myriad ways in In other cases, it's the settings o{ the Star Wars films which pop culture, in the form of Star Wars, has seeped that inspire shout-outs from the bench and bar. Trying to into our legal culture. Do a qr-rick Westlaw search for convey the concept of how widespread social media com- "Star lUars" and you'll find everphing from references to munications can become, and how there can be virtually strategies that the ill-fated energy giant Enron code' no expectation of privacy in a message posted on Twitter, named as "JEDI" and "Death Star"' to a county prosecll' New York Judge (and self-confessed Star Wars fan) tor in Michigan named Luke Skywalker.'The extremes of Matthew A. Sciarrino denied a motion to quash a sub. Star \Wars fandom have been immortalized even in the poena for the defendant's tweets, saying, "In fact, on legal literature, with litigation over marital property that August l,20lZ, your tweets will be sent across the uni- included hotly disputed Star !7ars action figureso and per- verse to a galaxy {ar, far away."" Another court used the sonal injury claims encompassing a diminished ability to same Star Wars analogy in a commercial dispute, reject- dress up in Star \7ars-inspired costumer.' ing the plaintiff's contention that two transactions were With the plethora of exotic aliens populating the Star unrelated and noting that, in fact, "the transaction was 'Wars universe, it's hardly surprising to find a few sneaking not in another galaxy far, far away."tt And in one envi- into the legal reporters. Interestingly, there has been a ronmental 1aw case, the pristlne Arkansas cypress swamp number of employment discrimination, defamation, and at the heart of the dispute was described as having been even criminal cases in which a party took insult with a so unchanged over time that it was "like the swamp that comparison to one of the creatures from George Lucas's Yoda lived in in Star'Wars."" fertile imagination. In People +t. Hollis, a voluntary manslaugh- Of course, the wild cantina at Mos Eisley-that ter case, a female friend of the defendant was compared to "wretched hive of scum and villainy" with its seemingly Chewbacca, a move that resulted in what the court called endless variety of aliens-has also figr-rred into a couple of "a tragic example of what can happen u,hen people resort judicial opinions. In a dispute over unpaid overtime and to firearms as a medrod of conflict resolution."6 An employee meal benefits that had beaten a complex path through of Lucasfilm itself even sued for alleged discrimination on the judicial system, the court observed that "similar to a the basis of gender and national origin, claiming that a Star Wars bar scene, the procedural history of this action supervisor had referred to her as an Ewok. The court took is bizarre."'a And in the criminal case of Smirh c,. Sqibner, a dim view of her allegations, pointing out that, unlike the petitioner counsel's argument that the police lineup the employee, "Ewoks are not of Arab ancestry."T participants looked nothing like his client (or each other, In another case (an appeal of the denial of unemploy. for that matter) led to this amusing exchange with the ment benefits), the plaintiff, an ex-employee at a school, trial judge:

texasbar.co m/tbi Vol.7Z No. 2 . TexasBarJournaL 159 Counsel: Other than the fact that they shared African- [sic] \7i11lams) had done in the Star \Wars movie The American descent, these people were about the same Empire Srrikes Back (Lucasfilm 1980)."'o as the denizens of the Mos Isleys [sic] Space Port in Judges, of course, strive to be perceived as wise, so what \il/ars. Star better way to add a little Jedi wisdom to an opinion than by invoking Yoda, the Jedi Master himself? In a case Court: I am sorry. I don't go to those movies so I have involving the appeal of a racketeering and money launder- no idea what you are talking about. ing conviction stemming from "spas" that were allegedly fronts for prostitution, Judge Frank Easterbrook ofthe 7th Counsel: All right. This is like the British judge who, Circuit took the prosecution to task over an inflated cal- when there was a reference to the Rolling Stones, said, culation of the illegal operation's proceeds." Determining "the Rolling !7hat," Your Honor. A11 we were missing that operational costs shouldn't be considered net pro- here were the Harlem Globetrotters and the Seven ceeds, Judge Easterbrook channeled the tiny green Jedi in Dwarfs [sic]. cautioning, "Size matters not, Yoda tells us."" Justice Cunningham of the Kentucky Supreme Court took a sim- Court: ln other words, it was in the middle, not to ilar side trip to Dagobah in his dissenting opinion on due either extreme. process considerations and nonpayment of child support, noting: "Even Yoda, the diminutive Star'Wars guru, rec- Counsel: I don't think so." ognized that sometimes in life we have to fish or cut bait. 'Do or not do. There is no try.'It is an admonition which Comparisons to particular Star \7ars characters also fits the deadbeat parent when all of our solicitous plead- pop up frequently in judicial opinions, which makes sense ings and beseeching have led nowhere."t' given the light vs. dark, good vs. evil dualism inherent in Sometimes judges who channel their inner Luke Sky- Lucas' sprawling space opera. The Jedi Knights, or what's walker or Han Solo sound an optimistic note, as the late left of them, are the guardians of peace and justice in the Judge Jerry Buchmeyer did in revisiting the issue of attor- galaxy before the evil empire of Emperor Palpatine and neys' fees-nlso referred to as lodestar, which consisc of Darth Vader casts a dark shadow Even testimony associ- the reasonable hours expended multiplied by the reason. ating the defendant with the wearing of a Darth Vader T- able hourly rate-in an employment case. ]udge Buch- shirt becomes an issue on appeal in a criminal case, with meyer indicated that, "armed with the plaintitts' nerv the court observing that "appellant urges the court to filings, the Court shall once again attack the loJesrar."r' believe that because Darth Vader is a universal archetype At other times, judges can be downright bleak, as Ju.rrce of evil, anyone who saw an image of Darth Vader would Moore was when characterizing a case in which the par- unfailingly recall it under any circumstances."'u ties had conspired "in a despicable scheme" to hiJe a-.sets One habeas proceeding featured a forensics expert's during divorce and child support proceedings.-' He '*,r'rote: being compared to Obi-Wan Kenobi." Another expertt testimony in a tortious interference and non-compete case This case is somewhat akin to deciding a dispute teni'een about the "ripple effect of negativity" that contributed to Darth Vader and the Borg, or if you prefer a classical the damage claims prompted a sardonic, Star Wars- metaphor, Scylla and Charybdis. There is no jusrice to inspired footnote from another judge. The judge observed be done here. . . . As much as we might pret'er an out- that it took the desffuction of an entire planet (Alderaan) come in whlch neither party profits from its rvrongtul to cause a "great disturbance in the Force" sensed by Obi- conduct, it is not within our purview to do so. One of Wan Kenobi in Star Wars Episode IV A Nec, Hope, while these undeserving parties, unfortunately, has to prevail.t" the expert's conclusions were lacking in explanation.tu Perhaps the best shout-out comes from another non- And even the trial tactics of parties can elicit a Star compete case, this time involving a dispute between rivai Wars reference from a jaded jurist. In one case u'here a test-preparation services.'' The defendants, former employ- doctor was charged with enabling prescription drug abuse ees of the plaintiff firm, TestMasters, referred to it as an by allegedly issuing hundreds of medical11, baseless pre- "evil empire." Judge Segal, evidently a Star Wars fan, pro- scriptions for painkillers like oxycodone, the courr chided vided a helpful explanation of one defendant's promise the defendant for diversionary tactics.2i These tactics that he would "not do anything Calrissian-esque." The included demanding a list of a prosecution witness's pub- court noted this "was his way of saying that he would not lished articles for the last decade, the cases in u.hich the betray Defendant to Testmasters as the character Lando witness had testified, and a statement of the witness's Calrissian ('the mayor of Cloud Ciry' played by Billy D. compensation-demands that the court noted were

160 Texas Bar Jomnal o February 2014 texasbar.com "[w]ithout citation to authority or much supporting argu- the modern day equivalent of accusing the defense of rais- ment," The judge said, "This diversion-the legal equiv' ing a red herring."" The court declined to consider \7i11ing's alent of Obi-!7an Kenobi's 'These aren't the droids you're claim, because (hke a1l "Chewbacca defenses") it lacked looking for,' see STAR \UARS EPISODE lV A NE\f "relevant authority or cogent argument."3l you're the wisdom of Yoda as HOPE (Lucasfilm 197 7 )-is unavailing."'o So whether channeling Speaking of diversionary trial tactics, no discussion of you embark upon the litigation equivalent of attacking the Star Wars' influence on the legal system would be com- Death Star, navigating your way through an asteroid field plete without a nod to what has become enshrined in the of murky contract provisions ("never tell me the odds"), popular consciousness as "the Chewbacca defense." This or hoping to try a Jedi mind trick on a troublesome expert legal "strategy," while inspired by the science fiction clas' witness, remember that the Force will be with you, always. sic, actually owes more to the creators of South Park, Just don't try the Chewbacca defense' re.l where it appeared for the first time in the second season episode titled "Chef Aid." The Chewbacca defense refers NOTES (D.D.C. 1985)' to making a legal argument, the aim of which is to delib- 1.. See,forexmple,LucasfilmLtl.v.HighFrontier,622F.Supp.931 ). In re Enron Corp. Securities, Derivative & ERISA Litigation, 235 F. Supp. 549 erately distract and confuse the jury with the use of a "red (S.D. Tex. Dec. 19, 2002). (E.D. (the opinion is silent herring."" In the episode, an animated Johnnie Cochrane 3. Almmu. Reed, 2010 WL 4106686 Mich. Oct. 7, 2010) as to whether young prosecutor Skywalker ever whined about getting out of the is defending a record company being sued by the charac' prosecutor's office and seeing the rest of the galaxy, or going to Toshi Station for ter Chei who wants credit for a song he wrote. Cochrane some power converters). 4. Mutoneu.Mmtone,2009 WL 1662{81 (Sup. Ct. Conn. Mav 19,2009). distracts the jury with this soliloquy, which bears no rela- 5. EdwardPekinu.Vito Parise, (Cir. Ct. lLl., Cook Cnty. Judicial Cir. Feb.6, 2008) Loss normal life tion whatsoever to the facts of the case: (where the court duly notes that "Plaintiff makes the claim o{ of because he rvas an avid Star Wars fan and often dressed up as a Star Wars trooper for various events." "Normal Life," it would seem, is a very fluid conccpt)' (Cal. App. 1st Dist. july 2009). Ladies and gentlemen, this is Chewbacca. Chewbacca is 6. People u. Hollis, 2009 WLZ24B847 ?. Totah v. Lucasfilm Entertainment Co., Ltd.,2010 WL 5211457 (N.D. Cal. Dec' a Wookiee from the planet Kash1ryyk. But Chewbacca 2010). planet think about that-that 8. PJ. r. ReuieuBd. of thelndimaDep'tofWorkforceDeuelopment,Z)llWL6292202 lives on the Endor. Now (Ct. \X/ookiee, App. lnd.). does not make sensel \7hy would a an B'foot- 9. Rotoff u. SAPAmenca, Inc.,43ZF. Supp. 2d 1111 (D. Or. Mav 26'2A06). i0. Id. tali Wookiee, want to live on Endor, with a bunch of 2- (N 1 l. P eople of the Sate o/ Neu York u. Mabohn Hmis, Docket No. 20 1 1NY080 1 52 Y foot-tall Ewoks? That does not make sensel But more Crim. Ct. June 30, 2012). 12. LLC t. Bmk of America, N.A., 201 1 \UL 102677 (S.D.N.Y 201 i ). you to ask yourself: what does this have important, have (8th Cir. 201 1 13. ^ryippd,Sien a CLub u. U. S. Arml Corps of Engineers, 645 E.3d 978 ). to do with this case? Nothing. Ladies and gentlemen, it 14. Quinorexu. EmpireTodtl, LLC, 2010 \7L 5211501 (N.D. Cal. Dec. 16' 2010)' 15. Smirh r. Scribner, 2008 WL 649058 (C.D. Cal. 2008). has nothing to do with this casel It does not make sensel 16. Srate u. Brom, 2007 WL 4555787 (Ct. App. Ohio Dec.28, 2007). Look at me. l'm a lawyer defending a major record com- 1'1. F oith v. CLrk, 7A12 WL 23'l 6327 (E.D. Cal. 201 2). (N.D. 111, 14, 2011)' Does that make 18. ThePamperedChef u. Alexmim,804 E Supp. 2d 765 iulv pany, and I'm talkin' about Chewbaccal P r ep atiare, 1 9. Robin Singh Edrcational Services, Inc. dlb I a Testmter s u. Blrepint Test u sense? Ladies and gentlemen, I am not making any LLC, 2013 WLZ4O273 (Cal. App. 2d Dist. Jan. 21, 2013). makes sensel And so you have to 7A. td. sensel None of this 21. Unired States v. Hodge, 558 F.3d 630 (7th Cir. 2009). remember, when you're in that jury room deliberatin' 22. Id. C ealth Kentuckl v. Mu shall, 345 S.!7.3d 82 2 (S. Ct. Kv. 20 1 2 )' the Emancipation Proclamation, does it 23. ommonw of and conjugatin' 24. Scribner v.WffieHoue,lnc., 1998 \7L 4?640 (N.D. Tex. Feb. 2, 1998) (Judce make sense? Nol Ladies and gentlemen of this supposed Buchmeyer even contrasted his own initially unsuccessful efforts with those of the "con- lives on intrepid pilots of the Rebel Alliance, noting in a footnote that they had jury, it does not make sensel If Chewbacca quer[ed] the lodestar on the first attack"). Endor, you must acquitl The defense rests.'o 25. Anthonl u. Maron, 2006 WL1745769 (Cal. App. -4th Dist. June Z7'ZAA6) ).6. Id. 27. Llnitedsntes v. Stapbton,2013 WL 396?951 (E.D. Ky. July 31, 20i3). Lest you believe that "the Chewbacca defense" exists 28. Id. (Comedy distraction through 29. SouthPark, Episode 27, "ChefAid" Central,2nd season). only in pop culture as a synonym for 30. Id. reference to wholiy unrelated people and events, it actu- 31. Willing u. Nevada, 2013 WL 3297070 (Sup. Ct, Nv. May 14, 2013). videos and Urban 3Z rd. ally has transcended the world of virai 33 td. Dictionary and has become immortalized in legal circles by the Supreme Court of Nevada, no less." ln discussing an appeal of convictions for kidnapping and assault with JOHN G. BROWNING is the adninistrative partner 0f Lewis Brisbois Bisgaard & Smith in the court points out in footnote 1 Wlll- a deadly weapon, Dallas, where he handles civil litigatiln in state and federal courts in ing's protests over the prosecution's characterization of areas ranging fron employment and intellectual pr1perty t0 c0mmer his attempt to bring up information about the victim's cial cases and defense of praducts liability, professianal liability, nedia lavtr, and general negligence matters. He also serves as an supposedly wrongful conduct. The court refers to Willing's adjunct professlr at SMIJ Dednan School of Law where he teaches unsuccessful attempt at raising "a Chewbacca defense- the clurse "Social Media and the Law."

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