BY ZACHARY PRICE
First-year students in Prof. Mark Pettit’s Con-tracts course may have been surprised when their professor asked them to write poems. Just imagine their surprise if a judge asked them to write a song.
That’s just what happened last month to Liz Falk ’00. Falk, who was a controversial columnist for the RECORD during her time at HLS, is now a clerk for the Honorable Jerry Buchmeyer, Chief Judge for the Northern District of Texas.
Buchmeyer recently decided a forum selection dispute in a case involving the country music star LeAnn Rimes. He drafted his opinion in the form of substitute lyrics for the LeAnn Rimes song “How Do I Live.” In a footnote to the decision, Judge Buchmeyer credited Falk for the opinion. “Credit for both the words and the lyrics in this opinion goes entirely to my law clerk, Elizabeth Falk, who is now a devoted LeAnn Rimes fan,” Buchmeyer wrote.
Falk told the RECORD that, after discussing the legal issues with her, the judge “half-kiddingly” suggested they should write the opinion as a song. Falk said she “thought he was kidding.” But, she recalled, “I looked at him, and I could tell that he was not kidding, that he would be fine with writing the opinion as a song, but he was putting it to me to see if I would take him up on the challenge.”
“The next thing he knew,” Falk said, “he had the song in front of him and a couple of CDs with the song so he could listen along with the words as he read them.”
Falk said the indication in the footnote that she is now a big fan was something of a joke. “These songs were in my head for at least a week afterwards. I must have listened to that song – which is really sappy – about a hundred times during the period when I was drafting the lyrics in the opinion.”
The case involved a dispute between LeAnn Rimes and her record company, Curb Records. When Rimes was twelve years old – before she was a star – she signed a contract with Curb Records. Falk said that though such contracts are presumptively void when the minor reaches adulthood, in this case the record company had gotten courts in both Tennessee and Texas to disaffirm Rimes’ minority status. The contract contained a forum-selection clause requiring that suits be brought exclusively in Tennessee, but Rimes brought her claim in Texas, arguing that the forum-selection clause should be invalid along with the rest of the contract. The lyrical opinion explained the judge’s decision to honor the clause and transfer the case to Tennessee, because there was an issue of fact and law regarding the contract’s validity.
Judge Buchmeyer wrote, “How do I / Deem this forum the right place. / If I were to sit and hear this case / What kind of judge would I be? / Although I / Would love to meet LeAnn Rimes / It’s gonna have to be another time. / Oh / This case must now leave. / Baby you must take everything / Away from my court. / I order now.” The refrain notes this outcome is required “not because I say so,” but ” ‘Cause forum clauses forever, ever survive! / ‘Cause that’s the way, that’s the way, that’s the way the law is.”
Though this style of legal argument is unorthodox, to say the least, Falk does not believe that the opinion was unfair or offensive for the litigants. Judge Buchmeyer, she said, “has a lot of care and concern for litigants. He wouldn’t have suggested that I write the opinion in this way if he thought it was an issue where it would have appeared that we would have been making fun of the litigants.”
“My judge likes to have fun,” Falk said. “He’s a jokester.” She explained, “when he sees an opportunity to be creative, he will take it. This case was perfect for him because the legal question was fairly clear after doing minor research, and there was no real potential to hurt a litigant’s feelings or to hurt a litigant’s pride, because it was a very neutral, non-personal issue. In that regard, the judge explained to me, because it was that kind of case and because it was a musical dispute, so to speak, writing an opinion in song would be a fun way to handle a relatively routine motion and just have a little fun.”
Falk added that Judge Buchmeyer was disappointed that the law compelled him to decide the case as he did. “The judge loves country music,” she said. “He really wanted to meet LeAnn Rimes, but that can’t dictate what the law says. He seemed really upset that we weren’t going to get to meet her, [even though] he’s not a particular fan. He likes older country music.”
David Bryant ’75, one of the lawyers for Curb Records, agreed that the humorous opinion was appropriate in this case. “I really enjoyed the court’s opinion, and usually sing it in the shower every Thursday morning,” he joked to the RECORD. “Judges and law clerks,” Bryant explained, “have to deal with deadly serious, and sometimes deadly dull, matters. They live all too often with the tragedies of life, with cases involving death, horrible injuries and the victims of crime. When a case presents an issue that can appropriately be decided with some creativity, music and humor, they should feel free to do that. That especially is true in a case like this one, where the scholarship behind the decision was rock-solid.”
Bryant noted that “there is a long tradition of humorous opinions” in Texas. Judges on the Fifth Circuit Court of Appeals, such as John R. Brown and Irving Goldberg ’29, wrote “many great ones,” he said. “Judge Jerry Buchmeyer has an especially good sense of humor.”
Buchmeyer writes a humorous column for the Texas Bar Journal and has included witty footnotes in his Judge-Specific Procedures, Bryant said. Footnote 1, for instance, notes that, “although certainly not required, a motion for continuance may be accompanied by contributions to Judge Buchmeyer’s et cetera humor column in the Texas Bar Journal. The judge has never denied a motion for continuance filed in this manner.” In footnote 4, Buchmeyer refers with approval to another judge who observed that personal disputes between opposing lawyers made him “lament the demise of dueling.”
So Bryant expects that lawyers practicing in Texas will have to deal with more humorous opinions in the future. For these lawyers, Bryant simply suggested, “Relax and enjoy. You never know in advance that the court will choose to write something like this.”
Bryant did concede that it may be more difficult for losers to deal with opinions like the one Falk drafted. “Just make sure you are on the winning side,” he said, “because it’s a lot more fun to send a musical opinion to a successful client than an unsuccessful one.”
However LeAnn Rimes felt about the decision, she has decided not to pursue her claim further. She has dropped the case against Curb Records, though her website (www.rimestimes.com) continues to express frustration with the company. In particular, Rimes voices disappointment that the company has decided without her permission to release an album containing “unfinished material and songs that didn’t make other albums.” The album, she writes, “is not a reflection of myself as an artist, but is solely the conception of Curb Records, and for that I am truly and deeply sorry.”
As for Falk, she enjoyed the unusual assignment from her judge. “It’s really a joy to work for [Judge Buchmeyer],” she said. Falk recommends that students applying for clerkships “look really closely at the person that their judge is when they’re applying, much more than where the judge is located. I think I was too concerned about location,” she said. “I had a great feeling about Judge Buchmeyer, but I wasn’t exactly ecstatic at the thought of coming to Texas, because I didn’t know anyone here and I’m not from here. I took a leap of faith because my judge and I had a very heartfelt conversation when I interviewed.”
“I’m a lot like Judge Buchmeyer in not being afraid to be public and be different,” Falk went on, “and I think we related on that level, and as a result my year has been wonderful.”
So should HLS students toss out their LRA papers and submit poems as writing samples? Neither Falk nor Bryant would reco
mmend going that far. When confronted with the possibility of a musical decision, Bryant said, “You would be ill-advised to try to suggest your own lyrics. Singing and rhyming briefs are a little risky.”