Bow Ties, the TARDIS & Court Opinions

Unless you have been time locked in the The Last Great Time War, most science fiction fans recognize that Matt Smith’s 11th Doctor has ushered in a Bow Tie Renaissance.

Doctor Who, without question, has done wonders for bow tie awareness with “Bow Ties Are Cool.” However, lawyers and judges have worn bow ties for as long as there has been the United States of America.

Great bow tie wearing American legal minds have included Clarence Darrow, John Quincy Adams, Joesph Welch, John Paul Stevens and Abraham Lincoln.

You also cannot say “bow tie” without saying Winston Churchill.

JoshDr_7458I personally made the switch to bow ties in 2007, so I would stand out from other speakers on eDiscovery. Bow ties are also just cool.

Case in point: Before a community legal event, the elected District Attorney and Public Defender both complimented me on my bow tie, demonstrating bow ties can bring both sides in the administration of justice together.

What have judges said about bow ties in court opinions over the years? Let’s review the legal valet of bow ties.

Residual Fear of Bow Tie Wearing Law School Professors

Some lawyers and judges had rough encounters with bow tie wearing professors in law school. Exhibit A of such negative long term memories:

This is a difficult case. It involves several discrete areas of New York contract law coupled with imperfect facts; the combination of which is appropriately found on the pages of cruel contracts exams given by law professors clad in bow ties. Nevertheless, pursuant to this Court’s diversity jurisdiction, the following facts were adduced and legal issues raised by the Parties for this Court to resolve.

Grandis Family P’ship v. Hess Corp., 588 F. Supp. 2d 1319, 1321 (S.D. Fla. 2008).

The Clothing of Contempt

Justice Joseph Boyd from the Supreme Court of Florida made the following point in a dissenting opinion on whether someone could be held in contempt based on courtroom attire (in the case, a string tie):

It is interesting to observe that the female Assistant Attorney General who appeared before this Court against petitioner was wearing an attractive coat, shirt and tie which would have been considered extremely unorthodox forty years ago. Apparently if the male petitioner in this instance had been wearing the same coat, shirt and tie worn by the female Assistant Attorney General the trial courts would not have cited him for contempt. The irony of the situation is further illustrated by the fact that if petitioner should become a judge and should determine it proper for all male attorneys to wear string ties when appearing before him, he might well cite all non-conforming members of the Bar for contempt. If trial judges can require male attorneys to wear ties preferred by said judges then those who wear bow ties may require the wearing of bow ties and those who wear blue ties may be offended by those who wear red ties.

Specifically, it is my opinion that judges are not permitted by the Federal or State Constitutions, statutes or rules of court, to hold an attorney in contempt for wearing any type of clothing in courtrooms so long as such clothing does not interfere with the proper administration of justice or demonstrate disrespect for the court or judicial proceedings.

Sandstrom v. State, 336 So. 2d 572, 578-579 (Fla. 1976).

Bow Ties & Religious Freedom Under the First Amendment

In a case pertaining to what sorts of ties a prisoner could wear, the Court had to address whether prohibiting the Plaintiff from wearing a multi-colored bow tie violated his religious freedom in prison.

A Department of Corrections policy directive, No. 4911, lists types of clothing that inmates are permitted to wear. The list of acceptable items includes “Neckties – cloth, solid colors only,” and “Bow ties.” Since a bow tie is a type of necktie, and the directive specifies that only solid-color neckties are permitted, the directive is reasonably read as allowing solid-color bow ties and prohibiting multi-colored bow ties. Defendants introduced evidence that they informed Allah that his confiscated bow tie was unacceptable not because it was a bow tie, but only because it was multi-colored, and that there was no institutional objection to his having solid-color bow ties. Since there was evidence that wearing any color bow tie is an acceptable exercise of the Nation of Islam religion, the trial court’s conclusion that the prohibition against Allah’s wearing a multi-colored bow tie did not infringe his rights was not erroneous.

Allah v. Irvin, 1995 U.S. App. LEXIS 39868, 2-3 (2d Cir. N.Y. Nov. 17, 1995).

Bow Tie Wearing Jurors: The Scourge of Criminal Defense Lawyers

Judge William Hungate stated the following regarding peremptory strikes, jury selection and bow ties:

JoshDrWho_7450Some well-known and successful criminal defense lawyers have expressed views about jurors that to others may seem idiosyncratic, if not absurd. Percy Forman, one of the more successful, is leary of Germans, Russians, and others with a strong sense of law, order, and “tribal tradition.” Louis Nizer has said he is suspicious of prospective jurors with beards or bow ties: “They’re usually individualists who will try to win a jury over to their view.

United States v. Johnson, 721 F. Supp. 1077, 1081 (E.D. Mo. 1989)(Emphasis added).

All things considered, Louis Nizer did have a valid point on people who wear bow ties: We tend to “think different” and are not afraid to stand out.

Ingratiating Bow Ties

Supreme Court Justice John Paul Stevens, a long time bow tie wearing justice, made the following point in dissent with bow ties as an example, simultaneously showing the contrarian nature of some bow tie wearers:

Consider the following scenario. A crafty homeowner in need of a mortgage, having learned that the bank’s loan officer is a bow tie aficionado, purchases his first bow tie to wear at their first meeting. As expected, the loan officer is wearing such a tie, which, incidentally, the prospective borrower considers downright ugly. Nevertheless, thinking that flattery will increase the likelihood that the officer will be favorably disposed to approving the loan, the applicant swallows hard and compliments the officer on his tie; he then volunteers the information that he too always wears a bow tie. This is a lie. Under the majority’s interpretation, this person could spend 30 years in federal prison. He made a “false statement.” 18 U.S.C. § 1014. In fact, until that day he had never worn a bow tie. And the statement was made “for the purpose of influencing” the bank. Ibid. The applicant subjectively hoped that the loan officer–flattered and feeling a sartorial common ground–would be more likely to approve his mortgage.

United States v. Wells, 519 U.S. 482, 513 fn 14 (U.S. 1997).

The FBI vs Bow Tie Attorney

Litigation can raise blood pressure and cause out-of-character behavior. In one case, a FBI Agent threatened a bow tie wearing attorney. The attorney invited the Agent to meet him outside and also reported the threat to the Court. The judge stated the following:

Agent Long is an experienced FBI agent. Mr. Skepnek, an able attorney with a jovial personality whose in-court manner can be characterized as that of an exuberant gladiator, has a penchant for bow ties. He played football at the University of Kansas and is approximately ten years younger and forty pounds heavier than Agent Long.

Agent Long’s unprovoked conduct in the courtroom raises questions not only as to his training and ability as an FBI agent but also as to his judgment and belief in his own physical capabilities. In light of Mr. Skepnek’s strongly stated disclaimer that any intended intimidation was effective, the Court finds that the quality of the defense afforded the defendant has not been jeopardized.

The Court finds further that perhaps the appropriate sanction would be simply to direct Agent Long to attempt to carry out his threat. While Mr. Skepnek might be willing to “participate” in the imposition of this sanction as evidenced by his response to Agent Long, the Court concludes that such sanction might very well constitute cruel and unusual punishment in contravention of the eighth amendment to the United States Constitution. So, because the defendant has withdrawn any further demand for sanctions, the Court happily deems the matter MOOT.

United States v. Ryans, 1989 U.S. Dist. LEXIS 18274, 2-3 (W.D. Okla. May 5, 1989)

I’m Your Private Trademark Lawyer

In a case that could have had attorneys fighting over who would argue the merits, and others perhaps having tearful memories on how they paid off law school loans, one Court provided the trademark history of Chippendales’ “Cuffs & Collar” uniform, complete with a diagram:

The applicant, Chippendales, is in the business of providing adult entertainment services for women. It opened its first strip club in Los Angeles in 1978. In 1979, Chippendales performers began wearing an abbreviated tuxedo–wrist cuffs and a bowtie collar without a shirt–as part of their act. This costume, referred to as the “Cuffs & Collar,” was featured prominently in Chippendales’ advertising and performances over the past several decades.

It is set forth below:
TrademarkChipCaseIn November 2000, Chippendales filed an application to register the Cuffs & Collar trade dress. In 2003, the United States Patent and Trademark office (“PTO”) issued Registration No. 2,694,613 for the Cuffs & Collar for “adult entertainment services, namely exotic dancing for women.” U.S. Trademark Registration No. 2,694,613 (the “‘613 mark”). A mark that is inherently distinctive qualifies for registration under the Lanham Trademark Act (“Lanham Act”). See Pub. L. No. 79-489, 60 Stat. 427 (1946) (codified at 15 U.S.C. § 1051 et seq.). A mark can also qualify for trademark protection under Section 2(f) of the Lanham Act if the mark has become distinctive through use in connection with the applicant’s goods in commerce, known as acquired distinctiveness. See 15 U.S.C. § 1052(f) (“Section 2(f)”).

Although Chippendales submitted evidence both of “inherent” distinctiveness and, alternatively, “acquired” distinctiveness under Section 2(f) of the Lanham Act, the examining attorney in  2003 concluded that the applicant was only entitled to a registration based on acquired distinctiveness. Because of the existing procedure at the PTO at the time of the decision, Chippendales could not contest the basis of the examining attorney’s decision. The sole option at that time would have been for Chippendales to request that the registration be cancelled and that the mark be remanded for reconsideration. Chippendales was about to commence an infringement action based on the registration and thus opted not to initiate the cancellation of its registration under Section 2(f). The ‘613 mark became incontestable in 2008 under 15 U.S.C. § 1065.

In re Chippendales USA, Inc., 622 F.3d 1346, 1348-1349 (Fed. Cir. 2010).

A Lawyer & His TARDIS

JoshDr_7459We began with Doctor Who and should end with Doctor Who. Ironically, there are no US court opinions referencing Doctor Who over the last 50 years.

In fact, the references to TARDIS have nothing to do with Time And Relative Dimension In Space.

In one 2011 case, “Tardis” referred to a UK product that pertained to wire strippers and can machines. J. McIntyre Mach., Ltd. v. Nicastro, 131 S. Ct. 2780, 2797 (U.S. 2011).

TARDIS is also referenced in cases involving air traffic safety. TARDIS is an acronym for “Terminal Automated Radar Display Information System,” which is an inexpensive radar system designed for air traffic control. Collins v. United States, 564 F.3d 833, 838 (7th Cir. Ill. 2009).

The First Question

There is no question there are geek judges, as evidenced in court orders referencing Star Trek and Star Wars. Rassilon’s gauntlet is now thrown down for a judge to include a Doctor Who reference in a court opinion.

The question remains, who will be the first to reverse the polarity of the neutron flow and cite Doctor Who in a footnote?