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Last week, a criminal defense lawyer, Bennett M. Epstein, sent a letter motion to Judge Kimba Wood (S.D.N.Y.) in a case which is due to begin trial on November 29. Styled a "Writ of Possible Simcha," the letter explains that Epstein's daughter is due to give birth to her first child on December 3. The letter then goes on to explain the possible effects on trial scheduling:

Should the child be a girl. not much will happen in the way of public celebration. Some may even be disappointed, but will do their best to conceal this by saying, Has long as it's a healthy baby". My wife will run to Philly, immediately, but I will probably be able wait until the next weekend.    There will be happiness, though muted, and this application will be mooted as well.

However, should the baby be a boy, then hoo hah!J Hordes of friends and family will arrive from around the globe and descend on Philadelphia for the joyous celebration mandated by the halacha-' to take place during daylight hours on the eighth day, known as the bris.    The eighth day after December 3rd could be right in the middle of the trial.    My presence at the bris is not strictly commanded, although my absence will never be forgotten by those that matter.

Judge Wood granted the request with the following handwritten order on the bottom of the letter:

Mr. Epstein will be permitted ot attend the bris in the joyous event that a son is born. But the Court would like to balance the scales. If a daughter is born, there will be a public celebration in Court, with readings from poetry celebrating girls and women.

This is all in fun. In the letter, Epstein provided footnotes with Yiddish translations and explanations. And he even wrote out "tfu tfu tfu" in the letter to represent the sound of spitting to ward off the evil eye (I think I would have spelled it differently). So I am not trying to take this too seriously.

Some are seeing this as Judge Wood standing up to the perceived imbalance and unfairness of the different treatments of the births of boys and girls--the birth of a girl is a subject of disappointment and muted happiness, while the birth of a boy is hoo hah (which I never realized has its origins in Yiddish). Accepting for the moment that Epstein's attitude reflects widespread Jewish religious/cultural beliefs, should a judge be opining on that matter, even if only jokingly?

Is there an interpretation of the letter that does not truly suggest the birth of a girl is a lesser event that is less worthy of celebration? I tried to suggest that Epstein's point was that the public celebration of a girl would not be immediate; baby namings (the modern ceremony for welcoming girls into the Jewish faith and Covenant) often do not happen on the eighth day (our daughter's naming did not happen until she was almost seven months old) and thus could await the end of trial without the need for an off day. A generous reading of the letter, to be sure. But is it a fair reading?

Epstein's letter is the latest example of a lawyer gaining some attention (at least in the world of legal blogs) from trying to have some fun with a routine request to a court, dressing it up with legal jargon into a formal motion, written in a very tongue-in-cheek manner. You see something like this around big sporting events, where the attorney requests an extension because he has tickets to some big game (I recall one last winter from a lawyer in New Orleans on the eve of the Super Bowl) and has some fun creating a "legalistic" explanation for why he must attend the big game. I am all for making these sorts of law jokes in private settings (my former judge once signed a Writ of Habeas Corpus as part of one of his clerks proposing to his girlfriend) or even in the informality of this blog. Is it somehow different when it goes public and becomes part of the public litigation record? Especially when it turns into a mini colloquy on gender equality? And is "humor" such as this becoming more common in litigation, as blogs enable the routine paper filed in a single litigation to be seen around the world?

Again, please don't think I'm taking this too seriously. Just something to think about.

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