The Wizarding World of the Trial Court

I’m not too proud to admit that Harry Potter helped get me through law school. More than once as a 1L, while trying to understand a dry contract case or an ancient property rule, I would have thought I was under a confundus curse preventing me from understanding whatever I was supposed to have learned. Happily, I found that occasionally Harry Potter presented scenarios that explained concepts to me better than my casebook. For example, the idea that just through the performance of an act one can enter into a contract. For me, I understood unilateral contracts by thinking of the infant Harry surviving Voldemort’s killing curse not because of his mother Lily’s sacrifice but because of the contract that was formed when Lily offered her life in exchange for Harry’s. Thus when Voldemort acted on her offer and killed her, he created a contract. When Voldemort subsequently tried to kill Harry, he was in breach. As the first novel recently turned 20, it is a good time to see how other lawyers and judges have used the books to explain the law or the facts of their case in court.

In State v. Kuykendall, 2005 OHIO 6872, No. CA2004-12-111 (Ohio Ct. App. Dec. 27. 2005), the appellate court drew a distinction between the magical world of Harry Potter, where verbal precision is required, and the courtroom, where the reviewing court needs only general assurances that the law has been followed rather than specific verbiage. “[A] trial court is not required to state any talismanic, or as the trial court referred to it, ‘Potteresque,’ language.” Id. The court contrasts this with Harry Potter, where language and enunciation is important to achieve the desired results. The court notes that in the novels, “the failure to follow not only the precise words, but also the correct pronunciation of a spell may lead to disastrous results. For example, in an early lesson on levitation, Professor Flitwick admonishes students that saying the magic words properly is important, and uses the example of a wizard who said ‘s’ instead of ‘f’ and ended up with a buffalo on his chest. J.K. Rowling, Harry Potter and the Sorcer’s Stone 171 (Scholastic 1998).” Id. at n.2.

An Indiana Bankruptcy court twice referenced Harry Potter, both times when parties refused to call pleadings or people by their proper names. Chief Bankruptcy Judge Grant was reminded of how characters referred to Voldemort as “He Who Must Not Be Named” or “You Know Who,” writing “[m]uch like the wizards and witches in J.K. Rawlings [sic] Harry Potter series, where Lord Voldermort [sic] is ‘He who must not be named,’ rather than stating what is actually being talked about, the motion creates and then uses terms like ‘PII’; ‘Designated Filings’; ‘Replacement Filings’; ‘GLBA’ and ‘OCC’.” In re Bicker, No. 13-10280 (Bankr. N. D. Ind. Aug. 10, 2015). When used in the novels, the technique showed the reader the depths of the characters’ fear and sometimes reminded the characters to face their fears. But in the courtroom, these phrase created confusion. “Such terms do not enhance the reader’s comprehension.” Id. See also In re Rybolt, 550 B.R. 422, 426 (Bankr. N.D. Ind. 2016) (comparing a party’s hard work to avoid naming an individual to Rowling’s literary technique).

In U.S. v. Bonas, a government lawyer urged the trial judge to “‘utter the magic words,’” i.e., manifest necessity, in order to declare a mistrial yet allow the government to bring a second trial without violating the defendant’s protection against double jeopardy. U.S. v. Bonas, 344 F.3d 945, 951 (9th Cir. 2003). The trial court did, but the Ninth Circuit took umbrage at its bare assertion, noting there was “no evidence supporting the district court’s determination of manifest necessity.” Id. at 949. Merely uttering the words did not make it so. In reversing the district court’s judgment, the Ninth Circuit wrote “this is not a Harry Potter novel; there is no charm for making a defendant’s constitutional rights disappear.” Id. at 951.

A few courts have mentioned apparating and disapperating. The United States Court of Federal Claims used it as a metaphor to explain that goodwill is not transitory and doesn’t exist only when the company turns a profit. Deseret Management Corp. v. U.S., No. 09-273T (Fed. Cl. Aug. 22, 2013). “According to plaintiff, goodwill is a fleeting concept, here one instant and gone the next, depending upon a firm’s current profit status—much like a Harry Potter wizard who disapparates in bad times and reappears in good.” Id.

The Georgia Court of Appeals referred to disapperating more literally to explain how criminal trespass and loitering statutes must be read to avoid absurd results. Isenhower v. State, 750 S.E.2d 703, 706 (Ga. App. 2013). Before the defendant could be convicted of trespass, a defendant required “some reasonable amount of time to remove herself from the second floor of the building, reach her vehicle in the parking lot below, and drive off the school grounds.” Id. Referencing Harry Potter to make itself clearer, the court wrote “it is logical that upon being asked to leave by Edwards, Isenhower could not simply vanish into thin air, ‘disapparating’ like a character in one of J.K. Rowling’s ‘Harry Potter’ novels. (Isenhower was, after all, at Heard County High School, not Hogwarts.)” Id.

The Superior Court of Pennsylvania used apparation to explain a person’s relationship to space and time in a negligence case resulting from a car accident and the death of a pedestrian. Wright v. Eastman, 63 A.3d 281 (Pa. Super. Ct. 2013). At issue was the location of the decedent when she was struck and whether or not the driver could see her as he was driving. If the driver could only see her when she was 30 feet away, as he testified, the court was forced to ask itself whether the driver was negligent in not noticing her earlier as she “traversed the distance from one side of the road or the other to the point where she was struck” or whether she “instantly [] materialize[d] in a new location.” Id. at 293. The court explained “[i]n the world of Harry Potter, wizards refer to this mode of travel as apparition.” Id. at n.6.

A few times, cases have presented fact that nearly put judges under the imperious curse, compelling them to make a Harry Potter reference. Such was the case in Wyrostek v. Nash, where the plaintiffs lived at 4 Privet Drive, the address of Harry’s non-magical family and “the very last place you would expect astonishing things to happen.” Wyrostek v. Nash, 984 F.Supp.2d 22, 24 (2013) (D.R.I. 2013) (quoting J.K. Rowling, Harry Potter and the Sorcerer’s Stone 17 (Scholastic Press 1997)). The court felt the need to point out that the facts of this case took place “squarely in the Muggle [non-magical] World.” Id. at n.1.

Making a slightly more tenuous connection—and being all the more entertaining for it—in Barneck v. Utah Dept’t of Transp., the facts mentioned “mile marker 46.5.” Barneck v. Utah Dep’t of Transp., 353 P.3d 140, 142 n.1 (UT 2015). Incredulous, the Court remarked “[w]e are unsure of what to make of that formulation, as we suppose that a ‘mile marker’ is in fact a mile marker and not a half-mile marker, and see no indication in the record or elsewhere that UDOT uses half-mile markers.” Id. They compared their disbelief to that of Harry’s muggle family upon learning about Platform 9 3/4, the place at the train station where young witches and wizards catch the train to their school Hogwarts. Id.

Finally, I find myself moved by the judge who discussed Harry Potter in chambers with a shy child who was the subject of a suit under the Hague Convention. In re Koc, 181 F.Supp.2d 136, 144 n.10 (E.D.N.Y. 2001). The judge notes that he was not wearing his “judicial robe” during the conversation, leaving the reader to wonder if he was wearing a different kind of robe, such as wizard robes the characters in the books wear. Id.

The above is only a small sampling of the times Harry Potter was referenced in court. It is interesting that it has been referenced so frequently, given that it is a relative newcomer to our pop culture lexicon and aimed at an audience much younger than lawyers and judges. That it has transcended the age gap and is so relatable to yet far removed from the legal system make these references all the more amusing and—dare I say—magical.

About emmawolf

I'm a freelance writer living in Baltimore with my husband, son, and two cats. I'm working on editing my first novel. I love reading, traveling, and the cello.
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