by Justice William W. Bedsworth
Alternative Dispute Resolution is a fairly new invention. In a profession whose members generally start out reading cases from Queen’s Bench and discussing property disputes half-a-millennium old, a development of the last forty years shines like a newly-minted penny.
I remember rather vividly when Warren Knight decided he’d rather own the state than work for it, and left the court to found Judicial Arbitration and Mediation Services (JAMS).1 It was a completely alien idea to me then, and when he was kind enough to tell this young prosecutor I would someday be leaving a judgeship to join him, I was about as capable of imagining that as I would have been trying to imagine scuba diving to an undersea jury trial off the Great Barrier Reef.
Today, private mediation and arbitration services are not only as common as quarters, they are—under California and federal law—a favored means of resolving disputes. ADR is now the darling of public policy, and for me, it’s been like watching the neighbor kid selling lemonade grow up to be Elon Musk.
So I was a little taken aback to find out some clowns have been doing ADR since before I was born.
No, that’s not a pejorative value judgment. I don’t mean clowns like Congress. I mean real clowns. Circus clowns. Birthday clowns. Billy Joel “Leningrad” clowns.
And, as you might expect, clowns do it differently.
Since 1940, clowns in the United Kingdom have maintained a clown registry. It’s an informal way of laying claim to certain looks and identities.
Let me rephrase that. It seems informal to us because it’s completely outside the legal system. But it’s serious stuff to the clown community and is often used to keep one clown from infringing on another clown’s trade dress, make-up, or identity.
In other words, it’s an alternate dispute resolution system that accomplishes what patent, copyright, and trademark law would accomplish in the non-greasepaint world. It’s intellectual property law for Bozos.
And how do they do it? Well, just as you’d expect: They pay to have their images painted on eggs, which are then stored in a nineteenth century church in London’s East End. Or in Wookey Hole.
I’ll pause here to let you re-read that paragraph. You may need to do it more than once.
No, “Wookey” is not a typo.
You done? Okay, let’s move on to the denouement and exciting conclusion parts of the column.
Apparently, in England, you don’t hire a lawyer and file all kinds of forms to protect the clown character you’ve invented. You go to a lady named Debbie Smith and she charges you $20 to paint your image on an egg.
I’ve seen pictures of the eggs and they’re really good. It’s amazing how lifelike a face you can put on an egg if you have the talent.2 From what I’ve seen, Ms. Smith is badly underpaid.
That egg is then ensconced in one of two places.
The first is Holy Trinity Church in London. Holy Trinity is an Anglican church built in 1879. One of their stained-glass windows depicts a clown named Joseph Grimaldi who kind of invented modern clowning in the early nineteenth century.
So why does a church built fifty years after his death have an elaborate window dedicated to a clown? As you’ve often said about me, I don’t have a clue.
Nor do I understand why, on the first Sunday in February, they have a clown’s service which is attended by hundreds of clowns . . . in costume.
I’ve spent a lot of time in Anglican churches in my life. Dad’s family was Baptist, Mom’s was Catholic, so they split the difference and raised me in the American equivalent of the Anglican Church, the Episcopal Church.3 And I’m pretty confident if anyone had ever shown up in a clown costume, Father Somerville would not have turned the other cheek.
But Holy Trinity not only conducts that service, but displays dozens of clown eggs, and a lot of clown memorabilia. In their organ room.
Where other churches have dead saints or pieces of the true cross, Holy Trinity has an egg depicting Footie the Clown. Tell the truth, which would you rather see?4
The second place clown eggs are stored and displayed is, of course, Wookey Hole.
Apparently, Wookey Hole is like the Library of Congress for clown eggs. They have hundreds of them. They also have, according to the BBC, “charmingly garish caves, mini-golf, a model village and other family entertainment.”
So if you’re a British clown and you think somebody’s impinging on your clown persona, you drag them down to Wookey Hole, show them your egg,5 and assert the rights of clown primogeniture . . . or whatever.
And maybe play a round of miniature golf while you’re at it.
Compare this to a trade dress dispute in our country. Both sides lawyer up; forests are depleted for various legal papers; experts are hired; articulate people dazzle the trier of fact for weeks; twelve bemused beekeepers, bandleaders, and bus drivers make a call; appellate specialists are employed; more dazzling is done; and the grandchildren of the original parties eventually get a ruling about who gets to keep the red nose and floppy shoes in the act.
In England, they go to Holy Trinity for spiritual nourishment, then head for Wookey Hole,6 play a round of mini-golf, look at the eggs, and arrive at a mutually acceptable resolution.
According to the BBC, the clowns don’t see much need for a formal property system to enforce their rights. “Clowns themselves do much of this work within their own community.” No lawyers need apply.
This is probably what Warren Knight had in mind for me: clown disputes. But anyone who’s watched me play baseball or softball knows I shouldn’t be entrusted with eggs.
So there it is. I don’t know whether to applaud this or deplore it.
It seems disloyal to encourage a system that replaces an arcane and complicated legal maze which many of my brethren and cistern7 inhabit quite profitably. But I must admit comparing eggs seems a lot easier than most of the cases I handle. And a round of mini-golf with every case would be hard to resist.
I wonder what an anti-SLAPP motion would look like depicted on an egg.
William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. He can be contacted at email@example.com. And look for his new book, Lawyers, Gubs, and Monkeys, through Amazon and Vandeplas Publishing.