"A fainted giraffe on the nose": The plaintiff claimed disparagement, the commissioner ruled - it is permitted for a judge

Is the use of a passage from a children's book in a court ruling legitimate? The Commissioner for Complaints against Judges, retired judge Asher Cola, ruled that it is. In a complaint brought before him, it was claimed that a judge in the Magistrate's Court compared the drafting and management of a lawsuit to a children's book in his ruling. The complainant argued that the judge's writing style and the use of expressions and images he chose to include in his ruling were of a mocking and disparaging nature.

Commissioner Cola ruled that "judges sometimes make use in their rulings of references to literature and poetry, including references to children's literature and poetry." According to the commissioner, "it is possible that in certain cases and under certain circumstances, these references may create a sense of discomfort for the litigants. However, judicial decisions and rulings are a way of expressing the judge's voice; this is his way of communicating with the parties and communicating to the parties his impression of the proceedings before him. This is his way of expressing himself."

According to Judge Cola, "placing restrictions on judicial expression in a decision or ruling may be more problematic, as opposed to restrictions on public statements, for example, as it may harm the core of the judge's judicial independence and his duty to justify his decision, according to his best judgment, when he has no authority other than the authority of the law." The commissioner further noted that "intervention in the rulings and writing of a judge should be done sparingly and in exceptional cases that involve a clear and obvious harm to a person. This case is not among those cases. Alongside the above, the court must be sensitive enough to the complexities and differences of the people standing before it, and to the sensitivity of each case discussed before it and its circumstances. These considerations should accompany the judge at the stage of managing the proceedings and also at the stage of writing the ruling."

The complainant pointed to a specific paragraph in the ruling, where the magistrate judge quoted a passage from the children's book "Ayelet Travels" written by Rinat Hoffer, while comparing and distinguishing between the events described in it and their results, and the manner of drafting and managing the lawsuit by the complainant and the expected results of her lawsuit. According to the magistrate judge, "the lawsuit largely brought itself down when it was written like the famous children's story 'Ayelet Travels' when 'along the way' it asked to add 'a fainted giraffe on the nose, a tired turtle on the shoulder, a naughty puppy on the back, a runny-nosed snail on the sandal, a bird on a cypress on the head, and a round ladybug in the pocket of the dress'. In the procedural and tort story, the authority will not declare about it - 'how wonderful', and at the end of this 'long and winding' road that the lawsuit walked, the required house check is with her."

The magistrate judge claimed in his response that "the use of quotes from a well-known children's book was not intended to mock the plaintiff, but to illustrate after analyzing the evidence the lesson arising from it through a literary-pictorial parable that conveys a message that contrary to what happens in the beloved story that ends with an expression of admiration for the described events, in the procedural-tort field such procedural cumbersomeness and such 'hitchhiking' overloading does not help the lawsuit but harms it, just as it harms judicial resources and the opposing parties." However, the magistrate judge expressed regret over the complainant's feelings, and noting that by its nature children's literature often includes linguistic components that also have a humorous aspect, he undertook for the sake of caution to henceforth reserve the use of quotes from it only for the purpose of theoretical analysis of a legal question or illustration of a general factual situation.

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Investigation in WhatsApp

Another precedent-setting decision by the Commissioner for Complaints against Judges dealt with giving testimony in a legal proceeding via a video call on the WhatsApp application on a mobile phone. A complainant expressed resentment against a judge in the Magistrate's Court, who allowed the plaintiff's counsel to examine the witness on his behalf via a video call through WhatsApp. The complainant claimed that the defendant's right to argue in the proceeding was harmed, and that the evidence procedure that took place was conducted poorly.

The judge further clarified that "regarding the use of WhatsApp for the purpose of hearing testimony between the parties, this is a common practice in vehicle claims (requiring the consent of the parties) when the lawyers of the parties are in the courtroom while the witnesses, for one reason or another, are not in the courtroom. Testimony in this way is required, sometimes, due to technical difficulties that arise not infrequently when using Zoom software for video conferencing." Commissioner Cola ruled that "video conferencing in accordance with the regulations is supposed to be an appropriate alternative to appearing for testimony in the courtroom, something that can be made possible given the technological means that will ensure this. In addition, the court's duty is to ensure that the parties see and hear the witness, that the court is able to be impressed by the testimony directly, and that the principle of public proceedings is not harmed just because of technical limitations."