A different perspective was recently suggested on the "tipsy coachman." The subject has been in this blog before. See The Role of the Tipsy Coachman (October 2017), Medical Pot Evaluation in Florida (July 2021), and Preservation and Interpretation (July 2021). In a nutshell, the Tipsy Coachman is a literary reference that has evolved by judicial adoption into an allegory explaining appellate review.
The reference has roots in the eighteenth-century poem Retaliation. In rendering its decision, the Georgia Supreme Court used the poem to explain its analysis in Lee v. Porter, 63 Ga. 345 (Ga. 1879); that court noted, in a very brief opinion, that "the human mind is so constituted that in many instances it finds the truth when wholly unable to find the way that leads to it." Suggesting, that is, that we have some innate sense even when we lack acuity? A century later, The Florida Supreme Court adopted the analysis in Carraway v. Armour & Co. 156 So. 2d 494 (Fla. 1963). The pertinent stanza of Retaliation is:
Here lies honest William, whose heart was a mint,While the owner ne'er knew half the good that was in't;The pupil of impulse, it forced him along,His conduct still right, with his argument wrong;Still aiming at honour, yet fearing to roam,The coachman was tipsy, the chariot drove home;Would you ask for his merits, alas! he had none,
The concept, as a legal maxim, is even popular enough to warrant a Wikipedia entry, which is less than extensive. The academic would never cite Wikipedia, but it has found a home with various court opinions. In a nutshell, the Tipsy Coachman describes a trial judge reaching the destination, though not by a path the appellate court can abide. In affirming the conclusion, arrival, or destination, the court explains the fallacy or error of the trial judge's route.
It is important to remember that in many contexts, the trial judges' favorite word may perennially remain "affirmed." That is, there are perhaps some who are content with affirmation, regardless of reasoning or rationale. To be right for the wrong reason, is, after all, still being right. Right by accident, but nonetheless right. There is an old idiom that "even a blind pig can find an acorn once in a while," might that be arguably similar?
However, I recently heard from a critic of Judge Collins, the Circuit Judge who wrote the Court's opinion in Carraway v. Armour so many years ago (58). The critic suggests that the court's use of this allegory "compares the trial judge to a drunk driver." This, it was suggested to me, is "disrespectful and unnecessary." From the perspective of a practitioner, it might be seen as insulting to the trial tribunal or judge, but perhaps more so to the jurist at whom it is directed? Might some find it deeply offensive to be compared to a drunken driver mistakenly finding his home? Is it better to be compared to a lucky swine?
There are several (18) references in American jurisprudence that quote "the coachman was tipsy" directly from the poem. These include the Florida Supreme Court (x3), the Florida Third District Court (x1), The Florida Fifth District Court (x2), The U.S. District Court, Middle District of Florida, the Georgia Supreme Court (Lee v. Porter, supra), the Alabama Supreme Court (x1), the Georgia Court of Appeals (x3), the Tennessee Court of Appeals, the Virginia Court of Appeals (x2), The U.S. Army Court of Criminal Appeals (x1), The Court of Appeals of Oregon (x1), and The United States Eleventh Circuit Court of Appeals(x1). The concept is not isolated to Florida, and certainly not to the workers' compensation system or Judges of Compensation Claims.
However, the more short-handed term "tipsy coachman" appears in reported cases 446 times. The vast majority of these is in Florida (423 in state courts [95%], 5 in federal courts): Florida Supreme Court (x17); First District Court (x107), Second District Court (x81), Third District Court (x48), Fourth District Court (x70), Fifth District Court (x100); U.S. District Court (Florida) - Middle District (x2), Northern District (x1), Southern District (x2). It is also referenced by the U.S. Eleventh Circuit Court of Appeals (x2), the Alabama Supreme Court (x1), the U.S. Army Court of Criminal Appeals (x9), The Oregon Court of Appeals (x2); Supreme Court of the Commonwealth of the Northern Mariana Islands (x1); Court of Appeals of Tennessee (x1); and Court of Appeals of Virginia (x2).
A great many trial judges have thus been compared to a drunken driver led safely home by the sober horses. The concept is applied in a significant volume of jurisdictions, but it has found a home in Florida [95% of "tipsy coachman" references]. Curiously, the reference began in Georgia in 1879, Lee v. Porter, supra. Yet, we notice Georgia is otherwise unrepresented in the list above. There are five instances in which Georgia courts quote Lee: "It finds the truth when wholly unable to find the way that leads to it." Its appellate courts have also rendered similar results without reference to either the quote or Lee, see e.g. White Repair & Contracting Co. v. Georgia Roofing & Metal Co., 262 S.E.2d 164, 165 (1979).
A coterie of courts have similarly quoted the "wholly unable" language. But, they are a subset of the "tipsy coachman" jurisdictions above. Seemingly, appellate courts would reach the logical conclusion of essentially "harmless error" similarly, but it appears that most do so without reference to "Retaliation," the "Tipsy Coachman," or the "wholly unable."
Is it offensive to refer to the trial judge as a drunken driver who arrives safely home despite being addled, dazed, or woozy? Is it more or less so to consider other "tipsy" synonyms such as "loaded," "stewed," or "drunken?" An interesting inquiry. Perhaps it is the poetic license of Retaliation, or the seemingly innocuous "tipsy" that encourages the citation of the "doctrine?" It is referred to as the "tipsy coachman doctrine" at least 251 times out of that 446 noted above; "doctrine" being perhaps an added weight of formality or imprimatur? Candidly, I have studied the reference more than many, and over decades have yet to be offended. That said, I found the recent inquiry intriguing as a new perspective.
Paul Simon said "when you call me, you can call me Al" (You Can Call Me Al, 1986). From a very old short story Mercantile Drumming (1833), we get "call me anything, so long as you don’t call me late to dinner," which has become cliché. Of course, Blondie didn't specify, she just said "call me" (1980). Carlie Rae Jepsen was a bit more tentative in 2012, instead with "call me, maybe." And, who can forget Raymond J. Johnson, Jr. with his "you can call me Ray or you can call me Jay . . . but you doesn't have to call me Johnson." Culture is replete with "call me." We have even evolved into an age in which people list their "preferred pronouns" so as to forewarn the world as to what will least offend them individually (You can call me "wholly unable," or "tipsy," but not "stewed?)
Need judges to express a preference ("please don't refer to me as a tipsy")? Or, do judges need to accept the phrase in its literary sense and accept the 140+ year history of the Tipsy Coachman? I can readily accept three premises: (1) it is practical and possible to express such an affirmance without this literary reference; (2) the literary reference is a handy short reference that can aid both recognition and comprehension; and (3) it is possible for someone to be offended or hurt by this, or perhaps any practically any reference these days.
I have been reversed on appeal various times, yet cannot find an instance in which the "tipsy coachman" was mentioned. But, I don't find the reference personally objectionable. In reflecting, the truth is I have been called worse than "tipsy." It is unfortunate, perhaps, in some contexts and perspectives. However, its intent is fair, its reference handy, and any offense minimal. For me, you can call me what you like. If you make me pick, you can call me Dave.
