What’s a Kangaroo Court?
One of the benefits of practicing in New York City is that many nationally or internationally significant disputes end up getting tried here, particularly in Federal Court. New York isn’t the only jurisdiction like that – my first trial was in Delaware Chancery Court, no stranger to such cases itself. But in contrast to other forums, so long as there is technically jurisdiction it’s a rare SDNY or EDNY judge who thinks “Why would you want to try this case here?” It’s more like “Why would you try a case anywhere else?”
There’s a lot to be said about such courts, but one extremely positive feature is the lack of substantial hometown bias. A foreign corporation suing a company based in New York may find that the law differs from what it’s used to. And it’s likely to despise the American approach to discovery. But it’s unlikely to encounter much in the way of overt bias against “out of towners” in the court. The city’s just too big and too interconnected with the rest of the world. And particularly in federal court, you benefit from documented, fairly uniformly applied procedures designed to make litigation feel understandable and fair.
But there are other forums out there too. Many are good but some are not. Perhaps you’ve found yourself litigating somewhere where the rules are arbitrary, asymmetric, and ever changing, the bias is overt, or at least palpable, and it seems like you never had a fair chance from the very beginning. In that case, welcome to a kangaroo court. But what is a kangaroo court? And what can you do if you’ve somehow stumbled into one?
For a widespread term that even non-lawyers have heard, the etymology of “kangaroo court” is remarkably mysterious. It first became popular in the American Southwest in the late 19th century and is often associated with ad-hoc tribunals associated with the Gold Rush. But the earliest known use [1] is somewhat earlier, dating to an 1841 article published in the New Orleans Times-Picayune. [2] The article claims, citing another publication, that “several loafers were lynched in Natchez last week upon various charges instituted by the Kangaroo court.” It remarks that “they are driving away all of the free negros” and ends by asking “What is a Kangaroo court neighbor?”
Over the next several decades there are more references to the term, most of which fell into two categories. The first category resembles the modern usage, as an informal or unofficial tribunal convened on an ad hoc basis to convict someone already deemed guilty, usually without much in the way of evidence or procedure. The second category is somewhat different – it refers to a group convened to pass judgement for breaking informal social rules. There are references to such “kangaroo courts” operating in private clubs, among prison inmates, and other settings where informal rules of behavior are sometimes transgressed. It’s entirely possible that these usages are related — you can imagine a lynch mob as a mechanism for enforcing “social rules” in a highly bigoted society — but that’s essentially speculation.
Indeed, there doesn’t seem to be any consensus on why “kangaroo” is the adjective used to describe a sub-par or informal court. It has a nice alliterative quality to it, which likely contributes to its cultural durability, but whatever the original joke or commentary was appears lost to history. There have been suggestions that it has some connection to “leaps of logic,” by the tribunal, to judges that “bounced” from court to court passing rough justice, to “claim jumpers” in the Gold Rush or even to Australian immigrants in California. But these are basically guesswork and don’t really fit the timing, given the 1841 Louisiana reference.
But monkey see, monkey do and not really getting the joke hasn’t stopped folks from repeating the term for over a hundred years. And the phenomenon of a crude, unfair court is perennial enough to require some kind of pithy label.
What forums quality as kangaroo courts? Every lawyer has their own list, but in the interest of staying out of trouble, let’s focus on forums that courts themselves have described using the term. For example, the United States Supreme Court used the term to characterize Arizona juvenile court proceedings in In re Gault. [3] The facts of that case are extraordinary.
A fifteen-year-old in Arizona was arrested after a woman complained that he and a friend had prank called her and made “lewd or indecent remarks.” He was held in custody for three days without any effort to contact his parents or provide him with counsel or a description of the charges against him. After briefly being sent home (for which the Supreme Court could ultimately find no explanation in the record) the fifteen-year-old was ordered back into custody and summarily committed to the “custody of a State Industrial School” as a juvenile delinquent until such time as he turned 21 – in effect, a six-year prison sentence.
Under Arizona law, this decision was unappealable, so his parents filed a habeas petition, which the state courts rejected at every level. On review, the United States Supreme Court reversed. Finding the Arizona juvenile court procedure woefully inadequate, the Court held that it violated constitutional guarantees to — well, basically all of them, including proper notice of charges, right to counsel, the confrontation clause, the prohibition on self-incrimination, the right to cross examination of witnesses. Commenting on the unfair nature of the proceedings, Justice Fortas remarked that “the condition of being a boy does not justify a kangaroo court” and noted that an adult facing similar charges would have faced no more than a $50 fine and two months in jail.
Can a federal district court qualify as a kangaroo court? Don’t ask me – ask the United States Court of Appeals for the Seventh Circuit. In Smith v. Chicago School Reform Board of Trustees, [4] Judge Easterbrook confronted a federal civil case that went entirely off the rails.
The Smith plaintiff was a white teacher who accused her school employer of race discrimination. Under the local rules, the plaintiff was required to send a draft proposed pretrial order (“PTO”) to the defendant so that a joint proposed PTO could be negotiated. As we’ve written before, a PTO is an order prepared by the parties but issued by the court setting forth the issues to be tried and cataloging the evidence that will be used at trial. The plaintiff’s lawyers sent the draft a week late, shortly before the joint PTO was due. Worse, it was horrifically one-sided for a joint submission, with various case-ending “admissions” written into the “uncontested facts” section. The defendant called the judge’s chambers for guidance but were told that the judge was home sick. So defense counsel went to the emergency judge on duty, who extended the deadline for the joint PTO by two days and ordered the plaintiff not to file her bogus first draft.
The plaintiff blew off the emergency judge and filed her unilateral PTO anyway. When the district judge found out what had happened, he was angry that the emergency judge had “interfered with my orders” and accused defense counsel of “circumventing his authority.”
As a punishment, the court adopted the Smith plaintiff’s PTO as written (including its “uncontested facts” that admitted liability). The court further ordered that defendants were forbidden from calling witnesses at trial unless the plaintiff consented. Surprise, surprise, the plaintiff did not consent and won a $2 million verdict.
On review before the Seventh Circuit, Judge Easterbrook called the resulting trial a “sham,” a “kangaroo court, different only in the trappings from a default judgment.” The Seventh Circuit threw out the verdict, dismissed several of the plaintiff’s claims, assigned the case to a new judge and instructed the judge to carefully revisit the prior judge’s rulings on remand.
What can you do if you find yourself in a kangaroo court? Well, be sure not to call it one on the record. As Professor Potter notes in his aptly-titled article “Marsupial Justice,” [5] calling a tribunal a kangaroo court is an extremely high probability way to get yourself sanctioned by that court. Interestingly enough, he also finds that appellate courts have a tendency to reverse or mitigate such sanctions on appeal. But still, it’s not great practice.
What you actually have to do is to prepare for appeal. If the fix is genuinely in, your job is not to fight a noble, futile battle under impossible conditions. Your job is to find a way to win the war once it shifts to a more favorable ground. Get your appellate counsel involved early so that they can identify and properly document the most appealable mistakes. In the same way that the facts that upset clients are not always those most important to their claims, the errors that seem most outrageous to you may not be your cleanest kills on appeal.
And if you know a forum is dicey in advance, find ways to stay out of it. Folks can certainly debate the merits of ADR vs. most American courts, but international arbitration exists precisely to manage the kangaroo court risk – it’s useful to be able to source goods from a country without doing a deep dive into how fair and efficient the local courts are.
No court is perfect but we’re fortunate enough to practice in courts that are generally fair. But should you find yourself in one that isn’t, keep your wits about you, plan your escape, and resist the alliterative urge to call the thing by its bouncy title, no matter how richly deserved it might be.
[1] See https://www.oed.com/dictionary/kangaroo-court_n
[2] See https://www.newspapers.com/article/the-times-picayune/36922641/
[3] 387 U.S. 1 (1967).
[4] 165 F.3d 1142 (7th Cir. 1999).
[5] 35 No. 1 Litigation 20 (2008).
