Charles Kramer, The Levison Group
Last Wednesday, I was leaving my favorite restaurant when someone I’ll call “Barry the Barrister” was approaching the door to enter. He looked frazzled, depressed and simply beside himself. I asked if he was okay, and he just shook his head. Being concerned, I walked back into the restaurant with him, and joined him for coffee while he ordered a steak — and more than a few straight scotches. It turned out; Barry had just come back from court after completing a two-week trial concerning a defective airplane. The plane broker who had sold the plane to Barry’s client had made oral promises about its suitability, and the contract itself had full representations and warranties. In the jury instruction conference, however, the defendants’ lawyers asked for an instruction that told the jury that if the BROKER’s contract with the company that HE had bought the plane from had an “AS IS” and “NO WARRANTIES” provision, then judgment should be for the broker, notwithstanding the promises and reps contained in his later deal with Barry’s client. Barry had actually laughed when they proposed it. Later, however, when the lawyers met with the judge, Barry was shocked when the judge agreed to give the instruction over Barry’s strong objection. Since there was no dispute that the broker had bought the plane with no warranties, the jury found for the broker and against Barry’s client — and did so in about fifteen minutes. Barry’s client was so outraged with the legal system, that he refused to allow Barry to file any type of motion for new trial or to appeal, saying he was done with the case, done with the plane, and done with lawyers and judges, It was at that point in the story that Barry ordered his third scotch.
As he did so, I realized that an older somewhat grizzled man sitting next to us had been listening to the tale of woe.
“You’ve clearly had a rough go of it, and deserve some recompense. A gift perhaps. If you could change one thing in your life, just for asking, what would it be?” he asked.
Barry looked at him over his scotch glass and gave an ironic chuckle. “I’d change the result, so that I won. Not only because I like to win, but it’s the right result.”
The man thought for a minute.
“You know, I have the power to grant you one wish, but changing a result after a trial would have ramifications for your profession. There were spectators in the courtroom, jurors who deliberated, lawyers, and the judge, the bailiff and the clerks, not to mention representatives of legal blogs and the local paper. In order to change the result, I’d also have to make those people unaware of it. If they’ve told anyone, I’d have to figure that out and somehow also change their memories. If anyone wrote it down or posted it online, I’d have to change those writings as well. And if anyone had read them or retweeted, I’d have to change those and track down all who’d read them, and then all those people they’ve told. Isn’t there anything else you can ask for?”
Barry had seen the request for another wish coming as clear as you would be able to see a bridge from Los Angeles to Hawaii in the summer, if there was one. He was ready.
“Okay,” he asked, “Can you just explain to me what makes judges decide things the way they do?
The man thought for a moment, reached into his bag and pulled out his iPad, hit a strange looking app, and a bright, orange-glowing box appeared. Below it, an onscreen keyboard of some strange letters of an ancient tongue also appeared. The man began to use the keys to type some foreign words into the glowing box, then paused.
“Did you want to change the trial result, or to win on appeal?” he asked.
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Under Analysis is a nationally syndicated column. Charles Kramer is a principal of the St. Louis, Missouri law firm Riezman, Berger, P.C. You may direct comments or criticisms about this column to the Levison Group c/o this newspaper, or direct to the Levison Group via e-mail, at comments@levisongroup.com.
© 2013 Under Analysis L.L.C.
