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DO I HAVE A CASE?

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Two Circus Performers Sue

It would not surprise me to hear a judge on motion day exclaim that, “this is a circus”. A recent case listing in The Virginia Jury Verdict Reporter was right on point.  Two circus performers, whose act included juggling while riding on horses, recently brought a contract breach lawsuit against their former employer Ringling Brothers.

The two brothers from Hungary performed an act of juggling and comedy while performing acrobatics on horseback. a real “the whole enchilada” kind of performance. Their act was obviously circus-worthy.  They entered into a contract with Ringling Bros. and Barnum circus to perform. Then, the real circus began when they started performing.

Preceding the horse/acrobatics act was a tiger act. Not surprisingly, the performers were reminded that tigers and horses don’t mix well. In fact, one of the horses in the act named Cornbread, became especially spooked by the tigers and emotionally crumbled during the act (yes… I am getting carried away). During one of the shows, Cornbread became so upset that he trampled one of the brothers during the act.

The brothers knew that they had a major problem, so they went to circus management and asked to be placed in a different order of performance, to avoid the tiger problem. Management refused to move the order of their act. The brothers threatened to quit. The circus terminated their contract. The brothers sued the circus for breach of contract.

The circus defense was that it had the absolute right to determine the order of the performance of the acts. The brothers asserted that the tigers made it impossible to perform the act, as evidenced by previous performances. And, the termination of the act by the circus was not for cause; the only reason that the Circus would have had the right to terminate the contract.

The jury ruled in favor of the brothers. Each brother was awarded $57,200 in damages and an additional $26,400 more for a lease claim. The combined verdict totaled $114,200. And no, there was no offer to pay the verdict in popcorn and cotton candy!

DID YOU KNOW that President Richard Nixon banned soup from being served at state dinners because he was otherwise known to spill it on himself while eating.

Pic o’ day friendship.

friends

Justice Thomas: The Quiet Justice

     There was a course in law school called “Moot Court”.  The professor was trying to teach us the concepts of trying a case. At the conclusion of the course, he brought local judges to sit, to hear our arguments on the case  that we had worked on, all semester.

     When the professor prepared us for our final arguments, he lets us know that the judges in the competition, would be asking us questions that might cause us to lose our train of thought. He said something like, “try to stay on track in your argument”.

     Very early in my legal practice, I tried a jury trial in the Norfolk, Virginia,  Federal Court.   I had to appeal the Judge’s ruling. That’s code for “it didn’t turn out the way it was supposed to”.

     I remember driving to the 4th Circuit Court of Appeals in Richmond. A seasoned lawyer had reminded me that I may get interrupted by the panel of Judges that were hearing the appeal. Plus, I needed to keep my eyes on the lights on the podium. As the argument progressed, they would go from green to yellow to red. At red, I had better sit down.

     Well, I got up with shaky voice and sweaty palms. My mind was filled with the cases from my appellate brief. I was ready to present my argument. After my first sentence or two, the questions began. “Tell us Mr Bieber, how do your facts compare to” and they began asking about the case law.  You can’t distract them with such remarks as, “Did you hear the one about the guy who…..”

     My best laid plans for argument went out the window. I will say, I was a bit relieved to see the red light come on. I had done all I could and survived. It felt a bit like a high speed game of ping pong, where I was reacting as fast as I could.

     I could tell you other stories about Judges during arguments and motions that are similar to this experience. Many, in the Judicial branch of appeal, feel as though that is the appropriate process for appellate argument.

     Justice Clarence Thomas (CNN article) takes a different view. In fact, he is celebrating  a quiet anniversary of five years of Court silence.  He recalled in a speech a few years back that, “One thing I’ve demonstrated is that you can do this job without asking a single question.”

     As CNN reports, his “just say nothing” approach is like Court was, many decades ago; allowing lawyers to argue their case without interruption.  Justice Thomas has also indicated that his silence relates to his opinion already being formed, based on the filed pleadings, that he has read before the argument.  In 2007, when questioned about it, he remarked as a joke, “My colleagues should shut up”.

     In my first appeal that I mentioned earlier, I was fortunate to have the lower Court’s ruling reversed, by the 4th Circuit.  I’d say that it had something to do with my amazing skills of argument. It’s probably more realistic to think that maybe, I was kept so busy by the questions, that I didn’t even have time to make a bad argument.

General District Court Increase

    

     I’m not sure if this qualifies as something that I feel tremendously strong about. However this blog deals with legislation that has just been introduced in the Virginia General Assembly involving the Court “not of record”.

     Two similar bills  introduced in the Virginia House and Senate, would increase the amount that could be sought, through suit, in General District Court (GDC) . Currently, you can sue for up to 15K, with the benefit of less expense in filing. Plus, you don’t have to bring a doctor to testify. You can introduce an affidavit regarding the medical treatment and bills, as an exception to the hearsay rule; specifically to encourage suits in General District Court instead of Circuit Court

     Both bills proceeding through both sides of the legislature, would increase the allowable amount sued for, to an amount of 25K.  A reporter, writng on this legislation  for the “Virginia Lawyers Weekly” , called last week, for my opinion on the possible increase in the lower court. I have attached the reporter’s article for your review.

     You will see that most lawyers are in favor of the legislation.  On its surface, it appears to get smaller case to court quicker. However, I am in the minority on the excitement for this increase in jurisdictional amount.  Here’s where the article references my quote-

Not every plaintiff’s lawyer finds fertile ground in general district court . Richmond’s Joel D. Bieber said lawyers from his personal injury firm encountered district judges who questioned chiropractic treatment, and he said he generally gets better results with juries.”

     I am all for any legislation that will move trial dockets and clear more access to the court system. Right now, it takes about a 1-2 years to get to trial in most Circuit Courts.

     Unfortunately, my experience is that most General District Court Judges already have crowded trial dockets. Plus, there is no funding for additional judges; so we are only adding to already crowded dockets.

     A better solution is to work on the core problem. Introduce bills that make mediation mandatory; where the loser has to pay the costs; and where more funding is given to get more judges appointed.

     Otherwise, you might have some GDC  Judges who just don’t have the time to listen to the evidence, as a jury might. These Courts already hear criminal, collection, landlord/tenant  and all types of civil cases.

     The general reference in the Lawyers Weekly quote, about chiropractic treatment, came from a Judge who simply said, “I don’t believe in chiropractic treatment. If you don’t like that, then appeal my ruling”.

     We did appeal and the jury thought differently than that Judge. Unfortunately, the revelation came over a year later. Quick Court access doesn’t  necessarily mean that it’s legislation that will really help our clients.

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