Even if you don’t remember the “good ole days” when two guys would step outside of a given venue to settle a disagreement, you probably know what we mean.  Ironically, twice in the last month clients have said they wished their attorneys could just “step outside” and settle their case once and for all … “winner take all”.

Curiosity got the better of us, so we looked into that as a legal idea. Interestingly, there was a time when lawyers would do just that.  Seemingly more like Medieval times with a club and a shiled, we were surprised to find at least according to Adam Winkler, a specialist in American Constitutional law, a party could at least make an argument that trial by battle or trial by combat is still available in the United States. (See, http://www.businessinsider.com/trial-by-combat-in-the-united-states-2013-11)

According to the article, the right to trial by battle dates back to Middle Ages common law, which followed Germanic tradition in allowing two parties to settle a dispute through combat in cases lacking sufficient evidence for a conviction. The loophole exists because Trial by Battle was still part of British common law in 1773. So when the 13 original colonies inherited British Common law they would have inherited the law of Trial by Battle.

Although the U.S. Constitution did not mention trial by combat, scholars argue citizens should possess rights until the government specifically limits them. This would be consistent with the Ninth Amendment which says that the enumeration of certain rights in the Constitution does not mean that the people don’t have other rights too. Britain did not abolish Trial by Battle until 1819. Thus a defendant in the U.S. could at least make an argument for trial by battle. “They’d have to prove that it was lawful in Britain when the Founders created the Constitution and that they didn’t intend to outlaw it,” Winkler said.

We have seen some forms of this in our modern day society. In a dispute between Southwest Airlines and Stevens Aviation over the use of the motto “Just Plane Smart” the two CEO’s of the companies decided to stage an arm wrestling match with the loser paying $5,000 to the charity of the other’s choice and the winner gaining use of the trademarked phrase. Steven’s Aviation won. (See, http://priceonomics.com/how-southwest-airlines-settled-a-legal-dispute/).

Now, before you go off and get offended, there are some valid points to this idea … it encourages settlement since once a party knows who their adversary has hired trial may be unnecessary. It is efficient because there is no need to wait 1-2 years for trial (not even considering an appeal). Costs are saved because there are no filing fees, deposition expense, jury fees and the like since the only cost would be the medical bills associated with the losing attorney. Most obvious though, would have to be the overall spectacle of the action – think simply of the Social Media melee!  In a world that increasingly speaks ill of counsel yet remains among the most litigious in history, the idea of attorneys “duking it out” like two high schoolers over the Prom Queen would be massively entertaining.  If you thought that legal fees were high now, imagine getting Floyd Mayweather or Mike Tyson to represent you in court.  On the other hand, the great news is that it would make probate a lot more interesting!

Just a thought to consider.

FRIVOLOUS LAWSUIT OF THE MONTH (WITHOUT AN ATTORNEY): Escaped Prisoner Sues Based On Guard’s Negligence for “Letting Him Out”

Well, now that we’ve made it into a new year, and given how dumb people seem to get around the holidays – between stress and *ahem* “extracurricular” mind-numbing substances, I’m sure that we will have some really amazing frivolous lawsuits, but for now, let’s look at our next dummy:

Jose Banks was a convicted bank robber who’s ill-gotten gains – over a half-million dollars from two armed robberies – have never been recovered.  Only a short time after being sentenced to the Federal prison in Chicago, Banks and his cellmate escaped by chiseling their way out of their 17th story cell and rappelling down the side of the building with a rope made of bedsheets and dental floss.  Yes, you read that correctly – bedsheets and dental floss!  Once on the ground, he hailed a cab and disappeared.  Marshalls caught him two days later – and that was when a “neat” story of a prison break with a lot of bravado went into the Twilight Zone.

Banks filed a lawsuit against the government for $10 million in damages claiming the guards were negligent since they never noticed he and his cell mate had chiseled a hole in the wall that would allow their escape.   Yes, you read that correctly – it was the guards’ fault.

Banks claimed among other things that he suffered emotional injury from the trauma of fearing for his life as he dangled from the makeshift rope used in his escape and further claims that he suffered from the jail’s lockdown restrictions instituted as a result of the escape which included damage to his reputation, “humiliation and embarrassment” and injury to his “spiritual constitution”.

The best news is that the Court disagreed, and in the course of dismissing his case declared that “no one has a personal right to be better guarded or more securely restrained, so as to be unable to commit a crime.”

We could have not put in better words ourselves.

Quote of the Month

“Obstacles are those frightful things you see when you take your eyes off your goal.” – Henry Ford