By Charles Kramer
In the wake of the recent election, several people I know have raised the question of whether the inconsistency of the Republican Party’s views on business issues and social issues has made their candidate unelectable as President of our nation. Being anti-regulation and anti-governmental intervention in the financial sectors, they argue, is inconsistent with being in favor of a governmental role in and regulation over, individual rights choices and liberties. If the candidates were as in favor of government leaving people alone with their personal choices as they are with respect to the business world, their guy would soon be President, these people claim.
I’m not sure if that is a correct description of Republican politics, or whether the conclusion would follow even if it is. I do know, however, that consistency for its own sake is never a good answer.
As a young lawyer, I once won both sides of the same argument in the same case, taking inconsistent positions. My client had purchased a piece of land, with respect to which a prior owner had neglected to pay taxes. The City taxing authority sued for taxes and to have the property sold, but did not serve the lawsuit on my client, the then-current owner of the land. When my client learned of the tax sale, it hired my firm to set it aside due to their lack of notice. The City Collector claimed that actually finding and delivering a copy of the suit to my client wasn’t required, because he had conducted service of the suit by publication and posting—plastering notices of the suit on the property itself and publishing notices in the local paper. We filed a motion for summary judgment, saying that the CONSTITUTION required actual personal notice. We attempted to serve our motion on the parties to the lawsuit, and all the intervening owners of the property (the people who had owned the property after the delinquent tax payer and before my client) and also posted our motion notice on the property and published a notice in the local paper in case we missed anyone. We successfully served all parties and had successfully located all of the intervening owners to give them personal notice except one, when the City Collector called our motion for hearing before the Court. We requested a continuance to allow us to serve the motion on the missing owner, but the Collector argued he couldn’t wait any longer because he conducted dozens of tax sales a day and had to know if his procedures were right or wrong. The Court agreed and we went to hearing. We won, successfully convincing the court that personal notice had been required. The Court issued its order setting aside the sale, and ruling that my client owned the property free and clear as an innocent subsequent purchaser. At that point the missing intervening owner surfaced, and filed their own motion to set aside the Court’s ruling on our motion, arguing they had the right to appear and present any arguments they may have that they still had an interest in the property and that they hadn’t received notice of the motion hearing. I argued that even though we had not yet given them direct personal service, we had given them notice by our catchall publication and posting—the exact notice that we had previously argued had not been sufficient with respect to the actual sale—and that such notice was sufficient for a motion hearing, even though it also involved title to the real property. I won again, the Court ruling that in this case posting was good enough.
As a young lawyer, I celebrated my victory and my obvious legal argument abilities. Who else could say, after all, that they had convinced the same judge of two inconsistent positions in the same case? Pretty smooth tonguemanship, I thought. Of course it took the Court of Appeals only two paragraphs of its opinion to reverse my second victory six months later, noting that my position was “ironically the exact opposite of what counsel had argued earlier,” and ruling that the Constitution also required the intervening owner get actual notice of our motion. So, six months later, we were back arguing the motion again. Although I ultimately prevailed, the brilliance of my second victory had cost my client the fees and costs of defending an appeal, and a delay of seven months before a clear resolution.
Yesterday, a couple decades of experience later, it was déjà vu all over again. Six weeks ago, I successfully argued that email notice was not sufficient notice of a company’s shareholders meeting under its bylaws, and obtained a court ruling requiring a new meeting to be conducted. It was held a few days later and my client was able to attend and organize enough votes to achieve a different result. Unfortunately, yesterday I received a copy of a new lawsuit, filed by the son of one of the shareholders, in which he claimed that he had purchased his father’s shares the day before the cutoff date for determining shareholders for purposes of the meeting, and had received no notice of the rescheduled meeting other than the notice forwarded to him by his father—which had been mailed to his father but which his father had only scanned and emailed to him. Could I go back to the same judge and argue that this time email notice was enough? Should I?
The need to prove my oral argument chops was replaced a long time ago by the recognition that winning a point that you know is wrong doesn’t accomplish much in the long run. I’ve also gained the business sense that avoiding the wasting of judicial resources and my client’s money, not to mention avoiding the delay caused by the appellate process and the ultimate need to do it all over again, is more important than being the world’s most convincing advocate. Accordingly, today I took another inconsistent approach. I picked up the phone and called the opposing lawyer and agreed to simply hear the motion again, without need of a court order requiring it. The inconsistent approaches taken many years ago may have accomplished an ego stroke, but ultimately I had to win again with the missing owner present—which cost my client the costs of the appeal and a seven month delay. This time, the approach I am taking may be inconsistent with the one I took way back when, but it is a change born out of experience. As I said, consistency for its own sake is overrated.
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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.
© 2012 Under Analysis L.L.C.
