By Spencer Farris
Those that follow this space regularly know that I regularly bemoan the legal profession trailing the rest of the world. But not today. Gentle Reader, today I am proud to recognize a legal tool from the beginning of the profession that is being adopted in our greatest, and less great, institutions.
I hid out in my man cave this weekend watching America’s pastime – baseball. Yes, I know that baseball is upside down right now with perennial cellar dwellers from Cleveland and Chicago emerging like Superman out of a phone booth. (A phone booth, for the youngsters, is where we used to stand, out of the rain to call for help. You have a cell phone and an umbrella.)
In the old days (all the way back to last October) an intentional walk required a conference between the catcher, pitcher, and probably a coach, followed by four throws outside the strike zone. If the visiting team was on defense, a chorus of boos rained down. An intentional walk now is done with a hand signal and a slow trot down the first base line by the batter. This will likely save seconds from the intolerable three hour snore fests the game has become. The stress previously released from booing will undoubtedly be saved for road rage on the drive home.
Before the intentional walk, the U.S. Senate sped up their game by short handing the filibuster. Traditionally, the minority party could stall legislation by speechifying for hours or even days. The practice then morphed to simply declaring a filibuster instead of senators reading from the phone book, “War and Peace,” or emails from constituents. The targeted legislation would be tabled until a later date, if not permanently.
This week, the Senate outdid itself by trashing the filibuster completely. I suspect we will be booing that decision for years. Politics being what it is, the Senate’s Cubs and Indians will emerge.
The courts realized long ago that our game – trials – often went to long. Jurors frequently suffered through hours of watching boring foundations being laid for boring documents and boring witnesses.
Before we evolved from powdered wigs and 12 angry men, we adapted with the stipulation. Once a fact is stipulated, no one needs to prove it. The tactic is used for everything from establishing the authenticity of a document to liability itself.
Billing may suffer, but speed is gained.
Getting two hardheaded trial lawyers to agree on something is the first hurdle to a stipulation. Some lawyers feel it is a sign of weakness to agree with their opponent about anything. Others love the sound of their own voice so much that they prefer not to miss a speaking opportunity.
Some courts require a stipulation of basic facts pretrial. Here’s is how legend tells us the original stipulation went down:
Lawyer 1: Good morning. The judge has ordered us to work out some of our issues and shorten the trial, or he will have us hanged for contempt.
Lawyer 2: Good? That’s a vague term and I can’t agree to it without a definition. I can stipulate that at 10:30 a.m., it is still morning. Nothing more.
L1: (rolling eyes) No, that was merely a greeting. I would’ve said “how are you doing” but I was afraid you might tell me and I really don’t care.
L2: I’m doing okay. Thank you for asking. Truth be told, I think I got a little bit of heartburn.
L1: I didn’t ask. I specifically didn’t.
L2: I know. It was a joke.
L1: I will stipulate that it was a stupid joke. This trial next month will take weeks as it is, and the judge said he won’t have it. We have to shorten some things.
L2: How about this – plaintiff signed a contract on October 7 for the completion of a barn which fell down, killing his best goat, and defendant refuses to be reasonable.
L1: I can stipulate that the parties entered into a contract on October 7 which plaintiff continually tried to change, and that plaintiff is a greedy goat farmer whose barren goat was barely hurt. What do you think of that?
L2: I think that your statement and your tie are equally offensive.
L1: A duchess gave me this tie!
L2: Look, we seem to have gotten off on the wrong foot. I have a stack of documents here that we need to agree on as well.
L1: I will stipulate that we got off on the wrong foot. I will stipulate that those documents in your hand are a waste of paper. I may agree that the dead creature is a goat and it resembles your client. And that they don’t prove anything.
L2: Can you at least agree that the papers are the real thing so we don’t need 20 depositions to establish foundations?
L1: 20 depositions! That’ll cost my client $1,800!
L2: This case would settle for $1,200!
L1: Done. I’ll have a release over your office this afternoon.
L2: (flustered) What just happened?
L1: You just stipulated to the value of your client’s case and we settled. Something we could’ve done three months ago if you had been reasonable.
L2: You aren’t asking me to stipulate that I’m reasonable, are you?
L1: Never. That would destroy your reputation.
And just like that, a time-saving device was born. It is said the parties finalized the deal at a ballpark, but it may have been a joust.
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Under Analysis is a nationally syndicated column. Spencer Farris is the founding partner of The S.E. Farris Law Firm in St Louis, Missouri. He will stipulate that he was reasonable once. Comments or criticisms about this column may be sent c/o this newspaper or directly to Under Analysis via email at farris@farrislaw.net.
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