When last week’s column ended, I was serving on a jury in a 1985 Pulaski County, Ark., Circuit Court case. At issue was a $400 invoice for a brake job on a used car. In the rarest of rare actions, the judge gave this case to us, the jury, with no instructions. Except to say that the dispute was a contract case.
I noted that I had tried a dozen or so contract cases in front of this very judge over the past several years. The lawyers proceeded to argue the case, pretty much under the Do-Right Rule.
Plaintiff’s side stressed that plaintiff went to defendant thinking there was something wrong with his clutch. He perceived no brake problem. When defendant said the clutch was fine but the brakes needed fixing, plaintiff wanted to be sure this would be covered by warranty. He didn’t mind leaving the premises with improved brakes, but if that wasn’t covered by the warranty, then the brakes would do fine as they had been before.
The defense said that, while the warranty didn’t cover the work, plaintiff’s brakes were in serious need of fixing. And that this exact point had been discussed at length before the work was done. Defendant was not averse to being paid under the warranty, if it applied, but he made no guarantee. He did the best he could. He deserved to be paid.
We the jury retired to the jury room. A man said to me, “What do we do now?”
“We elect a foreman,” I said.
“You’re elected!” My first political victory since eighth grade. (My second, to the post I now hold, was twelve years into the future.)
I asked who would vote for a defendant’s verdict. Six hands went up. My heart sank. We were divided before we could get started. I asked who would vote for a plaintiff’s verdict of $400. No takers. $300? Still no hands. $200? Four nods.
Someone then asked if each person might be allowed to state his/her views on the case. Motion granted! (The judicial potential was budding!)
For half an hour the other eleven talked about brakes, clutches, warranties, how the lawyers were dressed, how the lawyers talked, agency, hearsay, breach of contract. And much, much more.
Suppertime was drawing near when I said, “The foreman has clearly lost control of the jury.” No one laughed. I singled out an older woman who had said nothing. “What do you think?” I asked her.
She said, “I think the plaintiff is entitled to something, but $200 is too much.”
“How much would you give him?”
“One hundred dollars.”
“How about the rest of you?”
The four who’d said they’d go $200 for the plaintiff were quick to adopt the $100 proposal. I then did sort of an auctioneer-thing, pointing at each of the other six, one at a time, saying, “Will you give the plaintiff $100? Will you …?” The first shook his head, the second nodded, the third said, “Oh, all right.”
Within moments, I had four converts. Since it takes only nine votes for a civil case verdict in Arkansas, I never even had to vote.
Vic Fleming is a district court judge in Little Rock, Ark., where he also teaches at the William H. Bowen School of Law. Contact him at vicfleming@att.net.