Hamilton Herald Masthead


Front Page - Friday, February 12, 2016

Doing my civic duty

I Swear

Vic Fleming

In October last year – just as I was preparing to teach Kafka’s “The Trial” for about the twelfth time – I received a missive from, of all places, the United States District Court. Guess what, it said (though, this is a paraphrase), you are being called to jury duty. As Yogi would’ve said, “It’s deja vu all over again.”

In 1985, seven years after I passed the bar exam, my name came up on the Pulaski County, Ark., “jury wheel.” If I ever knew why that term, wheel, was used, I’ve forgot. 

At the time there was a statute in force by which lawyers could exempt themselves from jury duty. I passed on that opportunity.

Shortly after orientation I found myself seated as juror no. 10 in a case billed as a sensational punitive damages action. Four lawyers of my acquaintance – two for each side – were on the case. Perhaps each side assumed the other would strike me.

The facts were simple enough. Plaintiff buys a used car. It has some kind of a warranty. He takes the car to the defendant’s shop, asking that the clutch be inspected for a malfunction. No problem with the clutch, the defendant says, but the brakes need fixing.

Plaintiff asks if the brake job is covered by his warranty. “Don’t know,” says the defendant. “I’ll file a claim and let you know.”

The brake work is performed. Plaintiff drives away. Weeks later, plaintiff returns with rear end trouble (on his car, not himself). Defendant puts the car up on the rack to look under it. While it’s up there, defendant tells plaintiff that the warranty claim was denied. Plaintiff, therefore, needs to pay $400 now, lest the car remain on the rack for quite some time.

After a heated discussion, plaintiff catches a ride home, borrows $400, then returns for his vehicle. He sues defendant, alleging fraud and conversion – fraud, based on his belief that the brake job wasn’t necessary in the first place; conversion, based on the refusal to release the car until the $400 bill (for unnecessary work) was paid.

The testimony took a total of three hours. At a mid-afternoon break, after both sides had rested, other jurors, who’d figured out that I was a lawyer, asked me what would happen next. As modestly as I could, I explained, simply, that “The judge will read  us jury instructions.”

“Ahh,” they replied, impressed by my apparent wisdom.

Five minutes later, Judge Tom Digby said words that I’d never heard him utter before. Words that I would never hear him utter again: “Ladies and gentlemen, I am going to give you this case without any instructions.” At that point he looked straight at me, smiled, then added, “I’ll just say that there will be no punitive damages. And that this is a contract case.”

There goes my credibility.

At that point in my career, I had tried a dozen contract cases – and no other kinds – in front of this very judge. 

Next week: How the case came out.

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.