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What were they thinking?

I argued a case in the Court of Appeals a couple of weeks back. My position violated the first rule of appellate advocacy- be the respondent. My client was the appellant, and the battle is an uphill one when you challenge a trial court ruling in a higher court.

My client’s case was dismissed after a day and a half of a two-day jury trial. The trial judge ruled that we hadn’t presented enough evidence for a jury to decide the matter.

Rulings like this are rare in negligence cases. First year law students learn that negligence is a jury question if there is even weak evidence. As a practical matter, if the evidence is truly weak, the jury will usually find against the plaintiff. Trial judges almost always let the jury do their job, especially when they have already spent time hearing the case.

I remember leaving the courthouse after the dismissal scratching my head. How could I have failed to do my job and put on enough evidence to get to the jury in the first place? Why didn’t the judge finish the trial and then vacate the jury verdict if our evidence was truly lacking?

The first question from the court of appeals was, “What was the trial judge thinking?” I had pondered that same question over and over in the months before oral argument. On the night before argument, I had even prepared for that exact question. It was the kind of softball that lawyers dream of getting. I couldn’t come up with a single response that I was willing to see printed in an appellate opinion.

Luckily, my brain engaged before my mouth did and I said that I didn’t remember what I was thinking as recently as yesterday, let alone back in trial. I had no idea what the trial judge was thinking.

It turned out that whatever the judge was thinking when he dismissed the case was reversible error, and the court of appeals gave my client some justice. I don’t know what that justice will turn out to be, but a jury will determine his fate.

This particular client got injured over five years ago. I wonder what the insurance adjuster is thinking since she has spent about three times defending this case as settling for our last demand would have cost.

Every lawsuit has fleas- problems that make victory questionable for either side. Cases with lots of fleas are “stray dogs” and few lawyers want to handle them, especially for a contingent fee. I don’t think this case is a dog, stray or otherwise, but I suspect the insurance adjuster is only focused on our side’s fleas.

Another dog case was decided in the same court of appeals recently. This one involved an actual dog, and actual dog cases abound around here. Old Drum is a famous dog case from 1870, memorialized with a monument on the courthouse lawn. The trial lawyer’s closing argument will bring tears to the eyes of even the most jaded dog hater.

The recent case involved a runaway dog. It had been captured and recaptured and recaptured by a shelter. After the last breakaway, the shelter owner decided to keep the dog. The adopted owners went to court to get the dog gone dog back.

Defying a court order, the shelter owner refused to return the pooch and spent some time in the doghouse himself. When he got out of jail, he hired a law firm. A big one. Not deterred by the big firm’s big bark, the dog parents hired a big dog law firm.

Court papers put the dog’s value at $50 which was the same amount claimed for Old Drum. In this case it was the adoption fee the dog parents had paid.  I assume that the big (read “expensive”) law firms handled the case for free. One can get a lot of rescue dogs for the kind of bones they usually charge.

The court of appeals agreed with the trial court and ordered the dog to be returned to the dog parents. Instead, the shelter owner gave them a box of ashes and told them their dog had died. Before these cremains could be given a proper burial, the actual dog showed up, alive, at the local sheriff’s office.

Maybe the shelter owner forgot that the dog didn’t actually die.  Maybe the ashes reincarnated. Either way, I can’t fathom what he was thinking, or why he would go to jail and risk worse when he defied the court of appeals over a dog he had put up for adoption in the first place.

I doubt that there will be a monument for the insurance adjuster in my client’s case or the shelter owner for the Houdini hound. If there is, I hope it has fleas. And that they bite.

©2017 under analysis llc. under analysis is a nationally syndicated column. Spencer Farris is the founding partner of The S.E. Farris Law Firm in St Louis, Missouri. His beloved dog died a couple of years back and he has some dogs in his file cabinet now.  Comments or criticisms about this column may be sent c/o this newspaper or directly to Under Analysis via email at

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