When Compromise Must Be Avoided

Justice oftentimes is victimized in the name of “compromise” and “fairness”. Have you ever been in a negotiation in a case with a mediator and asked for a range for settlement purposes. The natural inclination is to equally split the difference and assume that you are willing to do so. However, a range is just that, a range. A continuum where a compromise could be reached. That point is not necessarily in the middle nor would this be fair. Without guidance a jury has a tendency to do just that, compromise and split the difference between your client’s number and that suggested by the other side.

What about trading in an old car. Everyone has faced this same dilemma. Should you have to accept less than what your car is worth by splitting the difference between its real value and the sum offered by the used car dealer? Isn’t it worth, what its worth? Should someone be able short change you through such a tactic? Of course not.

If two teams were playing each other in basketball and one team is violating the rules through excessive contact and fouling, would it be unfair for that team to have substantially more fouls called on it, than the other team which was playing by the rules? Should the foul count really be even under such circumstances? Would it be fair for the referee to give in to the coach of the team that was excessively fouling and breaking the rules just because they whined and complained loudly? Of course it would not be fair… in fact it would be wrong. Why should it be any different in a jury trial where a client’s future well-being is at stake?

Splitting things down the middle just is not always fair. In the Old Testament, 1 Kings 3:16-28, King Solomon had to decide between two woman who both claimed to be the mother an infant son. The two women appeared before King Solomon for purposes of settling the dispute. After deliberating, King Solomon demanded his sword be brought forward and announced his decision to the split the baby in half if the two women could not agree upon whose child the infant was. Each woman would receive one bloody lifeless half of the infant’s body. Upon hearing this terrible verdict announced, the boy’s true mother cried out, “Oh Lord, give the baby to her, just don’t kill him!” The spiteful and deceitful woman who wrongfully made claim to the infant, responded, “divide it!” King Solomon upon hearing this, declared the first lady as the infant boy’s true mother, for spitting the baby down the middle would have been a terrible injustice.

Moe Levine, a prominent New York trial attorney guided jurors around this tactic of “compromise” and “fairness by division” arguing:

If my client’s case is worth, $100,000 and you compromise and give him $50,000 instead, then this leads to one half justice and one half injustice. If you have given 90% justice, you have at the same time given 10% of injustice. My client is entitle to full justice in this case. Nothing more and nothing less.

Compromising and splitting things down the middle here would be justice denied for my client.

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About Richard A. Cook

Richard Cook graduated from Purdue University in the Economics Honor Program in 1979 and obtained his Juris Doctor degree from Valparaiso University School of Law in 1982. Following law school, Richard served as a federal law clerk in the U.S. District Court for the Northern District of Indiana, Hammond Division. In 1984, Richard began working as Deputy Prosecutor for the Lake County Prosecutor's Office and from there, served as Assistant U. S. Attorney for the Northern District of Indiana, South Bend Division. There he handled a number of complex criminal matters and jury trials. While there, Richard received the Chief Postal Inspector's Special Award and a letter of commendation from the U.S. Attorney General for his work prosecuting a major money order fraud scheme being perpetrated out of the Indiana State Prison system. Since leaving the U.S. Attorney's office in 1989, Richard has focused primarily on civil work and is currently a member of the firm Yosha Cook & Tisch in Indianapolis. Richard is also a member of the ITLA, IBA and the ABA, as well as, a fellow for the American College of Trial Lawyers. He is AV rated by Martindale-Hubbell.

Posted on March 12, 2014, in closing arguments, Trial Advocacy and tagged . Bookmark the permalink. Leave a comment.

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