The Bart Group also contends that it is entitled to a new trial because of a comment the judge made to the jury in phase II of the trial. After instructing the jury on the law, the district court closed with these words:(via reader Doug)On behalf of everyone, thank you so very much for your patience and your good humor and your attention. It has really been a pleasure working with you all. God speed and may you have the judgment of Solomon.Then the court sent the jury out to deliberate. No one objected to that remark, probably because it seems so unobjectionable.
Nonetheless, in its motion for a new trial on damages the Bart Group contended that the district court’s benedictory remarks violated its rights, not by wishing the jury "God speed," but by expressing the hope that the jury would have "the judgment of Solomon." The district court responded to that argument, when it belatedly appeared in the motion for a new trial, this way:Plaintiffs’ motion lists an additional error: the Court’s comment to the jury to "have the wisdom of Solomon." Overlooking the fact that Plaintiffs did not object to the statement at trial, Plaintiffs have not presented any argument or authority in support of their contention that this remark was improper. Therefore, the Court will not address it.The problem, the Bart Group argues, is that the remark refers to "splitting the baby" and the jury might have thought that it was being urged to decide the breach of contract damages issues in favor of Mercado since it had found the liability issues in favor of the Bart Group--to split the case down the middle and give each side half.
The Bart Group’s argument reflects a misunderstanding of scripture that is almost biblical in proportions. When two women each swore to be the mother of a child, King Solomon did not split the baby. Instead, he announced his intention to do that in order to flush out the truth. See 1 Kings 3:16-28. Confronted with the prospect of the baby being split with a sword, the woman who had falsely claimed the child responded with the Old Testament equivalent of "let ‘er rip," while the woman who had borne the child begged Solomon not to slay the child even if it meant that she would lose it to the other woman: "[G]ive her the living child, and in no wise slay it," she pleaded. Id. at 3:26 (King James Version). Solomon was wise enough to know that a mother would rather lose her child to another than have it slain, and so he gave the child to the woman begging for its life to be spared. Id. at 3:27. And all of Israel was in awe of his wisdom. Id. at 3:28.
In this case the judge did not instruct the jurors to split the baby. Instead, she wished them the judgment of Solomon. A jury blessed with the judgment of Solomon would be wise in discerning the truth. Agreeing with the district court, we wish such wisdom on every jury. Even if the Bart Group had not waived any issue about the court’s remark, there is nothing wrong with what the court said.
Tuesday, September 06, 2011
Legal Reasoning of the Day
From Walter International Productions, Inc. v. Salinas, slip op. at 32-34 (11th Cir. Aug. 23, 2011):