When Worlds Collide

Q: What is a “force-majeure” clause?

A: There is really no pithy way to start to answer that question. I thought of making a wise-crack that this is a word used to describe powerful attorneys (they are a “major force”), but thought the pun was too much to take, even for me. Then, it occurred to me to reference the French film of the same title made in 1989, starring B-class actors and F-class plot, but that certainly does not aid in our understanding of the term.

The only way to answer the question, it would seem, is to tell you what it literally means, then illustrate by means of a hypothetical, and make some profound insight as to its importance. All of this, of course, is done in the hopes that you can sound oh-so-smart when your cable Internet company calls to confirm your contract.

According to Black’s Law Dictionary, a “force majeure” is, literally, “a superior force.” The word is of French origination and is properly pronounced, “fors ma-zhur.” (Actually, that “u” should be a schwa, but I am an attorney, not a phoneticist.) The term describes an unanticipated event that cannot be controlled. When used in the confines of a contract, the “force-majeure clause” not only becomes hyphenated, it arrives at a precise meaning: a clause that allocates the risk if the performance upon the contract becomes impossible, impractical, or improbable because of unforeseen, unanticipated, and uncontrollable forces.

Now isn’t that clear as mud?

Ok, time for the example. Say you contract with my shipping company to ship your Yugo to your winter home in Iceland. We agree that I will package and ship via container ship your Yugo and you agree to pay me a bazillion dollars to do so.

Sidebar: Like you, I thought the word “bazillion” was just a word made up and used by five year olds to describe a lot of money. Actually, it is a real word meaning, “an infinite number.” Aha! My goal of earning a bazillion dollars is still viable! End sidebar.

Of course, being an astute attorney and businessman, I insist on having a “force-majeure clause” included on one of the bazillion pages of our contract. We sign it, you pay me, I package your Yugo in one of my containers, and put it on my ship. Unfortunately, midway to Iceland, the perfect storm hits my ship. Of course, with George Clooney at the helm, my ship steers directly into a wave, is swamped, and your subcompact Yugo sinks and becomes the newest, and smallest, reef on the floor of the Atlantic Ocean.

Luckily, the “force-majeure clause” is going to protect me. You see, neither of us could have possibly conceived at the time of contract that the perfect storm, causing a Empire State Building-sized storm to swamp my well-steered ship, was going to hit my ship and sink your Zastava Koral. Such an event was unforeseeable, unanticipated, and uncontrollable and, because I am not going to swim to the bottom of the North Atlantic and drive your Yugo to Iceland, performance upon the contract has become impossible. How either of us is compensated for the loss (you of the Yugo, me of the money to ship said Yugo) will be determined upon the verbage of the “force-majeure clause.”

A “force-majeure clause” protects both parties from the unpredictable. It acknowledges that God often sticks his finger into His creation and prevents the performance of a contract. Even if the chances are just one in a bazillion!

Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.

A Truly Precedential Column

Q: What is “precedent” and what affect does it have?

A: Any dictionary will tell you that a “precedent” is a legal decision that has an authoritative impact on cases of a similar nature. But, if you want to really be fancy and impress the neighbors, you should call it stare decisis, pronounced “STAHR-ee di-SIGH-sis,” literally meaning, “to stand by things decided.”

A decision becomes “precedent” when the highest court in the given jurisdiction gives final interpretation to the law. Recall from high school civics that, as our first Chief Justice of the Supreme Court of the United States said, “It is emphatically the province and duty of the judicial department [the courts] to say what the law is.” What Chief Justice Marshall wrote simply echoed Alexander Hamilton’s words in The Federalist Papers, No. 78, “The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.” Ultimately, this notion became known as “judicial review.”

What we have then, are two basic sources for our laws, each based upon a fundamental, legal building block. One source is legislative. The Legislative body determines the “will of the people,” writes laws to provide for our collective goodwill, and ask that they be implemented by the Executive. But, the Judiciary acts to ensure that the rights of the people are not trampled by the acts of government. As Hamilton put it No. 78, “the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”

That is, we as a society have consented to be governed and put that governing trust in the hands of a government. That consent has taken the form of our Constitution, the foundation for our laws. If that government acts contrary to what we have consented in the Constitution, then the government (our agents) must give way to the constitution (our intent).

That brings us to the second source for our laws: common law. Common law is a fancy way of saying judicial decisions. The significance of why it is called, “common law” we will leave for later. Suffice for the present to say that common law has equal effect as legislative law. Judicial decisions “say what the law is,” so to speak. Where it crosses our consent by actions of our agents, it is unconstitutional.

But, once written, the judicial opinion becomes authoritative even over the piece of legislation is has then ruled upon. The Legislative branch would, therefore, have to write a law that would not conflict with that decision. If it legislates afoul of that judicial opinion, it will be invalidated by that governmental watchdog: the Judiciary.

Not only must subsequent legislation conform to that decision of the court, subsequent courts must also “stand by things decided.” In other words, the decision has “set a precedent.”

Setting precedent is a very serious matter. In order to overcome it, a court must essentially admit that it was wrong and change its mind – an act seldom undertaken. And, because our consent – in the form of the Constitution – is so fundamental to the foundation of our government, the importance of wisely reviewing our laws cannot be understated. Nor can the importance of placing the wisest and most prudent jurists on the bench.

Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.

Immunity is Catching

Q: I saw a judge on Law & Order threaten to through out an immunity agreement. Can judges really do that?

A: My colleagues are going to poke fun of me, but I really do enjoy a good episode of Law & Order. I wish real court life was that succinct. They go from crime, to investigation, to indictment, to trial and conviction in one, neat hour. And, for the most part, the legal wrangling is pretty spot on, though not entirely complete.

To answer this question fully, you need to understand the idea of immunity. Of course, most of us know about the idea of being “immune” from a disease, meaning the disease has no affect on the person with immunity. Well, it is not unlike that in the law.

There is the classic, “sovereign immunity.” Quite simply, to say that the “sovereign” is “immune” is to say that the state is not liable for certain aspects of their governance. The term “sovereign” is derived from the English common law and was a reference to the King who was absolute in his power, beneficently ruling with the authority of a little god in his country. Thus, since he was instilled in the monarchy by the authority of God himself, the king could do no wrong. Hence, he could not be liable in court either. Patriots put that notion down; but the idea that the government – made of, by, and for the people – was limited in its liability remained. Today, the government is immune from most legal actions alleged against it, though exceptions do, indeed, exist to provide adequate redress for wrong action.

Judicial or civil immunity attaches to judges and civil servants acting in their official capacity. Thus, a judge cannot be sued for a certain ruling from the bench and a police officer cannot be prosecuted for arresting you. However, even that has a down side: if either wield their judicial or civil power to intentionally harm someone, thus taking them outside of their proscribed role, they could face legal action.

Spouses also carry immunity, as do clergy, lawyers, and doctors. This type of immunity is called “testimonial” immunity and serves as a tool to promote confidentiality. Thus, a wife may refuse to provide testimony against her husband, a priest need not tattle on his parishioner, a lawyer cannot reveal the confidences of his client, and the doctor retains a privilege over his patient’s revelations. Yet even those testimonial privileges can be pierced in rare circumstances and the testimony that was once immune can be compelled.

Then there is the type of immunity that prompts this question: immunity agreements. We are all aware of the perp that agrees to “turn state’s evidence” in exchange for not being prosecuted for a crime, or receiving a lesser punishment. That is an immunity agreement. Essentially, it is a contract. The lawbreaker agrees to rat on his pal and, in return, the prosecutor he is helping agrees not to nail him on the crime that his testimony naturally implicates him.

Can such an agreement be overturned by a judge? Let me give you the classic law school professor answer: it depends. On the one hand, no it is a contract and, under the law of contract, once the rat sings, the state has to stand silent. But, on the other hand, if the scofflaw welshes on the deal, the state is not obligated to honor its end of the bargain and the judge can overturn the immunity agreement.

The easy answer? Yes. (But aren’t you glad you read this whole article to get that?!)

Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.

The Drama 'tis the Court

Q: Who does what in the courtroom?

A: The venerable bard Williams Shakespeare speaking through the voice of Jacques in his play As You Like It explained, “All the world’s a stage, and all the men and women merely players. They have their exits and their entrances, and one man in his time plays many parts, his acts being seven ages.” What ‘tis true in life, ‘tis verily true within the halls of justice, to wax Shakespearean.

In the drama that is the courtroom there are a variety of players, each playing a unique and distinct part. The director of this drama is the judge. His oversight governs the proper and legal conduct of all who enter the courtroom’s doors. He is not unlike the captain of a ship, though he need not be in international waters to perform a marriage. The judge establishes the cues for when the lines are to be said and orders the curtain drawn when appropriate. It falls to him to finally say what the law means. He hears objections, instructs jurors on what the law says, and provides for courtroom security. When the jurist speaks, the whole troupe gives way to his words.

There also appear individuals playing the part of attorneys. Usually two in number, one represents the plaintiff, the other the defendant and each present the facts of the case to jurors, while ending such presentations with persuasive arguments of how those facts befit the law.

Attorneys speak to jurors, who range in quantity from six for civil cases and a dozen for cases in criminality. These temporary courtroom thespians play the part of the factfinder. Second only to the judge, the jury has the most say in the outcome to the trial. None on the courtroom stage are permitted to interfere with the independence and peculiar function of our jurors, and so these players fill an essential role of our judicial theater.

A cadre of other actors plays supporting roles and fill out the rest of our playbill. Of course there are the parties to the case: a plaintiff (if the case be civil), the State (if criminal it be), and a defendant. Asked to write the improvised script of our production are the witnesses, called by each side – each with a different or unique take on the matter in controversy. The testimony of witnesses seems often akin to the villain Autolycus in As You Like It, “Though I am not naturally honest, I am sometimes by chance.”

Charged with recording each jot and tittle spoken by the players is our resident scribe, the court reporter. By spoken word or deftly typed strokes of a keypad, our court reporter maintains for posterity (and sometimes appeal) the words of our drama.

Beside the judge sits the circuit clerk. As the keeper of records, the circuit clerk is charged with maintaining the exhibits introduced in an orderly fashion. Her most important function: swearing. That is, it is her duty to administer the oaths.

In the corner sits our justice of the peace. His presence suggests protection and his duty agrees. He is the lone Musketeer whose sole end in professional life is to maintain the safety and security of the courtroom.

Finally, there is a lonesome soul who seemingly plays no part. His role is silent when present on the stage that is our courtroom, yet his words often speak through the other players. He plays one part advisor to the judge, another part jester, and most parts attorney. While this barrister does not litigate, his ability to research and anonymously pen the words of the judge bespeaks his legal training. He is the judicial law clerk, the embodiment of the fifth age that Jacques explained in his soliloquy that begins Act II, Scene 7: “And then the justice, In fair round belly with good capon lin’d, With eyes severe and beard of formal cut, Full of wise saws and modern instances; And so he plays his part.”

And so they all do play their part and the drama of justice is meted out in daily form.

Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.