Trial by Combat: Truly An Alternative Dispute Resolution
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When dealing with another round of boorish behavior by opposing counsel, who hasn’t quietly wondered: “If only we could settle this the old-fashioned way.” Even though modern trials evolved from the trial by combat of the Middle Ages, today our chosen champions wear suits instead of armor, wield laptops instead of swords, and face off in courtrooms rather than courtyards. Recently, however, a “Game of Thrones”-inspired lawyer from New York actually filed a motion in court seeking trial by combat.
Staten Island attorney Richard A. Luthmann had represented client David Parker in connection with claims by creditors claiming Parker owed them over $500,000. After Parker made a $52,500 payment to Luthmann (described by the lawyer as a “patently reasonable” fee for his legal services), the creditors sued Luthmann himself, alleging that he had directed his client to transfer money out of their reach. Deriding the plaintiffs’ brief as “a glorified comic book piled on top of pure and adulterated extortion wrapped in a transparent abuse of legal process,” Luthmann finally flung down the gauntlet in a reply brief filed in late July.
The estate planning specialist (and admitted “Game of Thrones” fan) demanded “his common law right to Trial by Combat as against Plaintiffs and their counsel,” and supported his unusual request with a detailed analysis of the history of trial by combat. Luthmann argues that while the British Parliament may have formally banned the practice in 1819, the 13 original colonies that formed the United States never outlawed trial by combat. Since the Ninth Amendment protects the rights of the people not mentioned specifically elsewhere in the Constitution, Luthmann says, trial by combat remains a matter of right. Luthmann acknowledges that the trial judge may “look askance” at his request, but “I’m prepared to take it to the highest level. I’d love to have a court determine whether we have those rights under the Constitution.”
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