Turning to history, a frustrated Staten Island attorney gets creative.
Image by Helayne Seidman. Courtesy of Richard Luthmann.
Late last summer in New York, modern law got a medieval request for judicial relief. Staten Island-based attorney Richard Luthmann, a very serious Game of Thrones fan, petitioned the state Supreme Court in August for a trial by combat. Luthmann wanted to take up sword and shield against Connecticut investors who alleged he had helped a client duck a $500,000 debt the investors felt they were owed.
This week, state Supreme Court Justice Philip G. Minardo ruled in a one-page decision that the case would be resolved without medieval violence. Justice Minardo did, however, agree with Luthmann that, in theory, the court has the power to sanction a trial by combat. Luthmann, his honor still apparently besmirched, filed a notice to appeal the judge’s ruling to a state appellate court.
Luthmann tells GOOD he originally became interested in trial by combat through the Game of Thrones novels and television series. Eventually he began talking with people about whether trial by combat was legal under the federal and state constitutions, and if this was a legitimate way of settling disputes.
Luthmann did some research and found that an argument could be made for legal trial by combat. Outlawed by the British Empire in 1818, trial by combat was never made illegal in the United States or, specifically, in New York, where Luthmann would seek a venue for a legally sanctioned fight.
“If you take some of the legal theories out there, namely the originalist interpretation taken by Scalia and Alito, they basically … say, ‘Look, if the document was what it says in 1776 and it hasn’t been altered since then, then the rights are still there,’” Luthmann explains. “By looking at that argument, I said there is an argument to be made that a trial by judicially sanctioned duel is something that could then be granted, or within the permissible bounds of relief that could be granted by a justice in the state of New York.”
Basically, the argument goes, if trial by combat hasn’t been specifically outlawed under the federal constitution, it’s technically possible for a federal judge to allow it.
Duel between Alexander Hamilton and Aaron Burr. Image via Wikimedia Commons.
After supposing that trial by combat was technically legal, Luthmann researched its practice in the United Kingdom and some German principalities and city-states. He describes how historically, mercenaries who worked for minor lords and dukes would settle disputes by beating each other with what he describes as “baseball bats.”
“The question for me became whether there was a place for application for what I’m doing,” Luthmann says. “I did a lot of reading on the duel between Alexander Hamilton and Aaron Burr, and the reason they went to the dueling grounds on the Heights of Weehawken is because it was outlawed in New York State,” and duels weren’t prosecuted as harshly in New Jersey.
Luthmann’s own petition for trial by combat in New York grew out of the Connecticut investors’ attempt to get $500,000 from a client of his. Unsuccessful in pursuing the client, the investors’ lawyer turned around and sued to get money from Luthmann’s malpractice insurance in Foley v. Luthmann.
“They tried to say that I was the facilitator, that I tried to do this and that,” Luthmann says. “And I said to them, ‘You guys are a bunch of idiots. If I’m that bad of an actor, why didn’t you sue me from the very beginning?’” Luthmann responded by filing a motion to dismiss and using other legal processes to frustrate the plaintiff’s case. Finally, the other side filed a motion to preclude and restrain Luthmann from filing a lawsuit against them.
“I said, ‘If I’m a lawyer and I’m not allowed to file papers, then this is the end of things—we might as well go to trial by combat,” Luthmann says. “We might as well get out the swords and the shields at dawn and settle it that way. I met their absurdity with absurdity in kind.”
Depiction of judicial duel between Marshal Wilhelm von Dornsberg and Theodor Haschenacker in Augsburg in 1409. Image via Wikimedia Commons.
Luthmann says that by the time the British colonies were forming, trial by combat was already being phased out, particularly in Scotland.
“But it was still on the books in that there was an attempt to outlaw trial by combat in the British colonies on the floor of the British Parliament in 1773,” says Luthmann. “The measure was actually defeated, and it was referred to as the firmest pillar of the British constitution—that a man can stake his sacred honor in a battle. So when you read the Declaration of Independence, that we’re bound by our sacred honor, it’s right from that era.”
Luthmann believes there are a whole bunch of laws that could produce similarly peculiar juxtapositions between past and present—stuff that is legally applicable that nobody would expect to be on the books. And Luthmann claims this material can come in handy in lawsuits.
“You can get to your wit’s end in litigation,” Luthmann says. “So, you’ve got to have something in your bag of tricks. I play games sometimes, but that’s what you’re supposed to do, to a certain extent.”
“There was a great lawyer named Samuel Liebowitz. The guy has been dead for 50 years, but he said that if you’re going to be someone who practices law in the courts, you kind of have to know everything—you have to be a student of mankind,” says Luthmann. “You have to know what happened with the baseball game, you have to know what the political topics are, and who is coming into town for concerts, because you never know when something like that is going to help you win a case.”