Thoughts on proportion

Not to flog the deceased equine too much or anything but there’s an interesting little point in here. Slate has a pre-apology piece about the law and consumers and redress, and it reminds me of a larger issue.

Summary: Edelman was wrong about the law, too: “treble damages” isn’t mandatory but at the discretion of the judge, and anyway there’s a $25 minimum.

MGL 93a(9)(3) requires that before bringing suit the plaintiff send a demand letter to the business asking for rectification of the unfair or deceptive act or practice. That gives the business a chance to settle things for something like actual damages. The whole purpose of the demand provision is to encourage settlement and to act as a control on damages.  (Refusal to parlay is one of the hooks that can result in treble damages.)

If the defendant’s offer of settlement is rejected by the plaintiff, the defendant can introduce its offer (and its reasonableness) at trial.  Here, the restaurant offered the professor a full refund of the overcharge in response to his email (which is fairly understood as a demand letter). Thus, in a lawsuit, if the defendant made a reasonable settlement offer, the court must limit damages not to the $25 minimum, but to the restraurant’s reasonable offer. See Kohl v. Silver Lake Motors, Inc., 369 Mass. 795 (Mass. 1976). I don’t see how the professor gets to treble damages here.

Good to know, in case y’all were planning to demand triple damages next time the taco truck cook counts your change wrong. But that’s not why I’m pestering the dead horse.
It’s fun to play gotcha with an unnaturally pissed off Harvard prof, but there’s actually a bigger point here. Yesterday, a few #Slatepitchy souls argued that, despite his dislikable approach, we should applaud Edelman for standing up against a restaurant that was, in some small way, cheating consumers. But whatever good he did was outweighed by his personal comportment. Lawyers have a lot of power in that they understand how to work the legal system and don’t need to pay anybody to write up a lawsuit on their behalf. And that power can very easily be abused, because it can still be expensive and time-consuming to defend against a crap case.

It’s like what we’ve been reading and saying about the police. The police too need to have good personal comportment. They don’t do good if their standard comportment is that of a bully and a potential violent assailant. They have a lot of power in that they can arrest us if they have a good reason (note the qualification); that doesn’t mean they should use that power to hassle people and then throw them to the ground if they get upset. Their job is not to escalate, it’s to de-escalate.

Lawyers and cops both have a responsibility to use the power their jobs give them with proportion. There are times when the police need to use force; their are times when lawyers need to get ferocious; for that very reason, as well as others, they need to do that only when it’s necessary and proportionate, as opposed to at the drop of a hat.

In short, lawyers and cops shouldn’t over-react.


  1. carlie says

    It was never about the damages, or that they were overcharging. It was “How dare anyone do that to ME”. It was all about his hurt feelings, how dare anyone or anything in the world not give him the deference and cookies he expects.

  2. says

    In my (admittedly limited) experience, lawyers rarely hold themselves or each other to high standards of personal comportment. It’s a problem.

  3. screechymonkey says

    drewvogel @3,

    lawyers rarely hold themselves or each other to high standards of personal comportment.

    It’s the “when all you have is a hammer” phenomenon. Lots of lawyers are so used to employing the “hammer” of bombastic posturing legalese that they reach for it constantly, even when “off-duty.”

    Of course, a good lawyer has other tools at his or her disposal, and uses the ol’ Hammer of Bombastic Posturing Legalese sparingly if at all, but that’s a whole ‘nother issue.

  4. Blanche Quizno says

    Holey moley. Over at the Slate site, there was this comment:

    Folks, I mentioned my affiliation to HLS for a reason. Guys like Edelman, contemptuous of the inferior opinions of the unwashed masses, won’t pay attention to anyone who wasn’t educated in the way that they were. Probably, he won’t pay attention to the opinions of a fellow alumnus either, but it adds weight. On the assumption he won’t care, in addition to sending Edelman this e-mail directly, I copied it to his boss, Nitin Nohria, the Dean of Harvard Business School, who might at least care about the reputation of his institution and could, conceivably, fire this idiot.

    I think that illustrates the dangers of taking things public just for the sake of proving who’s King of the Douchebags.

  5. says

    I think that illustrates the dangers of taking things public just for the sake of proving who’s King of the Douchebags

    Rule #37: There’s always a bigger douchebag

  6. Kevin Kehres says

    Are we talking about colossal asshole Ben Edelman? Pre- or post-apology, I think the honorific still stands.

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