A blatant miscarriage of justice
[This month, our movie reviewer — a lawyer and decades-long member of the California Bar — turns his focus on a single movie. – Ed.]
The Burial (3/10), 126 minutes, R. At first glance, this is a pleasing, feel-good story — about Jerry O’Keefe (Tommy Lee Jones), a white businessman who owned funeral homes and sold insurance, who sues Raymond Loewen (Bill Camp), a white Canadian centi-millionaire businessman who ran a huge company with 15,000 employees and operated 1,115 funeral homes. The lawsuit was for breach of contract for $5 million. O’Keefe replaces his white attorney with charismatic Black personal injury lawyer Willie Gary (Jamie Foxx), who immediately ups the claim to $100 million. This dispute between two white men is contested by two Black attorneys opposing one another in front of a Black judge and a predominantly Black jury in Mississippi. Because the facts are against him, the only card Gary has to play is the race card, and he plays it constantly.
There were things about the film that deeply troubled me as a lawyer, so I investigated this case, of which I previously had never heard. What I found was astonishing. One of the many distressing things about the film is that the Black judge allows the admission of “evidence” that has no relevance to a breach of contract litigation, such as evidence about Loewen’s character and the value of his yacht.
Despite that, an undertaker friend of mine who worked in competition with Loewen, said he was unlikeable but not corrupt, so there was no basis for a plaintiff to be awarded punitive damages, which are rarely, if ever, awarded in breach of contract cases.
Spoiler alert: The $500 million final award was so outrageously inequitable that it should never have been allowed to stand. However, because Mississippi law required anyone appealing a judgment to post a bond equal to 125 percent of the huge award, Loewen (and virtually no one) could afford that kind of money to file an appeal, so he was stuck with the verdict. Ultimately, because the amount was so huge and the plaintiffs worried they might suffer in a Loewen company bankruptcy, the parties ultimately settled for $175 million.
Afterwards, Sir Robert Jennings, Queen’s Counsel and Professor of Law at the University of Cambridge, England, was asked to write an opinion of the case concerning a reparation claim against the United States, under the North American Free Trade Agreement (NAFTA) treaty, arising from the proceedings. This is an excerpt from his 22-page opinion:
‘It makes no difference that the manifest injustice in this case results from the verdict of a common law jury (a majority verdict of 11 votes out the twelve). (Transcript at 5732-33, 5811-12.) It is clear that in the present case the origin of the manifest injustice was in effect created by a gross abuse of the system by plaintiffs’ leading counsel, which if not quite aided and abetted by presiding Judge, was at least tolerated and totally uncontrolled by the Judge, even though he knew very well the game that was being played in his court.
“There were so many occasions when the Judge ought to have stopped plaintiffs’ counsel; and occasions when he certainly ought to have warned the jury against counsel’s methods. Whatever the reasons for the Judge’s silences, and some of his curious utterances, the result was a remarkable travesty of justice.
“Moreover, the Judge’s observation that counsel was playing the “race card,” shows that the Judge was wholly aware of what was happening in his court (Transcript at 359597). There are cases where bias, though wrongful, is relatively innocent because it is of the kind stemming from ignorance.
“This case was different. The jury might have been to some extent unaware of how they were being manipulated. But so far as the court was concerned, both the Judge and counsel knew perfectly well that counsel was intentionally stirring up racial and nationalistic bias against Canada and Canadians; possibly one must suppose because he had decided that this was the way he might win the case and harvest absurdly and outrageously inflated damages.”
Professor Jennings’ entire scathing 22-page opinion may be read here: tinyurl.com/46fy3s95.
A film about this case would have been more appropriate had the story been told from the point of view of how Loewen and his company were destroyed by a flawed system of civil justice and a devious attorney. But that would have made co-producer Foxx unable to make lawyer Gary look like a hero.
This judgment has been widely criticized, but you’d never know it from this film that whitewashes, indeed extols, a case that should be universally condemned for its blatant miscarriage of justice.
Category: Entertainment