Is it allowed for a lawyer to tell the judge the consequences of a decision in an attempt to win a case?
Let’s say a court was hearing a case involving a software company. The court uses that company’s software. It is technically feasible for the company to “turn off” the software remotely, and render the software worthless thereby.
Is it permissible for the software company’s lawyer to tell the judge that, if the ruling goes against the company, the company will consider this a breach of the TOS and decline to allow the court to access the software they rely on?
I suppose the court could order that the company not do that, and the company could decide on an “efficient breach” (not the real definition, I know) if they decide that the cost of doing it is lower than the cost of the bad judgement would be.
I would say that’s unprofessional conduct, worthy of a contempt citation and professional discipline.
The lawyer is subverting the court process, by threatening the court and trying to get the court to rule in its own interests, not on the merits of the legal case before it.
The correct response from the judge should be : “Fiat justitia, ruat cælum”.
I have rouble imagining a TOS that would allow a company to retaliate against a court giving a perfectly legal decision in a court case. If there is any chance a court is ruling on something that affect their ability to use software, that sounds like a breach of terms of service, there may be conflict of interest. Regardless, a TOS provision that asks a court to ignore the law would be an invalid contract, I would assume. You cannot have an enforceable contract concerning illegal acts.
Then, enforcing an invalid TOS, and targeting the court that ruled against you, would be clearly contempt of court. A warning might be taken as a theat.
I suppose the scenario that might work is something like “If your honor requires that we assume all financial liability for how this software produces results, then we can no longer honestly/safely offer this software for use and so must turn it off for everyone…” Not sure if that constitutes a threat or not. (Recall some case where VisiCalc or Lotus was sued, because someone created a spreadsheet to calculate a bid for a project; then inserted a row, and the “SUM(from-to)” formula did not automatically include rows inserted afterwards, so they seriously underbid.)
Litigants appeal to consequences all the time, where consequences are arguably relevant to something that the court will have to decide: “Your honor, if this court adopts the plaintiff’s interpretation of the statute, it will bankrupt the industry; that cannot have been the intent of Congress.” Or, “the defendant’s overly narrow construction of these regulations would consign a vulnerable population to poverty; that violates the statutory mandate of expanded opportunity.”
But the central issue in the OP’s hypothetical clearly relies on a threat against the Court from the defendant. While policy arguments, which necessarily are an appeal to consequences of a court ruling, are allowed in court,* that’s not what the OP is asking.
I very much agree with this, but the OP seems to argue some sort of retaliation or a threat of retaliation against a court if it rules against a party.
But it further seems like a threat of retaliation that one is legally allowed to do. Say I was a carpenter and the local courtroom needed refurbished, and I had previously told the judge that I would give back to the community and do the refurbishment for free. Then the judge rules against me in an unrelated case and it pisses me off. Should I not then be able to refuse to refurbish the courtroom?
The Court should never take free labour, but always pay fair market value, after a competitive tender.
Doubly negative, the Court should never take free labour from a litigant who has a case pending in it.
If nonetheless you’re in that situation, I think there would be a difference between saying to the court in oral argument that if it rules against you, you’ll not do the work, compared to withdrawing your services after the fact.
I believe there have been cases where a defendant was suing a town for damages, and the court has prohibited the town’s lawyer from saying: ‘If you award this defendant the huge damages he is demanding, the town will have to raise your property taxes to pay such a judgement’. I’m not sure of the legal reasoning of the court, but it seems like an appeal to the direct financial interest of the jury – sort of an indirect bribe to them.
2 & 3. I agree. However, the court probably should not be hearing the case in the OP where it has an interest in the outcome by using the litigant’s software package.
Both of the above learned Counsels have it. Appeal to consequences on its own is a fairly common argument, if one thats looked down upon by some.
Threatening a Court directly if it does not rule the way a party wishes it to will lead to swift and near biblical consequences for the one who issues such a threat.
The key I assume is targeting. If the court happens to be one of a class that will all suffer - lose their software, pay extra taxes - then so be it. But if the court is specifically targeted because of the ruling, then that would be threat/retaliation.
If the court, for example, were singled out because it ruled against the software company - that’s retaliation. Additionally, terms of service that do not permit the court to do it’s legal duty impartially would by nature be an invalid contract, so pulling their license based on illegal terms would be contempt. If the company withdraws from the market and all customers including the court can no longer use the software - that is not retaliation.
And yes, I was going outside the hypothetical and speaking more generally. I don’t disagree with anything Northern Piper has said about the particular situation proposed by the OP.
Of course, there are limits to this sort of thing (particularly in the context of jury trials). For example, unless punitive damages at issue, a civil litigant cannot tell a jury that it should award lots of money to teach the defendant a lesson.
So, let’s change things a bit, based on something md2000 said:
The business says that, if the court rules against it, it will have to roll up its entire operation, or at least the now-unprofitable business unit, serving all clients of that software. This, as there is no statutory language to the contrary, would leave the clients high and dry, and unable to use the software or gain access to any data entered into the software, as the relevant servers would be shut down, wiped to prevent data breaches, and sold, possibly in pieces.
Could a court order the business implement a migration plan?
An unusual example of “appeal to consequences” was the Pitcairn Island sexual offences trial. The island has a population of about 50, and the 7 men on trial amounted to one-third of the adult men. It was claimed that imprisoning them would make it impossible to launch the longboats which are the only way on or off the island.
I recall that it’s not unusual for an appeal court to rule - i.e. X is infringing on Y’s patent and must stop - and then suspend that judgement, say for a year, to allow time to appeal to a higher court if the consequences of immediate enforcement could be significant. …or to allow the parties to digest the result and come to a better settlement based on the consequences.
I doubt that a court could order, for example, a software company to create a remedy that did not already exist - after all, the critical employees could just quit… usually judgements ( a real lawyer can chime in here) tend to be monetary rather than remedial. Then there’s the “kamikaze defense” where the business simply does not have the funds to do what is asks, folds and goes bankrupt.
… it’s also been not unusual for companies to roll up, leaving the clients high and dry. I don’t remember hearing about cases where the winning party in a copyright/patent battle was compelled to take over the clients.