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Auctioneers, albeit infrequently, find themselves in court. The issues could constitute a myriad of things including licensing laws prescribed by the state legislature. In states with auctioneer licensing, it’s the legislature that writes those laws.

Occupational licensing (prescribed in states by their legislatures) is a hot topic. Many states are reviewing their occupational (auctioneer) licensing as we’ve written about many times including here: https://mikebrandlyauctioneer.wordpress.com/2020/12/21/the-white-house-and-occupational-licensing/.

I was walking into court with a group of attorneys several years ago. These attorneys were representing an auctioneer and I was the expert witness. I had filled the attorneys in on what their state’s licensing laws said in regard to this auctioneer’s behavior.

The lead attorney met with me and the auctioneer in a conference room before the trial was about to begin. We talked over strategy and while some license law statutes weren’t necessarily on our side, the lead attorney said, “It doesn’t matter what those laws say — it matters what this judge says.”

It’s the concept of “judicial review” and while courts have traditionally been held to only interpret laws. They can invalidate law if it’s unconstitutional, exceeds the authority of either the legislative or executive branches, and in some cases when laws contradict each other, or are unconscionable or even possibly deemed unreasonable.

As a result, courts are creating, changing, and/or voiding law every day. If there’s a lesson here, take that aforementioned lead attorney’s advice — it matters what that judge says. I’ve personally seen it time and time again where courts (and juries) are the final say in any number of auction litigation cases.

For example, in the above-mentioned case, the common pleas court judge ruled that despite a state law mandating the auctioneer do “certain things,” he ruled it was unreasonable given the circumstances and ordered alternate directions concerning a contract, related funds, etc.

The other side argued that state law said “x” but the judge wasn’t having it … and ruled in our favor. The details aren’t (weren’t) important here, but the concept is: Courts — the judicial branch — can review (actually or effectively overrule) the legislative and executive branches of our government and they do.

If I’ve learned one thing from over 10 years of expert witness work, it’s that you can have all the evidence and all the law on your side and win, or lose — as it’s in a courtroom with a judge or jury who may (or may not) agree with you, your evidence or the law as they practice their job — in part, judicial review.

There is one important piece of advice I’ve given out to auctioneers for years and it’s that losing in court is the worst, winning in court is better, but staying out of court is best. https://mikebrandlyauctioneer.wordpress.com/2018/07/26/auctioneers-you-want-win-in-court-or-stay-out-of-court/.

Mike Brandly, Auctioneer, CAI, CAS, AARE has been an auctioneer and certified appraiser for over 30 years. His company’s auctions are located at: Mike Brandly, Auctioneer, RES Auction Services, and Goodwill Columbus Car Auction. He serves as Distinguished Faculty at Hondros College, Executive Director of The Ohio Auction School, and an Instructor at the National Auctioneers Association’s Designation Academy and Western College of Auctioneering. He is faculty at the Certified Auctioneers Institute held at Indiana University and is approved by The Supreme Court of Ohio for attorney education.