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I majored in Mathematics at The Ohio State University. One of my several particular interests in math was prime numbers. As most of you know, in 300 BC, Euclid “proved” there was an infinite number of prime numbers by essentially showing there was not a finite number of primes.

In my college years, it was exciting to learn of Donald J. Newman’s new work (1980) on a proof of infinite primes, which was discussed at length in some of my classes. Of course, concerning our topic today, can the lack of evidence (of a greatest prime number) be evidence (of an infinite number of prime numbers?) Indeed.

What about auction litigation? Could the lack of a contract, computer, files, someone’s recollection … lead someone to conclude guilt or innocence? We’ve seen this played out numerous times, where a seller, buyer, and/or auctioneer didn’t have (or couldn’t find) certain documents, files, computers, etc.

For instance, in one case, one side of this litigation asked the auctioneer to produce some records. The auctioneer responded that a particular computer with those records had failed, and those documents could not be recovered. Incidentally, none of the other 15 computers — lacking these records — were effected …

This lead the other side of this litigation to conclude that the auctioneer was hiding something, and was guilty — not because of what was produced — but because of what was not produced. In other words, the lack of evidence was used as evidence.

However, this is not as simple as it might appear. Without records, there was no actual proof of wrongdoing (other than not retaining records for the state-mandated time.) While the circumstantial evidence was suggesting malfeasance, but there was no direct evidence of such.

Auctioneers need to be careful not to have any direct evidence of wrongdoing, as well as any circumstantial evidence of wrongdoing. However, if there’s only a choice between the two, circumstantial is preferred over direct. I suppose it’s worth saying — don’t misbehave at all — and none of this will matter.

That is unless someone chooses to file a frivolous lawsuit against you: https://mikebrandlyauctioneer.wordpress.com/2020/11/16/frivolous-auction-lawsuits/. Everyone in this country (including auctioneers) needs to do all we can to eliminate unsubstantiated lawsuits that waste time and resources and diminishes confidence in our legal system.

Further, auctioneers unfortunately involved in any litigation should endeavor to settle the conflict if possible, as staying out of court is preferred to both winning or losing. Despite you hearing what winning (or potentially winning) is the best strategy, we have suggested a better approach here: 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.