After sitting in courtrooms around the country, helping attorneys and their clients in auction litigation cases, I have to say that there’s one word I hear more than any other — and one other word I, unfortunately, hear far too often. If you’re an auctioneer wanting to avoid litigation and being in court, you might not hear either one.
However, if you as an auctioneer find yourself in court — the word you hope you hear in regard to your past actions is “reasonable” and the word you hope you don’t hear is “unreasonable.” While there are a myriad of laws that may apply to your situation, courts often rightly view those laws given the circumstances — and if your behavior was reasonable or not.
We have written about the word “reasonable” many times including here: https://mikebrandlyauctioneer.wordpress.com/2020/06/21/auctioneers-and-whats-reasonable/ and for good reason, as it’s the most utilized standard any court (judges and juries) use to evaluate auction cases.
You can have all the law on your side, and the most prominent trial attorney representing you — but if your actions are viewed as “unreasonable” you have a good chance of losing. Conversely, with virtually any attorney representing you and a modicum of the law on your side, you have a good chance of winning if you’ve acted reasonably.
I was talking to a trial attorney yesterday in regard to a case in which we’ve been hired, and he summed up our conversation by saying, “I think our client (an auctioneer) acted reasonably throughout this timeframe and I think that’s going to be our biggest asset as we head into court.”
In fact, it seems to me the more auctioneers act reasonably given the circumstances, the less chance of there being any court case to worry about. As such, acting unreasonably can cause litigation and that same behavior can hinder the chances of winning that lawsuit.
We’ve said more than once: “Just because you can doesn’t mean you should” and “Just because you don’t have to doesn’t mean you shouldn’t.” It’s rare any auction litigation can’t be traced to one or both of these statements and then evaluated as reasonable/unreasonable to determine the outcome.
Maybe the starkest example lately has been auctioneers holding live auctions during a pandemic and disclaiming and assigning all responsibility for any issues including sickness and death. Even though you were told such would relieve you of any liability — did that really sound “reasonable” to you? Many attorneys told me those recommendations and associated policies were clearly unreasonable.
If you do nothing else as an auctioneer, work on your own conscious internal gauge as to what is reasonable and what is not — what behavior is reasonable or unreasonable. People like working with reasonable people and you’ll be a busier auctioneer acting reasonably, and can spend your time servicing those clients, rather than preparing for trial.
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.