Appeals Court: Accepting Lawyer’s Prove-me-Wrong Challenge Does not Form a Contract
This is a great case where a defense lawyer made a passing statement that his client could not have committed a murder he was charged with due to the sheer impossibility of traveling logistics. The Defendant was spotted via surveillance camera in Atlanta several hours before and after the murders (in Florida). The defense lawyer said there was no way the defendant could have gotten from the hotel in Atlanta to Orlando, driven to Bartow, then flew back to Atlanta and make another appearance on the security camera:
I challenge anybody to show me, and guess what? . . . If they can do it, I’ll challenge ’em. I’ll pay them a million dollars if they can do it.
Enterprising then-law student Dustin Kolodziej had been following the case. When he saw an edited version of the interview (which was broadcast after the trial), he obtained the transcripts of the interview, understood the defense lawyer’s statement to be a unilateral offer, and sought to complete the challenge. And he did, sort of (he flew first class instead of coach, and went to a different hotel lobby). When he sought payment of the one million dollars, the defense lawyer understandably declined. Kolodziej filed suit, and lost at the district court level. Blog post on that ruling here: “Law Student Can’t Enforce Defense Lawyer’s Prove-Me-Wrong” Promise in TV Interview.”
On appeal, he fares no better. The Eleventh Circuit says that the key question is whether the defense lawyer’s words constitutes an offer and whether a reasonable person would have understood them to be an invitation to contract. The words themselves do not quality:
[e]ven removed from its surrounding context, the edited sentence that Kolodziej claims creates Mason’s obligation to pay . . . appears colloquial. The exaggerated amount of “a million dollars–the common choice of movie villains and schoolyard wagerers alike–indicates that this is was hyperbole.
When viewed in context, the statements are even less reasonably construed as an offer (as a defense lawyer in an interview, the speaker was trying to make a point and disprove the prosecution’s theory).
The conduct of the parties similarly did not contribute to a finding of an offer. Unlike Lucy v. Zehmer (the famous contract case where the parties signed a real estate contract on a bar napkin in a bar while the seller was “high as a Georgia pine,” and then tried to avoid the contract by saying he was joking about the sale), here the defense lawyer never had discussions with Kolodziej, nor did Kolodziej reach out to the defense lawyer. Mason did not have the payment set aside in escrow; nor did he make the statement to promote himself:
In the course of representing his client, Mason merely used a rhetorical expression to raise questions as to the prosecution’s case. We could just as easily substitute a comparable idiom such as “I’ll eat my hat” or “I’ll be a monkey’s uncle” into Mason’s interview in the place of “I’ll pay them a million dollars . . .
The court footnotes the comparison to Augstein v. Leslie, a reward case where the offer was actually characterized as a(n enforceable) reward. (Blog post on that case here: “A Reward offer Still an Offer, Even if It’s Made on YouTube“.) The court chides Kolodziej somewhat:
“If, as, Alexander Pope wrote, ‘a little learning is a dangerous thing,’ then a little learning in law is particularly perilous.”
In these well-documented tough times for law students, you have to give Kolodziej credit. If nothing else, his chasing down, completing, and trying to enforce the offer shows pluck.
* I wonder if South Texas College of Law counted Kolodziej as “employed in a JD-required job” while he pursued this quest?
* I love how the judge says “one million dollars” is the “common choice of movie villains.” I know you can hear this in your head already:
* As Robert Wagner’s character in the above clip points out, $1M just doesn’t seem like that much money any more. See, e.g., Average Silicon Valley home tops $1 million.
* And in the classic Leonard v. Pepsico case, the buyer tendered $700k for a Harrier jet that the court said had a market value of $23M. But in 2011, a Harrier jet sold on eBay for only $113k. So was it really obvious that Pepsi didn’t intend to part with the Harrier jet for its stated number of points?
* Meanwhile, legal defense costs in a high-profile murder trial could cost way more than a $1M. So if someone produced decisive exculpatory evidence, $1M may actually be a good economic deal for the defense.
* In the end, the court apparently views Kolodziej as a litigation troll. I thought this passage was damning:
We thus find it troublesome that, in all this time—ordering the transcript, studying it, purchasing tickets, recording himself making the trip—Kolodziej never made any effort to contact Mason to confirm the existence of an offer, to ensure any such offer was still valid after Serrano’s conviction, or to address the details and terms of the challenge….We simply are driven to ask, as Mason did in his response letter: “Why did you not just call?”
When she was alive, my grandma used to ask me that question all the time.
More to the judge’s point, I almost never fly first class, but you can bet your sweet patootie that I get written approval from the financial guarantor of my travel costs before committing to pay the price of a first class ticket!
* Judges often struggle with the legal treatment of humor, but this judge dished out a little of his own with this sardonic F-U:
We could just as easily substitute a comparable idiom such as “I’ll eat my hat” or “I’ll be a monkey’s uncle” into Mason’s interview in the place of “I’ll pay them a million dollars,” and the outcome would be the same. We would not be inclined to make him either consume his headwear or assume a simian relationship were he to be proven wrong; nor will we make him pay one million dollars here.
Case citation: Kolodziej v. Cheney Mason, 2014 WL 7180962 (11th Cir. Dec. 18, 2014)
“11th Circuit Rules for Cheney Mason” (David Markus) (h/t)
“Lawyer Won’t Have to Pay up After Issuing $1 Million Challenge on TV” (Eriq Gardner/THR Esq)