Kind of Interesting

[TexTuba]

http://www.lawyersweeklyusa.com/reprints/bromberg.htm

What do yall think?

Ralph

[Chuck(G)]

I don't care what the lawyers say, junk is junk.

[WoodSheddin]

I don't care what the lawyers say, junk is junk.

cya in court chuck

[Chuck(G)]

Funny thing--I was talking to a friend who, on impulse, bought one of the First Act clarinets to use as a "beater". After working over the pads so they'd seal correctly, she said it played well enough for awhile, but that the key arms would bend and render the thing useless. After a couple of bendings, the arms would just break off.

I think the trial could have gone differently if the defendants had proposed that the judge go down to the local Costco and select an instrument at random off the shelf. Better yet, have a band full of inner-city middle-school kids play them for a couple of weeks and then evaluate the instruments.

Yes, it's possible with enough paitence to get these things to play okay, but they won't stay that way for long...
---
As far as SLAMming goes, well, that's the American tort system.

[clagar777]

Isn't there an issue between Brook Mays and Yamaha also?

[Rick Denney]

I don't care what the lawyers say, junk is junk.

Of course. But what's wrong with junk sold at junk prices? And being junk doesn't make them useless.

Brook Mays did it to themselves by fibbing in their alert. They needed to do their homework, and actually have their repair guys buy a few of the First Act instruments and evaluate them to see if they could obtain parts. That they had not done so is what lost the case for them, according to that article. Had they done so and documented their results, they would have been able to survive this suit. But instead they assumed they had to be junk to be able to be sold at the prices at which they were being offered.

I suspect that if their "alert" had said, "If the prices on some of the instruments available from large discount department stores seem too good to be true, maybe they are. If you consider such an instrument, make inquiries with local repair shops to make sure that parts are available and that they can be repaired..." That would have actually been good advice and supportable as such.

First Act sells these as beginner instruments that are basically disposable, and at the prices they offer them for, that seems to me supportable. I look on them like the water-pipe bikes being sold in the same stores. No remotely serious cyclist would ever consider riding one of those bicycles, but kids batter them every day and they work at that level. For anyone interested beyond the first year or two, they will throw away the First Act instrument and get something better (and more expensive).

Playing in band used to be musical arts for blue-collar kids. But prices for instruments are no longer within reach of those kids (or maybe it's that "blue collar" means something different than it used to). Maybe a bad experience with an unplayable trumpet keeps someone from advancing, but I suspect it's more likely that most beginners make all instruments, junk or not, sound bad. The good players will quickly find the limitations of their instruments and look for something better. If they paid no more for their junk than to rent something that might be just as junky, they are no worse off. I've seen some of the instruments available for rent and I doubt they are really any better than the First Act instruments.

Rick "who thinks telling lies shifts the burden of proof for a jury" Denney

[Chuck(G)]

Playing in band used to be musical arts for blue-collar kids. But prices for instruments are no longer within reach of those kids (or maybe it's that "blue collar" means something different than it used to). Maybe a bad experience with an unplayable trumpet keeps someone from advancing, but I suspect it's more likely that most beginners make all instruments, junk or not, sound bad.

One of the more enterprising middle school teachers here in town has begun to offer (electric) guitar class as an alternative to band. He cites several advantages:

1. It's the kind of instrumentation that most kids are familiar with (probably the same situation when band was first taught in school).

2. The instruments are non-specialized (i.e. guitars are pretty much interchangeable), fairly inexpensive (at least for student models) and easy to maintain.

3. It's easy to see what a student is doing wrong--everything's out front--none of the "mystery in the mouth" issues.

4. The student can learn to play simple tunes with the first lesson.

The John G. Shedd Institute of American Music here in town offers classes for kids. The guitar and percussion classes are by far the most popular.

Makes sense to me.
--------------
My issue with the First Act instruments isn't their ability to produce the right sort of noise. It's their inability to stay in good repair, particularly in a school environment.

A new Yugo gave acceptable service, but keeping it in good condition was a nightmare. But out on the highway, it could do 65 just like the most tricked-out Beemer.

[Rick Denney]

My issue with the First Act instruments isn't their ability to produce the right sort of noise. It's their inability to stay in good repair, particularly in a school environment.

If Brook Mays had actually collected the data to substantiate what you say instead of just claiming it as fact without any supporting data, they would have won their case. If it's true, there will be facts to support it. They didn't obtain those facts before issuing their "alert", and they presented as fact what they did not themselves know to be true. They probably heard a few stories like the one you related.

Which goes to my fundamental rule about public statements: Don't say anything as fact that you don't personally know to be true. If you are guessing, say you are guessing. If you are repeating what you have heard, say you are repeating what you have heard and be prepared to identify the source.

Your idea of getting the judge to test for truth himself ain't how it works, as you know. The issue was whether Brook Mays acted on the basis of fact or on the basis of hearsay or supposition. That decision was made long before the suit was brought. They put themselves in the position of having to prove a negative, and all that required for rebuttal was a demonstration of the positive.

As to whether the damages are appropriate as Bill Everitt claims, that's a whole other line of questions. I'm sure he did not benefit, as a Texan, from being judged by a Massachusetts jury.

Rick "who thinks you have to know a spade is a spade before you call it one" Denney

[Chuck(G)]

So the basis of the lawsuit was that BM failed to perform due dilligence before they wrote their letter. So, FA wouldn't have much of a leg to stand on if BM had said something like:

"We purchased several FA instruments at random from the local Costco and took them back to our shop technicians and this is what we found. Key arms made of cast pot metal...."

Basically the case seems to rest on the reasoning, "Your honor, we do not dispute that our client is--in a manner of speaking--a bit ripe, but defendant failed to ascertain to a reasonable level certainty that this was, in fact, true before publishing his letter. So the matter of whether or not plaintiff is in fact a steaming pile of excrement is immaterial to this case."

[windshieldbug]

I would submit that they only said what any competent person would immediately recognize to be true. Then they got lawyers involved. One, to create an unrealistic impression, and the other not to have ANY idea how to rebut it...

[windshieldbug]

Yes, but the worst part will be when they tell potential customers that their instruments were fine, they only were badmouth by jealous competators, that they sued, and have proven their case in court.

Then get ready for the marching guitar bands

(As seen on TV! Learn with marching guitar "master" Esteban!)

<img src="http://www.estebanmusic.com/gallery_fil ... edited.jpg" width="200">

[Chuck(G)]

Tort law is a whole different game from criminal. Rarely are there real verdicts--just motions, depositions and lawyers racking up billable hours. You don't even have to be right to prevail; usually it's the case of "last man (or woman) standing", as Anna Nichole Smith has discovered.

OTOH, remember Richard Jewell? The case against the Journal Constitution is still in the court system. Sure hope he lives long enough to see its conclusion...

BM probably didn't have the funds to drag things out for a decade.

[WoodSheddin]

I am waiting for us all to get a summons from St. Petersburg Tubas next.

[windshieldbug]

I am waiting for us all to get a summons from St. Petersburg Tubas next.

*snicker*

That's character assasination if I ever heard it! Start crankin' those billable hours!

[Rick Denney]

So the basis of the lawsuit was that BM failed to perform due dilligence before they wrote their letter.

No, it was a case where they lied. They stated plainly that they had analyzed the instruments and found them to be unworthy, when in fact that had not done so. According to the article, the employees at BM had not even seen the instruments, let alone analyzed them.

Whatever junk the FA instruments are, it's still actionable to lie about people in public such that they are harmed.

It would have been easy for BM to make their point by doing as I suggest and advising parents to inquire at local shops as to whether the FA instruments could be serviced or parts obtained. If the FA instruments are as you say, those parents would learn what they needed to know. And BM would have been giving good advice instead of fibbing.

I'm less concerned about buyers than you are. People learn when they buy without doing any research. At least these lessons are relatively cheap. If the instruments are unusable, then they are not merchantable and pretty soon the returns will force them to either improve or pull their products (or get rejected by retailers), and if they're bad enough they'll get busted by some ambitious attorney general. It will fix itself without Brook Mays's fibbage. The penalty is probably silly but the guilt is there.

Rick "wondering why BM didn't or couldn't line up dozens of repair techs to report on their substandard construction" Denney

[Rick Denney]

BM probably didn't have the funds to drag things out for a decade.

No argument from me on anything you said. I've spent my share of time giving testimony and observing tort liability cases, and have seen how it works from the inside.

But Brook Mays did this to themselves, and I don't have much sympathy for the guilty verdict.

Rick "who thinks Brook Mays can't blame the legal profession for this one" Denney

[Chuck(G)]

So, how the heck did FA figure out that no one at the shop had even seen one of their instruments?

[windshieldbug]

When First Act filed the case in 2003, it immediately asked that Brook Mays be ordered to save all internal evidence related to the suit.

Gee, Enron didn't seem to have any trouble with that...

[Chuck(G)]

So, how the heck did FA figure out that no one at the shop had even seen one of their instruments?

When First Act filed the case in 2003, it immediately asked that Brook Mays be ordered to save all internal evidence related to the suit.

There you go.

Yeah, but how did they know? It's one thing to suspect that the other guy is bluffing, but unless you have some inside information, it can be pretty foolhardy to raise and call.

Maybe an not-very-gruntled employee told on them?

[Alex F]

It's standard practice, in civil litigation, for the plaintiff to seek an order requiring preservation of all records, including docs, disks, diaries, PDA's, logs, etc. etc. Then you request, via interrogatories and document production requests, copies of everything. Standard response time to interrogatories is 28 days in federal practice, but you then get into please for extention and the hardball stuff, like motions to compel and motions for sanctions. I've read the docket report on this case and it was brutal. In addition, there was an interlocutory appeal taken to the Court of Appeals on jurisdiction matters.

It appears, however that this case has been settled. After trial, post-trial motions were filed to reduce the verdict and it was was slightly reduced. Recently, the court dismissed the case on agreed motion of both parties, both parties agreeing to waive all rights of appeal. There is no public record but this usually happens when parties have settled and don't want the settlement agreement to made part of the record.

The jury has to follow instructions provided by the judge. I have read some of them and they are hard for me, as a trained lawyer, to understand. There are also some real issues with regard to how the trial judge here applied the law of commercial trade disparagement.