Trial by combat, Game of Thrones and our Constitution

A New York attorney’s request for a physical fight over a legal claim raises a few archaic legal arguments over the long-dormant practice of a trial by combat.

Fans of the TV show “Game of Thrones” are very familiar with the general concept, where litigants or their representatives fight to the death to settle disputes. The real-life roots of this practice go back to the times of the Normans and Saxons, but with the advent of jury trials and other legal procedures, it’s been a very long time since courts allowed folks to fight to settle disputes.

Richard Luthmann, a Staten Island attorney, wants to change that. A self-admitted “Game Of Thrones” fan, Luthmann filed an 18-page reply with the New York State Supreme Court to a suit against him for $550,000 in damages in a dispute between investment firms.

Link: Read The Court Filing

Luthmann would like the dispute settled under a trial by combat if the court doesn’t drop the case. On page 9 of the court document, Luthmann asks for “the trial by combat by right of writ.” Luthmann doesn’t specify the weapons involved in the fight or the rules for the contest.

But he does acknowledge after a nine-page history of such cases that a party making a request “must be willing, if required, to stake his life in support of his accusation.” (Luthmann also doesn’t cite “Game of Thrones” or Westeros in the legal filing.)

And Luthmann points to the Constitution’s Ninth Amendment as opening the door for trial by combat, since he believes the amendment reserves rights to the people that that existed under colonial law that weren’t specifically banned after the colonial era ended.

“No American court in post-independence United States to the undersigned’s knowledge has addressed the issue, and thus trial by combat remains a right reserved to the people and a valid alternative to civil action,” he argues.

This isn’t the first time the concept of trial by combat and the Ninth Amendment has come up. Back in 2013, the website Business Insider asked UCLA law professor Adam Winkler about a hypothetical example, after a man in Great Britain sought to settle a traffic ticket using trial by combat.

“The Ninth Amendment says that the enumeration of certain rights in the Constitution does not mean that the people don't have other rights too," Winkler said, adding that the bar to proving the concept about deadly fights was high.

"[A claimant would] have to prove that it was lawful in Britain when the Founders created the Constitution and that they didn't intend to outlaw it," Winkler added.

Due process is another issue, Winkler explained, but “but then again, the Framers did have duels. It's arguable that they intended trial by combat to be a part of due process."

Not surprisingly, a few legal commentators have had some thoughts about Luthmann’s unusual request. Eugene Volokh from the popular Volokh Conspiracy blog, said, “[Luthmann] argues that the Ninth Amendment preserved the right to trial by combat as one of the rights ‘retained by the people.’ The argument is obviously not going anywhere, and I suspect not intended to go anywhere, but it’s an amusing read.”

In a coincidence, two UCLA Law grads, Michael L. Smith and Raj Shah, just released paper in the journal Media & Arts Law Review that gets into details about a modern version of trial by combat, called “Arbitration by Combat.”

“We argue that while Game of Thrones–style arbitration by combat may violate state contract and criminal laws, arbitration by combat that conforms to historic practices may find more success,” said Smith and Shah.

The authors think some type of politically correct combat could fall under the auspices of the Federal Arbitration Act.

“The combat would have to be speedy and cost-effective, have an acceptable risk of error and danger, be free of procedural morass, and be susceptible to resolution by a chosen arbitrator charged with overseeing the proceeding,” they argue, citing examples of non-lethal combat in the Middle Ages involving the use of clubs and people who intervened when fighting became too dangerous.

The authors also point to laws in Colorado and Michigan that could allow non-lethal fencing as a sporting event to settle disputes, and a clause in the ownership agreement of the Ultimate Fighting Championship, where the two brothers who own the company can resolve disputes between themselves in a UFC-style match.

Ultimately, the New York State Supreme Court will settle the claim and the odds of a ruling for trial by combat seem very dim. “Mr. Luthmann also makes other arguments in his brief, in a quite intemperate style that I would think wouldn’t endear him to judges,” Volkoh said.