Complete Volume for the Year 2016

Christine E. Weller1 1 Christine E. Weller is an Associate at Griesing Law and focuses her practice on intellectual property, new media, nonprofit, hospitality, and employment law matters. This article has greatly benefitted from the support of my colleagues at Griesing Law: especially Fran Griesing, Ellen Brotman, Dina Leytes, Ashley Kenney Shea, Elizabeth Livingston, and Jessica Mazzeo who each encouraged me to undertake this project. A special thank you for the research support provided by Fara Cohen. I would also like to thank the Stetson Journal of Advocacy and the Law for the opportunity, and Ben Fuchs and Jessie Crane for their hard work in helping this article come to fruition. A personal thank you to my family, especially Ron Weller, who has provided unwavering encouragement and support along the way.

3 Stetson J. Advoc. & L. 1 (2016)

I. Introduction

In the increasingly globalized art market, the internet is an effective tool to reach audiences and purchasers worldwide. Amateur and professional collectors and art sleuths can use the expanded reach of the internet to track down lost or stolen works, research the provenance2 2 A provenance is the history of ownership and sales for a work of art. of a piece, peruse catalogues from auctions half a world away, view the sales history of a work, and compare verified original artworks against works that have been “attributed to” a master.
In the historically closed world of the art market, this increased access to artwork and information about artwork via the internet has been helpful in unmasking those engaged in committing fraud against purchasers of artworks.3 3 Laura Gilbert, Collector Discovers Knoedler Fake After Reading The Art Newspaper, The Art Newspaper, March 1, 2015. However, the use of the internet to research an artwork can be a double-edged sword. High resolution images of artworks are only a mouse click away. As technology improves so do the methods for an anonymous seller forging artworks and selling forged pieces to a global purchaser. As a result of these changes in the market, and the rise of civil and criminal lawsuits surrounding inauthentic and forged artworks, it is increasingly difficult to get an expert opinion on whether a piece is genuine.
This article will discuss the United States laws used to prosecute those involved in crimes related to art fraud, and will discuss two recent art forgery cases and the resulting criminal charges brought in U.S. courts against those involved. The article will conclude with a discussion of some practical tips for practitioners and suggested solutions to combat the lack of evidence available in art forgery and fraud cases. These solutions include the introduction of DNA-based forensic evidence to provide proof that an artwork is legitimate as well as proposed protective legislation for art authenticators.

II. Legal Overview

Art, which has cultural value, is also a highly portable, valuable, and volatile financial asset. It is widely reported that art theft is the third largest criminal enterprise in the world behind arms and drug trafficking.4 4 See Kris Hollington, After Drugs and Guns, Art Theft Is the Biggest Criminal Enterprise in the World, Newsweek, July 22, 2014; cf. Frequently Asked Questions, Interpol. Even with the best scholarship and the assistance of technology and forensics, the difference between the work of an established master and a talented amateur may not be readily apparent even to a trained scholar or valuation expert.5 5 James Tarmy, Here’s How to Make Millions As an Art Forger, Bloomberg News, May 21, 2015. For example, in 2014 an expert from Switzerland’s Fine Art Expert Institute (FAEI) estimated that as much as 50% of the artwork on the market is either fake or misattributed.6 6 Over 50 Percent of Art is Fake, Artnet News, October 13, 2014. Art scholars and authenticators may also reasonably disagree about the provenance or authenticity of a piece, and their disagreements can be expensive. Authentication disputes have become so prevalent and contentious that artist foundations including the Keith Haring Foundation7 7 See, e.g., Bilinski v. Keith Haring Found., Inc., 96 F. Supp. 3d 35 (S.D.N.Y. 2015). and the Andy Warhol Foundation8 8 Simon-Whelan v. Andy Warhol Found. for the Visual Arts, Inc., No. 07 Civ. 6423 (LTS) (S.D.N.Y. May 26, 2009); see also Andy Warhol Found. for the Visual Arts, Inc. v Philadelphia Indem. Ins. Co., No. 650917/2011 (Sup. Ct. N.Y. County Dec. 6, 2012). have dissolved their authentication boards at least in partial response to these lawsuits and to help insulate themselves against legal liability. Because of the inherent difficulties in identifying a “fake” artwork from that of an authentic piece, a lack of willingness amongst experts to provide opinions that a work is authentic, and the potential for high financial return,9 9 See Patricia Cohen, In Art, Freedom of Expression Doesn’t Extend to ‘Is It Real?’, The New York Times, June 19, 2012. art forgery and the corresponding fraud and ability to launder money10 10 Patricia Cohen, Valuable As Art, but Priceless As a Tool to Launder Money, The New York Times, May 12, 2013. can be an attractive criminal enterprise. This enterprise is often difficult to identify and prosecute because of a lack of reliable evidence.

III. All Fakes are not Forgeries

As used in this article, a “forged” or a “counterfeit” artwork is one created for the purposes of deception. A “fake” is an artwork that is not necessarily created for the purposes of deception, but has been misidentified or mis-represented.11 11 Tom Sykes, Are Over Half the Works on the Art Market Really Fakes?, The Daily Beast, October 14, 2014. Creating a copy of a work of art in and of itself is not a crime. However, why that copy was created, and what happens to that copy once it is created can violate both civil and criminal laws.
On the civil side, creating a copy of a protected work of art without permission may violate U.S. copyright law if it is not a fair use.12 12 See, e.g., Limitations on Exclusive Rights: Fair Use, 17 U.S.C. § 107 (2010). Furthermore, falsely representing that a work was created by a well-known artist when it was not can constitute an unfair trade practice, civil fraud, or a RICO violation.13 13 Takeuchi v. Sakhai, No. 05 Civ. 6925 (JSR) (S.D.N.Y. Jan. 16, 2006). On the criminal side, intentionally representing that a forged work of art was created by a master often goes hand in hand with a variety of charges related to criminal fraud, tax evasion, wire fraud,14 14 See United States v. Sakhai, No. 1:04-cr-00583 (S.D.N.Y. Jun. 09, 2004); Julia Preston, Art Gallery Owner Pleads Guilty in Forgery Found by Coincidence, The New York Times, December 14, 2004. mail fraud,15 15 See United States v. Sakhai, No. 1:04-cr-00583 (S.D.N.Y. Jun. 09, 2004); Julia Preston, Art Gallery Owner Pleads Guilty in Forgery Found by Coincidence, The New York Times, December 14, 2004. and money laundering.16 16 United States v. Rosales, No. 13 Cr. 518 (KPF) (S.D.N.Y. Jul. 17, 2013). In the eyes of prosecutors, the “big fish” are generally not the artists and artisans17 17 Cf. Indictment, United States v. Bergantiños Diaz, No. 14 Cr. 217 at 38 (S.D.N.Y Mar. 31, 2014). creating copies, but the brokers and dealers of those copies. Two recent criminal cases brought in U.S. courts demonstrate two different facets of art forgery and each highlights the challenges that stem from a lack of reliable and conclusive evidence available to a prosecutor who brings charges against those involved in art forgery.

IV. Cases

James Meyer and Jasper Johns

According to his indictment,18 18 Indictment, United States v. Meyer, No. 13 Cr. 604 (JPO) (S.D.N.Y. Apr. 24, 2014). James Meyer, a studio assistant of American sculptor, printmaker, and painter Jasper Johns, took advantage of that position of trust to steal works from Mr. Johns’ studio. What is unique about this theft and corresponding fraud is the manner in which it was completed. As part of his duties as Johns’ studio assistant, Meyer was responsible for maintaining a file of work by Johns that the artist considered unfinished (the “un-authorized works”). These unfinished artworks were not authorized by Johns to be placed in the art market. Between 2006 and 2012, Meyer removed at least 22 un-authorized works from Johns’ studio, and sold them through an art gallery without Johns’ knowledge or consent. To complete the deal, Meyer provided the gallery owner with sworn notarized certifications that the works were finished, authentic works by Johns. Meyer also represented that Johns had gifted the un-authorized works to him, and that he was the rightful owner. As a condition of sale, Meyer required the purchaser to keep the work private for at least eight years during which time the work was not to be loaned, exhibited, or re-sold.19 19 It is not uncommon for works of art to be sold with conditions of sale or restrictions of this type. Restrictions may be imposed to protect the privacy of the seller, to discourage art “flipping” which may disrupt the art market, or pursuant to the wishes of the artist. See Daniel Grant, Fine-Art Sales Often Come with Strings Attached, The Wall Street Journal, April 12, 2015. To perpetuate the fraud, Meyer also created fake inventory numbers for the works or assigned un-authorized works the same inventory numbers as other complete works by Johns to give the appearance that the works were legitimate. For some of the un-authorized pieces, Meyer created fake registration pages to make it look like the un-authorized works were listed in a three ring binder maintained by Johns Studio of Art, which kept track of registered pieces and their corresponding inventory numbers. Meyer also falsely represented that the un-authorized works would be included in Johns’ forthcoming catalogue raisonné.20 20 A Catalogue Raisonné is a monograph that provides a comprehensive list of works by an artist. Over the years the gallery owner received approximately $6.5 million in profits, $3.4 million of which was remitted to Meyer.21 21 Indictment, United States v. Meyer, No. 13 Cr. 604 (JPO)at 2–4 (S.D.N.Y. Apr. 24, 2014).
What is interesting about these facts is that they challenge traditional notions about what it means for an artwork to be fake or forged. Here, the inauthentic works at issue were in fact created by famed artist Jasper Johns. However, the works were not finished. Accordingly, when Meyer represented and certified that the works were authentic, finished pieces by Jasper Johns (which he claimed he was authorized to sell), he was engaging in fraud against the purchasers of the works. To perpetuate the fraud, Meyer created false provenance papers and assigned false inventory numbers to the works to encourage a purchaser to believe that the work was authentic. As the person responsible for maintaining some of Mr. Johns’ administrative records, Meyer was in a unique position to create these false papers and to cover his tracks successfully for years.
On August 27, 2014, Meyer pled guilty to one count of interstate transportation of stolen goods in connection with the theft under 18 U.S.C. §§ 2314 and 2.22 22 Plea Agreement, United States v. Meyer, No. 13 Cr. 604 (JPO) (S.D.N.Y. Aug. 24, 2014). Meyer had been indicted on two counts related to the theft of the 37 works, the above-referenced theft charge and one count of wire fraud under 18 U.S.C. § 1343. On April 23, 2015, Meyer was sentenced to 18 months in prison for his role in selling 37 works that he had stolen from Johns’ studio. In addition, Meyer was also sentenced to two years of supervised release, forfeiture in the amount of $3,992,500, restitution in the amount of $13,455,719, and was ordered to pay a $100 special assessment.23 23 Former Studio Assistant to Jasper Johns Sentenced in Manhattan Federal Court to 18 Months in Prison for Scheme to Sell Millions of Dollars of Stolen Johns Works, Federal Bureau of Investigation, April 23, 2015. Meyer and Fred Dorfman of Dorfman Projects LLC, the unnamed gallerist in the underlying criminal complaint against Meyer, were also sued civilly by Frank Kolodny, a purchaser of one of the un-authorized works.24 24 Kolodny v. Meyer, No. 1:14-CV-03354 (S.D.N.Y. May 08, 2014) (alleging Racketeer Influenced and Corrupt Organizations Act (“RICO”) and fraud charges against James Meyer and Gallerist Fred Dorfman in connection with the sale of inauthentic Jasper Johns works). The case was settled in February, 2015.25 25 Kolodny v. Meyer, No. 1:14-CV-03354 (S.D.N.Y. May 08, 2014) (alleging Racketeer Influenced and Corrupt Organizations Act (“RICO”) and fraud charges against James Meyer and Gallerist Fred Dorfman in connection with the sale of inauthentic Jasper Johns works).

The Unverifiable Mr. X and the Closing of Knoedler Gallery

Long Island art dealer Glafira Rosales began her career selling artwork through King’s Fine Arts Inc. and Glafira Rosales Fine Arts LLC in New York, New York. Ms. Rosales claimed that the works she sold through these two companies were by famed abstract expressionist artists. Her story was complicated, but simply put she claimed she was selling the works on behalf of a Swiss national, whom she called Mr. X, Jr., who wished to remain anonymous. Mr. X, Jr., reportedly inherited the works from his father who had purchased the works directly from the artists. After Mr. X acquired the works, they went directly into storage until his death. Ms. Rosales claimed this was the reason that the works did not appear in any catalogues raisonnés, nor were there sales records for the works. As it turns out, the history of Mr. X, Jr., was allegedly a story created by Ms. Rosales and her co-conspirators as a cover to sell forged paintings created by Pei Shen Qian in his Queens, New York, studio.
According to the indictments of those involved, the facts were as follows. Beginning in the early 1990s through 2009, Ms. Rosales, her former boyfriend Jose Carlos Bergantiños Diaz, his brother Jesus Angel Bergantiños Diaz, and painter Pei Shen Qian, (collectively the “co-conspirators”) engaged in a scheme to create forged artworks by prominent abstract expressionist artists, including: Mark Rothko, Jackson Pollock, Willem De Kooning, Richard Diebenkorn, Robert Motherwell, Barnett Newman, Sam Francis, and Franz Kline. Of these forged works, 63 were sold to unsuspecting purchasers as authentic, original works by these famed painters for tens of millions of dollars. The co-conspirators utilized two unnamed but prominent dealers to sell the works.26 26 Indictment of Jose Carlos Bergantiños Diaz, Jesus Angel Bergantiños Diaz, and Pei Shen Qian, United States v. Bergantiños Diaz, No. 14 Cr. 217 (S.D.N.Y. Apr. 21, 2014); Indictment of Glafira Rosales, United States v. Rosales, No. 13 Cr. 518 (S.D.N.Y. Jul. 17, 2013). The dealers were later identified as Knoedler & Company and Julian Weissman. Forty of the forged works were sold through Knoedler and the remaining twenty-three works were sold through Weissman. Neither Knoedler nor Weissman were subject to indictment, but the two dealers faced their own civil legal difficulties with the defrauded purchasers.27 27 See, e.g., De Sole v. Knoedler Gallery, LLC, 974 F. Supp. 2d 274, 293 (S.D.N.Y. 2013); Martin Hilti Family Trust v. Knoedler Gallery, LLC, No. 13 Civ. 657 (PGG) (HBP) (S.D.N.Y. Sept. 30, 2015); Fertitta v. Knoedler Gallery, LLC, No. 14-CV-2259 (JPO) (S.D.N.Y. Jan. 29, 2015). In the most recently settled civil case, the De Sole family settled their claims against Ann Freedman, former director of the Knoedler Gallery, on February 7, 2016. Knoedler and 8-31 Holdings settled two days later on February 9, 2016. The details of the settlement agreements are confidential, and thus, have not been publicly released.28 28 Colin Moynihan, Knoedler Gallery and Collectors Settle Case over Fake Rothko, The New York Times, February 10, 2016.
For her part in the forgery scandal, Ms. Rosales was charged with: (1) conspiracy to commit wire fraud,29 29 18 U.S.C. § 1349 (2011). (2) wire fraud,30 30 18 U.S.C. § 1343 (2011). (3) conspiracy to commit money laundering,31 31 18 U.S.C. § 1956(h) (2011). (4) money laundering,32 32 18 U.S.C. §§ 1956(a)(2)(B)(i) and 2 (2011). (5) two counts of subscribing to false U.S. tax returns,33 33 26 U.S.C. § 7206(1) (2011); 31 C.F.R. §§ 1010.306(c)–(d) (2011). and (6) two counts of willful failure to file reports of foreign bank and financial accounts.34 34 31 U.S.C. §§ 5314 and 5322(a) (2011); 31 C.F.R. §§ 1010.306(c)–(d), 1010.350, and 1010.840(b) (2011). The Bergantiños Diaz brothers and Pei Shen Qian were charged with: (1) wire fraud, (2) conspiracy to commit wire fraud, (3) conspiracy to commit money laundering, (4) money laundering, (5) conspiracy to defraud the IRS, 6) tax fraud and 7) false statements.35 35 $33 Million Art Forgery Indictment Unsealed, Courthouse News Service, April 22, 2014. According to a statement issued by United States Attorney for the Southern District of New York, Preet Bharara, Ms. Rosales and her co-conspirators sold forged artworks for “approximately $33.2 million. The galleries, in turn, resold the artworks to victims of Ms. Rosales’ crime for more than $80 million.”36 36 Art Dealer Pleads Guilty in Manhattan Federal Court to $80 Million Fake Art Scam, Money Laundering, and Tax Charges, U.S. Department of Justice, September 16, 2013.
On September 16, 2013, Ms. Rosales pled guilty to nine counts, including:

one count of conspiracy to commit wire fraud, one count of wire fraud, one count of conspiracy to commit money laundering, and one count of money laundering, each of which carries a maximum sentence of 20 years in prison; three counts of filing false federal income tax returns, each of which carries a maximum sentence of three years in prison; and two counts of willful failure to file Report of Foreign Bank and Financial Accounts, Form TD F 90-22.1, each of which carries a maximum sentence of five years in prison. [Ms.] Rosales’ total maximum term of imprisonment is 99 years. She also agreed to forfeit $33,200,000, including her home in Sands Point, New York, and to pay restitution in an amount not to exceed $81 million.37 37 Art Dealer Pleads Guilty in Manhattan Federal Court to $80 Million Fake Art Scam, Money Laundering, and Tax Charges, U.S. Department of Justice, September 16, 2013.

In January 2016, a Texas Auction house sold many of Ms. Rosales’ possessions, including her personal collection of artworks. The sale raised $4.8 million. As of March 2016, Ms. Rosales has yet to be sentenced for her part in these crimes.38 38 United States v. Rosales, No. 1:13-cr-00518 (S.D.N.Y. Jul 17, 2013). No fine or restitution amount has been set, and it is unclear how much, if any, of this $4.8 million raised in the auction will be distributed to her victims.39 39 Graham Bowley, Up For Auction: Real Art Owned by a Seller of Forgeries, The New York Times, January 4, 2016.
As to her alleged co-conspirators — on February 16, 2016, Spain’s National Court ruled that Jesus Angel Bergantiños Diaz may be extradited to the United States to face charges in New York City. However, to the extent that Mr. Bergantiños Diaz decides to appeal, or to the extent the Spanish government declines to approve the extradition, this ruling may take months to effectuate. The February ruling does not impact Jesus’ brother Jose Bergantiños Diaz because he has asked to be tried in Spain.40 40 See Alan Clendenning, Spain’s National Court Has Ruled That Businessman Suspected of Dealing in High-Priced Fake Art Can Be Extradited to the United States to Face Charges in New York City, U.S. News and World Report, February 16, 2016.
It is unlikely that Pei Shen Qian, who has both American and Chinese citizenship, will return to the United States to face the criminal charges against him. It is still believed that he has fled to China, and China does not have an extradition treaty with the United States. Thus, it is unlikely that the extradition of Jesus Bergantiños Diaz will happen anytime soon, and it is unlikely that the extradition of Jose Bergantiños Diaz or Pei Shen Qian will happen at all.41 41 Jon Swaine, Artist at Centre of Multimillion Dollar Forgery Scandal Turns up in China, The Guardian, April 22, 2014.

Observations and Practical Pointers

In both Meyer and Rosales, the underlying criminal charges and prosecutions paved the way for defrauded art purchasers to seek financial redress and civil remedy in U.S. courts for their purchase of the inauthentic works. Any attorney defending a client involved in art related fraud should be prepared for the civil cases that will be brought in tandem with the criminal cases.

Civil and Criminal Cases Go Hand in Hand

As a practical matter, an attorney representing the criminal defendant who is also a party to a corresponding civil case based on the same conduct has some choices to make. In some instances, it makes sense to consider requesting a stay on the civil claims until the conclusion of the criminal case. This is to avoid the possibility of any testimony or pleadings that the defendant provides in the civil context being used as party admission evidence in the related criminal proceeding. Federal Courts usually consider three factors when determining whether to stay parallel civil and criminal proceedings: (1) whether there are “substantially similar or related issues in both cases”; (2) whether the parallel cases pose “clear hardship or inequity” on the defendant; and (3) whether the “duration of the requested stay” is immoderate.42 42 See C3, Inc. v. United States, 5 Cl. Ct. 659, 660 (1984). Staying the case may also avoid any potential prejudice in the criminal case based on the different standards of proof in criminal and civil trials. However, in some situations, it may make sense to allow the civil cases to proceed in tandem with the criminal case to take advantage of the civil discovery process. Where discovery is particularly challenging or expensive, as in art forgery cases, the availability of civil discovery should not be immediately discounted notwithstanding the potential for prejudice to the defendant.
For example, the charges brought against Ms. Rosales and her co-conspirators were brought in indictments that were originally sealed. The majority of the information relating to their respective criminal cases was also filed under seal. Now that the indictments have been unsealed, and it appears that Ms. Rosales is cooperating with authorities, the civil cases brought in tandem with her underlying criminal conduct are being litigated, and some have settled. As the pending civil cases continue to develop and evidence is presented, a more complete picture of the conspiracy is being developed by private civil attorneys funded by art collectors. Perhaps to the disappointment of the many individuals who have been actively following these cases, the De Sole case settled before Ms. Freedman and the other Knoedler defendants testified as to their knowledge of the underlying set of facts leading to the creation and sale of the forged artworks. This testimony would have been important in building the prosecution’s case in the underlying criminal matter, and would have been helpful to plaintiffs’ attorneys in the remaining civil cases that have yet to be litigated. As the history of this alleged conspiracy continues to be untangled, it is clear that many new facts that would have been damaging to Ms. Rosales’ criminal case are now surfacing. If the Bergantiños Diaz brothers and Pei Shen Qian ever return to the U.S. to face charges, their defenses will be much more challenging based on Ms. Rosales’ plea as well as the newly available evidence developed in the corresponding civil cases.

An Evidence Vacuum Exists

Another hurdle to art forgery prosecution is that evidence (both inculpatory and exculpatory) is difficult to evaluate without the aid of a wide variety of expensive experts including forensic investigators, provenance researchers, art dealers, and art authenticators. Many of the forged works or allegedly forged works are created so masterfully that proving authenticity will be an expensive and time consuming undertaking. Where there are many works at issue, it may be prohibitively expensive to test each individual work, or have each individual work reviewed by an expert. Further, because of the rise of corresponding civil lawsuits, experts are reluctant to provide opinions on whether a work is legitimate or not. For example, in United States v. Sakhai, many forged copies were made, and the bulk of them were sold to foreign purchasers whose command of the English language was apparently poor. The information disconnect was so challenging that after six years of investigating the government could only prove with certainty that twelve of the works at issue were forged, and the extent of Mr. Sakhai’s criminal conduct is still unknown.43 43 See United States v. Sakhai, No. 1:04-CR-00583 (S.D.N.Y. Jun. 09, 2004); Julia Preston, Art Gallery Owner Pleads Guilty in Forgery Found by Coincidence, The New York Times, December 14, 2004. This information disconnect cuts both ways — it is hard for the government to bring a successful case against a criminal defendant charged with art forgery because of the expense of investigating and bringing the claims. Because of the challenges of developing and presenting evidence about authenticity, forgery cases are often bolstered with charges of wire fraud, tax evasion, and money laundering which are easier claims to prove. As a variety of charges are usually compounded in the indictment, the criminal defendant who generally is in possession of the bulk of the evidence may have bargaining power in negotiating a plea.
Defense counsel should not discount the fact that much of the best evidence is in the hands of the defendant. For example, in United States v. Meyer, Meyer was able to provide the gallery that sold the inauthentic work unique evidence of supposed authenticity through his position as Jasper Johns’ studio assistant. As the person in charge of making and distributing the records, he was able to create supporting documentation of his fraudulent activities in a way that most third party dealers or sellers would not be able to replicate.44 44 Former Studio Assistant to Jasper Johns Sentenced in Manhattan Federal Court to 18 Months in Prison for Scheme to Sell Millions of Dollars of Stolen Johns Works, Federal Bureau of Investigation, April 23, 2015. In the case of Rosales, because her phantom seller wished to remain anonymous, Ms. Rosales was the only person able to channel questions of authenticity and provenance. Also, her story of direct sale and storage was a convenient and at least on its face plausible explanation of why the works were not in the corresponding catalogue raisonné. In such circumstances the onus is often on the gallery or the purchaser to authenticate to their satisfaction as there is currently no objective measure of what constitutes sufficient provenance or authenticity. Further, many authenticators and scholars are becoming increasingly reluctant to opine on the authenticity of a work for fear of legal retribution.45 45 Dan Duray & Julia Halperin, Scholarly Debate Will Be Stifled After Knoedler; Abstract Expressionism Experts Forced to Watch What They Write and Say, The Art Newspaper, March 4, 2016. As the current system (with its lack of transparency) stands, the evidence vacuum raises inherent challenges in moving forward without a cooperative defendant.

The Press and the Public Will be Interested

Art forgery cases are intriguing. They usually involve wealthy international jet-setters, artists, and art collectors. Knoedler’s closing and the corresponding civil cases rocked the art world and extended to the international media. Neutralizing the media and limiting the reporting of negative or prejudicial information during the pendency of a criminal case should not be underestimated. However, this publicity is curious in that it cuts both ways. While there will be lots of information about the case in the media, the media tends to view art forgers with interest. In fact, some art forgers have been highly romanticized and can go on to have astonishing careers.46 46 Frankie McCamley, Art Forger Freed and Making Millions, BBC News, May 10, 2015. As such, creating a media strategy early is crucial to protecting the integrity of the defense, especially when the person prosecuted is not the forger, but the dealer of the forged copies.

V. Art Forgery Evidence Going Forward

DNA Evidence to Combat Forgery

With advances in technology, forgeries may become easier to create, but may also become easier to identify. In October of 2015, the Global Center of Innovation for i2M Standards at the University at Albany announced that it developed technology that can mark works of art with synthetic DNA. The DNA can then be scanned to verify a work is authentic by checking the DNA against what is registered in a protected database. This new DNA tagging technology took two years to develop and is estimated to cost $150 per work.47 47 Anny Shaw, Works of Art to Be Tagged with DNA in Bid to Fight Forgeries, The Art Newspaper, October 15, 2015. Based on the number of civil cases that contest the authenticity of artwork, DNA tagging could be a great added disincentive to the sale of fake or forged artworks. While this technology is still new and untried in either the civil or criminal context, it will be interesting to see how this DNA tag will change or influence the evidence brought by prosecutors in criminal trials. This will be especially true if DNA tagging is treated by a reviewing court as better than provenance research. As discussed in the indictment of Ms. Rosales and her co-conspirators, the false provenance she created was used as supporting evidence in the wire fraud conspiracy charge. In United States v. Meyer, the sellers relied on the authenticity paperwork that Meyer created. If provenance paperwork and certificates of authenticity become disfavored due to the availability of DNA evidence, it will be interesting to see how this new technology will impact how evidence is gathered in art forgery cases, and whether this will be a net improvement.

Legislation to Protect Art Authenticators

New York, where many of the recent art fraud and forgery cases have been brought, has recognized that art authenticators are dis-incentivized from providing evidence and opinions regarding authenticity because of potential liability. On June 15th, 2015, the New York State Senate approved Senate Bill S. 1229-A-2015 (the “Bill”) entitled “An act to amend the arts and cultural affairs law, in relation to opinions concerning authenticity, attribution and authorship of works of fine art.” The purpose of the Bill is to encourage experts to speak out and provide evidence on art authenticity without fear of civil legal retribution. Senator Betty Little, the sponsor of the Bill, recognized that “[a]rt authenticators are critical to preventing art forgery and fraud. However, very expensive lawsuits have deterred these experts from rendering their opinions to the point of disrupting commerce.”48 48 Senate Passes Bill to Protect Art Authenticators, New York State Senate, June 15, 2015.
After passing the State Senate, the Bill died in the New York State Assembly and has been returned to the Senate for revision in committee. The version of the Bill that previously passed the Senate would have amended New York’s Art and Cultural Affairs Law to: (1) add a definition for “Authenticator,” which would exclude those with a financial interest in the work, (2) heighten the pleading standards for plaintiffs bringing actions against authenticators, which would make it harder to bring a case, (3) preclude a prevailing plaintiff from receiving legal costs (including attorney’s fees and expert witness fees) in successful suits against authenticators, and (4) allow courts to grant an authenticator who prevails at trial his or her legal costs (including attorney’s fees and expert witness fees), if the authenticator is able to show good cause.
While it is expected that a modified version of the Bill that is less favorable to art authenticators will be evaluated by the Assembly in the next few months, it remains to be seen whether a modified version will be able to pass. However, regardless of whether the Bill eventually passes, it is a good step forward in identifying that a problem does exist in the field of art authentication, and that it needs to be addressed.

VI. Conclusion

Art forgery cases are currently challenging to bring because of evidentiary hurdles. However, new developments including DNA-based tagging and proposed legislation to protect art authenticators may bring better evidence and testimony forward in future art forgery cases. If the use of DNA to tag artworks becomes prevalent, or if the proposed legislation to protect art authenticators is ever passed, it may make art authenticators more willing to speak and present evidence in civil litigation going forward. These changes may increase the government’s access to better information about the authenticity of a work of art and may change the way criminal cases related to art forgery unfold in the pleading stage.
Despite future uncertainties, one thing remains true — art is a useful vehicle for transferring funds across international borders, and it is a unique asset because its financial worth is tied to what “experts say it is.” Thus, arguably, art forgery and fraud will continue in the near future notwithstanding the fact that the anatomy of an art forgery case may take some interesting turns going forward.

Footnotes

1Christine E. Weller is an Associate at Griesing Law and focuses her practice on intellectual property, new media, nonprofit, hospitality, and employment law matters. This article has greatly benefitted from the support of my colleagues at Griesing Law: especially Fran Griesing, Ellen Brotman, Dina Leytes, Ashley Kenney Shea, Elizabeth Livingston, and Jessica Mazzeo who each encouraged me to undertake this project. A special thank you for the research support provided by Fara Cohen. I would also like to thank the Stetson Journal of Advocacy and the Law for the opportunity, and Ben Fuchs and Jessie Crane for their hard work in helping this article come to fruition. A personal thank you to my family, especially Ron Weller, who has provided unwavering encouragement and support along the way.
2A provenance is the history of ownership and sales for a work of art.
3Laura Gilbert, Collector Discovers Knoedler Fake After Reading The Art Newspaper, The Art Newspaper, March 1, 2015.
4See Kris Hollington, After Drugs and Guns, Art Theft Is the Biggest Criminal Enterprise in the World, Newsweek, July 22, 2014; cf. Frequently Asked Questions, Interpol.
5James Tarmy, Here’s How to Make Millions As an Art Forger, Bloomberg News, May 21, 2015.
6Over 50 Percent of Art is Fake, Artnet News, October 13, 2014.
7See, e.g., Bilinski v. Keith Haring Found., Inc., 96 F. Supp. 3d 35 (S.D.N.Y. 2015).
8Simon-Whelan v. Andy Warhol Found. for the Visual Arts, Inc., No. 07 Civ. 6423 (LTS) (S.D.N.Y. May 26, 2009); see also Andy Warhol Found. for the Visual Arts, Inc. v Philadelphia Indem. Ins. Co., No. 650917/2011 (Sup. Ct. N.Y. County Dec. 6, 2012).
9See Patricia Cohen, In Art, Freedom of Expression Doesn’t Extend to ‘Is It Real?’, The New York Times, June 19, 2012.
10Patricia Cohen, Valuable As Art, but Priceless As a Tool to Launder Money, The New York Times, May 12, 2013.
11Tom Sykes, Are Over Half the Works on the Art Market Really Fakes?, The Daily Beast, October 14, 2014.
12See, e.g., Limitations on Exclusive Rights: Fair Use, 17 U.S.C. § 107 (2010).
13Takeuchi v. Sakhai, No. 05 Civ. 6925 (JSR) (S.D.N.Y. Jan. 16, 2006).
14See United States v. Sakhai, No. 1:04-cr-00583 (S.D.N.Y. Jun. 09, 2004); Julia Preston, Art Gallery Owner Pleads Guilty in Forgery Found by Coincidence, The New York Times, December 14, 2004.
15See United States v. Sakhai, No. 1:04-cr-00583 (S.D.N.Y. Jun. 09, 2004); Julia Preston, Art Gallery Owner Pleads Guilty in Forgery Found by Coincidence, The New York Times, December 14, 2004.
16United States v. Rosales, No. 13 Cr. 518 (KPF) (S.D.N.Y. Jul. 17, 2013).
17Cf. Indictment, United States v. Bergantiños Diaz, No. 14 Cr. 217 at 38 (S.D.N.Y Mar. 31, 2014).
18Indictment, United States v. Meyer, No. 13 Cr. 604 (JPO) (S.D.N.Y. Apr. 24, 2014).
19It is not uncommon for works of art to be sold with conditions of sale or restrictions of this type. Restrictions may be imposed to protect the privacy of the seller, to discourage art “flipping” which may disrupt the art market, or pursuant to the wishes of the artist. See Daniel Grant, Fine-Art Sales Often Come with Strings Attached, The Wall Street Journal, April 12, 2015.
20A Catalogue Raisonné is a monograph that provides a comprehensive list of works by an artist.
21Indictment, United States v. Meyer, No. 13 Cr. 604 (JPO)at 2–4 (S.D.N.Y. Apr. 24, 2014).
22Plea Agreement, United States v. Meyer, No. 13 Cr. 604 (JPO) (S.D.N.Y. Aug. 24, 2014).
23Former Studio Assistant to Jasper Johns Sentenced in Manhattan Federal Court to 18 Months in Prison for Scheme to Sell Millions of Dollars of Stolen Johns Works, Federal Bureau of Investigation, April 23, 2015.
24Kolodny v. Meyer, No. 1:14-CV-03354 (S.D.N.Y. May 08, 2014) (alleging Racketeer Influenced and Corrupt Organizations Act (“RICO”) and fraud charges against James Meyer and Gallerist Fred Dorfman in connection with the sale of inauthentic Jasper Johns works).
25Kolodny v. Meyer, No. 1:14-CV-03354 (S.D.N.Y. May 08, 2014) (alleging Racketeer Influenced and Corrupt Organizations Act (“RICO”) and fraud charges against James Meyer and Gallerist Fred Dorfman in connection with the sale of inauthentic Jasper Johns works).
26Indictment of Jose Carlos Bergantiños Diaz, Jesus Angel Bergantiños Diaz, and Pei Shen Qian, United States v. Bergantiños Diaz, No. 14 Cr. 217 (S.D.N.Y. Apr. 21, 2014); Indictment of Glafira Rosales, United States v. Rosales, No. 13 Cr. 518 (S.D.N.Y. Jul. 17, 2013).
27See, e.g., De Sole v. Knoedler Gallery, LLC, 974 F. Supp. 2d 274, 293 (S.D.N.Y. 2013); Martin Hilti Family Trust v. Knoedler Gallery, LLC, No. 13 Civ. 657 (PGG) (HBP) (S.D.N.Y. Sept. 30, 2015); Fertitta v. Knoedler Gallery, LLC, No. 14-CV-2259 (JPO) (S.D.N.Y. Jan. 29, 2015).
28Colin Moynihan, Knoedler Gallery and Collectors Settle Case over Fake Rothko, The New York Times, February 10, 2016.
2918 U.S.C. § 1349 (2011).
3018 U.S.C. § 1343 (2011).
35$33 Million Art Forgery Indictment Unsealed, Courthouse News Service, April 22, 2014.
36Art Dealer Pleads Guilty in Manhattan Federal Court to $80 Million Fake Art Scam, Money Laundering, and Tax Charges, U.S. Department of Justice, September 16, 2013.
37Art Dealer Pleads Guilty in Manhattan Federal Court to $80 Million Fake Art Scam, Money Laundering, and Tax Charges, U.S. Department of Justice, September 16, 2013.
38United States v. Rosales, No. 1:13-cr-00518 (S.D.N.Y. Jul 17, 2013).
39Graham Bowley, Up For Auction: Real Art Owned by a Seller of Forgeries, The New York Times, January 4, 2016.
40See Alan Clendenning, Spain’s National Court Has Ruled That Businessman Suspected of Dealing in High-Priced Fake Art Can Be Extradited to the United States to Face Charges in New York City, U.S. News and World Report, February 16, 2016.
41Jon Swaine, Artist at Centre of Multimillion Dollar Forgery Scandal Turns up in China, The Guardian, April 22, 2014.
42See C3, Inc. v. United States, 5 Cl. Ct. 659, 660 (1984).
43See United States v. Sakhai, No. 1:04-CR-00583 (S.D.N.Y. Jun. 09, 2004); Julia Preston, Art Gallery Owner Pleads Guilty in Forgery Found by Coincidence, The New York Times, December 14, 2004.
44Former Studio Assistant to Jasper Johns Sentenced in Manhattan Federal Court to 18 Months in Prison for Scheme to Sell Millions of Dollars of Stolen Johns Works, Federal Bureau of Investigation, April 23, 2015.
45Dan Duray & Julia Halperin, Scholarly Debate Will Be Stifled After Knoedler; Abstract Expressionism Experts Forced to Watch What They Write and Say, The Art Newspaper, March 4, 2016.
46Frankie McCamley, Art Forger Freed and Making Millions, BBC News, May 10, 2015.
47Anny Shaw, Works of Art to Be Tagged with DNA in Bid to Fight Forgeries, The Art Newspaper, October 15, 2015.
48Senate Passes Bill to Protect Art Authenticators, New York State Senate, June 15, 2015.

Download PDF version
Download ePub version
Download Kindle version

Tyler J. Derr1 1 Tyler J. Derr is a civil litigator, whose national practice focuses on business litigation, personal injury defense, employment defense, and construction defects. He received his undergraduate degree from the Pennsylvania State University and his law degree, with honors, from Stetson University College of Law with a concentration in trial advocacy. Following law school, Mr. Derr clerked for two federal judges: the Hon. Elizabeth A. Kovachevich, former Chief United States District Judge for the Middle District of Florida, and the Hon. Mark A. Pizzo, United States Magistrate Judge for the Middle District of Florida. It was during his clerkships that Mr. Derr began to understand the art of advocacy and the impact a lawyer’s presentation has on a jury. This article was written with the idea of providing a step-by-step process by which an attorney may approach the Reptile theory in practice. Mr. Derr is licensed to practice in Florida, Pennsylvania, and New Jersey state courts, the U.S. District Court for the Middle District of Florida, and the U.S. District Court for the Northern District of Florida. He currently serves as a mentor in Florida’s Young Lawyer Division Mentoring Program.

3 Stetson J. Advoc. & L. 29 (2016)

I. What is the Reptile Theory?

The Reptile Theory is attributed to a former professional theatrical director, David Ball (“Ball”), and a plaintiff attorney, Don Keenan (“Keenan”). These two gentlemen co-authored a book titled, Reptile: the 2009 Manual of the Plaintiff’s Revolution, that embarks to set forth a novel way to have a juror place themselves in the position of the plaintiff. Undoubtedly, some of you are thinking back to your law school days and shouting, “But wait! This is a violation of the ‘Golden Rule’!” And you would be right, except the methodology behind exposing a juror’s Reptilian mind begins long before the trial phase and disguises a “Golden Rule” violation by invoking a juror’s sense of fear. Safety Rule + Danger = Reptile.
The Reptile mind was first created in the “Triune Brain” theory as developed by neuroscientist Paul MacLean.2 2 David Ball & Don Keenan, Reptile: The 2009 Manual of the Plaintiff's Revolution 13 (2009). Dr. MacLean labeled the R-Complex part of our brains the “Reptilian” brain because it is identical in function to the brain of reptiles.3 3 David Ball & Don Keenan, Reptile: The 2009 Manual of the Plaintiff's Revolution 13 (2009). The Reptile theory focuses on this “Triune Brain” by evoking and awaking thoughts of safety and security within the reptilian complex, which in turn controls other thoughts.4 4 David Ball & Don Keenan, Reptile: The 2009 Manual of the Plaintiff's Revolution 18 (2009). However, this is not an article on the anatomy of the human brain. As succinctly put by Los Angeles plaintiff attorney Sonia Perez Chaisson in The Jury Expert, “we care not at all about brain anatomy and solely about whether the Reptile works.”5 5 Stephanie West Allen, Jeffrey Schwartz, and Diane Wyzga, Atticus Finch Would Not Approve: Why a Courtroom Full of Reptiles Is a Bad Idea, The Jury Expert (American Society of Trial Consultants), Volume 22, Issue 3, May 2010, at 11.
Jurors are people, just like you and me. And just like you or me, if a juror is placed in a position where he or she feels threatened, anxious, or potentially at risk of harm, that juror is likely to react. This is, at its most basic core, the underlying mechanic behind the Reptile. Instead of employing jurors with reason and logic to reach the desired conclusion, the Reptile takes a linear path directly to a juror’s emotions by showing a juror the end result and providing a prism through which all evidence presented at trial may be viewed.
As pointed out in Messrs. Ball and Keenan’s book, the focus in using the Reptile effectively is spotlighting safety and security issues, as compared to more traditional methods of establishing a breach of the standard of care or necessary elements of a cause of action.6 6 David Ball & Don Keenan, Reptile: The 2009 Manual of the Plaintiff's Revolution 52 (2009). If effective, the jury will connect the dots between the violation of a plaintiff-crafted safety rule that, if not followed by the community at large, will place the jury and their families in danger, compelling a need to return a high verdict to prevent the danger. So first things first: How can you tell when a plaintiff is embarking on utilization of the Reptile?

II. Reptile Pleadings

The best defense to the Reptile is simple: see it coming before it bites you. In some instances, the Reptile will be born during the pleadings phase, and in others it will be born during the discovery phase. Typically, a plaintiff intending to employ the Reptile will utilize the complaint as his or her de facto first discovery request. This is true because in most jurisdictions the scope of disclosures and discovery requests are dictated by the claims and defenses of the parties. Thus, if you see pleadings referencing “violations of safety rules” or “unnecessarily endangering the public or community,” you should respond with denials and begin preparing your witnesses for likely Reptilian-themed deposition questions.
If a plaintiff brings claims such as negligent hiring, retention, training, supervision, or entrustment, and these claims are permitted to stand, these claims oftentimes render evidence of prior incidents or accidents discoverable and sometimes admissible based upon knowledge or absence of mistake.7 7 See Fed. R. Evid. 404(b). As Messrs. Ball and Keenan point out, a juror’s sense of fear and threat is not evoked by a rare occurrence or accident. Instead, it is the systematic violation of a safety rule that compels a juror to act.8 8 David Ball & Don Keenan, Reptile: The 2009 Manual of the Plaintiff's Revolution 53–54 (2009). Therefore, the first step towards thwarting the Reptile is to limit evidence to only the accident or incident at issue. This can be accomplished through motions to dismiss or motions to strike. Oftentimes, motions of this nature are successful because many corporate negligence and punitive damages claims lack factual support and simply recast boilerplate elements and legal conclusions. The plaintiff’s burden at the pleading stage in defending such a motion is establishing that the complaint contains sufficient facts “to state a claim to relief that is plausible on its face.”9 9 See Center for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 369 (6th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009)). Assuming your jurisdiction follows this pleading standard, motions to dismiss punitive damages and direct corporate negligence claims should always be filed in each and every instance where the complaint lacks adequate factual allegations. Moreover, once these claims have been dismissed, other incidents and accidents become far less likely to be relevant to the claims at hand, and, therefore, less likely to be admitted as evidence. The narrower the scope of pleading, the easier it will be to defend against the Reptile.

III. Reptile During Discovery

Generally, the Reptile begins to gain traction during the deposition of the defendant’s corporate representative. This is the point in time when the plaintiff’s attorney begins establishing safety rules, at times even referencing the pleadings, and these rules will later serve as the basis for invoking a sense of fear into jurors at trial. During your client’s corporate representative’s deposition, you can key in on your opponent’s use of the Reptile because the safety rules are almost always accompanied by the words “needlessly” or “unnecessarily.”
For example, let’s assume you are defending a company against various torts related to a motor vehicle accident involving the company driver. Your antenna must be up when your opponent asks the company driver a question similar to, “You would agree with me that failing to look both ways before pulling into an intersection needlessly endangers the public and community?” Remember, questions that relate to “needlessly” or “unnecessarily” endangering the “public” or “community” are the buzzwords to signal that the Reptile is in play.
Understand too that the Reptile is premised upon hypothetical questions. When being put to use, you will see these broad hypotheticals being asked during the depositions of corporate representatives, expert witnesses, and even at times fact witnesses. Because lay witness testimony must always be rationally based upon his or her perceptions, any hypothetical posed to a fact witness should be followed with an immediate objection. This is not a novel concept as jurisdictions throughout the country have held that hypotheticals, while proper for expert witnesses, are not proper for lay witnesses. The rationale is simple: “the ability to answer a hypothetical question is the essential difference between expert and lay witnesses.”10 10 See United States v. Urena, 659 F.3d 903, 908 (9th Cir. 2011) (quoting United States v. Henderson, 409 F.3d 1293, 1300 (11th Cir. 2005)). Point being, under most circumstances a corporate representative witness is still a lay witness. So if a hypothetical is posed to either a lay witness or a corporate representative, at a minimum an immediate objection should be made and consideration should be given to instructing the witness not to answer.
Putting this into practice, let’s assume your witness is asked the following question: “You would agree with me that the failure to continually scan the roadway while driving needlessly endangers the public?” Assuming you make an objection but allow the driver to answer, an informed, prepared witness should respond, “While I do not agree with your characterization of ’needlessly endangering the public,’ to answer your question, I am trained to make every effort to continually scan the road when possible and did so prior to the accident.” This response qualifies the witness’s answer and limits the use of the question, rendering it meaningless.
The key difference between a lay witness and an expert witness is that an expert witness may be asked hypothetical questions; however, this does not mean that parameters do not exist. The fact remains that most hypothetical questions, even when asked of expert witnesses, remain improper because they are overbroad and are not likely to lead to the discovery of admissible evidence. Remember, any opinion offered by an expert must be based upon facts or data.11 11 Fed. R. Evid. 702(b); Fla. Stat. § 90.702. A question whether the failure of a company driver to scan the roadway prior to proceeding through an intersection unnecessarily endangers the public at large is not only overbroad, but also, and more importantly, contains no facts or data. For example, let’s assume your expert witness was asked the same hypothetical question as your driver, a lay witness: “You would agree with me that the failure to continuously scan the roadway while driving needlessly endangers the public?” While now being asked of an expert, this question is still improper because it does not incorporate or rely upon any facts or data. An ideal expert witness response would be: “I base opinions on facts and data. I am not comfortable providing opinions in the absence of facts or data.” This effectively eliminates the opportunity for plaintiff’s counsel to establish a safety rule while still providing a responsive answer.
As you can see, the Reptile relies heavily upon the improper use of hypothetical questions. When witnesses are properly prepared, their responses can easily dispel the plaintiff-created safety problem and reduce the probability that the Reptile will rear its head at trial.

IV. Motions in Limine to Keep Reptile Out

The pleadings are now closed and the discovery deadline has come and gone. You are now beginning the early stages of trial preparation and consideration must be given to motions in limine. When used properly, motions in limine can cut the Reptile down to size.
First, an argument to inflame a jury is generally prohibited by the courts. This is especially true when a plaintiff is attempting to utilize the Reptile because the inflammatory remarks are really nothing more than an attack on the character of a defendant.12 12 See, e.g., Las Palmas Assoc. v. Las Palmas Ctr. Assoc., 1 Cal. Rptr. 2d 301, 315 (Cal. Ct. App. 1991) (explaining that “[p]ersonal attacks on opposing parties . . . whether outright or by insinuation, constitute misconduct” and that such “behavior only serves to inflame the passion and prejudice of the jury, distracting them from fulfilling their solemn oath to render a verdict based solely on the evidence admitted at trial”). The use of the Reptile should always be objected to upon this basis; however, this basis is not the only arrow in your quiver.
Another basis for a motion in limine is that the use of the Reptile is nothing more than requesting the jury to act as the conscience of the community, which is generally prohibited.13 13 United States v. Lester, 749 F.2d 1288, 1301 (9th Cir. 1984); Haberstroh v. State, 105 Nev. 739, 742, 782 P.2d 1343, 1345 (1989). Appealing to the conscience of the community generally occurs during final summations and therefore must be anticipated beforehand.14 14 See, e.g., Sechrest v. Baker, 816 F. Supp. 2d 1017, 1054 (D. Nev. 2011) (prosecutor stated during closing argument “[I]n this one instance in your lifetime, you are the conscience of the community. It is you and only you who will set the standard in this community for this type of act.”) Any statements along these lines are red flags that the plaintiff is trying to use the Reptile and a proper motion must be made. Too often, practitioners determine success based upon whether the motion in limine is granted or denied. Even if your motion is denied, you have now put the issue in play and the court will hopefully be more receptive to your objection once you make your objection at the time the evidence is being presented. Oftentimes, a judge will simply defer and determine the permissibility of any Reptile references as they occur.15 15 See, e.g., Palmer v. Virginia Orthopaedic, P.C., No. CL14000665-00, 2015 WL 5311560 (Va. Cir. Ct.) (June 19, 2015).
An additional basis to file a motion in limine is that the Reptile is nothing more than an attempt to circumvent the ’Golden Rule.’ Courts have defined ’Golden Rule’ arguments as an argument that asks a jury not “to decide according to the evidence, [but] according to how its members might wish to be treated,”16 16 Velocity Express Mid-Atlantic, Inc. v. Hugen, 585 S.E.2d 557, 565 (Va. 2003) (quoting Seymour v. Richardson, 75 S.E.2d 77, 81 (Va. 1953)) and as an argument that asks “the jurors to put themselves in the plaintiff’s shoes.”17 17 Rose v. Jacques, 597 S.E.2d 64, 76 n.10 (2003). Therefore, any argument that even insinuates that a juror place themselves in the place of the plaintiff is patently improper. Every attempt to preclude the Reptile from tiptoeing its claws around the ’Golden Rule’ must be made.
While these three bases for bringing a motion in limine are not exclusive, experience dictates that they are the most successful. Other arguments linked to precluding the Reptile include the plaintiff stating his or her personal beliefs and misrepresenting the evidence as presented. Point being, do not be limited in the arguments you raise within your motions in limine. Be creative in trying to actively limit your opponent’s ability to include Reptile-related information because chances are this may be the first time the court has been presented with the issue.
For example, one manner to present your argument is to first educate the court as to the Reptile theory. Discuss the psychology behind the theory and creation of safety rules through the use of hypothetical questions. While you do not want the judge to be weighed down with the science behind the theory, it is important that the judge properly understands the theory and how it is used. Next, link the Reptile to its impermissible use. That is, raise your arguments that the Reptile is a ’Golden Rule’ violation, the underlying safety questions are irrelevant, and that the plaintiff is engaging in a character assassination of your client. In order to provide substance to your argument, identify specific voir dire questions and closing argument statements that are anticipated and evidence the Reptile theory in use.18 18 See, e.g., Orlovsky v. Lake Charleston Main Tenance Association, Inc., No. 502012CA023082, 2015 WL 3537155, (Fla. 15th Cir. Ct.) (Jan. 29, 2015); Hardy v. Byrd, No. 012011CA006694, 2014 WL 6608246, (Fla. 8th Cir. Ct.) (April 14, 2014). It can also be helpful to cite prior deposition questions in your motion to establish the plaintiff’s long-standing strategy and intent of evoking the Reptile at trial.
In order to obtain the highest likelihood of success, your motions in limine should explain what the Reptile is, state with specificity the questions or testimony that is anticipated, and cite controlling case law to support the Reptile exclusion. Failure to adequately identify the specific evidence a movant is seeking to exclude can be fatal.19 19 See, e.g., Hensley v. Methodist Healthcare Hospitals, No. 13–2436–STA–CGC at *4–5 (W.D. Tenn.) (August 27, 2015). Thus, it is paramount to the success of your motion that you state the questions or testimony you anticipate and desire to exclude.

V. Trial with the Reptile

Despite all of the above efforts, and depending upon your jurisdiction and judge, the possibility remains that you may still be confronted with the Reptile at the time of trial. However, this does not mean you are left with no recourse. Instead of trying to prevent the utilization of the Reptile at this stage of litigation, it is now time to embrace the Reptile and use it to your advantage. In other words, sometimes the best defense is a good offense. The best way to defeat the Reptile at trial is not to counteract it with your own safety rule — that is, do not attempt to counteract the anxiety and fear the plaintiff is trying to create within the jury with anxiety and fear of your own. Some defendants take this ill-advised path by trying to create reverse safety rules. A classic example is a defendant arguing that if a jury returns a high verdict, consumers such as themselves will realize the effect through higher insurance premiums and higher costs of goods. Best practices would be to avoid this counter defense. It is likely that if you try to omit the use of the Reptile by your opponent and then conversely attempt to use Reptile tactics of your own, you may lose credibility with both the judge and jury. Instead, you want to always project the image of a consummate professional. Your first chance to do this will be by dismantling the Reptile during voir dire.
While some judges will not allow an attorney to perform voir dire, choosing to instead conduct voir dire from the bench, many do. Assuming you are permitted to conduct voir dire, begin by asking polling questions. Polling questions are an extremely effective tool to gain depth of information without exhausting time and frustrating the court with the seemingly unending peppering of questions. For instance, you may ask the jury:

Some of you may feel that your decision in this case should be based only on what actually took place and what damages the plaintiff actually suffered. On the other hand, some of you may feel that while it is important to consider what actually took place and what harm was actually suffered, it is also equally important to evaluate and weigh the loss that could have occurred in this case or in a future case. Who feels that the potential harm and possibility of future harm must be considered in this case?

By asking this polling question, you can now gauge whom you want to peremptorily strike and whom you want to be sitting in the jury box once deliberations begin.
You may also ask: “Who here believes the jury’s duty is to act as the conscience of the community?” or “Who feels if the jury finds the defendant was responsible for the accident, that the jury must then issue a verdict that ’sends a message’ to other prospective defendants?” Admittedly, the answers to these questions likely will not be enough to have a juror struck for cause, but the answers will nonetheless provide insight as to who warrants the use of a preemptory strike. The most effective voir dire is not when the attorney is the center of attention. Instead, you ideally want jurors discussing your question among themselves and bantering back and forth. This is the best method of obtaining the information you need in order to pick your optimal jury.
The jury has now been chosen and it is time for the testimonial phase of trial. Here, consider using the door the Reptile has opened to present your own evidence. In theory, if a plaintiff is permitted to plant Reptilian themes during trial that do little more than act as a character assassination of your client, you should be permitted to present rebuttal evidence.20 20 See Fed. R. Evid. 404(b). This can be done through past customers testifying about their positive experiences with the defendant, experts testifying about how your corporate client has the proper practices and procedures in place to make the company as safe as possible, or through company employee testimony that his or her employer is caring and diligent in its practices and procedures. You see, the Reptile can be a double-edged sword without attempting to invoke the same jury fear and anxiety as the plaintiff. By presenting rebuttal evidence, you are not utilizing the same strategy as the Reptile, but instead are presenting evidence that will permit a jury to reach the conclusion you desire. A judge should recognize that because the Reptile has previously opened the door, you too are entitled to refute these contentions with testimonial evidence of your own. If not, this is a potential appealable issue.
Finally, it is time for closing arguments. It is at this final stage of trial where you can perhaps levy your most potent attack. First, do not be afraid to tell the jury about the Reptile. Call a spade a spade. Pull a copy of Messrs. Ball and Keenan’s book and show it to the jury.21 21 David Ball & Don Keenan, Reptile: The 2009 Manual of the Plaintiff's Revolution (2009). Highlight some of the more salient points that suggest plaintiff’s counsel is utilizing the Reptile in an effort to manipulate the jury’s mind. While you may be limited by what a judge will permit, educating the jury that the plaintiff is using psychological methods in an effort to obtain a higher verdict is likely to create some distrust and, hopefully, anger. Paint the plaintiff’s attorney as a puppeteer trying to control the minds and wills of the jurors, and you have accomplished your objective. No one likes to think that they are not in control of their own decisions. Use this primal instinct to your advantage.

VI. Conclusion

The Reptile is not a new invention. Messrs. Ball and Keenan’s book is essentially the presentation of age-old tactics that are being recast in a creative and new way. Their book reorganizes approaches that have, in reality, been in existence since the birth of the American jurisprudence system. Unfortunately for defendants, the Reptile, while not new, can be a very effective and deadly adversary. All defense attorneys must be able to recognize the Reptile once it begins to slither into a case. Once recognized, you can morph into a wise owl or fearless mongoose whose acumen levels the playing field to defeat the coy Reptile.

Footnotes

1Tyler J. Derr is a civil litigator, whose national practice focuses on business litigation, personal injury defense, employment defense, and construction defects. He received his undergraduate degree from the Pennsylvania State University and his law degree, with honors, from Stetson University College of Law with a concentration in trial advocacy. Following law school, Mr. Derr clerked for two federal judges: the Hon. Elizabeth A. Kovachevich, former Chief United States District Judge for the Middle District of Florida, and the Hon. Mark A. Pizzo, United States Magistrate Judge for the Middle District of Florida. It was during his clerkships that Mr. Derr began to understand the art of advocacy and the impact a lawyer’s presentation has on a jury. This article was written with the idea of providing a step-by-step process by which an attorney may approach the Reptile theory in practice. Mr. Derr is licensed to practice in Florida, Pennsylvania, and New Jersey state courts, the U.S. District Court for the Middle District of Florida, and the U.S. District Court for the Northern District of Florida. He currently serves as a mentor in Florida’s Young Lawyer Division Mentoring Program.
2David Ball & Don Keenan, Reptile: The 2009 Manual of the Plaintiff's Revolution 13 (2009).
3David Ball & Don Keenan, Reptile: The 2009 Manual of the Plaintiff's Revolution 13 (2009).
4David Ball & Don Keenan, Reptile: The 2009 Manual of the Plaintiff's Revolution 18 (2009).
5Stephanie West Allen, Jeffrey Schwartz, and Diane Wyzga, Atticus Finch Would Not Approve: Why a Courtroom Full of Reptiles Is a Bad Idea, The Jury Expert (American Society of Trial Consultants), Volume 22, Issue 3, May 2010, at 11.
6David Ball & Don Keenan, Reptile: The 2009 Manual of the Plaintiff's Revolution 52 (2009).
7See Fed. R. Evid. 404(b).
9See Center for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 369 (6th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009)).
10See United States v. Urena, 659 F.3d 903, 908 (9th Cir. 2011) (quoting United States v. Henderson, 409 F.3d 1293, 1300 (11th Cir. 2005)).
11Fed. R. Evid. 702(b); Fla. Stat. § 90.702.
12See, e.g., Las Palmas Assoc. v. Las Palmas Ctr. Assoc., 1 Cal. Rptr. 2d 301, 315 (Cal. Ct. App. 1991) (explaining that “[p]ersonal attacks on opposing parties . . . whether outright or by insinuation, constitute misconduct” and that such “behavior only serves to inflame the passion and prejudice of the jury, distracting them from fulfilling their solemn oath to render a verdict based solely on the evidence admitted at trial”).
13United States v. Lester, 749 F.2d 1288, 1301 (9th Cir. 1984); Haberstroh v. State, 105 Nev. 739, 742, 782 P.2d 1343, 1345 (1989).
14See, e.g., Sechrest v. Baker, 816 F. Supp. 2d 1017, 1054 (D. Nev. 2011) (prosecutor stated during closing argument “[I]n this one instance in your lifetime, you are the conscience of the community. It is you and only you who will set the standard in this community for this type of act.”)
15See, e.g., Palmer v. Virginia Orthopaedic, P.C., No. CL14000665-00, 2015 WL 5311560 (Va. Cir. Ct.) (June 19, 2015).
16Velocity Express Mid-Atlantic, Inc. v. Hugen, 585 S.E.2d 557, 565 (Va. 2003) (quoting Seymour v. Richardson, 75 S.E.2d 77, 81 (Va. 1953))
17Rose v. Jacques, 597 S.E.2d 64, 76 n.10 (2003).
18See, e.g., Orlovsky v. Lake Charleston Main Tenance Association, Inc., No. 502012CA023082, 2015 WL 3537155, (Fla. 15th Cir. Ct.) (Jan. 29, 2015); Hardy v. Byrd, No. 012011CA006694, 2014 WL 6608246, (Fla. 8th Cir. Ct.) (April 14, 2014).
19See, e.g., Hensley v. Methodist Healthcare Hospitals, No. 13–2436–STA–CGC at *4–5 (W.D. Tenn.) (August 27, 2015).
20See Fed. R. Evid. 404(b).
21David Ball & Don Keenan, Reptile: The 2009 Manual of the Plaintiff's Revolution (2009).

Download PDF version
Download ePub version
Download Kindle version

Callan L. Albritton1 1 Callan L. Albritton recently began serving as a law clerk for the U.S. District Court Magistrate Judge Anthony Porcelli. Previously, Mr. Albritton worked as an associate at Wiand Guerra King PA in Tampa, Florida, where he focused his practice on complex commercial litigation and securities litigation.

3 Stetson J. Advoc. & L. 55 (2016)

I. Introduction

This article primarily examines the dangers, and the best ways to avoid those dangers, for debt collectors making autodialed collection calls in Florida. Florida state and federal law complement each other to create powerful weapons for debtors who have received these calls, greatly increasing exposure for debt collectors.
Broadly speaking, an autodialer is any system that can make telephone calls without human intervention. This includes machines that dial numbers from a random number generator, or machines that dial preprogrammed numbers. The Telephone Consumer Protection Act (TCPA),2 2 47 U.S.C. § 227 (2012). though not specifically targeted at debt collectors, imposes liability on anyone who makes autodialed telephone calls without prior consent of the person called. Although the TCPA does not create liability for calls dialed by hand, debt collectors commonly use autodialed calls to contact debtors because it is a more efficient and less costly means of placing calls. The TCPA imposes monetary penalties on a per-call basis, which quickly increases financial exposure for nonconsensual autodialed calls. Furthermore, the Federal Communications Commission recently released new rules which make it more difficult for debt collection callers to avoid liability.
In addition, the Florida Consumer Collection Practices Act (FCCPA) specifically applies to debt collection activities in Florida.3 3 Fla. Stat. §§ 559.55–559.785 (2015). The FCCPA creates liability for a caller who harasses a debtor, but does not specifically explain what harassment is. Debt collectors using an autodialer may thus unwittingly harass debtors by using an autodialer to make large numbers of calls to a single debtor. The FCCPA, like the TCPA, provides liability for damages. However, the FCCPA also allows plaintiffs to collect attorneys’ fees from the caller.
For example, a retailer that issues consumer loans may face high rates of default for small sums of money. The retailer may hire a collection agency to call a large number of these debtors. The TCPA is not implicated should the agency choose to have a representative manually (and slowly) enter each phone number separately for each call. However, economically collecting debts from numerous customers may necessitate the use of an autodialer to contact these debtors, potentially triggering TCPA liability. High call volume may implicate the FCCPA in addition to the TCPA.
Debt collectors’ use of autodialers has become extremely common. However, when not done in compliance with the TCPA and FCCPA, liability can quickly add up for an individual claim or even spark a class-action lawsuit.

II. Background of the TCPA

Passed in 1991, the Telephone Consumer Protection Act was originally enacted to protect consumers from telemarketing calls and so-called junk faxes, which the bill’s sponsor called “the scourge of modern civilization.”4 4 137 Cong. Rec. S9840-02, 1991 WL 126847 (1997). The opposition to automated calls centered around four areas. First, Congress recognized that telemarketing calls were annoying, that opposition to these calls was widespread, and that telemarketers were perceived as “unethical and unscrupulous.”5 5 H.R. Rep. No. 102-317, at 8–9 (1991). Second, Congress recognized that the telemarketer using an autodialer might tie up phone lines for both business and emergency purposes. A consumer unable to use his or her telephone line might thus be unable to make an emergency call.6 6 137 Cong. Rec. S9840-02, 1991 WL 126847. Third, Congress was concerned that a consumer would have to bear the financial cost of an unsolicited fax or telephone call advertisement. Lastly, Congress wished to protect consumers’ right to privacy in the home.7 7 S. Rep. No. 102-178, at 1–2 (1991).
The TCPA was never intended to regulate debt collectors seeking to contact customers to recover legitimate debts. However, as explained below, the TCPA’s restrictions on autodialed calls are so broad that debt collectors face liability for otherwise legal calls attempting to reach debtors. In addition, on July 10, 2015, the Federal Communication Commission (FCC) released new rules that clarified the liability these debt collectors face.
This article will first address the elements of an action brought under the TCPA against a debt collector, as interpreted by Florida federal courts. Second, this article will explain how the FCCPA, when combined with the TCPA, can greatly increase financial exposure to debt collectors. Finally, this article will address how the new FCC rules increase the dangers in making autodialed debt collection calls.

III. The TCPA in Florida Before the FCC’S July 2015 Rules

A. Elements of a TCPA Claim

Though the TCPA creates causes of action for parties who have received “junk faxes” and landline calls, the most prominent cause of action that applies to debt collections is the prohibition on making nonconsensual autodialed calls to a cell phone. The statute provides that it shall be unlawful:

(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice–

(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call.8 8 47 U.S.C. § 227(b)(1)(A)(iii) (2012).

Thus, a successful claim must demonstrate:
  1. a call,
  2. using an automatic dialing system or prerecorded voice,
  3. to a cell phone,
  4. without prior consent.
As increasing numbers of Americans give up their land lines in favor of their cell phones, the potential to run afoul of this prohibition is expanding.
The element that there be a “call” to a cellular phone is largely self-explanatory and not ordinarily in dispute by the time a plaintiff has already brought a TCPA claim. For the purposes of the TCPA, text messages also qualify as “calls.”9 9 Legg v. Voice Media Group, Inc., 20 F. Supp. 3d 1370, 1373 (S.D. Fla. 2014). Thus, the most important elements to a debt collector’s defense of a TCPA action will be whether the system used to place the call qualifies as an autodialer, and whether the customer gave consent to make an autodialed call.
Because the use of an autodialer is an element of the cause of action, a debt collector can avoid this type of TCPA claim altogether by having a customer representative contact debtors by entering each number into a telephone by hand. Of course, this option will increase operating costs by necessitating hiring and training additional customer representatives to place the same volume of calls.

B. Automatic Telephone Dialing System

The TCPA defines an “automatic telephone dialing system” as “equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator; and to dial such numbers.”10 10 47 U.S.C. § 227(a)(1) (2012). The statutory inclusion of random or sequential number generators betrays the TCPA’s original purpose to target telemarketers. However, the FCC and Florida federal courts applying the statute have not restricted liability to these limited call systems. As one court has stated, “the key feature of an ATDS is the capacity to dial numbers without human intervention.”11 11 Wilcox v. Green Tree Servicing, LLC, No. 8:14-CV-1681-T-24 TGW, 2015 WL 2092671, at *5 (M.D. Fla. 2015). Note that the statutory language focuses on the capacity of the device.
Thus, technology that qualifies as an autodialer also encompasses systems that automatically call numbers from a pre-programmed list,12 12 Lardner v. Diversified Consultants Inc., 17 F. Supp. 3d 1215, 1222-23 (S.D. Fla. 2014). and “predictive dialers,” which call numbers from a list in a way that predicts when a customer representative may be available to take the call.13 13 Legg v. Voice Media Group, Inc., 20 F. Supp. 3d 1370, 1375 (S.D. Fla. 2014). These systems also happen to be the best way for debt collectors to reach customers who have given their telephone number to a retailer for potential collection purposes.
Without the benefit of discovery to reveal a caller’s procedure or software, the call recipient has no way to know for sure whether the debt collector is using an autodialer. At least one federal court has held that the bare allegation that defendant used an autodialer is grounds for dismissal.14 14 Hunter v. Diversified Consultants, Inc., Case No. No. 8:14-CV-2198-T-30TGW (M.D. Fla. Nov. 26, 2014). However, autodialed calls often contain telltale signs that debtors may plead to reach discovery and gain more information about the debt collector’s call procedures. From the debtor’s perspective, some of the hallmarks of an autodialer are as follows:
  • robotic voice on the line
  • lack of response when attempting to talk with the caller
  • “click and pause” after answering the call15 15 Martin v. Direct Wines, Inc., No. 15 C 757 at *2 (N.D. Ill. 2015).
  • repeated calls in a single day
  • repeated calls from different numbers
  • the fact that the call recipient owed money on a debt.16 16 Isgett v. Northstar Location Services, LLC, No. 4:14-CV-4810-RBH at *3 (D.S.C. 2015).

C. Consent to Receive a Call

Thankfully it is usually easy for a debt collector to obtain consent to make an autodialed call. During a retail transaction, for example, a customer may consent to receive autodialed phone calls when filling out a loan application.17 17 See Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110, 1122 (11th Cir. 2014). Similarly, the Ninth Circuit ruled that a customer consented to receiving text messages when she provided a cell phone number without any corresponding instructions not to text her.18 18 Baird v. Sabre, Inc., No. 14-55293 at *1 (9th Cir. 2016). In addition, the Eleventh Circuit recently ruled that a caller obtained consent when the plaintiff provided his number on a form, even when the form did not require the number. In other words, merely providing a telephone number will constitute consent to be called by an autodialer.
However, even though consent is easy to obtain, it is also easy to take back. In another recent Eleventh Circuit decision, the court clarified that consent may be revoked by simple oral revocation, at least “in the absence of any contractual restriction to the contrary.”19 19 Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1255 (11th Cir. 2014). For example, a frustrated debtor may revoke autodialer consent merely by telling the debt collector to stop calling.
Note further that consent to make a call must be obtained from the called party, i.e., the subscriber of the telephone number, not the intended recipient of the call.20 20 Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1252 (11th Cir. 2014). Thus, should a debtor change his or her number to avoid debt collectors, the new owner of the line who has not provided consent may then bring a TCPA claim against the debt collector.

D. Damages

Because the TCPA provides damages on a per call basis, liability is limited only by the number of calls a debt collector makes. These damages may even dwarf the underlying consumer debt. The TCPA allows a plaintiff to recover “actual money loss for such a violation, or to receive $500 dollars in damages for each such violation, whichever is greater.”21 21 47 U.S.C. § 227(b)(3)(B) (2012). In practice, this often means that each nonconsensual autodialed call costs the collector $500. Lack of knowledge or intent will not defeat a $500 damages award, as “[t]he TCPA is essentially a strict liability statute.”22 22 Lardner v. Diversified Consultants Inc., 17 F. Supp. 3d 1215, 1220 (S.D. Fla. 2014).
In addition, if a debt collector makes a call “willfully or knowingly,” a court may triple the actual damages or $500 amount.23 23 47 U.S.C. § 227(b)(3) (2012). The TCPA does not define “willfully or knowingly.” Thankfully, in the Eleventh Circuit, willful or knowing conduct goes further than merely having knowledge that the debt collector made a call.24 24 Lary v. Trinity Physician Fin. & Ins. Services, 780 F.3d 1101, 1107 (11th Cir. 2015). Willful or knowing conduct “requires the violator to know he was performing the conduct that violates the statute.” This standard has been described as “an exacting one;” in the context of autodialed debt collection calls, a plaintiff must show that the debt collector knew that it was making a call, knew that number was a cell phone, knew that the system used to make the call would qualify as an autodialer, and knew that it did not have consent to make the autodialed call.25 25 Brown v. NRA Group, LLC, No. 6:14-CV-610-ORL-31 at *4 (M.D. Fla. 2015) (holding that there was a genuine issue of material fact as to whether defendant knew it was using an autodialer); see also McBeth v. Credit Prot. Ass’n, L.P., No. 8:14-CV-606-T-36AEP at *4 (M.D. Fla. 2015).
Thus, in practice, the damages for a TCPA claim are $500 for any call, or $1,500 for willful or knowing calls. Even if the plaintiff cannot show that he is entitled to $1,500 per call, $500 per call damages based on multiple calls over a period of time can reach large amounts, especially if the debt collector has not accurately documented that consent has been withdrawn.26 26 47 U.S.C. § 227(b)(3) (2012).

E. Venue

Finally, it is important to consider where a TCPA action may be brought. Unique among federal statutes, state courts and federal courts have concurrent jurisdiction to hear TCPA claims.27 27 Mims v. Arrow Fin. Services, LLC, 132 S. Ct. 740, 745 (2012). Removal to federal court is a matter of course upon filing an appropriate motion. Removal has two advantages. In the context of Florida specifically, the debt collector will be able to take advantage of the more stringent federal motion to dismiss standard and summary judgment standard. Furthermore, state court may be an unfriendly environment for debt collectors, who are not well known for being sympathetic clients. A defendant may also wish to remove a related FCCPA claim (see below) based on supplemental jurisdiction.28 28 28 U.S.C. § 1367(a) (2012); see Speidel v. Am. Honda Fin. Corp., No. 2:14-CV-19-FTM-38CM at *3 (M.D. Fla. 2014).

IV. The FCCPA and Its Relationship to the TCPA

In addition to the TCPA, Florida has its own Florida Consumer Collection Practices Act (FCCPA) which is designed to protect debtors in Florida. Though not specifically targeted to debt collectors who use an autodialer, the statute nevertheless creates state-law liability on top of already heavy TPCA penalties. Most importantly, FCCPA claims create attorneys’ fees liability and are hard to dismiss before trial.

A. Elements of the Claim

The FCCPA applies to debt collectors in Florida who attempt to collect a consumer debt. Essentially, consumer debt is any debt accrued by a consumer for a household purpose.29 29 Fla. Stat. § 559.55(6) (2015) (defining “consumer debt” as “any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.”). Although the FCCPA prohibits a host of unfair debt collection practices (such as using abusive language or posing as a law enforcement officer), two provisions are most applicable to debt collectors employing an autodialer. The caller may not:
  • “Willfully communicate with the debtor or any member of her or his family with such frequency as can reasonably be expected to harass the debtor or her or his family, or willfully engage in other conduct which can reasonably be expected to abuse or harass the debtor or any member of her or his family.”30 30 Fla. Stat. § 559.72(7) (2015).
  • “Communicate with a debtor if the person knows that the debtor is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney’s name and address …”31 31 Fla. Stat. § 559.72(18) (2015).
The FCCPA defines “communication” as the “conveying of information regarding a debt directly or indirectly to any person through any medium.” Importantly, “communication” under the FCCPA includes not only calls during which a representative spoke to a customer, but also missed calls.32 32 Brown v. Flagstar Bancorp, Inc., No. 8:13-CV-2596-T-33TBM at *2 (M.D. Fla. 2014); Bresko v. M & T Bank Corp., No. 8:13-CV-1243-T-30AEP at *2 (M.D. Fla. 2013). Thus, any debt collection call will qualify as a communication under the FCCPA.
The prohibition regarding harassing communications is a fact-specific inquiry which may present issues in winning a motion to dismiss the case or obtaining summary judgment. In Story v. JM Fields, Inc., the Florida First District Court of Appeals explained what it means to make harassing calls:

Proof of numerous calls does not make a jury issue on liability if all must agree the creditor called only to inform or remind the debtor of the debt, to determine his reasons for nonpayment, to negotiate differences or to persuade the debtor to pay without litigation. The trier of fact may consider such communications harassing in their frequency, however, when they continue after all such information has been communicated and reasonable efforts at persuasion and negotiation have failed. Beyond that point communication ‘can reasonably be expected to harass the debtor or his family,’ because it tends only to exhaust the resisting debtor’s will. If the creditor intends that likely effect, further communication is willful and actionable.33 33 Story v. J.M. Fields, Inc., 343 So. 2d 675, 677 (Fla. 1st DCA 1977) (quoting Fla. Stat. § 559.72(7) (2015)).

Essentially, the trier of fact must assess why and how many calls the debt collector made to the plaintiff, in addition to the content of the calls. In practice, however, call volume seems to be the most important factor. In Story, for example, whether the debt collector made over 100 calls to the debtor in a five-month period was an issue of fact for the jury.34 34 Story v. J.M. Fields, Inc., 343 So. 2d 675, 677 (Fla. 1st DCA 1977). Troublingly, few cases provide guidance regarding calls that do not constitute harassment. The cases that do usually involve a small number of calls over time; for example, six calls in four months, six calls in six months, and two calls over three months.35 35 Dennis v. Reg’l Adjustment Bureau, Inc., No. 09-61494-CIV at *3 (S.D. Fla. 2010); Schauer v. Morse Operations, Inc., 5 So. 3d 2 (Fla. 4th DCA 2009); In re Whitaker, No. 08:09-BK-01619-MGW at *2 (Bankr. M.D. Fla. 2013). One federal court has held that a caller did not violate the FCCPA after calling 132 times when “Plaintiff did not communicate with Defendant to convey information about the alleged debt, to negotiate with Defendant, or to tell Defendant that it should no longer contact her.”36 36 Lardner v. Diversified Consultants Inc., 17 F. Supp. 3d 1215, 1219 (S.D. Fla. 2014).

B. Damages

Regarding damages, “[a]ny person who fails to comply with any provision of s. 559.72 is liable for actual damages and for additional statutory damages as the court may allow, but not exceeding $1,000, together with court costs and reasonable attorney’s fees incurred by the plaintiff.”37 37 Fla. Stat. § 559.77(2) (2015). Courts usually interpret the statutory damages limit as $1,000 per action, not per call.38 38 Arianas v. LVNV Funding LLC, 54 F. Supp. 3d 1308, 1310–11 (M.D. Fla. 2014) (collecting cases). However, authority exists for the $1,000 per call holding, and the Florida Supreme Court has not addressed the issue.39 39 See Beeders v. Gulf Coast Collection Bureau, 632 F. Supp. 2d 1125 (M.D. Fla. 2009); Kahmeyer v. Federal Credit Corp., No. 09-SC-21113-L, 2012 WL 12092502 (Fla. Cir. Ct. May 18, 2012). At least one federal court has refused to dismiss a pleaded entitlement to damages for $1,000 per call.40 40 Morser v. Hyundai Capital Am., Inc., No. 2:15-CV-117-FTM-29CM at *2 (M.D. Fla. 2015).
Most importantly, the FCCPA enables the plaintiff to recover attorneys’ fees. To prove his or her case, a plaintiff will often require discovery from a retailer or a debt collection agency asking to produce and inspect call records, as well as potential third-party subpoenas to telephone companies. Thus, the entitlement to fees may be more dangerous to debt collector defendants than statutory damages under the FCCPA. The court will consider “the nature of the defendant’s noncompliance with s. 559.72, the frequency and persistence of the noncompliance, and the extent to which the noncompliance was intentional” in determining whether to award fees.41 41 Fla. Stat. § 559.77(2) (2015).

C. Relation to the TCPA

Because debt collectors as a matter of course may use an autodialer to call a recalcitrant debtor multiple times over a period of time, a plaintiff may easily claim that these calls were harassing, triggering FCCPA exposure on top of any TCPA liability. In addition, should the debtor notify the caller of attorney representation pursuant to the FCCPA, the debt collector may not contact the debtor at all; attorney notification would thus rescind any consent that may have existed under the TCPA.
The FCCPA further increases financial exposure to statutory damages on top of any TCPA damages. If a court chooses to follow the minority view, FCCPA damages of $1,000 per call would surpass violations for ordinary non-intentional calls under the TCPA. Even with only $1,000 per action, the ability to recover attorneys’ fees is a potent weapon for plaintiffs. Because FCCPA claims are difficult to dismiss at the pleading stage or win on summary judgment, unless the debt collector chooses to settle, the case may proceed to a jury who is most likely hostile to the collector (indeed, they may themselves have been subjected to harassing calls!).
Of course, the debt collector may choose to decrease the frequency of calls to avoid the FCCPA, though the statute and existing case law provide almost no guidance as to what a permissible frequency might be.

V. The FCC’S New 2015 Rules for the TCPA

On July 10, 2015, in response to numerous petitions to clarify the law regarding the use of autodialed calls, the FCC released In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991 (“2015 FCC Order”), a sweeping ruling clarifying the law regulating autodialed collection calls. For debt collectors who make autodialed calls to cell phones, these rules are, almost without exception, in favor of debtors. Note further that under the Hobbs Act, ordinary district courts are bound to follow these FCC rules.42 42 Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110, 1121 (11th Cir. 2014).

A. Expanded Definition of Autodialer

Recall that use of an autodialer is an essential element for a TCPA claim, and debt collectors may avoid the TCPA altogether by manually dialing telephone numbers. In the 2015 FCC Order, the FCC confirmed the already-familiar Florida rule that predictive dialers and devices that dial a fixed set of numbers are all autodialers.43 43 In the Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, ¶¶ 10, 12 (2015). However, the FCC expanded the universe of devices which may qualify as an autodialer, eviscerating many defenses based on the theory that the device used does not qualify under the TCPA.
Per the TCPA’s statutory language, devices which have the capacity to make calls without human intervention are autodialers.44 44 47 U.S.C. § 227(a)(1) (2012). In its latest ruling, the FCC refused to adopt any test which would define an autodialer by the device’s current capacity. A device which has the “potential functionality” to make autodialed calls, even if the device must first be modified, will be considered an autodialer.45 45 In the Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, ¶ 16 (2015). By leaving the door open to any modification which will enable calls to be made without human intervention, it is difficult to see why this potential functionality test would not encompass every piece of modern telephone equipment.
The FCC ruling refused to cabin the potential functionality test, stating that each system would be evaluated on “case-by-case determination.” The FCC did acknowledge that the definition would not encompass a handset with a speed dial button, or an unmodified rotary dialed phone, noting unhelpfully that the definition “do[es] not extend to every piece of malleable and modifiable dialing equipment that conceivably could be considered to have some capacity, however small, to store and dial telephone numbers.” Faced with the question as to whether a modern smartphone would be an autodialer due to its capacity to store and dial numbers, the FCC merely noted that no individuals have been sued under the TCPA for using a smartphone to make an unwanted call.46 46 In the Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, ¶¶ 17, 18, 21 (2015).
We have now come a long way from the intent of the TCPA, which was to target telemarketers whose standard modus operandi was dialing random or sequential numbers in an attempt to reach potential customers. The FCC’s reasoning provides little explanation or reassurance to debt collectors seeking clarification on whether their device is an autodialer. Under the current definition, which provides little to no safe harbor, the only way to foreclose the autodialer element of a TCPA claim would be to dial each number manually.

B. Consent to Make Autodialed Calls

Although the 2015 FCC Order does not alter Florida’s rule that providing an autodial caller with a number constitutes consent, the new TCPA rules make it much easier for customers to revoke consent to receive autodialed calls and much harder for debt collectors to effectively track consent.
Faced with the question of whether and how call recipients may revoke consent, the FCC stated that “a called party may revoke consent at any time and through any reasonable means.” Under the “any reasonable means” holding, a consumer may revoke, at any time, “orally or in writing,” including by way of “a consumer initiated call, directly or in response to a call initiated or made by a caller.” A customer may also revoke consent “at an in-store bill payment location.”47 47 In the Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, ¶¶ 47, 64 (2015).
Worryingly, the FCC also closed the door recently opened in Florida that would allow a customer to revoke consent orally “in the absence of any contractual restriction to the contrary.”48 48 Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1255 (11th Cir. 2014). The FCC ruled that “[a] caller may not limit the manner in which revocation may occur.”49 49 In the Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, ¶ 47 (2015). No longer will a debt collector be able to limit a customer’s revocation of consent (for example, requiring the customer to notify the debt collector in writing if they no longer wish to receive calls) by means of a loan agreement.
The FCC assures that callers “will not find it overly burdensome to implement mechanisms to record and effectuate a consumer’s request to revoke his or her consent.”50 50 In the Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, ¶ 64 (2015). However, because the ability to revoke is only restricted by vague notions of what is “reasonable,” debt collectors must develop procedures to ensure every single customer-facing member of the organization has training in recognizing and reporting consent issues. For example, a retail sales associate with no relation to the billing department might now be required and trained to notify the appropriate division after speaking with a debtor who happens to walk into the store.

C. The “Called Party” Rule and Reassigned Cell Phone Numbers

As explained above, Florida federal courts’ interpretation of the TCPA requires a debt collector to obtain consent of the called party to make an autodialed collection call; i.e., securing the consent of the intended recipient will not shield the debt collector from liability. The 2015 FCC Order does not modify this holding.51 51 In the Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, ¶ 72 (2015).
The called party issue is particularly applicable in cases where a customer gives consent to receive calls from a debt collector, then later changes his or her number potentially to avoid collection calls. Because the new subscriber has not previously consented to receive the autodialed call, the debt collector will be liable to the new subscriber under the TCPA. Petitioners asked the FCC to grant an exception for good-faith errors in attempting to reach the intended recipient, especially in light of the fact that there is no publicly-available directory for cell phones.
The FCC declined to grant such an exception. Rather, the FCC held that “callers who make calls without knowledge of reassignment and with a reasonable basis to believe” they possess consent may “initiate one call after reassignment as an additional opportunity to gain actual or constructive knowledge of the reassignment.” Moreover, if this additional call does not yield actual knowledge, the caller will still be deemed to have constructive knowledge of the reassignment.52 52 In the Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, ¶ 72 (2015). In short, debt collectors will have a one-call safe harbor to verify the debtor’s identity or face TCPA liability.
The FCC suggests that callers implement policies and procedures to ensure that the called party is the consenting party. Among these policies, debt collectors could check voice mail to confirm the caller’s identity, use emails to confirm customer numbers, include opt-out options by phone or text, or train customer service representatives to ensure that they accurately catalogue all numbers during customer calls. Several of these options do require that the customer take affirmative action to notify the debt collector, however, leaving the ability to confirm the customer’s identity outside the debt collector’s control. The FCC also suggests that callers may manually dial calls to avoid all liability, which provides little comfort in an environment where autodialed calls provide the best way to efficiently reach large numbers of debtors.53 53 In the Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, ¶¶ 84, 86 (2015). Debt collectors must thus remain vigilant and implement strict policies and procedures to limit liability arising from wrong-number calls.
The FCC also rejected any defense to liability arising from a situation in which a customer in bad faith fails to notify the caller of a changed number. Quixotically, the FCC suggests that debt collectors may include indemnity clauses in their contracts which make the customer liable for damages which may arise from this failure to inform of a number change.54 54 In the Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, ¶ 86 (2015). For debt collectors, this “solution” is practically unworkable. No retailer wants to gain a reputation for suing its customers. Furthermore, in the debt collection context specifically, the debt collector almost certainly cannot recover damages from a called party who cannot pay the underlying debt.

VI. Conclusion

The United States Court of Appeals for the District of Columbia Circuit has already taken an appeal to consider the validity of the 2015 FCC Order.55 55 ACA International v. FCC, No. 15-1211, appeal docketed, (D.C. Cir. Nov. 25, 2015). Until callers receive more guidance from the court, compliance with the TCPA and FCCPA restrictions remains a monumental hurdle. For debt collectors who still wish to call debtors, the only solution that is as close to a “sure thing” may be as follows:
  1. Manually dial all calls – The TCPA is not implicated unless the debt collector uses an autodialer. Because any modern piece of telephone equipment under the 2015 TCPA Order might be considered an autodialer, the only safe way to avoid liability is to manually dial. Obtaining consent is not foolproof because the 2015 TCPA Order makes it extremely difficult to record consent revocation or avoid calling a number that used to but no longer belongs to a debtor.
  2. Dial debtors infrequently – To avoid facing FCCPA damages and attorneys’ fees, the only way to avoid liability for harassing calls would be to dial infrequently. The debt collector would still have an issue with ascertaining what volume of calls constitutes harassment, but calling infrequently would decrease the chance that call volume could be construed as harassment, and enable a debt collector to more effectively monitor when a notification that the debtor is represented arrives.
Unfortunately, these solutions are not practical in an environment when a debt collector needs to use an autodialer to reach multiple debtors quickly and economically. When making autodialed calls to cell phones, limiting financial exposure under the TCPA requires debt collectors to implement strict policies and procedures to ensure the debt collector has consent to call, the collector is actually making calls to the debtor, and revocation of consent is accurately documented so the debt collector may cease autodialed calls. Furthermore, to avoid FCCPA exposure, the only real solution is to call less frequently.

Footnotes

1Callan L. Albritton recently began serving as a law clerk for the U.S. District Court Magistrate Judge Anthony Porcelli. Previously, Mr. Albritton worked as an associate at Wiand Guerra King PA in Tampa, Florida, where he focused his practice on complex commercial litigation and securities litigation.
247 U.S.C. § 227 (2012).
3Fla. Stat. §§ 559.55–559.785 (2015).
4137 Cong. Rec. S9840-02, 1991 WL 126847 (1997).
5H.R. Rep. No. 102-317, at 8–9 (1991).
6137 Cong. Rec. S9840-02, 1991 WL 126847.
7S. Rep. No. 102-178, at 1–2 (1991).
847 U.S.C. § 227(b)(1)(A)(iii) (2012).
9Legg v. Voice Media Group, Inc., 20 F. Supp. 3d 1370, 1373 (S.D. Fla. 2014).
1047 U.S.C. § 227(a)(1) (2012).
11Wilcox v. Green Tree Servicing, LLC, No. 8:14-CV-1681-T-24 TGW, 2015 WL 2092671, at *5 (M.D. Fla. 2015).
12Lardner v. Diversified Consultants Inc., 17 F. Supp. 3d 1215, 1222-23 (S.D. Fla. 2014).
13Legg v. Voice Media Group, Inc., 20 F. Supp. 3d 1370, 1375 (S.D. Fla. 2014).
14Hunter v. Diversified Consultants, Inc., Case No. No. 8:14-CV-2198-T-30TGW (M.D. Fla. Nov. 26, 2014).
15Martin v. Direct Wines, Inc., No. 15 C 757 at *2 (N.D. Ill. 2015).
16Isgett v. Northstar Location Services, LLC, No. 4:14-CV-4810-RBH at *3 (D.S.C. 2015).
17See Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110, 1122 (11th Cir. 2014).
18Baird v. Sabre, Inc., No. 14-55293 at *1 (9th Cir. 2016).
19Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1255 (11th Cir. 2014).
20Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1252 (11th Cir. 2014).
2147 U.S.C. § 227(b)(3)(B) (2012).
22Lardner v. Diversified Consultants Inc., 17 F. Supp. 3d 1215, 1220 (S.D. Fla. 2014).
2347 U.S.C. § 227(b)(3) (2012).
24Lary v. Trinity Physician Fin. & Ins. Services, 780 F.3d 1101, 1107 (11th Cir. 2015).
25Brown v. NRA Group, LLC, No. 6:14-CV-610-ORL-31 at *4 (M.D. Fla. 2015) (holding that there was a genuine issue of material fact as to whether defendant knew it was using an autodialer); see also McBeth v. Credit Prot. Ass’n, L.P., No. 8:14-CV-606-T-36AEP at *4 (M.D. Fla. 2015).
2647 U.S.C. § 227(b)(3) (2012).
27Mims v. Arrow Fin. Services, LLC, 132 S. Ct. 740, 745 (2012).
2828 U.S.C. § 1367(a) (2012); see Speidel v. Am. Honda Fin. Corp., No. 2:14-CV-19-FTM-38CM at *3 (M.D. Fla. 2014).
29Fla. Stat. § 559.55(6) (2015) (defining “consumer debt” as “any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.”).
30Fla. Stat. § 559.72(7) (2015).
31Fla. Stat. § 559.72(18) (2015).
32Brown v. Flagstar Bancorp, Inc., No. 8:13-CV-2596-T-33TBM at *2 (M.D. Fla. 2014); Bresko v. M & T Bank Corp., No. 8:13-CV-1243-T-30AEP at *2 (M.D. Fla. 2013).
33Story v. J.M. Fields, Inc., 343 So. 2d 675, 677 (Fla. 1st DCA 1977) (quoting Fla. Stat. § 559.72(7) (2015)).
34Story v. J.M. Fields, Inc., 343 So. 2d 675, 677 (Fla. 1st DCA 1977).
35Dennis v. Reg’l Adjustment Bureau, Inc., No. 09-61494-CIV at *3 (S.D. Fla. 2010); Schauer v. Morse Operations, Inc., 5 So. 3d 2 (Fla. 4th DCA 2009); In re Whitaker, No. 08:09-BK-01619-MGW at *2 (Bankr. M.D. Fla. 2013).
36Lardner v. Diversified Consultants Inc., 17 F. Supp. 3d 1215, 1219 (S.D. Fla. 2014).
37Fla. Stat. § 559.77(2) (2015).
38Arianas v. LVNV Funding LLC, 54 F. Supp. 3d 1308, 1310–11 (M.D. Fla. 2014) (collecting cases).
39See Beeders v. Gulf Coast Collection Bureau, 632 F. Supp. 2d 1125 (M.D. Fla. 2009); Kahmeyer v. Federal Credit Corp., No. 09-SC-21113-L, 2012 WL 12092502 (Fla. Cir. Ct. May 18, 2012).
40Morser v. Hyundai Capital Am., Inc., No. 2:15-CV-117-FTM-29CM at *2 (M.D. Fla. 2015).
41Fla. Stat. § 559.77(2) (2015).
42Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110, 1121 (11th Cir. 2014).
43In the Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, ¶¶ 10, 12 (2015).
4447 U.S.C. § 227(a)(1) (2012).
45In the Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, ¶ 16 (2015).
46In the Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, ¶¶ 17, 18, 21 (2015).
47In the Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, ¶¶ 47, 64 (2015).
48Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1255 (11th Cir. 2014).
49In the Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, ¶ 47 (2015).
50In the Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, ¶ 64 (2015).
51In the Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, ¶ 72 (2015).
52In the Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, ¶ 72 (2015).
53In the Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, ¶¶ 84, 86 (2015).
54In the Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, ¶ 86 (2015).
55ACA International v. FCC, No. 15-1211, appeal docketed, (D.C. Cir. Nov. 25, 2015).

Download PDF version
Download ePub version
Download Kindle version

Michael Spoliansky1 1 Michael Spoliansky is a real estate attorney for Phelan Hallinan Diamond & Jones, PLLC. Mr. Spoliansky graduated from Barry University Dwayne O. Andreas School of Law in 2012.

3 Stetson J. Advoc. & L. 104 (2016)

I. Introduction

Water is the foundation of life on our planet. It “is essential to virtually every human endeavor.”2 2 Sandra Postel, Water: Adapting to a New Normal, Post Carbon Institute (June 22, 2010). When looking at images of the Earth from space, the abundant nature of water is visible, with seventy-one percent of the planet being covered by mighty blue oceans.3 3 How Much of the Ocean Have We Explored?, National Oceanic and Atmospheric Administration (NOAA). However, the survival of life depends not on the vast expanse of salt water, but on a sustainable source of clean fresh water that can be used to maintain all life. The future of water has become increasingly insecure. The United Nations estimates that nearly two-thirds of the world’s population will live under water-stressed conditions by 2025.4 4 Water Scarcity, United Nations Department of Economic and Social Affairs (UNDESA). If conservation methods are not employed and consumption is not significantly reduced, by 2040 the demand for water around the globe will reach a level of consumption that is “40 percent above current sustainable water supplies.”5 5 Brett Walton, National Security Assessment: Water Scarcity Disrupting U.S. and Three Continents, Circle of Blue (April 3, 2012). Under conservative estimates, the world could need an additional amount of water to meet the world’s dietary needs equivalent to the annual flow of seventy-three Colorado Rivers.6 6 Sandra Postel, Water: Adapting to a New Normal, Post Carbon Institute 9 (June 22, 2010).
While access to fresh drinking water is a cause for concern in the twenty-first century, transnational companies have seemingly tapped into the bottled water market where fresh water is extracted, bottled, and transported to stores around the world. In 2010, the global market volume for bottled water was $59 billion dollars.7 7 Managing Water Under Uncertainty and Risk, 4 The United Nations World Water Development Report 52 (2012). Since then, the bottled water industry has seen tremendous growth and was valued at over $157 billion in 2013 and is expected to reach over $279 billion by 2020.8 8 Global Bottled Water Market to Reach $279 Billion in 2020, Water Quality Products (January 19, 2015). A Natural Resources Defense Council report found that most of a company’s costs to bottle water go towards “bottling, packaging, shipping, marketing, retailing, and other expenses,” and that ninety percent of the cost paid by the consumer goes to things other than the water itself.9 9 Andrew Postman, Truth About Tap, National Resources Defense Council (January 5, 2016). Furthermore, there are external economic, social, and environmental costs that society must bear, such as loss of groundwater, toxic emissions from plastic production and destruction, air pollution from transporting the products, and the disposal of empty bottles.10 10 Take Back the Tap: Bottled Water Wastes Resources and Money, Food and Water Watch (June 2013).
The State of Florida has an abundance of water including several bountiful aquifers, fifty thousand miles of rivers and streams, seventy-eight hundred lakes, eleven million acres of wetlands, and seven hundred springs.11 11 Water Use in Florida, 2005 and Trends 1950–2005, U.S. Geological Survey (September 2008). Hydrologists believe that the Florida aquifers contain “more than a quadrillion gallons of fresh groundwater.”12 12 Debbie Salamone, Florida’s Water Crisis: A Drying Oasis, Orlando Sentinel (March 3, 2002). This equates to about one-fifth of the total volume of all five Great Lakes, one hundred times the amount of water in Lake Mead or the Colorado River, and thirty thousand times the daily flow to the sea of Florida’s thirteen major coastal rivers.13 13 Debbie Salamone, Florida’s Water Crisis: A Drying Oasis, Orlando Sentinel (March 3, 2002). With such ample sources of fresh water, one would be hard pressed to view Florida as a state dealing with water stress.
Although Florida is not likely to face an impending water scarcity issue, it is important for Florida’s water resources to be properly managed for the benefit of all people and the natural environment. In Florida, companies can apply for and acquire consumptive use permits (CUPs) that allow them to extract water from Florida’s natural aquifers and springs.14 14 Fla. Stat. § 373.223 (2015). A CUP “allows water to be withdrawn from surface and groundwater supplies for reasonable and beneficial uses such as public supply (drinking water), agricultural and landscape irrigation, and industry and power generation.”15 15 E-Permitting, St. Johns River Water Management District. Florida is separated into five distinct water management districts, each responsible for issuing or denying permits within their respective geographical region.16 16 Fla. Stat. § 373.069 (2015). The Florida Department of Environmental Protection (FDEP) is responsible for supervising these water management districts (WMDs).17 17 Fla. Stat. § 373.026 (2015).
Given the impending water scarcity issues facing the world and the environmental impacts associated with plastic bottles, especially the pollution associated with the added transportation, this Article proposes that the Florida legislature remove the FDEP and WMD’s authority to issue CUPs for the purpose of bottling water. Using article X, section 11 of the Florida Constitution, the legislature should extend their Public Trust obligation to protect all water resources so that its overuse does not diminish public or ecological benefits.18 18 Fla. Const. art. X, § 11. Adopting such a policy would be consistent with the state’s constitutional policy “to conserve and protect its natural resources and scenic beauty.”19 19 Fla. Const. art. X, § 11; Fla. Const. art. II, § 7. Florida’s legislature should codify this policy by amending Title XXVIII, Chapter 373, Florida Statutes, so that the WMDs are given clear statutory guidelines.
Part II of this Article discusses the severity of the water scarcity issue facing the world. Part III elaborates on and simplifies the extent of the environmental impacts resulting from the bottling water industry. Part IV evaluates and analyzes the legal scheme that currently allows companies to extract Florida’s water from its springs and aquifers and proposes a statutory amendment to protect Florida’s water security well into the future.

II. Water Scarcity: A Real Cause For Concern

Due to the availability of fresh water sources in developed nations, water scarcity issues may not be readily apparent. With the turn of a knob, the faucet reveals a stream of fresh, clean, drinkable water. Despite the relative ease at which water can be accessed in the United States and other developed nations, water is a relatively finite resource and continues to be depleted as the population grows.20 20 Sandra Postel, Water: Adapting to a New Normal, Post Carbon Institute 3 (June 22, 2010). Only two-and-a-half percent of all of the available water on Earth is available fresh water and nearly seventy percent is trapped inside glaciers and ice caps.21 21 The World’s Water, United States Geological Survey (May 2, 2016). The United States Geological Survey estimates that only one percent of all of the water on earth is available fresh drinking water.22 22 The World’s Water, United States Geological Survey (May 2, 2016). As the world’s population rose from 2.5 billion in 1950 to 6.8 billion in 2009, “the global renewable water supply … declined by 63 percent.”23 23 Sandra Postel, Water: Adapting to a New Normal, Post Carbon Institute 3–4 (June 22, 2010). Although it is replenished annually by the solar hydrological cycle at a rate of one-hundredth of one percent, water is being siphoned off quicker than it can be renewed.24 24 Sandra Postel, Water: Adapting to a New Normal, Post Carbon Institute 3 (June 22, 2010). The solar hydrological cycle is the “continuous, interlinked circulation of water among its various compartments in the environment.”25 25 Hydrologic Cycle, Encyclopedia.com (2003). It occurs naturally “with heating caused by solar energy and progresses through stages of evaporation (or sublimation), condensation, precipitation (snow, rain, hail, glaze), groundwater, and runoff.”26 26 Hydrologic Cycle, Encyclopedia.com (2003). The total amount of water on earth is of fixed quantity. The solar hydrological cycle is responsible for evaporating ocean water and raining it down upon the land, transferring water from one source to another.27 27 The World’s Water, United States Geological Survey (May 2, 2016).
The National Intelligence Council published its 2012 report on Global Water Scarcity and found that:

An estimated 99 percent of the Earth’s accessible fresh water is found in aquifers, and about 2 billion people rely on groundwater as their sole source of water. Some groundwater is located in aquifers that are not renewable (fossil aquifers); in other cases, water extraction from aquifers exceeds the replenishment rate. Certain groundwater systems need multiple centuries to replenish. Total annual overdrafts from aquifers around the world are probably double the annual flow of the Nile River.28 28 Global Water Security, National Intelligence Council (February 2, 2012).

These overdrafts are best evident in areas of China where the water table is falling at about five feet per year, and also in India where water tables are falling at the rate of three to ten feet per year.29 29 Global Trends 2015: A Dialogue About the Future with Nongovernment Experts, National Intelligence Council (December 2, 2000). Furthermore, many of the world’s largest rivers, “including the Colorado, Rio Grande, Yellow, Indus, Ganges, Amu Darya, Murray, and Nile” are so over utilized that “they discharge little or no water to the sea for months at a time.”30 30 Sandra Postel, Water: Adapting to a New Normal, Post Carbon Institute 4 (June 22, 2010).
Population growth has not been the only factor that is increasing stress on water; “economic growth and individual wealth are shifting diets from predominantly starch based [foods] to meat and dairy, which require more water [to produce].”31 31 Managing Water Under Uncertainty and Risk, 4 The United Nations World Water Development Report 48 (2012). Whereas producing one kilogram of rice requires about 875 gallons of water, the equivalent weight in beef requires approximately 3,750 gallons. Even the production of a single cup of coffee requires 35 gallons of water.32 32 Managing Water Under Uncertainty and Risk, 4 The United Nations World Water Development Report 48 (2012). This dietary shift based on affluence is having one of the greatest impacts on water consumption and is likely to continue into the near future.33 33 Managing Water Under Uncertainty and Risk, 4 The United Nations World Water Development Report 48 (2012). The high standard of living in the United States has resulted in “[t]he average U.S. resident [using] … about 1,800 gallons per day — twice the global average.”34 34 Sandra Postel, Water: Adapting to a New Normal, Post Carbon Institute 8 (June 22, 2010). However, water scarcity will not affect every country equally and is likely to be broken down into regional concerns. Countries that share water resources, such as in the Middle East and Africa, are likely to have increased tensions as rivers run dry and water tables recede further.35 35 Global Trends 2015: A Dialogue About the Future with Nongovernment Experts, National Intelligence Council (December 2, 2000).
Although water scarcity is predicted to have substantial impacts going into the future, the United States is in a well-situated position, having less than five percent of the world’s population and about eight percent of the world’s fresh water resources.36 36 Global Trends 2015: A Dialogue About the Future with Nongovernment Experts, National Intelligence Council (December 2, 2000). Compare those numbers with China, which has about twenty percent of the world’s population and only seven percent of the world’s fresh water.37 37 Global Trends 2015: A Dialogue About the Future with Nongovernment Experts, National Intelligence Council (December 2, 2000).
The United States has a substantial amount of fresh water within its borders, yet is not immune from the hardships that many arid and dry states will face.38 38 The Growing Blue Tool, Growing Blue. Problems of water scarcity in the United States have arisen mainly “because the policies and rules that motivate decisions about water have encouraged inefficiency and misallocation rather than conservation and wise use.”39 39 Sandra Postel, Water: Adapting to a New Normal, Post Carbon Institute 12 (June 22, 2010). Examples of inefficiency and misallocation can be seen across the western United States where major cities, such as Phoenix and Las Vegas, were created in desert areas where access to fresh water required the construction of substantial infrastructure.40 40 Sandra Postel, Water: Adapting to a New Normal, Post Carbon Institute 4 (June 22, 2010). In Las Vegas, the Hoover Dam was constructed to provide the water needs for the local population and hydroelectric power by restricting the flow of water from the Colorado River.41 41 Hoover Dam: No Power Without Water, Growing Blue (April 1, 2011). The damming of the river created a reservoir known as Lake Mead, one of the largest man-made lakes in the world.42 42 Lake Mead, Vegas.com. The lake is supplied by the Colorado River and is capable of storing “the entire average flow of the Colorado River for two years.”43 43 Hoover Dam: Lake Mead FAQs, U.S. Department of the Interior. Unfortunately, despite attempts to properly maintain Lake Mead’s water levels, it is currently the lowest it has ever been due to a prolonged drought in the region. 44 44 Elizabeth Goldbaum, Lake Mead’s Water Sinks to Lowest Level Since 1930s, Live Science (August 20, 2015).
Another example of poor planning manifests itself in Florida due to the government’s canal project in the Everglades.

In 1948, following a major drought and heavy flooding, the Congress authorized the Central and Southern Florida Project — an extensive system of over 1,700 miles of canals and levees and 16 major pump stations — to prevent flooding, provide drainage, and supply water to South Florida residents. This re-engineering of the natural hydrologic environment reduced the Everglades to about half its original size and resulted in losses of native wildlife species and their critical habitat.45 45 Government Accountability Office, Freshwater Supply: States’ Views of How Federal Agencies Could Help Them Meet the Challenges of Expected Shortages, GAO-03-514 at 8 (July 2003).

Realizing the impact past decisions have on the Everglades, the federal government has teamed with Florida to carry out a 30 year, 13.5 billion dollar Comprehensive Everglades Restoration Plan.46 46 Why Restore the Everglades and Lake Okeechobee, Florida Department of Environmental Protection. The goals of this restoration plan are to “protect natural wildlife and plants [and] provide flood control and water supply for a growing population” by improving the water flow and water quality of the Everglades ecosystem.47 47 Why Restore the Everglades and Lake Okeechobee, Florida Department of Environmental Protection.
Despite such comprehensive planning, misallocations of water resources continue to happen every day because bottled water companies are permitted to remove water from Florida’s springs and aquifers. Allowing CUPs for bottling water exacerbates the water scarcity issue by promoting a policy that allows private corporations to convert a public resource for private gain and commoditize it for a substantial profit.

III. Environmental Concerns associated with Bottled Water

Allowing companies to privatize a public resource is disconcerting when the industry’s environmental impacts are examined. Unfortunately, the environmental costs facing the water bottling industry are externalities, in that they are not being fiscally recognized on a company’s balance sheet.48 48 Take Back the Tap: Bottled Water Wastes Resources and Money, Food and Water Watch 2 (June 2013). Instead, society is asked to pay for their groundwater loss, the toxic emissions associated with plastic production and destruction, pollution associated with the added product transportation, and also the disposal of empty bottles.49 49 Take Back the Tap: Bottled Water Wastes Resources and Money, Food and Water Watch 2 (June 2013). “Making the plastic for all those bottles and transporting the finished product over hundreds or thousands of miles consumes energy, pollutes the environment, and contributes to global warming.”50 50 Take Back the Tap: Bottled Water Wastes Resources and Money, Food and Water Watch 7 (June 2013).
Removal of the water resource itself isn’t what causes the most severe environmental impacts, it is the plastic bottle that harnesses the water within that is controversial. Ninety-six percent of all of bottled water is sold in bottles that are made of the plastic polyethylene (PET).51 51 Jennifer Gitlitz & Pat Franklin, Water, Water Everywhere: The Growth of Non-carbonated Beverages in the United States, Container Recycling Institute 4 (February 2007). PET Bottles require petroleum in the manufacturing process.52 52 Jennifer Gitlitz & Pat Franklin, Water, Water Everywhere: The Growth of Non-carbonated Beverages in the United States, Container Recycling Institute 4 (February 2007). In a report that discussed the environmental impacts of PET bottles, the Container Recycling Institute reported that:

Because it is presently recycled at such low rates, tens of billions of new plastic bottles must be manufactured each year from virgin materials — fossil fuels — to replace those bottles that were not recycled. The Container Recycling Institute estimates that approximately 18 million barrels of crude oil equivalent were consumed in 2005 to replace the 2 million tons of PET bottles that were wasted instead of recycled.53 53 Jennifer Gitlitz & Pat Franklin, Water, Water Everywhere: The Growth of Non-carbonated Beverages in the United States, Container Recycling Institute 4 (February 2007).

If we could save the roughly eighteen million barrels of oil, it would amount to enough fuel to power one million vehicles on the road each year.54 54 Take Back the Tap: Bottled Water Wastes Resources and Money, Food and Water Watch 7 (June 2013). Yet, Americans continue to purchase plastic water bottles to the tune of over thirty billion bottles each year.55 55 Norm Schriever, Plastic Water Bottles Causing Flood of Harm to Our Environment, Huffington Post (July 29, 2013). Even though recycling efforts in America have consistently increased over the years, we still find that over sixty percent of all plastic water bottles will end up in an American landfill.56 56 PET Water Bottle Recycling Rate Jumps Almost 20 Percent, Plastics News (February 20, 2013). To make matters worse, hundreds of millions of plastic bottles will end up on the sides of roads, on beaches, and even in waterways.57 57 Take Back the Tap: Bottled Water Wastes Resources and Money, Food and Water Watch 7 (June 2013). In the end, many plastic bottles will be incinerated, “releas[ing] toxic byproducts such as chlorine gas and ash laden with heavy metals.”58 58 Take Back the Tap: Bottled Water Wastes Resources and Money, Food and Water Watch 7 (June 2013).
The production of plastic bottles is only one part of the chain of environmental problems caused by the bottled water industry. After the bottle is produced and filled with water, it then needs to be transported to the consumer who may be anywhere from a few miles away, to a few thousand miles away. The amount of energy it takes to move water can be extensive because water weighs one metric ton per cubic meter.59 59 P.H. Gleick & H.S. Cooley, Energy Implication of Bottled Water, 4 Environmental Research Letters 1, 4 (2009). However, the energy needed for transportation varies depending upon the mode of transportation. “Air cargo is by far the most energy intensive mode of transportation [and] truck transportation is more energy intensive than transportation by rail or bulk ocean shipping.”60 60 P.H. Gleick & H.S. Cooley, Energy Implication of Bottled Water, 4 Environmental Research Letters 1, 4 (2009).
A water bottle’s environmental impact also depends on the type of water being bottled, as not all bottled water is equal. For example, purified water is often municipal water that is treated, packaged, and sold to consumers “near major urban areas, with deliveries to local markets.”61 61 P.H. Gleick & H.S. Cooley, Energy Implication of Bottled Water, 4 Environmental Research Letters 1, 4 (2009). Therefore, because of the reduced distance the bottle travels to get to the market, the impact on the environment is also reduced. Spring water, on the other hand, is collected from a specific single source and is then bottled and shipped various distances. The major water bottling company, Nestlé, uses springs on the west coast of the United States to service western markets and also utilizes springs on the east coast to service eastern markets. Although Nestlé’s spring water may travel more than purified municipal bottled water, their environmental impact is dwarfed by the distance that a bottle of Fiji and Evian water must travel to reach consumers.62 62 P.H. Gleick & H.S. Cooley, Energy Implication of Bottled Water, 4 Environmental Research Letters 1, 5 (2009). . Fiji and Evian are extreme examples of the long distances bottles of water may travel to reach consumers. To reach the U.S. market, Fiji water must travel across the Pacific Ocean, and Evian water must travel across the Atlantic.63 63 P.H. Gleick & H.S. Cooley, Energy Implication of Bottled Water, 4 Environmental Research Letters 1, 5 (2009). When a one-liter Fiji bottle is removed from the aquifer, bottled and shipped across the world, it produces a half-pound of greenhouse gases just so that exotic bottle of water can be enjoyed by consumers.64 64 Krisy Gashler, Thirst for Bottled Water Unleashes Flood of Environmental Concerns, USA Today (June 7, 2008). Despite the greater environmental impacts of exotic bottled water and bottled water in general, consumers cannot seem to quench their thirst; likely because of extensive convincing and marketing campaigns put on by the bottled water companies.65 65 See Catherine Ferrier, Bottled Water: Understanding a Social Phenomenon, World Wildlife Fund (2001).

IV. Florida’s Statutory Scheme for Water Regulation

Current Florida Legal Scheme

Florida has in place an extensive water management system. The Florida legislature enacted the Water Resources Act of 1972 (WRA) in order to “provide for the management of water and related land resources.”66 66 Fla. Stat. § 373.016(3)(a) (1995). The WRA established “a form of administrative water law that brought all waters of the state under regulatory control.”67 67 Tatiana Borisova & Roy R. Carriker, Public Policy and Water in Florida, University of Florida, Institute of Food and Agricultural Sciences (2008). The WRA divided Florida into five different WMDs based on local hydrology.68 68 Fla. Stat. § 373.069 (2015). The WMD’s are overseen by the FDEP.69 69 Fla. Stat. § 373.026 (2015). The governing board of each water management district is appointed by the governor, confirmed by the senate, and must reside in their respective water management district.70 70 Fla. Stat. § 373.073(1)(a) (2015).
WMDs are “responsible for issuing permits for various types of water use,”71 71 Michael T. Olexa, Tatiana Borisova & Sean Crisafulli, Handbook of Florida Water Regulation: Water Management Districts, University of Florida, Institute of Food and Agricultural Sciences (April 2015). such as wells, management and storage of surface waters, and consumptive uses of water. Each individual district “has specific criteria detailing the types of activities that require permits, the contents of permit applications, the procedures that surround submission of an application, and areas specifically exempted from permitting requirements.”72 72 Michael T. Olexa, Tatiana Borisova & Sean Crisafulli, Handbook of Florida Water Regulation: Water Management Districts, University of Florida, Institute of Food and Agricultural Sciences (April 2015). While the WMDs have specific authority to regulate water use within their area, such authority is not unlimited. WMDs are mainly responsible for permitting, and in doing so are to follow the Florida Surface Water Quality Plan as prepared by the FDEP.73 73 Michael T. Olexa, Tatiana Borisova & Sean Crisafulli, Handbook of Florida Water Regulation: Water Management Districts, University of Florida, Institute of Food and Agricultural Sciences (April 2015). The plan’s “purpose is to recognize various interests competing for water-use rights and to allocate for these rights while retaining reasonable water quality and quantity control, thus promoting the goals of environmental protection, proper drainage, flood control, water storage, and ensuring a reliable water supply for Floridians in the future.”74 74 Michael T. Olexa, Tatiana Borisova & Sean Crisafulli, Handbook of Florida Water Regulation: Water Management Districts, University of Florida, Institute of Food and Agricultural Sciences (April 2015). Additionally, “[t]he Governor and State Cabinet, sitting as the Land and Water Adjudicatory Commission, have authority to review any order or rule of a WMD.”
Before someone, who is not an individual user, can withdraw water from Florida’s springs, aquifers, rivers, or wells, or other municipal sources, they are first required to obtain a CUP from their respective WMD. In harmony with the WRA of 1972, the FDEP’s water resource implementation rules state that “[n]o permit shall be granted to authorize the use of water unless the applicant establishes that the proposed use is a reasonable-beneficial use, will not interfere with presently existing legal uses of water, and is consistent with the public interest.”75 75 Fla. Admin. Code Ann. r. 62-40.410(1) (2006). To determine whether such use is a reasonable-beneficial use, the WMDs are to consider several factors:

(a) The quantity of water requested for the use; (b) The demonstrated need for the use; (c) The suitability of the use to the source of water; (d) The purpose and value of the use; (e) The extent and amount of harm caused; (f) The practicality of mitigating any harm by adjusting the quantity or method of use; (g) Whether the impact of the withdrawal extends to land not owned or legally controlled by the user; (h) The method and efficiency of use; (i) Water conservation measures taken and available to be taken; (j) The feasibility of alternative sources such as reclaimed water, stormwater, aquifer storage and recovery, brackish water and salt water; (k) The present and projected demand for the source of water; (l) The long-term yield available from the source of water; (m) The extent of water quality degradation caused; (n) Whether the proposed use would cause or contribute to flood damage; (o) Whether the proposed use would significantly induce or increase saltwater intrusion; (p) The amount of water which can be withdrawn without causing harm to the resource; (q) Whether the proposed use would adversely affect public health; and (r) Whether the proposed use would significantly affect natural systems.76 76 Fla. Admin. Code Ann. r. 62-40.410(2)(a)–(r) (2006) (emphasis added).

For a bottled water company to obtain a permit, not only must it establish the aforementioned qualities, but if it is to transport water across county boundaries, it must show that it is consistent with the public interest.77 77 Fla. Stat. § 373.223(3) (2015). In making such a determination a WMD must consider the following:

(a) The proximity of the proposed water source to the area of use or application. (b) All impoundments, streams, groundwater sources, or watercourses that are geographically closer to the area of use or application than the proposed source, and that are technically and economically feasible for the proposed transport and use. (c) All economically and technically feasible alternatives to the proposed source, including, but not limited to, desalination, conservation, reuse of nonpotable reclaimed water and stormwater, and aquifer storage and recovery. (d) The potential environmental impacts that may result from the transport and use of water from the proposed source, and the potential environmental impacts that may result from use of the other water sources identified in paragraphs (b) and (c). (e) Whether existing and reasonably anticipated sources of water and conservation efforts are adequate to supply water for existing legal uses and reasonably anticipated future needs of the water supply planning region in which the proposed water source is located. (f) Consultations with local governments affected by the proposed transport and use. (g) The value of the existing capital investment in water-related infrastructure made by the applicant.78 78 Fla. Stat. § 373.223(3)(a)–(g) (2015) (emphasis added).

As seen in the language above, WMDs are already required to consider the environmental impacts of the added transportation; however, they are not required to consider the impact that the plastic bottles will have on the environment. Additionally, even in the South Florida Water Management District (SFWMD), where environmental problems have existed for years, CUPs are rarely denied.79 79 Ronald A. Christaldi, Sharing the Cup: A Proposal for the Allocation of Florida’s Water Resources, 23 Fla. St. U. L. Rev. 1063, 1085 (1996).
It is likely that CUPs, which have been issued, go directly against the State’s water conservation goal “to prevent and reduce wasteful, uneconomical, impractical, or unreasonable use of water resources.”80 80 Fla. Stat. § 373.227 (2015). There is nothing more wasteful, uneconomical, impractical, or unreasonable than allowing a corporation to tap into a spring or aquifer and privatize and commoditize that resource.
It is the job of governments, as custodians of the public trust in water, to protect water resources for the public’s benefit.81 81 See Rosanne Gervasi Capeless, History of Florida Water Law: Tracing the Ebb and Flow of Florida’s Public Trust Doctrine Through the Opinions of Justice James B. Whitfield, 9 J. Land Use & Envtl. L. 131 (1993). Allowing for bottled water companies to consume Florida’s water resources, when the world faces an impending water shortage, is nothing short of a breach of the State’s public trust obligations.82 82 Kelly Samek, Unknown Quantity: The Bottled Water Industry and Florida’s Springs, 19 J. Land Use & Envtl. L. 569, 570 (2004). After all, Florida’s Constitution declares that the state’s policy is “to conserve and protect its natural resources and scenic beauty.”83 83 Fla. Const. art. X, § 11; Fla. Const. art. II, § 7. It is imperative that the FDEP and WMDs become more conscious of water scarcity and environmental issues caused by bottling water, so that they can adopt a policy that is more in line with the state’s conservation goals, while ensuring an abundance of the future supply of fresh water for Floridians.

Proposed Statutory Scheme

Although the aforementioned regulatory scheme provides language which could be used by WMDs to limit exploitation of Florida’s waters by water bottling companies, this has not been the case. To ensure adequate protection of Florida’s water resource, the legislature should amend the WRA to remove any mention of bottled water being a valid use of Florida’s water. By removing such language, the WMDs would no longer have the authority to issue new CUPs. However, those permits already issued would not be affected by simple removal of authority. The legislature should take it one step further to amend the WRA, by requiring WMDs to deny all CUPs for the bottling of water and also allow for the expiration of such permits without the possibility of being renewed. Alternatively, the FDEP, in compiling the Florida Surface Water Quality Plan, can call for the elimination of CUPs for bottling water. Doing so would protect the environment, water quality, and ensure adequate supply of water for the future of Floridians.
As it stands today, WMDs have broad authority to regulate the issuing of CUPs for water resources. Florida’s Constitution, along with other legislatively enacted statutes, provides the requisite authority needed to preclude commercial exploitation of such resources. Unfortunately, the factors that WMDs should consider have not been effective. WMDs should no longer issue CUPs and should follow the public trust doctrine strictly, ensuring the protection of Florida’s water for future generations.

V. Conclusion

Addressing water scarcity issues and environmental concerns requires a proactive role in water management so that water is used productively and in an environmentally sustainable way. Additionally, in sustainably managing water resources, the FDEP should consider the overall environmental impacts of the bottled water industry, not just the environmental impacts that result from the added transportation of bottled water across county boundaries. Agencies should not only examine the increased air pollution from transportation, but they should also consider the impact that plastic bottles have on Florida’s landfills and the pollution that is released when plastic bottles are incinerated.
When all of these factors are taken into account, Florida’s WMDs along with the FDEP should be left with no other choice but to refuse the issuance of CUPs for the purposes of bottling water. To ensure that such a stringent policy is carried out, the Florida Legislature should amend the WRA and deny a WMDs’ authority to grant CUPs for bottling water. Additionally, they should allow all current CUPs to expire without the possibility of being renewed. Only then will Florida’s water resources be protected against privatization. After all, Florida’s resources are held in trust for the benefit of its residents, and not for the benefit of those living outside of the state.

Footnotes

1Michael Spoliansky is a real estate attorney for Phelan Hallinan Diamond & Jones, PLLC. Mr. Spoliansky graduated from Barry University Dwayne O. Andreas School of Law in 2012.
2Sandra Postel, Water: Adapting to a New Normal, Post Carbon Institute (June 22, 2010).
3How Much of the Ocean Have We Explored?, National Oceanic and Atmospheric Administration (NOAA).
5Brett Walton, National Security Assessment: Water Scarcity Disrupting U.S. and Three Continents, Circle of Blue (April 3, 2012).
6Sandra Postel, Water: Adapting to a New Normal, Post Carbon Institute 9 (June 22, 2010).
7Managing Water Under Uncertainty and Risk, 4 The United Nations World Water Development Report 52 (2012).
8Global Bottled Water Market to Reach $279 Billion in 2020, Water Quality Products (January 19, 2015).
9Andrew Postman, Truth About Tap, National Resources Defense Council (January 5, 2016).
10Take Back the Tap: Bottled Water Wastes Resources and Money, Food and Water Watch (June 2013).
11Water Use in Florida, 2005 and Trends 1950–2005, U.S. Geological Survey (September 2008).
12Debbie Salamone, Florida’s Water Crisis: A Drying Oasis, Orlando Sentinel (March 3, 2002).
13Debbie Salamone, Florida’s Water Crisis: A Drying Oasis, Orlando Sentinel (March 3, 2002).
14Fla. Stat. § 373.223 (2015).
16Fla. Stat. § 373.069 (2015).
17Fla. Stat. § 373.026 (2015).
18Fla. Const. art. X, § 11.
19Fla. Const. art. X, § 11; Fla. Const. art. II, § 7.
20Sandra Postel, Water: Adapting to a New Normal, Post Carbon Institute 3 (June 22, 2010).
21The World’s Water, United States Geological Survey (May 2, 2016).
22The World’s Water, United States Geological Survey (May 2, 2016).
23Sandra Postel, Water: Adapting to a New Normal, Post Carbon Institute 3–4 (June 22, 2010).
24Sandra Postel, Water: Adapting to a New Normal, Post Carbon Institute 3 (June 22, 2010).
25Hydrologic Cycle, Encyclopedia.com (2003).
26Hydrologic Cycle, Encyclopedia.com (2003).
27The World’s Water, United States Geological Survey (May 2, 2016).
28Global Water Security, National Intelligence Council (February 2, 2012).
29Global Trends 2015: A Dialogue About the Future with Nongovernment Experts, National Intelligence Council (December 2, 2000).
30Sandra Postel, Water: Adapting to a New Normal, Post Carbon Institute 4 (June 22, 2010).
31Managing Water Under Uncertainty and Risk, 4 The United Nations World Water Development Report 48 (2012).
32Managing Water Under Uncertainty and Risk, 4 The United Nations World Water Development Report 48 (2012).
33Managing Water Under Uncertainty and Risk, 4 The United Nations World Water Development Report 48 (2012).
34Sandra Postel, Water: Adapting to a New Normal, Post Carbon Institute 8 (June 22, 2010).
35Global Trends 2015: A Dialogue About the Future with Nongovernment Experts, National Intelligence Council (December 2, 2000).
36Global Trends 2015: A Dialogue About the Future with Nongovernment Experts, National Intelligence Council (December 2, 2000).
37Global Trends 2015: A Dialogue About the Future with Nongovernment Experts, National Intelligence Council (December 2, 2000).
38The Growing Blue Tool, Growing Blue.
39Sandra Postel, Water: Adapting to a New Normal, Post Carbon Institute 12 (June 22, 2010).
40Sandra Postel, Water: Adapting to a New Normal, Post Carbon Institute 4 (June 22, 2010).
41Hoover Dam: No Power Without Water, Growing Blue (April 1, 2011).
42Lake Mead, Vegas.com.
43Hoover Dam: Lake Mead FAQs, U.S. Department of the Interior.
44Elizabeth Goldbaum, Lake Mead’s Water Sinks to Lowest Level Since 1930s, Live Science (August 20, 2015).
45Government Accountability Office, Freshwater Supply: States’ Views of How Federal Agencies Could Help Them Meet the Challenges of Expected Shortages, GAO-03-514 at 8 (July 2003).
46Why Restore the Everglades and Lake Okeechobee, Florida Department of Environmental Protection.
47Why Restore the Everglades and Lake Okeechobee, Florida Department of Environmental Protection.
48Take Back the Tap: Bottled Water Wastes Resources and Money, Food and Water Watch 2 (June 2013).
49Take Back the Tap: Bottled Water Wastes Resources and Money, Food and Water Watch 2 (June 2013).
50Take Back the Tap: Bottled Water Wastes Resources and Money, Food and Water Watch 7 (June 2013).
51Jennifer Gitlitz & Pat Franklin, Water, Water Everywhere: The Growth of Non-carbonated Beverages in the United States, Container Recycling Institute 4 (February 2007).
52Jennifer Gitlitz & Pat Franklin, Water, Water Everywhere: The Growth of Non-carbonated Beverages in the United States, Container Recycling Institute 4 (February 2007).
53Jennifer Gitlitz & Pat Franklin, Water, Water Everywhere: The Growth of Non-carbonated Beverages in the United States, Container Recycling Institute 4 (February 2007).
54Take Back the Tap: Bottled Water Wastes Resources and Money, Food and Water Watch 7 (June 2013).
55Norm Schriever, Plastic Water Bottles Causing Flood of Harm to Our Environment, Huffington Post (July 29, 2013).
56PET Water Bottle Recycling Rate Jumps Almost 20 Percent, Plastics News (February 20, 2013).
57Take Back the Tap: Bottled Water Wastes Resources and Money, Food and Water Watch 7 (June 2013).
58Take Back the Tap: Bottled Water Wastes Resources and Money, Food and Water Watch 7 (June 2013).
59P.H. Gleick & H.S. Cooley, Energy Implication of Bottled Water, 4 Environmental Research Letters 1, 4 (2009).
60P.H. Gleick & H.S. Cooley, Energy Implication of Bottled Water, 4 Environmental Research Letters 1, 4 (2009).
61P.H. Gleick & H.S. Cooley, Energy Implication of Bottled Water, 4 Environmental Research Letters 1, 4 (2009).
62P.H. Gleick & H.S. Cooley, Energy Implication of Bottled Water, 4 Environmental Research Letters 1, 5 (2009). .
63P.H. Gleick & H.S. Cooley, Energy Implication of Bottled Water, 4 Environmental Research Letters 1, 5 (2009).
64Krisy Gashler, Thirst for Bottled Water Unleashes Flood of Environmental Concerns, USA Today (June 7, 2008).
65See Catherine Ferrier, Bottled Water: Understanding a Social Phenomenon, World Wildlife Fund (2001).
66Fla. Stat. § 373.016(3)(a) (1995).
67Tatiana Borisova & Roy R. Carriker, Public Policy and Water in Florida, University of Florida, Institute of Food and Agricultural Sciences (2008).
68Fla. Stat. § 373.069 (2015).
69Fla. Stat. § 373.026 (2015).
70Fla. Stat. § 373.073(1)(a) (2015).
71Michael T. Olexa, Tatiana Borisova & Sean Crisafulli, Handbook of Florida Water Regulation: Water Management Districts, University of Florida, Institute of Food and Agricultural Sciences (April 2015).
72Michael T. Olexa, Tatiana Borisova & Sean Crisafulli, Handbook of Florida Water Regulation: Water Management Districts, University of Florida, Institute of Food and Agricultural Sciences (April 2015).
73Michael T. Olexa, Tatiana Borisova & Sean Crisafulli, Handbook of Florida Water Regulation: Water Management Districts, University of Florida, Institute of Food and Agricultural Sciences (April 2015).
74Michael T. Olexa, Tatiana Borisova & Sean Crisafulli, Handbook of Florida Water Regulation: Water Management Districts, University of Florida, Institute of Food and Agricultural Sciences (April 2015).
75Fla. Admin. Code Ann. r. 62-40.410(1) (2006).
76Fla. Admin. Code Ann. r. 62-40.410(2)(a)–(r) (2006) (emphasis added).
77Fla. Stat. § 373.223(3) (2015).
78Fla. Stat. § 373.223(3)(a)–(g) (2015) (emphasis added).
79Ronald A. Christaldi, Sharing the Cup: A Proposal for the Allocation of Florida’s Water Resources, 23 Fla. St. U. L. Rev. 1063, 1085 (1996).
80Fla. Stat. § 373.227 (2015).
81See Rosanne Gervasi Capeless, History of Florida Water Law: Tracing the Ebb and Flow of Florida’s Public Trust Doctrine Through the Opinions of Justice James B. Whitfield, 9 J. Land Use & Envtl. L. 131 (1993).
82Kelly Samek, Unknown Quantity: The Bottled Water Industry and Florida’s Springs, 19 J. Land Use & Envtl. L. 569, 570 (2004).
83Fla. Const. art. X, § 11; Fla. Const. art. II, § 7.

Download PDF version
Download ePub version
Download Kindle version

Patrick Iyampillai1 1 Patrick Iyampillai is a student at Stetson University College of Law. He is a member of the Trial Team and focuses his studies on litigation and trial advocacy.

3 Stetson J. Advoc. & L. 135 (2016)

I. Introduction

This article examines the use of rhetoric by Robert H. Jackson during his opening statement for the prosecution at the first Nuremberg Trial through the lens of the narrative perspective. The resulting discovery was that the statement was designed to not only compel the trier of fact to find the defendants guilty, but also to justify to the world the creation of international criminal law.
British judge and politician, Norman Birkett, described the first Nuremberg Trial as “the greatest trial in history.”2 2 Patricia M. Wald, Running the Trial of the Century: The Nuremberg Legacy, 27 Cardozo L. Rev. 1559, 1574 (2006). In large part, there is truth to this statement. International criminal law would not exist as it does today without the Nuremberg Trials. For the majority of the twentieth century, there was no law in existence to provide prosecution of the perpetrators of heinous international crimes, such as war crimes or crimes against humanity. Preceding modern history, interstate wars were so prevalent that it seemed futile to institute criminal proceedings against those responsible for engaging in them.3 3 Christian Tomuschat, The Legacy of Nuremberg, 4 J. Int'l Crim. Just. 830 (2006). It was not until the First and Second Hague Conventions in 1899 and 1907 that sovereign states began to have conversations of regulating warfare internationally; however, these peace-driven discussions were constrained by the very states involved in them. Whenever the dialogue led to the topics of international law and international tribunals, the states’ focus shifted, favoring state sovereignty in the end.4 4 Benjamin B. Ferencz, International Criminal Courts: The Legacy of Nuremberg, in Coalition for the International Criminal Court 1, 3–4 (1997). As the Nuremberg judges in 1946 indicated, “The Hague Convention nowhere designates such practices (methods of waging war) as criminal, nor is any sentence prescribed, nor any mention made of a court to try and punish offenders.”5 5 Philippe Sands, From Nuremberg to The Hague, The Future of International Criminal Justice 31 (2003).
The establishment of the Nuremberg Trials changed the international status quo on criminal law. In 1945, at the end of the second World War, the four nations who had emerged victorious—Britain, France, Russia, and the United States—held the responsibility to carry out retribution against the Nazis for some of the most horrendous atrocities ever committed against mankind.6 6 Susan Mary Twist, Retrospectivity at Nuremberg: The Nature and Limits of a Schmittian Analysis (Doctoral Thesis, University of Central Lancashire 2012). This responsibility came into fruition with the four countries signing the London Agreement of August 8, 1945, which instituted a process for prosecuting the most major war criminals by way of an International Military Tribunal.7 7 London Agreement of August 8th, 1945. The Nuremberg Trial of the Major Nazi War Criminals, which occurred between November 1945 and October 1, 1946, was the first of the post-World War II trials maintained by this new international criminal tribunal system. The trial proved to be particularly paramount to international law post-judgment in December of 1946, when the General Assembly of the United Nations affirmed the implementation and decision of the court.8 8 Whitney R. Harris, Tyranny on Trial: The Trial of the Major German War Criminals at the End of the World War II at Nuremberg Germany 1945–1946 at 109 (2006).
The artifact of issue in this article is the Opening Statement of The Nuremberg Trial of the Major Nazi War Criminals by Chief Prosecutor for the United States of America, Mr. Robert H. Jackson. Jackson, a United States Associate Supreme Court Justice at the time of the trial, delivered the first words for the side prosecuting the people most responsible for an estimated eleven million killings inside of Nazi Germany and its occupied territories during World War II.9 9 Michael R. Marrus, The Nuremberg Trial: Fifty Years Later, 66 The American Scholar 563, 563–570 (1997). His choice of words in this prosecutorial presentation of the facts was important not only to the finding of guilty verdicts for twenty-one top officials of the Third Reich,10 10 Nazi War Criminal Records Interagency Working Group, The Trial of the Major War Criminals Before the International Military Tribunal, (IMT) Nuremberg: 11/14/1945–11/1/1946. but also in the justification of the international tribunal itself.
The significance of undergoing an analysis of the narrative created by Jackson through this artifact is instrumental to understanding why the trial came to be revered as a milestone in the development of international law.11 11 Christian Tomuschat, The Legacy of Nuremberg, 4 J. Int'l Crim. Just. 830, 830–844 (2006). Throughout his opening of the trial, Jackson’s rhetoric creates two different stories that can be traced back to the London Agreement of August 8, 1945. The clearest, and most expected, story driven throughout the entire opening statement is the imposition of criminal penalties upon the defendants. Just as important though is Jackson’s other message, which is to justify the implementation of international criminal laws and the tribunal at Nuremberg. This rhetorical critique therefore aims to pull back the veil on the opening statement at Nuremberg to show the underlying narrative, which calls not only to the court, but also to the world, for the retribution of warmongering leaders and international laws to bring forth that very justice.
I will start my analysis by explaining what the definitions of rhetoric and rhetorical critique are, why they matter, and how they become applicable here. Afterwards, I will introduce the rhetorical situation and an analysis of the situation in which Jackson’s opening statement was presented. Then I will explain the methodology of the narrative perspective for this rhetorical critique, how it is applied, and how it is applied to the artifact at hand. Lastly, the article concentrates on the criticism of the artifact itself, using the methodology of the narrative perspective outlined in the previous section.

II. Rhetoric and Rhetorical Criticism

Rhetoric has developed many different meanings since its inception in ancient Greece, both broad and narrow. Merriam-Webster Dictionary, for example, defines rhetoric in two ways. The first definition is “language that is intended to influence people and that may not be honest or reasonable.”12 12 “Rhetoric,” Merriam-Webster Online Dictionary (2015). This is the most commonly used understanding of rhetoric — as convoluted, flashy, and/or embellished language that people may use to deceive their audiences. The second way in which rhetoric is defined is “the art or skill of speaking or writing formally and effectively especially as a way to persuade or influence people.” This is more in line with the working definition by Jim A. Kuypers and Andrew King that is applied in this rhetorical critique — “[t]he strategic use of communication, oral or written, to achieve specifiable goals.”13 13 American Rhetoric, Scholary Definitions of Rhetoric (2015).
Kuypers and King’s narrow conception of rhetoric has two main ideas. The first involves the very idea behind the language used — its strategic purpose — in communication. Now, looking at rhetoric in a broader sense, we use all kinds of symbols to communicate. “Speeches, essays, conversations, poetry, novels, stories, television programs, films, art, architecture, plays, music, dance, advertisements, furniture, public demonstrations, and dress are all forms of rhetoric.”14 14 Sonja K. Foss, The Nature of Rhetorical Criticism in Rhetorical Criticism: Exploration and Practice 6 (1996). However, symbols whose meanings are more easily understood and agreed upon in communication are words both spoken and written. The meanings of other forms of rhetoric like art, plays, and dance are not as well understood and agreed upon in interpretation. The importance of using spoken or written words in the strategic nature of rhetoric then, is to avoid inferences of the audience overtaking the intentions of the communicator. This helps to further the second idea behind Kuypers and King’s conception of rhetoric, which is to persuade. Rhetoric is a means to persuade because it is intentional. Those communicators who plan their choice of words and ideas ahead of time are not merely strategizing, but deliberately deciding what messages to send to their audiences. This act is inherently persuasion; the speaker is purposely choosing the way in which they are sending information to their listener to produce a certain outcome. Whether it is in choosing a decision or changing a belief system, a person who engages in rhetoric seeks to influence the behavior of their audience.15 15 Jim A. Kuypers & Andrew King, What is Rhetoric?, in Rhetorical Criticism: Perspectives In Action 1–5 (2009). In summary, “[i]t is not communication for communication’s sake; rhetorical communication, at least implicitly and often explicitly, attempts to coordinate social action.”16 16 Donald C. Bryant & Gerard A. Hauser, Rhetoric: Its Function and Its Scope, 39 Q. J. Speech 401 (1953).
To develop an understanding of how rhetoric persuades and influences us, we engage in criticism. Most definitions of criticism include attributes such as appraisal, judgment, and analytical examination.17 17 Donald C. Bryant, Rhetorical Dimensions in Criticism 25 (1973). For the purposes of criticizing rhetoric, however, we specifically analyze and evaluate to see how the communicator attempts to persuade and influence social change. A rhetorical critique is more than just an emotional response; it is focused, planned, and conscious.18 18 Sonja K. Foss, The Nature of Rhetorical Criticism in Rhetorical Criticism: Exploration and Practice 25 (1973). In this manner, the critic can identify new viewpoints towards an example of rhetoric, which can aid in its understanding and in the expansion of knowledge about human communication overall. The critique is generally comprised of three stages: conception, communication, and counter-communication. Now, specific cases of rhetoric that undergo a rhetorical critique are called artifacts. The first stage of rhetorical criticism, conception, involves generating insight into the artifact. This can occur through spontaneously reacting to, or systematically examining, a rhetorical artifact. At the end of this stage, the critic’s insight and knowledge generated from the particular artifact either stays with the person or is shared with others during the next stage of this critiquing methodology.
The communication stage involves sharing propositions of the critique with those who will have the finished work shared with them. When presenting these assertions, it is necessary to provide evidence to validate the critic’s new perspective, because critics are inviting their audience to agree with them. The critic can rely on real evidence (notes, texts), testimonial evidence (interviews, diaries, newspaper accounts), and other forms of support to use as sources for his or her argument. The overall argument will then be assessed on the basis of the credibility of those sources. As Craig R. Smith has suggested, “when we write criticism \SpecialChar ldots we ought to confine ourselves to solid argumentation inclusive of valid arguments built on sufficient and high quality evidence produced from close textual readings and masterings of context.”19 19 Craig R. Smith, Criticism of Political Rhetoric and Disciplinary Integrity, 4 Am. Comm. J. (2000).
The importance of source material is relevant because the critic is arguing his or her own viewpoint of the rhetorical artifact in the critique. Rhetorical criticism must function as argument to be effective. To be effective, the critic should clearly state their methodology, evidence and conclusion in the critique.20 20 Bernard L. Brock, Robert L. Scott, & James W. Chesebro, Methods of Rhetorical Criticism: A Twentieth Century Perspective 13 (1989). The rhetorical critique is a “reason-giving activity; it not only posits a judgment, the judgment is explained, reasons are given for the judgment, and known information is marshaled to support the reasons for the judgment.”21 21 Wayne Brockriede, Rhetorical Criticism As Argument, 60 Q. J. of Speech 165, 167 (1974). After the critique has come into being, it reaches its final stage once it is actively shared with its intended audience.
The last stage of this rhetorical criticism methodology, the counter-commun\SpecialChar softhyphenication stage, involves looking to others for feedback on the rhetorical critique. The feedback may stem from many different areas depending on how the work is issued. It is important that the critique be discussed so that the critic’s ideas are shared with those who have unlikely seen the artifact in such a light before.22 22 Edwin Black, On Objectivity and Politics in Criticism, 4 Am. Comm. J. (2000). Through this process, the critic becomes an advocate for knowledge.
Overall, rhetoric by itself is not a body of knowledge, but rather a means of
applying knowledge.23 23 Donald C. Bryant & Gerard A. Hauser, Rhetoric: Its Function and Its Scope, 39 Q. J. Speech 401, 401–424 (1953). Rhetorical criticism generates new knowledge through reasoning and judgment. This is why rhetorical criticism has so much to offer.24 24 Craig R. Smith, Criticism of Political Rhetoric and Disciplinary Integrity, 4 Am. Comm. J. (2000). The understanding built by it shows us how rhetoric attempts to bring, or has brought about, societal change. In spreading rhetorical criticism, the critic addresses a particular audience.25 25 Jim A. Kuypers, Rhetorical Criticism As Art, in Rhetorical Critcism: Perspectives in Action 13, 14, 15–16, 19 (2009). Through the medium by which this task is accomplished, a critic’s advocacy of their artifact insight is conformed to what is known as the rhetorical situation.26 26 Robert L. Ivie, The Social Relevance of Rhetorical Scholarship, 81 Q. J. of Speech 2 (1994).

III. The Rhetorical Situation

Rhetorical artifacts acquire meaning from the situation in which they are created.27 27 Kathleen Farrell, Marilyn J. Young, & Jim A. Kuypers, Rhetorical Situation in Rhetorical Criticism: Perspectives in Action 33–34 (2009). Their very purpose is to produce some form of action or change. It is true that any audience is subject to being influenced by rhetoric. However, there is a specific audience for which the rhetoric is intended. It is in the context of this audience being a mediator of change that the situation from which the rhetoric is brought becomes controlling. In “The Rhetorical Situation,” Llloyd F. Bitzer defines the rhetorical situation as:

[A] complex of persons, events, objects and relations presenting an actual or potential exigence which can be completely or partially removed if discourse introduced into the situation can so constrain human decision or action as to bring about the significant modification of the exigence.28 28 Lloyd F. Bitzer, The Rhetorical Situation, 1 Philosophy and Rhetoric 1, 3–4, 6 (1968).

Delving into this definition, exigence is the first part of the rhetorical situation. It is a problem, concern, defect or obstacle. There may be more than one exigence in a situation, but not all exigencies are rhetorical. Exigence that is rhetorical must be modifiable, because the rhetoric must be able to affect it. Exigence also functions to specify the audience to be addressed and the change to be affected. This is important because the outcome of the situation depends on what is being said to the audience.29 29 Jim A. Kuypers & Andrew King, What is Rhetoric?, in Rhetorical Criticism: Perspectives In Action 7 (2009). The second part of the definition is audience. Rhetoric always requires an audience because it seeks to produce change, which is made possible by the persons to whom the work is addressed. This audience must also be capable of producing the change that is sought through the rhetoric.30 30 Lloyd F. Bitzer, The Rhetorical Situation, 1 Philosophy and Rhetoric 1, 6–7 (1968). In other words, the rhetorical audience is the group that can modify the exigence. Lastly, the rhetorical situation consists of constraints, which can be persons, events, objects, or relations that have the ability to restrict the decision and action necessary to modify the exigence. Sources of constraint include “beliefs, attitudes, documents, facts, traditions, images, interests, motives and the like.” The rhetor may even be the one to bring constraints through the usage of a particular method of rhetoric. They can influence what the rhetor should, or should not, say.31 31 Kathleen Farrell & Marilyn J. Young, The Rhetorical Situation, in Rhetorical Criticism: Perspectives in Action 33–34 (2009).
Exigence, audience and constraints are the broad concepts that altogether comprise the rhetorical situation. Once the rhetor enters the situation and presents their discourse through any given medium, they then too become part of the situation.32 32 Jim A. Kuypers & Andrew King, What is Rhetoric?, in Rhetorical Criticism: Perspectives In Action 8 (2009). Bitzer views all of the elements that influenced the situation in which rhetoric is called for — “the events, the individuals involved, the circumstances, and the relationships” — to be a part of the totality of the situation as well. All of these pieces must be considered together when analyzing the situation of a rhetorical piece.33 33 Kathleen Farrell & Marilyn J. Young, The Rhetorical Situation, in Rhetorical Criticism: Perspectives in Action 33–34 (2009).
The rhetorical situation of the artifact being criticized in this paper article derives from the period immediately following World War II. This War was the most destructive and deadliest that the world had ever seen. More than 50 nations took place in the fight, and more than 38 million lives were taken in the process.34 34 Scholastic Inc., World War II: An Overview. The War affected the entire globe. During this time of waging war, the Nazi Party of Germany committed some of the most heinous atrocities known to man, murdering millions.35 35 Susan Mary Twist, Retrospectivity at Nuremberg: The Nature and Limits of a Schmittian Analysis (Doctoral Thesis, University of Central Lancashire 2012). Unfortunately, there were no crimes in existence with which to charge the most responsible Nazis, along with no international tribunal to hear a case against them.36 36 Michael R. Marrus, The Nuremberg Trial: Fifty Years Later, 66 The American Scholar 563 (1997). This all changed when the Nuremberg trials were established.37 37 London Agreement of August 8, 1945. The opening statement of Robert H. Jackson at the first Nuremberg trial, which is the artifact at hand, takes place in the wake of these circumstances.38 38 Opening Statement Before the International Tribunal, The Robert H. Jackson Center, November 22, 1945.
The analysis of the rhetorical situation of this piece begins with the first part of Bitzer’s definition — exigence.39 39 Kathleen Farrell & Marilyn J. Young, The Rhetorical Situation, in Rhetorical Criticism: Perspectives in Action 33–34 (2009). The most identifiable exigence present is the purpose for Jackson’s participation in the trial, which was to prosecute the Nazi members most responsible for the millions of deaths incurred due to the actions of their regime.40 40 Susan Mary Twist, Retrospectivity at Nuremberg: The Nature and Limits of a Schmittian Analysis (Doctoral Thesis, University of Central Lancashire 2012). Even though this specifies an audience to be addressed, being the international tribunal, and the change to be addressed, finding the elite Nazi members guilty, this exaction of retribution is not the only exigence found within this rhetorical situation.
The underlying exigence present is the need for international criminal law. Again, at the time the Nuremberg Trials were approved and took place, there were no international criminal laws or tribunals in existence to punish those who committed such atrocities as the Nazis did against mankind. Even though the trials at Nuremberg established an unprecedented act of international law, approved by four of the largest nations in the world, it still needed to be validated if there was to be any hope for future international criminal law establishment.41 41 London Agreement of August 8th, 1945.
Thus, in this rhetorical situation, the audience that is being addressed to modify these exigencies is not just the judicial panel of the tribunal at Nuremberg, but also the world.42 42 Lloyd F. Bitzer, The Rhetorical Situation, 1 Philosophy and Rhetoric 1, 6 (1968). While this trial occurred, it was simultaneously broadcast worldwide.43 43 Walter Cronkite, Listening in on the Nuremberg Trials, NPR (Feb. 20, 2006). The record was even made available in four different languages.44 44 Benjamin B. Ferencz, International Criminal Courts: The Legacy of Nuremberg, 10 Pace Int'l L. Rev. 203, 212 (1997). Jackson, as his voice became heard around the world, had to address to the human populace why the Nuremberg trials should be the way to deal with the Nazis. The validity of the four great nations of the time’s decision to hold a tribunal to try global perpetrators like the Nazis depended on it. With Jackson’s opening statement being the beginning words of the trial,45 45 Michael R. Marrus, The Nuremberg Trial: Fifty Years Later, 66 The American Scholar 563 (1997). his rhetoric had the opportunity to persuade the world through the attention of its people to continue to enact international criminal law.
This rhetorical situation was not without constraint however. The belief that interstate war was so prevalent that it was futile to institute criminal proceedings against those responsible for engaging in them was detrimental to establishing new laws. Also, prior to the Tribunal, there had never been any outright laws made to make aggressive war an illegal act internationally. At the time of Jackson’s opening, there were only treaties, conventions and declarations that spoke out against aggressive war.46 46 Benjamin B. Ferencz, International Criminal Courts: The Legacy of Nuremberg, 10 Pace Int'l L. Rev. 203, 212 (1997). This made all of the Nuremberg tribunal’s charges ex post facto, meaning the list of crimes that the defendants were charged with was instituted after they had committed the offenses.47 47 Christian Tomuschat, The Legacy of Nuremberg, 4 J. Int'l Crim. Just. 830, 834 (2006). In this same vein, the court in which Jackson was trying the case had the responsibility to exact retribution on behalf of all nations who were affected by the devastating actions of the Nazis. This was an additional burden Jackson had to take on as he began the prosecution’s proceedings with his opening statement.
Jackson brought his own constraints into the rhetorical situation as well. He represented the United States, who may have assisted in ending World War II, but nevertheless lost the least amount of citizens between the four nations who established Nuremberg.48 48 By the Numbers: World-Wide Deaths, The National WWII Museum. This may have reduced the credibility of Jackson in the setting before he began. Jackson also helped to establish the Nuremberg trials. Acting as representative for the United States at the London Agreement summit, he argued for the imposition of criminal charges against the Nazi defendants, whether ex post facto or not.49 49 London Agreement & Charter, August 8, 1945, The Robert H. Jackson Center. This may leave some in the situation already under the belief that Jackson did not have to justify the proceeding itself. At the time, most of Germany already believed the trial was being unrightfully imposed upon the country, and the fact that the victorious countries were the judges and prosecutors also discredited the proceedings in their eyes.50 50 Christian Tomuschat, The Legacy of Nuremberg, 4 J. Int'l Crim. Just. 830 (2006).
It must also be explained that Jackson’s discourse in this rhetorical situation was not necessarily constrained due to the fact that it was an opening statement. Generally, the understanding of opening statements in the United States is that although they should be as persuasive as possible in presenting the facts of the case, these statements are to be limited in the extent they make conclusions.51 51 Charles H. Rose III, Fundamental Trial Advocacy 66–81 (2010). Also, the facts presented during opening statements are bound to certain evidentiary rules of admission, such as hearsay or logical relevance.52 52 Charles H. Rose III, Fundamental Trial Advocacy 106 (2010). None of this was the same for the Nuremberg Trials. The Constitution of the International Military Tribunal, which established its rules of procedure, makes no reference as to how Jackson must limit the scope of his argumentation in opening statement. Furthermore, under Article 19 of the Constitution, the tribunal was not bound by any rules in the admissibility of evidence. Instead, the court would admit any evidence it deemed to have probative value.53 53 London Agreement of August 8, 1945. These opening statement differences did not serve to constrain Jackson’s discourse; rather, they opened the realm of persuasion for him in this rhetorical situation.
Although the rhetorical situation is rarely used as the sole method for examining a rhetorical critique, it does provide a beginning point for analysis. Through the rhetorical situation, a critic can view all of the elements that played a factor in creating the context for the discourse. Therefore, the evaluation of situation greatly improves the comprehension of other methods of rhetorical criticism, such as the narrative perspective.54 54 Kathleen Farrell & Marilyn J. Young, The Rhetorical Situation, in Rhetorical Criticism: Perspectives in Action 35 (2009).

IV. The Narrative Perspective

Before explaining the narrative perspective, it is important to briefly outline what perspectives mean to rhetorical criticism. Generally, a rhetorical critique is advanced through the use of one of many perspectives on criticism. This is because rhetorical artifacts are “multi-dimensional, complex and nuanced,” and a perspective assists in the critic’s understanding. Although some perspectives can be better for certain artifacts, there is no one best way of examining rhetoric. In the end, it is the subjectivity of the critic, not the perspective, which produces the analyzation that becomes the critique.55 55 Jim A. Kuypers, Rhetorical Criticism As Art, in Rhetorical Critcism: Perspectives in Action 13–15, 17 (2009).
To begin the explanation of the narrative perspective, a description of narrative is necessary. The most basic definition of narrative is that it is a story. It is different from other forms of rhetoric because it is neither purely descriptive nor argumentative. Narrative can be found throughout all forms of human communication today — in music, movies, television, books, academia, and more. It has universal function — not one socioeconomic class or culture dominates narrative.56 56 Dell Hymes, A Narrative View of the World, in Language in Education: Ethnolinguistic Essays 132 (1980). This is because all humans live out narratives in their own lives, making them capable of understanding another’s life in terms of narrative.57 57 Alasdair MacIntyre, After Virtue: A Study in Moral Theory 197 (1981). For these reasons, narrative is useful as a perspective for examining rhetoric. Although there are many different approaches to analyzing rhetoric from a narrative perspective, this rhetorical critique will apply the three-step methodology developed by Robert Rowland. The first part of the analysis deals with each component of the narrative form being identified within the artifact. Next, the artifact is examined for how its story functions with its audience. Lastly, the artifact’s story and functioning is evaluated for its effectiveness in persuading its audience.58 58 Robert Rowland, The Narrative Perspective, in Rhetorical Criticism: Perspectives in Action 117–118, 126–128 (2009).
The first step in narrative analysis involves identifying the components of the story. Each story contains characters, a setting, plot, and a theme. The actions of the characters within a narrative are what the story is about. These characters consist of one or more protagonists, who are sometimes referred to as heroes, and antagonists, who drive conflict within each story. The conflicting interactions between the antagonists and protagonists become the central focus of the narrative. The second component of narrative is setting, which is where the story takes place in space and time. Rhetoric can be used to transport audiences to any point in time through the use of narrative. The next component of narrative form is plot, which is the action of the story. Finally, the last component, theme, is the message of the story. This message of the narrative can be either explicit or implicit. When implicit, there may be different translations of the message by the audience, which needs to be taken into account by the rhetorical critic using narrative analysis. Altogether, these components make up the narrative form.
The next stage of Rowland’s methodology is narrative function. This step involves the critic examining four different ways in which the narrative attempts to be rhetorical, which is to persuade its audience. Traditionally, people have often utilized narrative to aid in the comprehension of the world.59 59 Lewis O. Mink, Narrative Form As Cognitive Instrument, in The Writing of History: Literary Form and Historical Understanding 131 (1978). However, stories can also serve to influence others to accept a certain viewpoint or take certain actions. The first rhetorical function of narrative is to capture and keep the audience’s attention. A strong means of accomplishing this end is through the usage of narratives that appear to be credible. The second rhetorical function is to create a sense of identification between the characters or narrator of the story and the audience to whom the rhetoric addresses. Thirdly, a function of narrative is to break down the figurative barrier between the audience and the narrative itself. The idea is to transport people to another time, place or culture, which will aid in their understanding. Finally, the last rhetorical function of narrative is to create a strong emotional reaction within the audience by tapping into their values and needs.
The third overall step necessary to complete the analysis is combining the narrative form and function and arguing whether or not they are effective. In completing this step, the critic should first consider whether or not the formal elements are compelling to the audience. Next, the critic should analyze the effectiveness of the story in regards to the four rhetorical narrative functions. Lastly, the critic should consider the credibility of the narrative in relation to the audience.60 60 Robert Rowland, The Narrative Perspective, in Rhetorical Criticism: Perspectives in Action 117, 119–123, 128 (2009).

V. The Rhetorical Criticism

When analyzing Jackson’s opening statement, I applied Rowland’s method of narrative analysis step-by-step. First, I broke down each line of the artifact to most accurately identify all four components of the narrative form. Afterwards, I analyzed the artifact using the four rhetorical functions of the methodology. Finally, I linked the narrative form components and four rhetorical functions together to consider the story’s credibility with its audience.

Form Identification

The first part of this analysis, identifying the components of the narrative, begins with the characters involved. The most explicit characters of the artifact are the parties to the case: the prosecution — which is made up of attorneys from Russia, Great Britain, the United States, and France — and the twenty-one Nazi defendants.61 61 Doug Linder, The Nuremberg Trials, University of Missouri-Kansas City School of Law (2000). Following this characterization of the parties comes an identification of protagonists and antagonists.62 62 Robert Rowland, The Narrative Perspective, in Rhetorical Criticism: Perspectives in Action 117, 118 (2009). Since the states here are bringing their case against the defendants for criminal actions, they fit the heroic description of protagonists, while the defendants naturally fill the role of the antagonists, as they are creating the conflict that brings forth this situation. Some of the defendants are called out during the opening statement in describing certain acts, but throughout the majority of this article they are addressed as the defendants together. These are the characters that drive the explicit story of criminal justice.
The characters that drive the implicit narrative conflict are Robert Jackson, the court, and the naysayers of the Nuremberg process around the world. Jackson and the court represent the protagonists, attempting to create international criminal law that will safeguard the world against another devastating war. On the other hand, the people globally who disapprove of Nuremberg, while they may have very valid arguments such as ex post facto law,63 63 Christian Tomuschat, The Legacy of Nuremberg, 4 J. Int'l Crim. Just. 830, 830–844 (2006). are the antagonists that drive the narrative conflict between the two groups forward. In the opening minutes of Jackson’s statement, he addresses the concerns over the court by stating:

This tribunal, while it is novel and experimental, is not the product of abstract speculations nor is it created to vindicate legalistic theories. This inquest represents the practical effort of four of the most mighty of nations, with the support of 17 more, to utilize international law to meet the greatest menace of our times — aggressive war.64 64 Nuremberg Trial Proceedings, Volume 2: Second Day, Wednesday, 21 November 1945, Yale Law School p. 98.

Although this opening statement is being delivered to the court, Jackson’s words continually address the concerns of those listening around the world65 65 Walter Cronkite, Listening in on the Nuremberg Trials, NPR (Feb. 20, 2006). who doubt its validity just as much as the judicial panel in front of him.66 66 Nuremberg Trial Proceedings, Volume 2: Second Day, Wednesday, 21 November 1945, Yale Law School pp. 98–154.
The next step in form identification is to identify the place in which the narrative is set and what it means to the story.67 67 Robert Rowland, The Narrative Perspective, in Rhetorical Criticism: Perspectives in Action 117, 129 (2009). As stated earlier, World War II was the most destructive war ever to occur at this point, and thus there were fewer buildings able to host an international criminal trial.68 68 Scholastic Inc., World War II: An Overview. Although the majority of the world powers contended that Berlin would be the ideal location for this trial, Jackson stuck to Nuremberg and prevailed. He knew that the city had a large, preserved courthouse that would be ideal for this tribunal. Furthermore, he was very aware that Nazi rallies had been occurring there since the political party’s very beginning. This trial, then, would become a symbol for the beginning and the end of the Nazi regime.
Throughout the opening statement, Jackson transports his audience, from the setting in which he is delivering his words, to different points in time and places during the war. He does not waste any time at the beginning by pointing out that less than eight years prior to the trial, the courtroom in which the tribunal was being held was used as a Nazi base to hold their soldiers. He also indicates that all witnesses and documents to be presented at the trial were previously in enemy hands.
This theme of referring to different Nazi actions at different points in time recurs in the entirety of its organization, from the beginning of the statement all the way to its end. First, with “The Lawless Road to Power,” Jackson shows how the Nazi party came into being and seized power in Germany, from recalling the time it proclaimed its program at Munich in February of 1920, all the way to the point of Adolf Hitler becoming Chancellor of the German Republic in January of 1933. Next, in “The Consolidation of Nazi Power,” he describes the Nazi regime starting to control the lives of Germany’s people by destroying its working class and persecuting its Christian churches. Then, he carefully works through depicting the Nazis’ plans to disenfranchise and exterminate the Jewish people. Finally, before turning the audience’s attention back to the realm of the courtroom, Jackson tells the audience how the Nazis aggressed through all of Europe, with complete disregard for anyone standing in their way.69 69 Nuremberg Trial Proceedings, Volume 2: Second Day, Wednesday, 21 November 1945, Yale Law School pp. 104–141.
These places and points in time that Jackson wades the audience through set the stage for the third component of narrative form, the plot. The action of the story is quite keen. During “The Lawless Road to Power,” Jackson outlines the war of aggression that the Nazi Party was planning: “The Party program foreshadowed its campaign of terrorism. It announced, ‘we demand ruthless war upon those whose activities are injurious to the common interests,’ and it demanded that such offenses be punished with death.” He also depicts the legislative system in which the Nazis would strip away the German people’s basic human rights, such as the freedom of speech, press, and to own property. Jackson holds back the least in his description of the “plan and design, to which all Nazis were fanatically committed, to annihilate all Jewish people.” He first describes the German Jews who were first escorted to ghettos “with \SpecialChar ldots [only what] is necessary for a bare existence.” Then, with “the campaign against the Jews expanded,”70 70 Nuremberg Trial Proceedings, Volume 2: Second Day, Wednesday, 21 November 1945, Yale Law School pp. 105, 109–111, 117, 120, 122. Jackson discusses the horrors of the Holocaust, which could easily be described as the climax to the plot of this story.71 71 Robert Rowland, The Narrative Perspective, in Rhetorical Criticism: Perspectives in Action 117, 120, 124 (2009). To demonstrate the very power of Jackson’s discourse, here is an excerpt of a report made to one of the defendants that he chose to recite:

In presence of SS man, a Jewish dentist has to break all gold teeth and fillings out of mouth of German and Russian Jews before they are executed. Men, women and children are locked into barns and burned alive. Peasants, women and children are shot on the pretext that they are suspected of belonging to bands.72 72 Nuremberg Trial Proceedings, Volume 2: Second Day, Wednesday, 21 November 1945, Yale Law School p. 124.

Following the description of many more menacing atrocities of which the Nazis committed against the Jewish people of Europe, Jackson outlined how Nazi Germany’s war plan was always designed to “surprise the enemy.” They violated treaties and promises while continuing to invade, and planning to conquer, more and more states, such as Austria, Czechoslovakia, Poland, Denmark, Norway, Belgium, The Netherlands, and many others.73 73 Nuremberg Trial Proceedings, Volume 2: Second Day, Wednesday, 21 November 1945, Yale Law School pp. 132–135. As with all narratives, every single description of appalling action here was not only aimed to keep the attention of the audience, but also to reinforce the theme of the story.74 74 Robert Rowland, The Narrative Perspective, in Rhetorical Criticism: Perspectives in Action 117, 120, 124 (2009).
There are two themes here that derive from the first three components of narrative form. First, is the explicit message of exacting retribution against those most responsible for the crimes committed by the Nazi Party. From beginning to end, Jackson reiterates the evidence to be presented, identifying the defendants’ recordings of all of the terrible deeds they had committed. That they had knowledge, which meant they had planned, strategized, and moved all of the pieces to the terrible war and its unforgiving outcome. The explicit message that Jackson’s opening statement suggests is that all of the defendants should be found guilty.
The second theme, which is implicit, is that the world should recognize and implement international criminal law to make defendants like the Nazis responsible for their irreversible actions against humanity. The explicit audience here is the tribunal, who are the ones being directly addressed. However, with the majority of the world listening during a time in which two world wars had broken out within 30 years of each other, Jackson addressed them as such: “[T]he ultimate step in avoiding periodic wars, which are inevitable in a system of international lawlessness, is to make statesmen responsible to law.” He knows and tells the court that the crimes he outlines are going to be undoubted. What is left then, he contends, is to validate “[the] judicial action [coming] after the event.”75 75 Nuremberg Trial Proceedings, Volume 2: Second Day, Wednesday, 21 November 1945, Yale Law School pp. 148–153.

Functional Analysis

The next step of the rhetorical analysis from a narrative perspective is to identify the components of narrative function, which describe what narrative does to an audience. The first component of narrative function is to keep the attention of the audience being addressed.76 76 Robert Rowland, The Narrative Perspective, in Rhetorical Criticism: Perspectives in Action 117, 121–122 (2009). Being that there is no way to effectively pinpoint the mood, attentiveness, and contemplation of the audience as the opening statement was delivered, I turned to the outcome of the trial to best identify how well the audience was heeding Jackson’s words. In all, eighteen of the twenty-one defendants were found guilty by the tribunal. The three who walked out of the courtroom acquitted were immediately arrested by German police officers to be later tried by their own court system.77 77 Doug Linder, The Nuremberg Trials, University of Missouri-Kansas City School of Law (2000). Overall, it is the first Nuremberg Trial where Jackson delivered his opening statement that is particularly regarded for laying the foundation for international criminal law. After the trial rendered its verdict, the first General Assembly of the United Nations unanimously affirmed the verdict and legal principles created by the Charter and Judgment of the Nuremberg Trials. Since then, there have been multiple international criminal tribunals held for the same crimes that were established ex post facto at Nuremberg, such as crimes against humanity and war crimes.78 78 Benjamin B. Ferencz, International Criminal Courts: The Legacy of Nuremberg, 10 Pace Int'l L. Rev. 203, 215, 218, 221–225 (1997). This not only goes to prove that the judges inside the courtroom were attentive to Jackson’s discourse, but also the world.
The next step of this narrative functional analysis involves the audience perceiving the narrative to be relatable. Jackson most explicitly identifies with the tribunal. First and foremost, he is speaking to them. They are in the same room, face to face, with the same daunting legal task — to conduct an international criminal tribunal that has never been done before — and Jackson repeatedly notes this throughout his opening statement. He addresses it specifically by stating:

We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well. We must summon such detachment and intellectual integrity to our task that this Trial will commend itself to posterity as fulfilling humanity’s aspirations to do justice.79 79 Nuremberg Trial Proceedings, Volume 2: Second Day, Wednesday, 21 November 1945, Yale Law School p. 100.

The more implicit sense of identification is done with the worldwide audience. Using phrases like “[c]ivilization can afford no compromise,” Jackson connects with the global audience by identifying the consequences of inaction by law in relation to all of humanity. He also connects with the people of the world by drawing impassioned comparison that could reach any culture:

The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which leave no home in the world untouched.80 80 Nuremberg Trial Proceedings, Volume 2: Second Day, Wednesday, 21 November 1945, Yale Law School p. 98.

Following this identification, the third portion of the narrative functional analysis is to see how the rhetor transports the audience to a different setting. Again, because we are unable to thoroughly examine the audience’s particular reactions at the time the opening statement was given, we must look to the resulting action due to the narrative, as well as how the narrative holds up today. After deliberation, both the judgment of the trial and the examination of the artifact today point toward the audience being transported to the dark times to which Jackson’s discourse journeyed.
This brings the functional analysis to its final component: emotional reaction.81 81 Robert Rowland, The Narrative Perspective, in Rhetorical Criticism: Perspectives in Action 123, 129 (2009). The abhorrent actions, and lack thereof, by the Nazi defendants, causing irreparable harm to all of the world, brings enough emotion with it that Jackson’s descriptive discourse can still reach the heartstrings of any reader today. From the plans to systematically murder all of the Jewish people, to the relentless conquering of sovereign nations, it would be almost unfathomable for a member of any culture to deny its strong emotional calling to put an end to the defendants, their equivalents, and all Nazi-like regimes of the world.

Linking Form and Functional Analysis

The last step of the rhetorical critique using the narrative perspective is to link the formal and functional examinations of the artifact to produce an argument about the overall functionality of the story in relation to its audience members. Looking at the functionality in relation to the narrative form components, the characters, plot, theme and narrative, are all very compelling. The characters of Jackson and the court, being the embodiment of justice dispensed by the World War II-winning nations, bring together the common purpose of exacting retribution upon the antagonistic defendants who caused the war and its most horrendous casualties. Combine this sense of righteousness with settings from different times all over the world and the compelling plot of crimes against humanity, and the resulting theme of moral responsibility naturally effectuates to all who participate as an audience member of the discourse.
Next, the rhetorical functions of the narrative need to be examined for fulfillment.82 82 Robert Rowland, The Narrative Perspective, in Rhetorical Criticism: Perspectives in Action 117, 129 (2009). As each function was examined, it quickly became clear that the narrative is complete. The form components connected with all who participated as an audience at the time and kept the attentiveness of the audience, to change international criminal law forever. The settings broke, and notably continue to break, down the barriers for even those who still read the discourse today. Finally, the narrative’s connectivity is an absolute active function, as the memory and legacy of the tragedy that the Nazis inflicted upon humanity will forever evoke emotion for anyone exposed to this opening statement.
The last piece of this final step in the linked narrative analysis is to perceive the credibility of the story for the audience. It is undisputed that this is the most devastating war the world has ever known. That it changed international law forever.83 83 Benjamin B. Ferencz, International Criminal Courts: The Legacy of Nuremberg, 10 Pace Int'l L. Rev. 203, 215 (1997). With its emotional charge, legal rationale, and human viewpoint, it cannot be denied that this narrative not only held a strong rhetorical effectiveness for the judicial panel hearing the case, but also the world at the time it was given.

Footnotes

1Patrick Iyampillai is a student at Stetson University College of Law. He is a member of the Trial Team and focuses his studies on litigation and trial advocacy.
2Patricia M. Wald, Running the Trial of the Century: The Nuremberg Legacy, 27 Cardozo L. Rev. 1559, 1574 (2006).
3Christian Tomuschat, The Legacy of Nuremberg, 4 J. Int'l Crim. Just. 830 (2006).
4Benjamin B. Ferencz, International Criminal Courts: The Legacy of Nuremberg, in Coalition for the International Criminal Court 1, 3–4 (1997).
6Susan Mary Twist, Retrospectivity at Nuremberg: The Nature and Limits of a Schmittian Analysis (Doctoral Thesis, University of Central Lancashire 2012).
9Michael R. Marrus, The Nuremberg Trial: Fifty Years Later, 66 The American Scholar 563, 563–570 (1997).
11Christian Tomuschat, The Legacy of Nuremberg, 4 J. Int'l Crim. Just. 830, 830–844 (2006).
12“Rhetoric,” Merriam-Webster Online Dictionary (2015).
13American Rhetoric, Scholary Definitions of Rhetoric (2015).
15Jim A. Kuypers & Andrew King, What is Rhetoric?, in Rhetorical Criticism: Perspectives In Action 1–5 (2009).
16Donald C. Bryant & Gerard A. Hauser, Rhetoric: Its Function and Its Scope, 39 Q. J. Speech 401 (1953).
17Donald C. Bryant, Rhetorical Dimensions in Criticism 25 (1973).
19Craig R. Smith, Criticism of Political Rhetoric and Disciplinary Integrity, 4 Am. Comm. J. (2000).
20Bernard L. Brock, Robert L. Scott, & James W. Chesebro, Methods of Rhetorical Criticism: A Twentieth Century Perspective 13 (1989).
21Wayne Brockriede, Rhetorical Criticism As Argument, 60 Q. J. of Speech 165, 167 (1974).
22Edwin Black, On Objectivity and Politics in Criticism, 4 Am. Comm. J. (2000).
23Donald C. Bryant & Gerard A. Hauser, Rhetoric: Its Function and Its Scope, 39 Q. J. Speech 401, 401–424 (1953).
24Craig R. Smith, Criticism of Political Rhetoric and Disciplinary Integrity, 4 Am. Comm. J. (2000).
25Jim A. Kuypers, Rhetorical Criticism As Art, in Rhetorical Critcism: Perspectives in Action 13, 14, 15–16, 19 (2009).
26Robert L. Ivie, The Social Relevance of Rhetorical Scholarship, 81 Q. J. of Speech 2 (1994).
27Kathleen Farrell, Marilyn J. Young, & Jim A. Kuypers, Rhetorical Situation in Rhetorical Criticism: Perspectives in Action 33–34 (2009).
28Lloyd F. Bitzer, The Rhetorical Situation, 1 Philosophy and Rhetoric 1, 3–4, 6 (1968).
29Jim A. Kuypers & Andrew King, What is Rhetoric?, in Rhetorical Criticism: Perspectives In Action 7 (2009).
30Lloyd F. Bitzer, The Rhetorical Situation, 1 Philosophy and Rhetoric 1, 6–7 (1968).
31Kathleen Farrell & Marilyn J. Young, The Rhetorical Situation, in Rhetorical Criticism: Perspectives in Action 33–34 (2009).
32Jim A. Kuypers & Andrew King, What is Rhetoric?, in Rhetorical Criticism: Perspectives In Action 8 (2009).
33Kathleen Farrell & Marilyn J. Young, The Rhetorical Situation, in Rhetorical Criticism: Perspectives in Action 33–34 (2009).
34Scholastic Inc., World War II: An Overview.
35Susan Mary Twist, Retrospectivity at Nuremberg: The Nature and Limits of a Schmittian Analysis (Doctoral Thesis, University of Central Lancashire 2012).
36Michael R. Marrus, The Nuremberg Trial: Fifty Years Later, 66 The American Scholar 563 (1997).
38Opening Statement Before the International Tribunal, The Robert H. Jackson Center, November 22, 1945.
39Kathleen Farrell & Marilyn J. Young, The Rhetorical Situation, in Rhetorical Criticism: Perspectives in Action 33–34 (2009).
40Susan Mary Twist, Retrospectivity at Nuremberg: The Nature and Limits of a Schmittian Analysis (Doctoral Thesis, University of Central Lancashire 2012).
42Lloyd F. Bitzer, The Rhetorical Situation, 1 Philosophy and Rhetoric 1, 6 (1968).
43Walter Cronkite, Listening in on the Nuremberg Trials, NPR (Feb. 20, 2006).
44Benjamin B. Ferencz, International Criminal Courts: The Legacy of Nuremberg, 10 Pace Int'l L. Rev. 203, 212 (1997).
45Michael R. Marrus, The Nuremberg Trial: Fifty Years Later, 66 The American Scholar 563 (1997).
46Benjamin B. Ferencz, International Criminal Courts: The Legacy of Nuremberg, 10 Pace Int'l L. Rev. 203, 212 (1997).
47Christian Tomuschat, The Legacy of Nuremberg, 4 J. Int'l Crim. Just. 830, 834 (2006).
48By the Numbers: World-Wide Deaths, The National WWII Museum.
49London Agreement & Charter, August 8, 1945, The Robert H. Jackson Center.
50Christian Tomuschat, The Legacy of Nuremberg, 4 J. Int'l Crim. Just. 830 (2006).
51Charles H. Rose III, Fundamental Trial Advocacy 66–81 (2010).
52Charles H. Rose III, Fundamental Trial Advocacy 106 (2010).
54Kathleen Farrell & Marilyn J. Young, The Rhetorical Situation, in Rhetorical Criticism: Perspectives in Action 35 (2009).
55Jim A. Kuypers, Rhetorical Criticism As Art, in Rhetorical Critcism: Perspectives in Action 13–15, 17 (2009).
56Dell Hymes, A Narrative View of the World, in Language in Education: Ethnolinguistic Essays 132 (1980).
57Alasdair MacIntyre, After Virtue: A Study in Moral Theory 197 (1981).
58Robert Rowland, The Narrative Perspective, in Rhetorical Criticism: Perspectives in Action 117–118, 126–128 (2009).
59Lewis O. Mink, Narrative Form As Cognitive Instrument, in The Writing of History: Literary Form and Historical Understanding 131 (1978).
60Robert Rowland, The Narrative Perspective, in Rhetorical Criticism: Perspectives in Action 117, 119–123, 128 (2009).
61Doug Linder, The Nuremberg Trials, University of Missouri-Kansas City School of Law (2000).
62Robert Rowland, The Narrative Perspective, in Rhetorical Criticism: Perspectives in Action 117, 118 (2009).
63Christian Tomuschat, The Legacy of Nuremberg, 4 J. Int'l Crim. Just. 830, 830–844 (2006).
64Nuremberg Trial Proceedings, Volume 2: Second Day, Wednesday, 21 November 1945, Yale Law School p. 98.
65Walter Cronkite, Listening in on the Nuremberg Trials, NPR (Feb. 20, 2006).
66Nuremberg Trial Proceedings, Volume 2: Second Day, Wednesday, 21 November 1945, Yale Law School pp. 98–154.
67Robert Rowland, The Narrative Perspective, in Rhetorical Criticism: Perspectives in Action 117, 129 (2009).
68Scholastic Inc., World War II: An Overview.
69Nuremberg Trial Proceedings, Volume 2: Second Day, Wednesday, 21 November 1945, Yale Law School pp. 104–141.
70Nuremberg Trial Proceedings, Volume 2: Second Day, Wednesday, 21 November 1945, Yale Law School pp. 105, 109–111, 117, 120, 122.
71Robert Rowland, The Narrative Perspective, in Rhetorical Criticism: Perspectives in Action 117, 120, 124 (2009).
72Nuremberg Trial Proceedings, Volume 2: Second Day, Wednesday, 21 November 1945, Yale Law School p. 124.
73Nuremberg Trial Proceedings, Volume 2: Second Day, Wednesday, 21 November 1945, Yale Law School pp. 132–135.
74Robert Rowland, The Narrative Perspective, in Rhetorical Criticism: Perspectives in Action 117, 120, 124 (2009).
75Nuremberg Trial Proceedings, Volume 2: Second Day, Wednesday, 21 November 1945, Yale Law School pp. 148–153.
76Robert Rowland, The Narrative Perspective, in Rhetorical Criticism: Perspectives in Action 117, 121–122 (2009).
77Doug Linder, The Nuremberg Trials, University of Missouri-Kansas City School of Law (2000).
78Benjamin B. Ferencz, International Criminal Courts: The Legacy of Nuremberg, 10 Pace Int'l L. Rev. 203, 215, 218, 221–225 (1997).
79Nuremberg Trial Proceedings, Volume 2: Second Day, Wednesday, 21 November 1945, Yale Law School p. 100.
80Nuremberg Trial Proceedings, Volume 2: Second Day, Wednesday, 21 November 1945, Yale Law School p. 98.
81Robert Rowland, The Narrative Perspective, in Rhetorical Criticism: Perspectives in Action 123, 129 (2009).
82Robert Rowland, The Narrative Perspective, in Rhetorical Criticism: Perspectives in Action 117, 129 (2009).
83Benjamin B. Ferencz, International Criminal Courts: The Legacy of Nuremberg, 10 Pace Int'l L. Rev. 203, 215 (1997).

Download PDF version
Download ePub version
Download Kindle version