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3 J. F. Comm. Franchising 6 (1983-1984)
The Fotomat Trial: Is Litigation the Answer to Franchisor-Franchisee Disputes

handle is hein.journals/fchlj3 and id is 54 raw text is: The Fotomat Trial: Is Litigation the Answer to Franchisor-Franchisee Disputes? by Hon. Norbert Ehrenfreund San Diego, California* In a jury trial that goes on for twenty-one months, it might be expected the judge will make some mistakes, some errors of law, es- pecially when he is called upon to rule on the admissibility of 3,500 exhibits, some of which were hun- dreds of pages in length. But it seems I made my biggest mistake before this trial ever started, in fact before the case was ever as- signed to me. Hon. Norbert Ehrenfreund Several months before the trial, I was invited to attend a one-week seminar in state antitrust law at the National Judicial College in Nevada. Two judges from each state had been invited to attend, and I was one of the judges selected from California. Naturally, I was honored. I ac- cepted. And that was my undoing. My first and biggest mistake. Having attended this one-week school on anti- trust law, I of course became the expert in the field, and when the time came for our presiding judge to assign the Fotomat case, he looked about for the expert and, natu- rally, the mantle fell upon me. Fortunately, I was blessed with an observant and con- scientious jury. That became obvious the first day of trial. The attorneys had told me that this was to be a complex anti- trust case and, in an effort to make the case as understand- able as possible to the jury, I told the jury that I would permit them to ask questions of the witnesses. I would permit them to do this by allowing them to write out their questions in note form. Their notes would then be collected by the bailiff, and I would review them with counsel and decide whether the questions were appropriate. I told the jury I was using this procedure in order to enable them to clear up any ques- tions they might have on this highly complex case. On that first day of trial, the courtroom was packed with plaintiffs and their families, with officers of the defendant company, and with television people, since the case had been touted as the longest jury trial in San Diego County history, with an estimated trial length of six to eight months. Of course, any thought that the trial would go any longer than that was entirely out of the question. * Hon. Norbert Ehrenfreund is a judge of the Superior Court, San Diego County, California. Judge Ehrenfreund presided at the Fotomat trial, Gene King et a. v. Fotomat Corp., Civ. Nos. 38-6054, 451-363,453-097, and 417-308 (Super. Ct. Cal., San Diego Cty., settled May 9, 1983). The first witness, a plaintiff franchisee, had been on the stand for an hour or so, and he was getting into the heart of the matter, the basis for the antitrust charges, when a juror in the second row raised his hand with a piece of paper. The crowd hushed immediately and everything came to a stop. I nodded to the bailiff, the bailiff walked over to the juror, picked up the note, and made the long cross from the jury box to my bench. During these few moments,- the attorneys stopped what they were doing and watched, waiting expectantly. I could tell they were, of course, interested in the contents of the note because it might give them some indication as to what the jurors were thinking about the case and the major points of the case that were now being explored. The note could possibly give them some idea of how the jurors viewed the concepts that were under discussion and might have an influence on how they would proceed with their case. In that hushed, expec- tant silence the bailiff handed me the note. I took it-it was folded up several times. I unfolded it carefully and read it to myself. The note said, Your Honor, please tell the witness his fly is open. Is Litigation the Answer in Complicated Lawsuits? You have asked me to respond to the question: Is liti- gation the answer to franchisor-franchisee disputes? That is a very important question. It is a good question, and good that you ask it. You should continue to ask it. It is a question that should be asked in your offices, in our courtrooms, in law schools all across the country. It is a question that can change the face of the law. Litigation is not the answer when it is as costly and time-consuming as it was in this case. We simply cannot bear it. It is too much for all of us. It is too costly, financially, physically, and emotionally. It is too damaging to the reputation of the bar. It lowers the status of all of us in the eyes of the com- munity. To proceed with such litigation will make the system fall of its own weight. We will all choke in the morass. We must seek alternatives; we must seek ways to reduce the cost and the time. We must change our ways, and if we do not seek and find alternatives, then an angry public, upset more than ever over protracted litigation, will do so for us through their legislators. You have asked a most important question. You have a re- sponsibility to ask it and to demand alternatives, a respon- sibility to a financially burdened client, a client seeking a

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