Let’s take a quick break from our continuing coverage of the Barr decision to discuss a new case reminding us that the details always matter in litigation.

Indeed, it always seems to be the little things that kill.

Imagine you try a case. Win. And then are reversed on appeal and have to try the case all over again—because you failed to take timely advantage of a contract provision.

That’s what happened in Walton v. First Merchant’s Bank, Nos. 19-3370 and 20-1206, 2020 U.S. App. LEXIS 2103 (7th Cir.  July 7, 2020) and TCPA defense counsel should take note.

In Walton the Defendant waited until late in the game to make use of a jury trial waiver in a consumer agreement. The lower court still enforced the provision, however, mostly because the Plaintiff misbehaved throughout the litigation. Indeed, the Plaintiff’s behavior was deemed so disruptive that the lower court issued a sanctions order of over $50k against her. Ouch. Adding insult to that injury, the Court—sitting as the finder of fact at the trial—discredited her testimony on the issue of whether or not she actually received pre-recorded calls. In essence the Court found she was a big fat liar and entered judgment for the Defense.

But the Seventh Circuit Court of Appeals reversed. The Appellate Court found that the Defendant had waited too long to take advantage of the jury waiver provision. This delay prejudiced Plaintiff, that made disclosures assuming the case would be tried to a jury. Moreover, the Appellate Court found that the lower court’s finding against Plaintiff–which would ordinarily be entitled to great deference–was potentially colored by its perception of her conduct in the case, and that a jury might have viewed the testimony differently. In other words, a jury might have believed Plaintiff even though the Court did not. So the whole case has to be re-tried.

In the end the Defendant lost on appeal after winning at trial and has to do it all over again because it simply took too long to raise its simple jury waiver argument.  Bad move.

Then again, Plaintiff still owes Defendant over $50k so… there’s that.