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Requests for a Trial By Combat Are Apparently Making a Comeback

Duelers with pistols at sunset
By Joseph Fawbush, Esq. on January 17, 2020

Asking the court to settle your dispute in a trial by combat is, to coin a legal phrase, really dumb.

Unfortunately, this was lost on a Kansas man embroiled in a custody battle who apparently believed that demonstrating a desire for violence with medieval weaponry was the best route for a judge to grant him more time with his children.

David Ostrom, whose children live in Iowa, asked an Iowa district court to sanction settling his custody and property tax dispute with “blunted, practice style" katana swords. Ostrom asked the judge for 12 weeks to secure the blades. According to the Des Moines Register, Ostrom's request is the result of frustration with his wife's lawyer.

More Than One Fan Taking Game of Thrones Too Seriously

Ostrom got the idea from a 2016 case out of New York, in which a lawyer – incredibly – also requested a trial by combat. In that case, Richard Luthmann, a lawyer licensed in New York, was sued by opposing counsel for allegedly advising a client to fraudulently transfer funds. Taking umbrage at this impugnment of his honor as a gentleman, Luthmann motioned the court to “permit the undersigned to dispatch plaintiffs and their counsel to the Divine Providence of the Maker for Him to exact His divine judgment once the undersigned has released the souls of the plaintiffs and their counsel from their corporeal bodies, personally and or by way of a champion." Luthmann then went on to participate in an epic game of Dungeons & Dragons, one assumes.

The case was, of course, settled without violence, with Luthmann getting the publicity he likely wanted from the start. Yet the judge in the case agreed with Luthmann that the United States has never specifically banned trial by combat.

Unfortunately, Ostrom has failed to see why a similar request is not a good idea for his circumstance. Ostrom has not asked for a duel to the death, thankfully. Still, opposing counsel in the matter has asked the court to suspend visitation rights and for Ostrom to seek psychological evaluation. This is why you don't represent yourself, folks.

The judge in the matter has yet to act on Ostrom's request, citing procedural issues.

A Brief History of Trial By Combat

For fans of legal history, meanwhile, trial by combat was allowed under British common law until 1819. It's a tradition stemming from Germanic tribes who would allow trial by combat in situations in which there was not a lot of evidence. While not repealed when the framers drafted the U.S. Constitution in 1787, it had not been invoked for centuries. Understandably, therefore, it is not mentioned.

However, the founders did indeed have duels, as we all know. It is possible that one could argue the framers did not intend to outlaw trial by combat. While an interesting historical footnote, it is of course ludicrous to imagine a modern court allowing trial by combat, whether to the death or otherwise.

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