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If the Dress Fits, You Must Acquit

Julia Jensen Smolka

I love trial work. It’s why I became a lawyer. However, 90-95% of cases are settled before trial. It makes sense because trials are expensive and the outcome is uncertain. I typically try to settle my cases before trial. But not every case settles. I recently tried a case that I will remember for a long time.

Our client was an upscale women’s boutique in Chicago. It sells high end clothing and accessories. It purchased several dresses and shirts from an up and coming young designer. The designs were beautiful and expensive. When they arrived at the store in time for spring, there was a problem. The dresses and shirts were sized improperly. Some ran large, some ran small. And they were not selling.

The store complained and tried to return the merchandise. They called, emailed and sent photos to the designer without receiving satisfaction. They had a sales representative come to the store to see the problems. The representative agreed the merchandise was not cut properly, but the designer would not take back the merchandise, and demanded to be paid in full. The store refused to pay for the merchandise. The store struggled to sell it, and slashed the prices. Finally a dozen or so pieces sold from the clearance section for a fraction of what the store was charged for the merchandise. The designer eventually sued the store.

The designer was not interested in settling the dispute, he wanted to be paid in full. We eventually tried the case. The designer came to Chicago from New York. As plaintiff, he testified first, and told the judge what a great designer he was. He told her about his background, his stint on a reality TV design show, and about how popular he is. The designer’s attorneys called the shop owner as a witness to try to have her admit that she did not pay the invoice. She admitted it, but claimed the clothing was not cut properly. The shop owner brought the dresses and shirts with her to show the judge how the fit was incorrect. However, the judge stated she could not tell from merely holding up the dress, she said she needed a model to tell. After the designer presented his case, we took a lunch break.

Over lunch, I decided it was not enough to explain why the clothes did not fit. We had to show the judge. We didn’t have any models at the ready. So we took matters into our own hands. My client, who was a size 4, put on a dress that was a size 6 and was tight in all of the wrong places. The dress retailed for $495.00. I then put on a dress that was a size 6, but fit my size 10 frame. That dress retailed for $595.00. I put my suit jacket on over it. We returned from lunch.

I had my client stand and testify to her true size by showing the label of her skirt to the court. She then showed the judge how tight the dress was on her and explained why it was sized incorrectly. The designer’s counsel became upset and shouted his objections to what we were doing. I reminded the judge of her own words before lunch that she needed a model to show the clothes. The judge smirked a bit and overruled the objection and allowed the demonstration. I then took off my suit jacket, had the client read the label which confirmed it was a size 10, then had the client read the size label in the dress, which was 6. The two dresses were each size 6, each mis-sized.

The designer returned to the stand for rebuttal and stated that his clothes were made in New York under strict quality control. I merely asked him to confirm that this dress fit me properly. He admitted that it did. We won the trial. The judge agreed that the designer, who sued for breach of contract, could not meet his burden by showing he performed his terms of the contract, which was to sell clothing that was made properly.

I will remember this case for a long time. It was fun to be part of the trial evidence as well. And to answer the question you are probably thinking, no, I did not get to keep the dress.

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