Thomas Gagné
Many people think that hiring an attorney is synonymous with filing a lawsuit and then ultimately taking the case to trial. Nothing can be further from the truth. This impression is created by the media, in shows like Law and Order, where the crime is investigated, the criminal arrested, and the jury delivers its verdict in a few days if less.
First of all, a large percentage of lawyers, probably the majority, are what’s called transactional attorneys. These lawyers engineer things like corporate buyouts, mergers, real estate sales, sales of equities — pretty much anything to do with money and business. These lawyers rarely, if ever, see the inside of a courtroom. And if a lawsuit does spring from their work, transactional attorneys, as a rule, won’t be responsible for the suit. The parties will hire attorneys who specialize in business litigation. The stakes can be huge, say, a lawsuit alleging a corporation monopolizes a particular industry, or relatively modest, say, a suit alleging a fiduciary breach by a partnership grossing 100k a year.
Of course, business litigation isn’t the only type of litigation. There’s domestic litigation (divorce), criminal litigation, constitutional litigation, environmental litigation, personal injury litigation, and the list goes on. I happen to be a personal injury lawyer, and yes, I try cases in court, but not as many as I used to.
Litigation rears its ugly head when parties cannot agree on a solution to their conflict and must cast their issues before a judge and jury whom they’ve probably never met. It’s akin to letting a bunch of strangers decides what color to paint your living room when you want yellow and your wife wants eggshell.
What happens is this. A conflict arises between a party or parties. The parties try to solve the problem themselves, but because they are amateurs, at best, at this sort of thing, they just end up making the problem, and their positions relative to the problem, worse. They think that are saving money by not hiring professionals, i.e., lawyers, or they think that if they hire a lawyer it “raises the stakes” of the conflict, or will alienate the other side, and this frightens them. By this time it dawns on one or both of the parties that they need a lawyer. So they come into the lawyer’s office and lay the mess on the lawyer’s desk.
The lawyer, who probably wants the business because there are too many lawyers, and competition for business gets worse all the time, has to immediately file suit to protect himself from malpractice because his client has waited so long the statute of limitations is about to run.
The lawyer files what is called a complaint, which simply identifies the parties, who’s done what do whom, the specific facts of the case, and what the aggrieved party wants. That’s it. No magic. But the complaint opens a Pandora’s box of work for the attorney. Some litigation can go on for years. I’ve seen boxes piled to the ceiling in some cases. And I had to ask myself — is all this really necessary? And I’m not blaming lawyers. They’re as much caught up in the structure of what still amounts to a litigious legal system — filing, prepping for and going to trial — as any other player.
There’s an apropos quote in the movie, A Civil Action, when the protagonist/narrator attorney, played by John Travolta, defines a lawsuit as a game of chicken in which the parties spend way too much time and money on their case until the most reasonable party cries “Uncle!” — and then settles.
In the movie, the attorney alleges that a town’s water supply, supposedly polluted by the defendants, caused cancer in the town’s children. He rejects a 20 million dollar offer to settle primarily because he did not want to appear weak before his “white shoes” opponent, in spite of the fact that the offer was actually reasonable given the strengths and weaknesses of his and his opponent’s cases. The point is that, too often, litigation is a product of ego, a party’s ego, or in the most dangerous instance, an attorney’s ego. These people have something to prove, and in the process blind themselves to realities. Litigation ceases to be about building a sound case, seeking truth and just compensation, devolving instead into a game of poker — who’s bluffing whom? Who’s “the man?” Most adults think they are, well, adult, but most adults are a scratch away from infantile emotions manifested in adolescent behavior.
I do not mean that all cases should settle. Far from it. Sometimes the other side is acting so unreasonably in the face of credible, overwhelming evidence that the only option a litigant has is to go to trial. But I’m here to tell you that such cases are in the minority.
Now, the reality is that a tiny fraction of filed lawsuits ever makes it to trial. So what am I banging on about? My point is that even within that tiny fraction, the majority of those cases should have settled.
Luckily, legal culture has progressed, as well it should, as it is a discipline devoted to reason. Yes, reason fails sometimes. Yes, sometimes what sounds reasonable yields absurd results; yet, even with the corruption, the power plays, the pure politics of law, not to mention the pervasive black humor of the Universe, I believe the law (at least of the Anglo-American variety) transcends time, persons and politics and gets better. Think how foreign Miranda warning requirements would sound to a 19th-century jurist.
And as far as the law’s attitude toward litigation, we are transitioning from a legal culture centered on the trial to one centered on negotiation.
When I was in law school instruction in negotiation was not even offered, which is extremely odd as negotiation strategy and tactics are critical to resolving conflicts, especially ones which rise to the level of litigation. The “negotiation is common sense” argument fails as shown by the current proliferation of negotiation studies in law schools, especially it’s elaboration at leading schools like Harvard and MIT (see The Negotiation Project), as well as the growing number of certified mediators and arbitrators — lawyers, even non-lawyers, trained to help litigants reach a solutions, not to mention new rules requiring ADR — Alternative Dispute Resolution — as a condition precedent to trial.
This can only mean good news for the judiciary. Judges will be able to focus on cases properly brought before them — cases of a new impression which develop the law. For lawyers, unbiased mediators can help define critical issues, uncover strengths and weaknesses in litigants’ cases, and suggest novel solutions. For client/litigants, it means less expense, speedier results, and, hopefully, less stress and anxiety.
Photo by Bill Oxford on Unsplash