Normally an optimist as concerns the potential for the legal system to evolve for the greater good, I have had my faith shaken over the past few months. Far too many times in recent days have I witnessed people short-circuit the rational dispute resolution process and instead jump straight into no-holds barred litigation. As may surprise some, the catalysts of this crisis are not attorneys but lay citizens. Their decisions to file or continue suit were against the advice of the lawyers, who have, to their credit, tried to interpose some level of sanity to the matters. Just because the right to go to court exists does not mean that it should always be exercised.
When the first thought that pops into one’s head when a dispute arises is “Let’s sue them!” that is a real systemic problem. Particularly concerning is that the recent conflicts to which I have alluded are petty and could easily be resolved quickly with minimal effort. Instead of taking the time to reach out and see if resolution is possible, either informally or through a mediator, people go straight to the court system. Now, I am all for access to justice and I think that the small claims court is particularly great at allowing people to have a judge decide their case very efficiently. As a volunteer mediator at that venue, I am well-versed in the character of these conflicts, but I am sometimes dismayed that the parties have let the case get so far.
The causes of this unfortunate circumstance are myriad and interconnected. Ego is a huge issue — some people can never accept that they are even a little wrong. I have said it before and will keep saying it — all disputes are gray, not black and white. Each side has some culpability, and an inability to internalize this leads people to the halls of justice, expecting that they will be vindicated. They are usually in for a big shock. Failure to effectively communicate is another big culprit. Talking through the issues (which you will be required to do in mediation anyway) before launching a lawsuit can expose the misunderstandings that underlay the conflict and illuminate a path to resolution. Most people’s view of the legal system is informed more by television than by reality. Consequently, they are not able to accurately weigh costs and benefits of engaging in litigation. Combined with a potentially unscrupulous attorney, this can be very dangerous.
Despite efforts to publicize alternative dispute resolution such as mediation and arbitration, the general public still does not think of these avenues because they are so well-conditioned to engage in traditional litigation. Further education and awareness of these methods will help cut down on the glut of unnecessary lawsuits. One final reason that people are so quick to jump into litigation: The old chestnut of “everyone else is doing it.” A worse reason for action cannot be imagined.
By proceeding straight to litigation, the parties unlock unintended consequences. Litigation is, by and large, a zero-sum affair — there is a winner and loser. When each side has no doubt they will win, there is inevitable disappointment, along with, in most instances, attorney fees for both sides to pay. Even when one wins, they still must collect the money to which they are entitled, which is no easy task. The most ironic consequence is that, notwithstanding widespread complaint about the torpor of the legal system, people continue to file lawsuits, which only further clogs the system and causes everything to take longer, in a vicious and seemingly never-ending cycle.
I have often said, and especially lately, that if my profession were to go away, no longer needed, then I would rejoice. I would miss the intellectual challenge and the ability to help people, but I would find something else to do with my life. I am not naive enough to believe that will happen, and there are certainly many disputes that cannot be resolved short of litigation, even when the alternative means have been tried and the egos are kept in check. Knowing this, I redouble my efforts to effectuate change from within the system and through advocacy such as this column. It is worth the small courtesies to fellow lawyers, the counsel to avoid disputes even as that works directly against my family’s pecuniary interest, and the sometimes harsh criticisms of the system in this space. A temporary glitch in optimism does not prevent me from believing that change is really possible.
T.J. Voboril is a partner with Thompson, Brownlee & Voboril LLC, a local civil litigation firm, and the owner/mediator at Voice of Reason Dispute Resolution. For more information, contact Voboril at 970-306-6456, firstname.lastname@example.org or visit www.thompsonbrownlee.com.
One final reason that people are so quick to jump into litigation: The old chestnut of “everyone else is doing it.” A worse reason for action cannot be imagined.