Vail Law: Suing out of principle sometimes carries a very high cost (column)
September 26, 2017
1-L Real Property law professor Mike Navin stood up tall and straight. He was a big man with a mop of blonde hair that fell before his steel-blue eyes. He had served his nation proudly in Vietnam and, when he spoke, we listened. The "we" I'm referring to were the green-as-an-unripe-banana first year law class that squirmed before Professor Navin in the tepid amphitheater classroom.
Professor Navin reached up on the tiptoes of his brogues, brought both ham-sized fists above his shoulders and then slammed them down on the lectern behind which he balanced his considerable bulk. "Whenever," he growled, "a client stands up, bangs on your desk and demands that it's the principle of the thing, it is your duty as a lawyer to stand up taller, bang louder, and in your strongest voice, say 'Let me tell you what that principle will cost you!'"
The room was as silent as a charnel house.
In the ensuing 36 years, I have quoted Professor Navin often. Sometimes — civil rights, upholding the fundament of the Constitution — principle is what matters and is, in fact, the essence of the matter. But most times, while principle informs one's passion, it must occupy the cheap seats. In the quotidian disputes of daily life and commerce, principle is not the pitch upon which jousts of knightly honor should be waged. For most work-a-day folks, lawsuits are simply too expensive and burn up too much energy to make principle alone the centerpiece.
Recently, I was in a meeting with a client, a lovely lady with a good head on her shoulders. She was standing on the slender precipice of commencing a lawsuit, and as she peered over the knife edge into the abyss, she said to me, "Well, it's really the principle of the thing that's got me."
Hers was a commercial dispute: Two business people had gotten crosswise with one another over a deal that had gone sour. There was bad blood between them and real money was involved.
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Angels and devils
Her comment had a cartoon effect on me. Not that what she said was funny — it was not in any way — but more in the image that her remark conjured in my head. Think back to your cartoon days when you were a kid and the classic image of the devil on your shoulder, trident clenched tightly in his bony fist, whispering acrid nothings in your ear. Except in this case, the devil bore a striking resemblance to my former 1-L Real Property professor.
Like a patellar reflex tapped by the hammer of Professor Navin's dictum, I said, "It shouldn't be."
"Principle has its place," I said, "but what this should be about is the deal, about the money."
"I want to teach him a lesson," she said.
"He's what, 55 years old? Sixty?"
"What he is is an ass."
"You think you're going to change him?"
"Well, I …"
I was channeling my old professor. "You've got to realize, he thinks he's right, that you're the bad guy, that he's done nothing wrong and that it's all your fault."
"Do you believe that?"
"Not for a minute. But he does. If we bring suit and he loses, he'll blame the court, he'll blame the judge, he'll blame the jury, he'll blame me and you, he'll blame the gods. But who he won't blame is himself."
"But what he did," she said, "is wrong."
"And you are entitled to compensation because of that," I said. "You are entitled to be made whole. But if you're looking to reform him — to teach him a lesson — leave that to karma. That's not what the legal system is all about."
She cogitated just a moment. "But won't beating him in court teach him a lesson?"
"Beating him in court will mean that you are made whole and that justice was done. Whether he learns anything from it is up in the air."
She offered, "Well, it's not just the principle. It's the money too."
"Lawsuits are a means of peaceably resolving disputes. In a commercial dispute like this, the goal is to be put in the position you should have been in had the agreement between the two of you not been breached. It is not a platform for pedagogy."
She thought. She considered. I could see her conjure up the soul if not the image of Mike Navin. "Maybe you're right," she finally said. "But I'd still like to teach the S.O.B. a lesson."
I said, "Martin Luther King Jr. famously observed that the arc of the moral universe is long but it always bends toward justice."
"Leave it to the universe to sort out?" she asked.
I nodded. "If it's principle alone," I said, "let me tell you what the principle will cost you."
We settled down to discuss the nuts and bolts and goals of litigation, the mop-headed ghost of Professor Navin grinning Cheshire-like happily between us.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.