Robbins: Why lawsuits are expensive
“The rent is too damn high.” — Jimmy McMillan
In 2010, Jimmy McMillan ran for governor of New York. He lost. But by many accounts, he was the star of the gubernatorial debates. The lavishly bewhiskered founder of The Rent is Too Damn High Party doggedly pursued a single issue, that … um… the rent was too damn high.
It struck a chord. In substantial part because he was right. Rent in New York, like so many other things across this nation, is simply too damn high. Sadly, you can often count the courts among them.
The truth is that lawsuits are expensive and should not be entered into lightly. An aphorism — albeit it one that I made up — goes like this: “A lawsuit will nearly always cost you more in time, energy, and money than you expect and twice as much as you may wish.”
It is worth noting the distinction between asserting your rights and commencing litigation. Your rights should always be asserted and, if not satisfactorily resolved, an attorney should be consulted. But the last step — not the first — should be diving into litigation.
Support Local Journalism
Not only does a lawsuit put the other party on his heels and often polarize positions, but it is noteworthy that more than 95% of filed lawsuits end up resolving short of trial. What does that suggest? Well, simply, that more than most disputes which are serious enough to begin a lawsuit end up either settling or being dismissed.
While it is true that filing a lawsuit gives rise to discovery and may afford you access to certain information to which you might not otherwise be privy, the other truth is that there is a certain wisdom in settling when the costs are still low rather than acceding to a settlement only when both parties are physically, emotionally, and financially exhausted. Of course, people being people, it isn’t always possible to nip the legal donnybrook in the bud.
I have been a litigator for nearly 40 years. In that time, I have come to postulate a theorem pertaining to the costs of litigation. What makes litigation expensive? It is these six factors: complexity, thoroughness, unreasonableness, inefficiency, lack of organization, and emotion.
The first of these — complexity — is a fixed cost. Sometimes, something simply has so many moving parts, is so multi-phasic, or is comprised of such a substantial volume of material, that mastering the subject just takes time. Documents must be read, understood, and fitted into the intellectual matrix of the case.
If there are complex legal issues, they must be researched. If there are complex factual issues, they too must be researched and oftentimes, experts, who seldom come cheap, must be consulted. Complexity is the factor least susceptible to being controlled.
Thoroughness means doing things the right way. There is usually a right way and a wrong way to do things and an attorney who is doing things halfway is doing his client no favors. It is a false economy for an attorney to do only enough to push the case along rather than giving the matter the sharp attention it deserves. A thorough attorney must carefully check his facts, critically formulate her arguments, and present them intelligibly and forcefully and with impeccable substantiation. Thoroughness cannot be scrimped in the interest of thrift.
Lack of organization can be an expensive bugaboo. An organized client is a client mindful of his wallet. If, for example, the documents provided to an attorney are in a jumble, the attorney rather than the client must spend her time — and the client’s money — to sort things out.
The attorney, too, must be well-organized. Organization and efficiency, if not quite being conjoined twins, are at least kissing cousins. If your attorney’s desk is so deep in paper and so disheveled that he can never quite put his hands on what he’s looking for, you might think about a new attorney. Time is money and time spent in an Easter egg hunt looking for your documents hits you in the wallet.
In order for a reasonable settlement to be crafted, people must be, well … reasonable. If any of the parties or their counsel is unrealistic, a reasonable resolution to the dispute will be hard to craft. A good attorney should counsel his client as to both the strengths and weaknesses of the client’s case (in almost all cases there are both) and guide the client towards the practical. If for whatever reason, any of the parties or their counsel has his head stuck in the clouds, the costs of litigation will reach there too.
Emotion. And its cousin, “principal.” Difficult as it may be, both must be weeded out as early in the dispute as possible. Litigation, costing what it does, should be coolly calculated as the business decision it is. Sure there are personal aspects to any dispute and more so in some matters than others, but the goal should always be to resolve the dispute in a satisfactory way in the most cost-effective manner.
All of the above said, law is as much an art as a science and, as there are usually a multitude of angles from which to approach a particular dispute, costs are often difficult to estimate and contain. Still, if one marshals maximum efficiency, thoroughness, and organization, to the greatest extent possible eschews emotion, and prays that all involved are reasonable, the financial damage may hopefully be kept to its essential minimum.
Still, there is no doubt; at times the rent is still too damn high.