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THE GRUDGE FIGHT:
SURVIVING THE LEGAL EQUIVALENT TO A TEMPER TANTRUM IN A COURT OF LAW
Introduction:
Grudge fights are
simply those pieces of litigation that are based on raw emotion and in
which one or both sides have lost all thought of valid or sensible cost
benefit of the case. Rational analysis of the underlying value of the
case or logical evaluation of its true purpose is lost in a sea of anger
or some other emotion.
And they come in
various types.
It was perhaps two
decades ago and during a deposition of the opposing party and my client
was sitting next to me. They were fighting over a fence my client wanted
removed (so high it violated local ordinances) and had already spent
more on the fight than it was possibly worth. The other side was going
to lose-all of us knew it…but refused to take down the fence or concede.
He was rich. My
client was not.
During a break,
while my client was outside smoking, the opposing party watched his
lawyer go outside to take a telephone call. The party had just admitted
under oath violating the ordinance, thus losing the case as far as I was
concerned. I was looking over my notes when he came over to me and
smiled.
“You know, you think
you just won. You didn’t. I won.”
I was annoyed and
showed it. “Really?”
“Your bill last
month…five thousand? This month…another seven? That’s twice your
client’s pay check. That’s thirty percent of mine. See? I win.”
Then he smugly sat
down and waited to lose the case in court, knowing that my client would
be a net loser no matter what. Since attorneys fees are not normally
awarded in the United States to the prevailing party, if you win five
thousand and spent thirty thousand to get it…that’s tough luck. The rich
guy had always resented my client, had often argued over sewer lines and
who parked what car in front of what house…this case was to “teach my
client a lesson.”
But that’s only one
type of grudge fight. Another, equally common, is what we call “an
emotional basket case” in which one or both sides are so upset about a
matter that they engage in the litigation for emotional relief, spending
far more than a case can ever be worth to prove their point or justify
their emotional condition. Sometimes two or more parties share this
condition with resultant escalation of fees and costs.
The court system is
expensive and time consuming. See our article on
The American System
of Litigation. It can be a tremendous economic and
emotional blow to become entangled in prolonged and bitter litigation,
especially when the “up side” economically is minimal. But such cases
are not uncommon and, indeed, are often used on a regular basis by those
who seem to enjoy demonstrating their power in the Courts.
And the strategy and
tactics necessary to minimize the downside and, perhaps, even gain some
advantage in such a case is the subject matter of this article.
Facts Of Life:
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The American
system of litigation is a carefully honed instrument that developed
over three hundred years and is constructed to allow the parties to
present their cases in a fair and objective forum after each side
has had ample opportunity to develop evidence using extensive tools
of discovery unique in the world. It is not made for efficiency. It
is not made for economy. It is made to develop a fair trial and
presumes each side can afford it.
-
The American
system of litigation has become increasingly complex and expensive
as the Courts have developed additional tools of discovery and as
the Courts have become increasingly crowded due to a larger
population and smaller court budgets for judges and court rooms.
What used to take six months to bring to trial in 1945 now takes two
years, often more.
-
In law, you get
what you pay for. Both in terms of developing evidence and in
quality and skill of legal personnel, it is uncommon for a “case on
the cheap” to triumph over a party who hires good people and gives
them sufficient resources to build the case and put it on.
-
One side can
normally force the other side to spend money. If I notice a dozen
depositions, your counsel will probably have to attend to defend
them or ask his or her own questions…thus forcing you to spend
money. If I file half a dozen motions, your counsel must contest
them. In short, if I want to spend money, I can make you spend
money.
-
The threats of
“malicious prosecution” or “abuse of process” to stop someone from
engaging in “scorched earth” litigation are seldom effective. The
overwhelming majority of abuse of process or malicious prosecution
cases fail. As one judge told a friend of the writer, “The courts
exist to be used. Unless actions are absolutely objectively
outrageous, we have no interest in scaring people away from the
courts.”
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While most
lawyers are ethical, most lawyers also see their role as
representing their client’s interest to the best of their ability.
Even if they disagree with a client as to the chances of success of
a case, they will keep bringing it and fighting it (assuming the
client can afford it) with the argument that everyone deserves to
get their day in court. Prosecuting a client’s case with vigor is
taught as an appropriate professional goal in law schools and most
lawyers feel that it is, ultimately, the client who is the best
judge as to whether to prosecute a case.
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The tendency in
our legal system is to allow cases to go to trial so that a party
gets his or her constitutional right to a jury trial. The judges are
loath to stop a case before then if there is even an iota of
evidence to support a party’s claim. And, in most cases, a smart
lawyer can always find some argument to advance to convince a judge
that a case, no matter how weak, deserves a trial. And that
necessarily means that the full scope of discovery will be allowed,
with its massive expense…not to mention the trial itself.
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People are not
rational in many of their decisions. Even if a party has a weak
case, they often convince themselves that it is a strong case or are
so angry that they are blind to reason. Even discovering evidence
that in your mind destroys the opponent’s case may not convince the
other side that they will lose…and if they spend money to still go
to trial…so do you.
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Further, even a
party losing faith in their case often adopt what we call “The
Vietnam Syndrome.” Essentially, they feel that since they have spent
so much time and money to get that far, they cannot settle but must
keep going even though their case appears increasingly weak.
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And there is no
“sure thing” in litigation. While most attorneys can predict the
outcome of a case with some accuracy, it is, at best, an inexact
science and some cases that are weak still win occasionally. Thus,
even the weakest case must be taken seriously enough to contest it
effectively. That costs money.
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Arbitration,
which is a private trial, is much faster and cheaper than
litigation…but is only imposed in most case if both sides agree.
While we recommend it in all contracts, if the parties have not
already agreed to arbitration before the fight begins, it is
unlikely they will agree once swords are drawn.
Mediation, which is often required by the Courts, is
simply an attempt by a professional to make the parties voluntarily
agree to settle a case. If one or both sides are engaged in a true
grudge fight, that seldom happens.
Those are the simple
facts that confront any party engaged in any litigation in the United
States. It may be noted as an aside that it would be easy to devise a
system that would eliminate most if not all of such cases. Germany has a
law that automatically awards full attorneys fees to the prevailing
party and further provides that if the losing party cannot pay the fees
due to lack of funds the attorney must pay the fees. Few attorneys will
file a suit they are not convinced can win and Germany has only a
fraction of the cases filed in the United States.
In the United
States, where the ability to utilize the court for vindication of
personal rights is a treasured power retained by Americans, such an
approach, which makes filing suit problematical, has no chance of
becoming law. One will have his or her day in court in the United
States…but the price is the danger of facing such grudge matches,
fighting over cases that can never justify the costs.
So, that’s the
problem, The question is, what can be done to minimize the chance of a
grudge fight and, if in one, to maximize the possible benefits.
Before The Fight:
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Recognizing the
above, the wise person will take steps in every situation he or she
can to eliminate the chances for such litigation in their lives.
Certainly arbitration with the prevailing party receiving reasonable
attorneys fees should be part of every contract and lease. Carefully
checking out the back ground and litigation history of any potential
business person you are considering dealing with is also a very good
idea. This is easily accomplished using the internet. Indeed,
“Googling” potential business partners is cheap and easy and one who
fails to do so is foolish indeed.
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The negotiations
for a business deal may educate one about the type of business
person one is dealing with. See our story on our website,
“The Acid Test Clause.”
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Truly listen to
a potential business associate or buyer or seller of real estate.
Listen to the amount of emotion and vindictiveness in their voice.
One elderly client who succeeded in business once told me that he
never signed a contract with a person that had either not eaten with
him or played golf with him. He loved to tell a story of a deal he
walked away from when he saw the possible co venturer become irate
and start screaming when someone cut in front of him on the free
way. “Best deal I never made,” he would chortle.
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Get out early.
One can often discover that a person with whom one is engaged in
business has the tendency to litigate over trivialities. Often one
hears stories about past litigations or sees large legal bills
sitting on his or her desk. Devise ways to end the relationship. If
a fight is already simmering, see if you can quickly settle it, even
giving up a little, before it escalates.
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Keep a low
profile. Most people who enjoy grudge fights pick an enemy and
become fixated on him or her. Assuming the person is already
becoming angry at X, then it may be a good time for you to quietly
exit the relationship.
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Control your own
emotions. It is easy to become enraged as one is prodded by someone
intent on engaging in their hobby of litigation or who has lost
control of their own emotions. Don’t get mad. Get even.
During the Fight
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Polonius had it
right. Avoid and dread a fight-but if forced to fight, fight so that
the other side dreads you. The moment such a fight begins, it is
vital to put together a legal team that can correctly analyze the
various tools available not only to cut the fight short, but to
perhaps obtain some benefit from the fight. By definition a grudge
fight is unlikely to settle. The other side is enjoying it too much.
One must alter the landscape for the other side so that they
reassess their position and, if necessary face a verdict that will
at last put an end to it. But the creation of this legal team is not
equivalent to the criteria you would utilize in a typical case.
Consider.
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A grudge
fight is, by nature, an annoyance and an expensive one. One
seldom comes out ahead in the sense of making money or achieving
a logical goal. One is fighting to remove a parasite from one’s
life. Even if the fight is over some asset or right, quite often
that asset is not worth the cost of the fight. Assuming
arbitration or mediation is not realistic, then one faces an
expensive and prolonged struggle. There is a tendency on the
part of the victims of this type of fight to blame the system or
rant at the lawyers, upset that “good money” is being spent “for
nothing.” This is pointless. The same tools of litigation and
the same costs of litigation apply whether the asset is worth a
lot or one is facing a myopic adversary who enjoys costing you
money. Almost certainly you will have to spend as much as your
adversary to hold your ground. To blame the lawyer or the system
is both pointless and unfair. Understand that a fight is a fight
and you need a dedicated and intelligent team to counteract your
opponent and that is true regardless of the underlying value of
the fight.
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Don’t try
short cuts. As explained above, such efforts as motions for
summary judgments or mediation are unlikely to work in our
system. Resign oneself to going all the way to trial and verdict
if necessary-offer arbitration, offer mediation, but do not rely
on them to save the day.
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Stay calm.
One intelligent Russian émigré this writer represented quite
often found herself in such litigation since that community at
times becomes fixated on the courts. She once explained to the
writer, “I think of suits like this as a disease. One has to
take the right medicine and go to the hospital and there is no
point in blaming the bacteria, however much you dislike him.”
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Keep
flexible. If an opportunity to end it arises, carefully consider
it. Do not expect it to arise, but stay alert to it.
-
Look for Counter
weights. Ideally, one can find not only cross complaints to give the
other side something to lose, but can find ways outside of the
litigation to perhaps make the other side reassess their position.
One client utilized his role in Rotary Club so that an opponent was
ostracized by certain key members who regretted the silly fray.
Another client simply stopped his business from buying from the
vendor and the vendor’s shareholders had the matter settled quite
quickly. If outside the litigation, it is possible that the
“litigation warrior” will not find the experience as enjoyable as
usual.
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Keep reassessing
the case. Avoid the Vietnam Syndrome discussed above.
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Fight hard. Most
grudge fight proponents are either bullies or emotionally
distraught. Acting weak or apologetic seldom will assuage them. What
often assuages them are bills from their own lawyers and quite often
they become enraged at their own legal counsel and this can
undermine their case. One case known to the writer had the opponent
go through five law firms before the fight was over.
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Don’t become
fixated on the fight. Give it to the professionals, try not to brood
on it, do not wonder why there is no justice in the universe, think
of it as a force of nature to be endured, and get on with your life.
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Check to see if
insurance might cover any of the complaint brought against you. This
radically alters the power situation and some policies have coverage
that is surprising.
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Move the case
along as fast as you can. Do not agree to continuances or delays if
you can help it. Such events cost money, delay what may be the end
of the matter in court, and simply encourage your opponent to engage
in more expensive discovery in the Courts.
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Make lemonade
from lemons. One client after two years of a truly idiotic fight
over intellectual property of virtually no value told me that he
considered the money spent his university course in contract
drafting. “You told me to have arbitration clauses and attorneys
fees clauses and I kept saying, yeah, yeah, someday. This is like a
final exam. I get the message.” And in his next dispute, involving
truly large amounts of money-he had the right clauses in his
contract.
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Don’t blame
yourself. We often hear clients bemoan some relatively minor error
or statement or letter they wrote which resulted in the existing
frenzy of litigation. Perhaps the letter or comment was a
mistake-but the escalation beyond all reasonable grounds did not
have to inevitably erupt. For that, usually, blame the opponent.
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And when it is
over…walk away and forget it…but not the lessons learned.
Conclusion:
The above assumes,
of course, that you are the victim of a grudge fight and not its
proponent. It is often true that those who engage in the most foolish
frays are themselves the cause of it. The type of cost benefit analysis
that one uses for every activity is appropriate for litigation and if
you have not engaged in that exercise…stop and consider whether YOU are
the person who is engaging in grudge fights. A good test: find an
acquaintance you trust with good judgment, tell him or her your
situation, try to be as objective as you can be…and ask them what they
think the case is really worth. You might be surprised.
But if you are the
victim and not the perpetuator, do not ignore the facts of life
described above and do prepare for a long and, at times, bitter fight.
You may win or lose….but you will not most probably have economic profit
from the fight.
But that is not the
only benefit one can derive from a law suit. You may lose money, but
winning a case against a bully can be a very satisfying result, and when
one thinks of most of the things that truly matter in life…self respect,
a feeling of worth, a feeling of vindication…one realizes that money may
be far down on the list of what the litigation is about…and what truly
matters to you.
And remember:
The enemies of the
future are always the very nicest people.
-Christopher Morley,
1941. |
