Chapter One: THE FACTS OF LIFE IN AMERICAN COURTS: MONEY MATTERS
Paul D- was a litigation warhorse before I was born and an old friend of my father who I had joined in practice in the 70’s. Dad had figured I would learn about the reality of the civil courts by following Paul around and though my law school had allowed me to practice in the criminal courts of Massachusetts for two years by the time I graduated, we all recognized that the civil courts were a very different arena. So, for the first few years of practice I worked a good deal with Paul, a massive six foot three inch lion of a man, now growing a bit stout, often rumpled, but still enjoying the theatre of the court room.
He would stride into court, grinning and shaking hands with the myriad other counsel who knew him, carefully polite yet familiar with the judges who would watch him approach with amused anticipation, for Paul knew how to charm a jury and laugh with a judge, never taking the matters at hand so seriously that he would become intolerant of the give and take of the court room. His opponents were always the “honorable gentlemen” or “learned lady,” the court always “Your Honor,” the jury always an, “august assembly here to do justice,” and the court room, “the center piece of American justice.” All said with a slight smile but with an undercurrent of total conviction.
He practiced all over the San Francisco Bay Area and we would spend hours driving to and from courts in his Cadillac, discussing witnesses, the cases, the judges, truth and justice. He was a bit dismayed at my intensity.
By then, I had already tried over a hundred cases in the sordid and brutal criminal courts of Boston, its suburbs and Cambridge, bitter crowded places of rancor, chaos and corrupt judges. One judge had bellowed at me, “We don’t follow the Constitution in Charlestown,” quite seriously. And he was right.
My law school had a clinical program where, after some training, we law students were allowed to practice criminal law on our own in their District Courts and I took full advantage, often having four or five cases going at a time. I had become grim and determined, built up a winning record by fighting hard and ruthlessly against the DAs. In that system, we all knew that the judges and juries automatically assumed the defendants were guilty and simply wanted the trials over as fast as possible to “avoid wasting the tax payer’s money.” I would argue back that the Constitution could not be ignored to save money and worked day and night to get my clients out of the system.
Somehow I managed to convince more judges and juries than I would have expected. But my law school clinical program career ended with a true blow up. A reporter had been following me around on one case regarding a fourteen year old child who had been arrested forty two times, had been pled guilty by each public defender who had represented him, had never had a trial and did not even know that the system allowed him to have a trial. His crime was inevitably car theft…joy riding…but by now he was automatically arrested by the police who had seen him in court so often that they assumed he was the one who stole any car in Roxbury.
He was surprised when I visited him in jail before trial. No lawyer had ever done that before. He told me he had not stolen the cart, had not done a lot of the past crimes he had pleaded guilty to…but also admitted he had often stolen cars, “for riding around in” in the past. His voice became flat and hopeless when I discussed the evidence since he knew very well that what he said did not matter. He would end up in jail for three to four months regardless of what type of case he had. The judge in juvenile court had sentenced him quarterly for years now and knew him well.
I told him we would try his case before a jury and he had just stared at me, wondering what the game was. Two months later he was acquitted and the Boston judge, furious at the jury, staring at the little boy who was literally jumping up and down with joy in the court room, immediately revoked his past probation and took the now crying boy away on the spot. The judge glared at me as I watched my client disappearing behind the bars in the bailiff’s holding cell.
And the reporter who had been in the spectator section had the story on the front page the next day. His description of the judge was eloquent. The judge, now even more furious, called the head of our clinical program and demanded that I contact the paper and deny the story. The program head, a famous criminal lawyer in his own right, looked at me curiously as I refused. I was young and outraged and had seen my client put behind bars after an acquittal and was so angry my hands shook. He glanced at my hands, sighed and leaned back in his leather chair.
“Won’t make any difference, you know. The judge is a political appointee. He’s not going to be replaced.”
“Doesn’t matter. The paper’s correct. I didn’t ask him to do the story. Didn’t even know he was there. But it’s accurate.”
The professor stared out the window. Then he considered me for a while. “You can never go back in that court room, you know. Ever.”
“I don’t want to hurt the program…”
He laughed. “You know what’s good about this school? No one takes us on. Ever. We own this town...but you show up in that court room, he will nail you. You’re graduating soon, anyway…?”
“One month left.”
“Then it doesn’t much matter…You’ll go off to do corporate law or environmental law in sunny California and no one will remember in six months.” I flushed since he had accurately predicted my plans. He picked up the phone, called the judge and told him on the spot that our law school stood behind the story. From across the desk I could hear the judge’s angry retort on the phone. But my professor only winked at me. “Your Honor, our student claims the substantial accuracy of the story and that means we would have to start our own staff investigating if we wish to have him retract. That would take months and require the involvement of administration. The Provost might very well have to interview both the student and yourself. Very complicated process”
And so it went for the next five minutes as the judge backed down…but the last words I heard as I left the office were the professor soothingly saying over the phone, “He’s graduating in a few months. Off to California. I doubt if you will see him, again, anyway…”
And my client stayed in jail for four months with his probation revoked.
Paul would hear such stories, shake his head at the foibles of the lower criminal courts of Massachusetts, and pat my arm. “They do odd things in some courts, son. Always have and always will. But what can you expect for free work?”
I straightened. We were in a small restaurant near the court house, eating bad sandwiches and waiting for the afternoon hearing. “Free? What do you mean ‘free?’ I worked for that child as hard as ever I did for any company...we’re talking of the rights of the accused..…”
“But no money, don’t you see?” He looked at me and saw I did not. “I don’t mean you altered your preparation because you didn’t charge. I mean, there was no money in it. For anyone. Criminal law. A loss of money no matter what…”
“Money? What does money have to do with it. We are arguing for freedom of the accused….?”
“Sure. Four months in the life of a kid who never worked a day in his life and stole cars half of the time. A judge who makes the same salary no matter how hard he works or does not work. A DA with a case load greater than he can handle. And you, a student almost done with a prestigious law school, not being paid, ready to come out here and see where law and money work in tandem…”
I glared at him. He smiled. “Yeah, I know, you don’t want to hear it. But in this country…when we are talking of reality…you buy justice. Buy it like any other commodity. You want a good car and not a piece of junk to drive in? Buy it. Want a nice house and not a hovel? Buy it. Want a nice suit and not jeans? Buy it….”
“Justice is not a house.”
“Neither is medical care and you buy that, don’t you? Want the best doctor? Expect to pay him less than you pay at a clinic?” He laughed now.
I stiffly retorted, “I happen to think I was better than most of the private attorneys there by the end of my second year…”
“And I happen to think you were right. You are better. And that, my boy..” He paused for effect, “is why you are here learning civil law, being paid good money to do it, by people who have the money to afford you. You could train on the indigent…you did train on them…but once you graduated, you are here with me and the level of practice, the type of judges, the types of courts, the types of adversaries….”
“That’s damned cynical, Paul,”
“That’s damned realistic. Yeah, I know you started a foundation here. To represent some indigents. For free. You have some volunteers….”
“Good lawyers and law students…”
“Sure. But how many cases can you handle? Three? Four? Well, it’s the public defenders who handle 99% of the cases and those guys are overworked and underpaid, just like the DAs. You know why?”
“Yeah, ..no money.”
“It’s all about money, boy, all about money. You find the best justice where the people can afford to buy it and don’t you forget it. Clients buy justice if they think it is worth it to them and those that can’t afford it have to hope it trickles down anyway…;” He laughed, but without humor. “And…the amazing thing is that it works so well…” He thought for a moment. “It’s like capitalism, isn’t it? You wouldn’t think an economic system based on greed and making money would create all this wealth and the good life, but it does. And our legal system works just the same. Good justice based on money being passed around to those who provide it.” He saw my expression and changed the subject to the trial we were starting that afternoon.
It was twenty years later after O.J.’s acquittal that I heard from him again. By then he had long retired and was living in an assisted living facility, having suffered several strokes. His voice was a bit slurred but I could tell he was laughing. “You saw the verdict, right?” I acknowledged I had. I pointed out that concerns of racism played a large part in the acquittal and that the police had badly bungled the case. But Paul was having nothing of it. “Money. Simple money. The DA works for the government on salary. OJ bought the best money could buy. He bought the justice.” He laughed again. “You get what you pay for, boy. What you pay for.”
He died a year later, and I am sure he laughed and argued his way into heaven.
Chapter Two: CRUSHING THE OPPONENT WITH DOLLARS
“So it’s like this,” I said to the Japanese executive who clearly was not happy to be sitting in a lawyer’s office in San Francisco discussing why he breached the agreement. “One buys justice. Each side pays for the best attorney it feels is warranted, each attorney puts on the best case that he or she can, acting as adversaries, and the judge or jury decide who is right. The process takes two to three years, and most of that time is taken up with discovery.”
He raised his eyebrows. This was in the early eighties and most Japanese business people were just beginning to learn the foibles of the American system. I went on. “Discovery allows both sides to submit written questions that the other side must answer and to actually ask questions of them under oath before a court reporter…no judge there…and the transcript of the examination may be used in court. Those are called depositions.”
He said nothing.
“We can also ask them to produce any documents we want that are relevant. Can even inspect premises or ask them to admit if certain facts are true. All this any American attorney can do. Unlike Europe or Japan, such discovery is the meat and potatoes of any case.”
“The essential part of any case. Most cases are won or lost in deposition. Skilled counsel can look over the transcripts and pretty well determine who is going to win or lose. Most cases settle. Ninety percent never go to trial…but almost all proceed through discovery…and if they do not settle, then the depositions can often win or lose a case at trial. If they change their testimony or deny they made an admission in the deposition, we can impeach them before the jury.”
He did not seem impressed. “In Japan, we have trained judges who investigate and determine the truth of the matter. They do not practice law as advocates. They are only judges and their job is to find the truth, not rely on others to present their versions of the matter to them.”
“Yes, I know. But here we have the adversarial system. It is assumed that an essentially passive judge, listening to two committed advocates…each representing each side as best as they can…will discover the truth.”
He smiled slightly. “That is like saying if I mix two colors and throw them at the wall, the resulting mix will be more beautiful than either color.”
I smiled back. “That can happen. Blue is my favorite color and comes from that mix.”
“Yes…but most usually all that happens is black.” He sighed. “But you and I cannot alter the system. We must work within it, of course. It will be expensive?”
“Yes. Each deposition costs perhaps five to eight hundred dollars an hour and if there are multiple parties, you can have half a dozen attorneys all charging at the same time.”
“As here. Depending on the number of witnesses, a case can easily have a dozen depositions, each costing five to twenty thousand dollars for each party. They are powerful tools. But very expensive.”
“Yes. And in the United States, the winning side does not necessarily get paid his attorney’s fees that he had to spend, is that correct?”
I was watching his face. He knew where this was going. “That is correct. Unless you have a contract to the contrary or a special statue is involved. Each side pays their own attorneys…”
“And there is no limit on what the attorney’s fees may be? I could spend fifty thousand dollars over a five thousand dollar matter and force the other side to do the same?”
“That happens. People get emotional. And if your opponent starts spending money, you normally have to match it or face losing the case. “
“In Germany, the winning party always gets the attorneys fees from the losing party.”
“Not here.” He paused. “Very well, I wish you to expend one hundred thousand dollars on this matter within the next four months, please. More, if possible, but at least that.”
There was a moment of silence. “That can happen but need not. We can limit the costs of the depositions by not taking all of them immediately and perhaps seeing if we need to take the latter ones based on the testimony of the former ones…”
“No. Please. Take all of them now, if you can. I am prepared to spend the money.”
I did not like how this was developing. Another moment of silence before he continued. “Our opponent is…a “start up” I think you call it. I happen to know his budget for the entire matter is less than seventy thousand dollars. If he spends this much immediately, he will not have resources to continue the matter after that. He will settle. Or he will lose.”
“The ethical rules do not permit me to merely take depositions to crush a person. There must be legitimate legal grounds…”
“And there are, are there not? You do have legitimate questions to pose for the fifteen or so witnesses we have already discussed? You said you would eventually need to do that…”
“So, please do them all at once. Money will decide the matter. That should not concern you. This is a fight about money, after all. Why should money, then, not decide it right now?”
I leaned back in my chair and wondered why he was annoying me so much. He had just told me I would earn a lot of money quickly. He was right that the depositions were legally justified. He was right that we would probably bankrupt our opponents by using a “scorched earth” type of litigation technique that they could never afford to match. It was entirely ethical so long as there were valid grounds for the discovery. He was watching my face, his head tilted slightly. “I have insulted you, I can see…”
“No, no. I have just not heard the matter put so bluntly before. It does not sound pretty.”
“Pretty?” He smiled. “Your system is, forgive me, not very pretty. If one buys justice…as you put it…then how can the man with less money hope to compete? I am simply putting the matter, however crudely, forward as the most appropriate tactic to cut this sad matter short…”
“Our system is, in my opinion, the fairest and most carefully constructed system of procedures to achieve justice ever created…”
“Yes, yes, I can see you are sincere. But…forgive me again…a system of complex and complete rules that depends on money to achieve its ends is, by nature, incapable of fairness in many instances, is it not?”
“There are special rules that allow the truly indigent to have filing fees waived and public access to attorneys such as legal aid programs…”
“Which are over burdened, are they not? And not available for the middle class, correct?”
“And contingency arrangements are often available. Personal injury plaintiff cases are usually contingency and they make up the bulk of the cases the average American files.”
“Do they have any choice? They would perhaps file more if they did not have to exhaust their resources to file claims for beach of agreements and such….but we digress. Will you commence the case as I suggest? Within your Code of Ethics limits?”
I paused but could see no reason not to comply. “Yes…yes, of course.”
The defendant lasted longer than we thought….his budget was somehow expanded to perhaps one hundred and fifty thousand dollars. But, six months later, he finally was forced to settle. My Japanese client considered the process as both predictable and a modified form of bribery.
““I have spent two hundred thousand dollars making sure your court system would crush the opponent due to his lack of resources.”
“You spent two hundred thousand dollars preparing your case and if we had gone to trial we would have won based on that preparation…”
“Yes, yes, I am sure you are right. But the economics of the situation have trumped…that is the right word? Trumped? Trumped the ability to have the trial. What was our opponent to do once we decided to spend the money necessary to try the case fully?”
“If he had created the right contract…one providing for attorneys fees to the prevailing party…the game would have been far different.”
“So you tell me. But that simply means that wise parties can create paperwork to do that which your court system should do automatically. Such as Germany does, correct?”
“Yes, I suppose…”
“Do not appear so grim, Mr. Stimmel. You prospered. I prospered. And since you feel we would have won the case, justice prospers, no?”
I had no ready response. But somehow….somehow it was not very satisfying.
Chapter Three: Changing the Rules
It was Jim’s biggest contract and his biggest chance to “move to a higher level of customer,” he told me, a little breathlessly. He was an electrical contractor who had worked his way up from residential to small office buildings and was now looking at a contract which exceeded seven figures and would take his entire crew over a year to complete. The customer was a large warehouse style retail outlet who was opening two local branches and Jim’s company was contracting to take on the entire job.
The contract was the size of a small novel. Its table of contents was four pages long. The customer was in an expansion mode and had developed its form contract for use in two dozen states and fifty different projects. Jim took one look at the massive document and came in to discuss it.
He watched warily as I flipped through the many pages. He licked his lips and leaned forward. “You know we can’t really ask for too many changes. I mean, if they don’t want to work with us, there are a dozen other contractors ready to grab the job. I just need to know the important stuff. Really important stuff…”
He and I had gone through some pretty tough litigations on some past smaller jobs against recalcitrant general contractors and owners with good success using his own contract. Thus, when I gave him a long look he already knew what I was going to say. He grinned. “Yeah, I know. Some time spent being careful now can save tens of thousands later…Yeah, yeah, I’ve seen that.”
“It’s more than that, Jim. Much more.” He leaned back in his chair, interested. I leaned forward. “You’re in the big leagues now. Dealing with companies that keep a staff of attorneys on payroll and who are engaged in a dozen litigations each month. These are not just pros at selling gadgets to consumers. These are pros at litigation…and pros at writing contracts that make you twist and turn.”
“There’s a lot of money at stake here and I need the business.”
“Understood. But let me ask you this. See this clause here? Number 12.6?”
“It says they can alter the contract at will. Any time. Based on their own needs. And you have to adjust.”
“Let me finish. So they tell you they decided to cut your contract in half and give it to someone else…someone who they found who is cheaper. But you’ve already geared up for thirty men on the job and now have to cut to fifteen. And have no work for the fifteen laid off…and no jobs outstanding since you did not bid any, thinking you would put all your men in this job.”
“But that would cost them, too. Gearing up someone else.”
”Maybe…but the real point is it gives them power over you, does it not? They tell you they are planning to cut you in half since they found someone cheaper…but won’t do it if you cut your price by ten percent. You’d have to go along with that, right?”
A long pause. “Yeah.”
”Or let’s just be brutal and say they breach the contract. Refuse to pay you part of it claiming your work is substandard. And you have to go to court. There is no arbitration clause. No attorney’s fees clause awarding fees to the prevailing party, right?”
“Which means they could spend two hundred thousand in fees in the first year of the case. Meanwhile, you’ve left the job since they aren’t paying you, you have to pay me two hundred thousand to fight them while scrambling to get more work since this job ended too soon. You don’t get back my fees even if you win since it’s not provided for in the contract…you’d only get your lost profits, not your attorney’s fees, right?”
He said nothing, just looked grim. I went on. “They have their own staff of in-house lawyers. They make ten million or more a month in net profit. If they have to spend a few hundred thousand in six months to drive you into the ground…do you think it would hurt them? After a few months you’d have to settle for whatever they want to offer. You’d be broke and have no choice. They can set the terms.”
He said nothing, just looked at the contract. I went on. “Put even more simply, the contract is like a gun. Either side can use it to enforce its rights. But if they have the money and they have the power….then they have bullets in that gun. Do you?”
“You assume the worst in them. They seem decent people to me.”
“And they probably are. And all this probably won’t happen. The point I am making is that this contract gives them all the power and you have next to none. Even if the contract was fair, they have so much more money that they can afford to grind you into the ground and you’d have to settle for anything to avoid having to pay me more than you have.”
“That’s not right. I mean, we’re supposed to have a decent system of justice, aren’t we? How can it be if they can crush me like that?”
“Jim…you buy justice in this country.” I thought of Paul D and knew that somewhere he was smiling. “They can afford more justice than you can and they can use that to their advantage. But there are ways to equalize the resources so you can each afford pretty much the same. But that means you have to work on the contract to even the playing field. If you don’t…then this contract may look like you each have the same right to go to court…but practically speaking, that right is useless to you. That can be altered by the right contract.”
“You don’t have to buy justice if we rewrite it?”
“No, can’t do that for you…but I can make it so that you both have about the same pocket book in the end. Using arbitration we can cut the cost of litigation so that both sides can afford it equally. And by awarding attorney’s fees to the prevailing party, you are made whole if you win…which is critical for your cost benefit analysis of the entire case.”
“But how about their ability to simply replace me at will?”
“That’s a different issue and we should fight that clause…but in terms of having realistic enforcement power in the courts…a few clauses allows both sides to buy justice. Without that, the rest of the contract matters little…”
“But the contract protects me…”
“Not if you do not have economic ability to match their litigation budget. Either you have to be a lot bigger and richer or we have to alter the forum to one in which both sides can afford the fight…both sides can afford the justice.”
“And attorneys fees paid to the winning party. With arbitration discovery is strictly limited in most cases…no depositions or perhaps one. In litigation you could have twenty depositions. And that makes up half the cost of a case. And a jury trial costs four or five times more than the average arbitration.”
“OK. Got it. But it will still cost a lot, won’t it?”
“It’s all relative. A full bore construction jury trial over a complex contract could easily cost you five hundred thousand to a million to try and take three years. That same matter before an arbitrator or panel of arbitrator will take less than a year and cost you less than a hundred thousand. And…”
“They can’t pump up the cost much. Can’t start really expensive discovery. They can up the cost of an arbitration a little…but not much and with an attorneys fees clause, we get it back if we win.”
“But if we lose?”
“We end up paying their fees, quite likely. So…we had better be sure of a strong case before we begin. But the main point I am trying to make is simple: if you have to buy justice, go to a store you can afford. Don’t try to outbid them at Tiffany’s. Buy your justice at Wal-Mart and if they have to do the same, you have a chance.”
He looked at my ceiling for a few moments. Then smiled. “But they will have figured it out, right? They won’t go for it.”
“It’s a great test of good faith. Arbitration is far from perfect…but it’s fair and cheap. And big companies fear juries. If they refuse arbitration, you might want to wonder why. It may mean they are predators…”
“Some big companies use the courts to destroy subs who have done their job. It’s cheaper than paying them the rest of the contract. I doubt if these guys are like that…but if they refuse arbitration, you might want to check them out a whole lot more.”
We went through the rest of the contract, taking half a day, and spent the next week negotiating it with their in house counsel from New York. Tough negotiation and much give and take, but we did get arbitration and the attorneys fees clause and the job went well. Did the clauses matter? Not in that job….
But two jobs later Jim was saved by that very arbitration clause that he had by then insisted upon in every contract with a large entity. As we discussed enforcement of the arbitrator’s award, including attorneys fees awarded to us, he looked up suddenly and smiled. “Cheap justice isn’t so bad, now is it?”
Since we had spent over a hundred thousand to get that award, I raised my eyebrows. “Cheap? Most of the world couldn’t even afford this arbitration.”
“True. But given the alternative…a million bucks spent in a trial against a multinational conglomerate, this seems pretty good.”
I nodded. “You know that old saying, ‘Justice delayed is justice denied?’”
“Well it has a corollary. ‘Justice that cost too much is justice only for the one with the most money’.”
“Not very pretty.”
“Truth is not always pretty, Jim.”
“But winning is…”
“Now THAT is true…”