~Ambrose Bierce
Almost everyone in business has a horror story of a lawsuit gone bad. We begin a lawsuit with the expectation of justice as the likely outcome, but all too often, we don’t get justice, we get the law. With that in mind, here’s a survival guide for successfully navigating a lawsuit.
First, understand that the law is not perfect. Nothing made by man is perfect, and the legal system is no exception. In its purest form, the legal system is comprised of rules and precedents codified over centuries, intended conceptually to apply universally; however, each case is unique, which is why we need a judge to dissect the facts and weigh the evidence. The judge is then to impartially assess the evidence within the framework of a “reasonable” interpretation of the law, and rule. It sounds simple, but it hardly ever is.
We hope for justice, but justice is the purview of a heavenly power, here on earth, the best we can expect is the law. Not only that, but the legal system is shrouded in mystery and foreign to most mortals.
You would not go into battle with an unloaded gun, so why would you even attempt to act as your own lawyer? There is a legal maxim that every do–it–yourself–er should reflect on before attempting to try his own case: a man who is is own lawyer has a fool for a client.
Unless you are content to get beat up and skinned alive, you need to hire a competent lawyer to steer you through the rules and rituals of a lawsuit and ultimately through a trial. Your decision as to your counsel will likely determine the degree of success you find in court.
It’s also important to know how to deal with your lawyer. Lawyers are typically trained to find problems, not solutions; most lawyers are also by nature confrontational, so don’t look to a litigator to mitigate. You need to tell your lawyer what you want, and within that context she can provide skillful guidance with respect to strategy and options.
If you ask a lawyer his opinion, it’s best to get comfortable and pull out your chequebook, as at hundreds of dollars per hour, you’ll be listening for a long time. It’s much less expensive to simply tell your lawyer what you want to accomplish, agree with him or her on a reasonable outcome, and plan a strategy to get there.
Most people have unrealistic expectations of the law, as if the court could somehow magically return them to their pre–lawsuit condition. Instead, the court’s job is to dispense the law, and since the law is not a time machine, the best that can usually be done is a penalty or a judgement, which in a lawsuit involves a cheque.
As in any fight, there is a winner and a loser, though it often feels like everyone ends up the loser in court. It is expensive, it is emotionally draining, it is difficult, and did I mention that it’s expensive? In a civil suit or a business disagreement, the best outcome is usually a monetary judgment. Some litigants fare a little better than others, but those “Perry Mason” moments—when the light of justice shines on the aggrieved innocent party—are few and far between. Most of the time, the parties walk out of the courtroom asking “what just happened?”
Here’s my last bit of lawsuit advice: treat every transaction as if you will have to litigate it. Write things down—a short pencil is worth more than a long memory when it comes to making a credible case. If it comes down to your word against his, you’ll all go home losers.
Next, it’s always better to be the defendant than the plaintiff. It’s cheaper to defend, it’s easier to obfuscate and buy time, and the defense is usually the one in the position of strength. Whether a physical object, money, or simply a good reputation, possession is 9/10ths of the law.
Lastly, don’t fear what you don’t know. Take a little time, do a little research, exercise your legal rights and remedies, and you’ll be well on your way to not coming out as a sausage.
Your Wealth Warrior, Sid Karmazyn, is a Chartered Accountant, author, and speaker. Your questions and comments are welcomed. You can reach Sid directly at 905.771.3813, fax: 905.771.3810, or by email at
skca@idirect.com.