Watching “The Good Wife” this week, I was entertained to see my favorite characters posturing and panicking about being ‘served’ or in laymen’s speak…being ‘sued’. During this show I had some reflection and was amazed at how clear hindsight vision can be. While it may have been entertaining to see a law firm having to hire another law firm to defend them…it was clear that in this case nobody wins. Once the process is started….even with the presumption of innocence…there is a cost…to both sides. The cost of hiring a law firm to either ‘serve’ the notice or the cost of hiring a law firm to ‘defend’ you ….either way there is a cost to everyone (unless of course you are fortunate enough to have a lawyer as a family member and they can pull a pro-bono out of their hat). Now this is a civil lawsuit I am talking about where there isn’t really a ‘guilty or innocent’ verdict being questioned. It is more a matter of who is right and who is not. Either way, both sides typically believe they are right…hence much time is lost and a lot of money is spent. I am always amazed how many people actually bandy the words about…. “I’ll sue them”. It is not a fun time…for anyone. First of all, if someone ever threatens that…my advice (for what it is worth) is for the party being threatened to take them seriously. Or conversely, never… ever say to someone else….”So sue me”. They just may. And you will wish you had eaten those words.
So if you are the plaintiff (the party initiating the law suit), the onus is on you to prove you actually have a case. As the defendant, you job is to provide the best defense possible. When I say the ‘best defense’ it does not necessarily mean that you were in the wrong; that you admit liability or have any admission of guilt or anything of the sort. It is all about who ‘believes’ they are right. As a good friend (and lawyer) once said “Principle can get expensive!” Truer words were never spoken. After both parties share their documents, lawyer to lawyer, it then becomes a judgment call. A well seasoned or savvy lawyer would know instinctively whether or not to take the case any further. If there is no ‘meeting of the minds’ AKA settlement right off, then it proceeds to the next step. Every single scrap of information is then shared back and forth. Keep in mind this could take months. All the while the $$clock is ticking. Each phone call; face to face meeting; photocopy; postage stamp etc., is being recorded….for billing at the end. So you would think it would be in everyone’s best interests to stop the clock; to have the reality check; is this really worth it? In some cases it is. It’s called the paper trail. The more paper generated the better. Make the other party swim in the paper, and of course this is another reason why it takes months and $$. Not only does the other party have to read and process the paper, but they then have to respond in kind…and it goes on. If no agreement can be reached, it moves to the next stage- Discovery.
Discovery is not pleasant. The plaintiff provides all their papers as does the defendant. Both parties are sequestered in a room with their legal counsels along with a court reporter who records every word, breath and sneeze. Then the grilling (cross examination) starts. It can take hours…with no break unless to use the washroom facilities. Sometimes the questions are asked fifteen different ways…either to confuse/trick/wear you out. However it doesn’t have to be difficult if you are consistently telling the truth. The problem arises when over time the truth gets foggy. There is a human condition called self-denial. Even through this process when it becomes clear that one of the parties is clearly not recalling the event truthfully, they forage on thinking that their gaffe will go unnoticed. Well it doesn’t. The tape recordings are then sent to a judge. He reviews the written evidence and listens to the Discovery tapes. He then decides whether this case warrants going to court or not. In a lot of instances, these types of civil cases are settled on ‘the courthouse steps’. But not all. But even with a judge’s warning that ‘you do not have a case’, egos prevail and the case ends up in court anyway.
Our family has been on both sides. We have been the ‘Defendants’…and we have been the ‘Plaintiffs’. Thankfully we never got past the Discovery stage. Either way it takes a toll; on your mind; on your sleep patterns; on your sanity. One thing I know for sure…I wouldn’t want to wish it on anyone. I have empathy for both sides as sometimes it is necessary to be one side or the other. All I can say is ‘proceed with caution’ and be prepared for the unprepared. When it is over you WILL come out the other side, not necessarily unscathed, but a little wiser and humbled with the knowledge that as humans we need to go through a process like this to settle a grievance.
“The only people who benefit from lawsuits are lawyers. I think we made a couple of them rich.” Gavin Rossdale
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