For some reason I have been hearing a lot lately that the legal system isn’t fair and that it caters to the rich. We have all thought this at one time or another, whether it was the OJ Simpson trial or the preferential treatment that celebrities receive, we have all questioned whether the law can be molded and shaped according to how much money you have to throw at it.
As much as I would like to tell you that this is not the truth, that the justice system is blind and unconcerned with the sizes of the parties’ wallets, I am reticent to do so. The reason being, because in many instances it is true. The fundamental tenets of justice, right and wrong, and truth are so infrequently found in our halls of justice that they are utilized more as whimpers of protest when the justice system “fails.”
For example, as you are probably aware, anyone can file a complaint. Throw some words on a piece of paper, format it appropriately, attach the required forms, pay your filing fee, and VOILA!, you have filed your complaint. No one reads it at the courthouse to determine if it is legitimate, if it is appropriate, or if the claims can be substantiated. Were the words on the right paper and did the check clear? Congratulations, you have a court date. Which means that the defendant now has to make an appointment with an attorney and receive the bad news: litigation is expensive and in many instances is a classic demonstration of Darwin’s theory of “survival of the richest,” er… I mean “survival of the fittest.”
W.C. Fields once said, “If you can’t dazzle them with brilliance, baffle them with bull.” He left one part out. “And if neither of those work, just outspend them.”
I typically hear the lament from defendants, especially those who are adamant about their honesty and righteousness, that it isn’t fair, why can’t we just go into court and tell the judge the truth? Eventually that can happen, but you have to pay to play. Whereas the judicial system is predicated on the fundamentals of fairness, such that each party has the right to engage in the same processes and strategies, the fact of the matter is that depositions, motions, large amounts of discovery, third-party subpoenas, and jury trials are more palatable to those who can afford it than to those who are simply trying to stay afloat. At the end of the day, if you cannot afford to keep playing the game, no one will care if you were right and the other side was wrong. The game will be over.
The alternative is the litigant representing himself/herself or seeking “bargain-basement” representation. In either case, caveat emptor cannot be ignored.
Or, there is another alternative: avoid litigation altogether. Don’t put yourself in the position of having to play the litigation game and watch your retirement accounts become someone else’s retirement accounts.
In my practice, I deal typically with two types of disputes: 1) business disputes; and 2) probate and trust disputes. In many of these situations, the disputes being litigated are avoidable. I won’t give you all of my secrets, but I can tell you one thing that will help– write it down, write it down, write it down. Document everything. It saves the court from having to read the minds of the parties and try to guess what each side had originally intended. But more importantly, have an attorney draft it. Make the relationship crystal clear so that everyone knows who will be doing what. And with probate and trust litigation, have a proper estate plan drafted; don’t rely on handwritten wills or joint tenancies or any other method to address property ownership after death other than a strong and proper will and/or trust.
A few weeks ago, it was national news that Jamie McCourt, a lawyer, didn’t read her own post-marital agreement because it was long and boring. Having heard that, a client of mine called and asked why her contract had to be so long, why couldn’t it be a few pages long. Both sides knew what they were responsible for, so why make the agreement 20 pages long?
I hate to say this, because it promotes the stereotype of lawyers as charging by the word, but the longer the agreement is, the more likely it will address every possible scenario, so that the court system is not required.
I can’t say that all litigation is avoidable; it certainly isn’t. But to the extent that it is, why not do everything in your power to keep away from the halls of justice? Is it wiser to spend the money to have the attorney do it right the first time, then to spent 10 times that amount litigating?