Litigator Natalie Brandt explores the myths we believe about our legal system
Your childhood pal sues you to unwind a business you forged together over the past decade. His lawsuit, which a constable hand-delivered during a family dinner, includes salacious claims and demands outrageous sums of money. Your night is ruined along with what remained of the friendship. You simply disagreed about a new lease and who to hire next; now you’re a defendant. Once the initial shock wears off, you marshal resources, watch A Few Good Men, maybe hit the gym extra hard, and then call a lawyer, confident that your old friend can’t get away with it, that he’ll pay for being litigious and that justice will prevail.
Maybe. But probably not.
Don’t get me wrong, you’ll be alright in the end. But the “end” won’t look anything like you pictured when you first called me. Not because I won’t lose sleep over it or miss my kid’s game to work on your case, but because your imbedded presumption about how litigation – or “the legal system” – works is flawed. For 20 years, I’ve confronted the same myths again and again. I mostly blame TV. But truth be told, I believe the real culprit is our innate sense of fairness. There are aspects to the legal system that just don’t seem fair, especially for folks dealing with a lawsuit for the first time.
Myth #1: They’ll have to pay my legal fees.
This is by far the most common misconception I encounter. People often believe they automatically recover their legal fees if they ultimately win, even if winning means settling out of court. Unless there is a statute or a contractual clause that provides otherwise, you’re probably stuck with your attorney’s bills, win or lose. And I frequently tell people – just like our friend above whose dinner was ruined – that our legal system isn’t going to penalize a litigious plaintiff just because his lawsuit was dumb or was used only to force a settlement. And this matters more than just adjusting someone’s faulty worldview; understanding the true cost of fighting always guides strategy. I can’t recall how many times a client has asked me to craft a scorched earth strategy at the beginning of a case only to tap the breaks upon learning that the ‘other side’ will not be on the hook for it. It can seem unfair. You don’t want to litigate. And now you’re stuck talking to me about interrogatories and deposition dates. I get it, and I don’t take it (too) personally. But that is how the system works and for good reason. The alternative, which is a philosophical discussion for another day, would be truly unfair.
Stay tuned for Myth #2…