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Losing Even Though You Win

Probably every practicing attorney has had to have a conversation with a client which goes something like this: “I know you’re “in the right” and would win your case, but is winning your case worth the cost to do so?”  Such counsel is a difficult pill for someone to swallow and sometimes an even more difficult pill to administer.

One of the reasons one hires an attorney is that an attorney can offer a dispassionate and objective view of a case that the party in the case may not have as a result of the emotional and personal ties he has to it.  Unfortunately, it costs money to pursue a case.  Anyone who has been quoted a retainer fee or has had to pay an attorney’s hourly rate will know just how expensive lawsuits can become.  This is true even for those litigants who hire an attorney on a contingency basis.  Sure, they may not have to pay a retainer fee but the potential damages they may receive may not make the investment into litigating the case worthwhile; for example, there is little financial sense for an attorney to sink $25,000 into a case which may only garner $10,000 in damages or, from the client’s perspective, the contingency fee, once deducted, makes the damages payable to the client less than his actual loss.

Many people look to the justice system honestly seeking justice, but people often view balancing the costs to pursue a case as an injustice in itself and, quite honestly, it is sometimes unjust.  For example, a person who has been truly wronged may seek justice in court in order to be made whole and remedy the loss/injury/damage caused by another.  Unfortunately, sometimes the cost to pursue that remedy is greater than the loss/injury/damage itself, which means pursuing the case will put that person in a worse position than the loss/injury/damage itself!

The reverse is also sometimes true.  Practically anyone can file a lawsuit for practically any reason against practically anyone; this is not to suggest that these law suits are legitimate or meritorious (they may not be), but that there is no gatekeeper at the start of a case to reject these sorts of cases.  Instead, parties who are perfectly “innocent” and/or without any shred of liability to the plaintiffs in these cases have to spend money to defend a completely meritless case.  There is little recourse against the plaintiffs of meritless cases.  Potential plaintiffs have a wide latitude to bring cases, especially because there is often no way of knowing whether a case is meritorious at its inception, and before discovery is conducted and evidence is produced, and, perhaps more importantly, the right to petition the government for redress is enshrined in the First Amendment of the U.S. Constitution and few restrictions are in place as a result.  Unless an “innocent” defendant can demonstrate that the plaintiff brought the case knowing it was meritless, or brought it negligently, for a vexatious purpose, and/or knowing the case was complete frivolous, an “innocent” defendant will have no redress against the plaintiff for bringing a meritless suit.  Of course, to add insult to injury, if there is potentially a claim against a plaintiff for abusing the legal system, a defendant will have to outlay money (either through a retainer fee or contingency fee) to pursue that claim.

Now, some people pursue claims “for the principle” and know going into a case that they will likely lose money even if they win the case when their winnings are compared to the money they had to outlay to pursue the claim.  People pursue these claims “on principle” because they view justice as not allowing someone else to “get away with” whatever it is he did.  This is certainly a choice someone can make, but in my experience in practice, very few people have the stamina to actually follow through with their crusade for principle when the costs begin to mount.

So, until there is some sort of fundamental change in the American legal system, parties to a law suit will have to expend money in some way to pursue a claim or defend a claim and, unfortunately, that may lead to a financial injustice of some sort.  When looking at the facts of a case in which one is or could be a party, please be sure to seriously consider the financial implications of the money that will have to be spent to pursue it and/or defend it.  It may not be just, and one’s attorney may be the person bearing the bad, but unfortunately, accurate news, but it is the reality of the legal system with which one must work in America at the moment and there is not much one can do about it when considering (or defending) a lawsuit!  No one wants to win a case but ultimately lose when all of the numbers are tallied up.

Debunking Complaints Against Lawyers

Check out Faye Cohen’s blog post ‘“Debunking Complaints Against Lawyers ” on her blog Toughlawyerlady here.

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