The following article gives a summary of our philosophy and approach to legal matters. It is unique in the field of law and is a reassuring and refreshing method of achieving high levels of client success.
The Four Pillars of Litigation
Roy N. Johnston, Attorney
©2004, all rights reserved
Many of my clients come to my office with a tale of how they have been egregiously wronged by someone and, in most cases, they have a very legitimate grievance. However, I often hear during our initial meeting, “I don’t care about the money, it’s the principle of the thing.” Immediately, red flags go up in my mind. This triggers a little lecture that I eventually give to every one of my clients who are considering litigation. The information that follows is the written version of this little lecture.
Suing on Principle
Why shouldn’t principle be a sufficient reason to sue? After all, America’s laws are founded on principles — some going back to Moses and the Ten Commandments. The answer is, yes, theoretically, principle is a sufficient reason to sue.
The problem is, most of us cannot afford to engage in litigation on principle alone. For most of us, there are additional factors to consider — the most obvious is the financial factor. Over the years of practicing law, I have identified four factors — or pillars — that enter into every lawsuit. These factors are often glossed over in the initial stages. But they will eventually rear their ugly heads at some point in the process. I have learned that if they are not addressed up front, they will sooner or later become a topic of much discussion between lawyer and client.
The Four Pillars of Every Lawsuit
Every case is unique in many ways, and your case is no different. But there are four common pillars upon which every case is built. If any one of these pillars is not firmly grounded, the case will be severely crippled. The four pillars are:
The Legal Pillar The Emotional Pillar The Economic Pillar The Spiritual Pillar
The Legal Pillar
Roy with ClientsHere’s where “the principal of the thing” shines in all its glory. This is the pillar that most clients think of before they sue or when they get sued. And it is where your lawyer will spend most of his time once the case is underway.
Under this pillar, we look at your rights and responsibilities under the law. To do this, we analyze your case in light of federal and state statutes, federal, state and local regulations, and federal and state case law. From our analysis, we can provide you with a legal opinion as to the merits of your case. Or, if you are being sued, we can provide you with a legal opinion as to the merits of the plaintiff’s allegations and possible defenses for you.
The Economic Pillar
Most any good lawyer can help you understand your rights and responsibilities under the Legal Pillar. But the Economic Pillar depends entirely upon you — and your financial resources. It is under this pillar that we estimate how much it is going to cost to reach your objectives under the Legal Pillar.
Every strategy developed under the Legal Pillar costs money. How much money is sometimes hard to estimate with any degree of accuracy. We can fairly accurately estimate how much the very next step will cost. However, the further into the future we project, the less certain we are of the economic costs.
One important reason for this is that we cannot know for certain what strategies the opposing party and his or her attorney will take. Even if we take a relatively low-cost approach and prepare our case with the idea that we will work toward an early settlement, the opposing party may take a “scorched earth” philosophy, and be willing to pay thousands of dollars to his or her attorney to hit us with both barrels. This would force us to spend considerable time and money responding to these legal volleys.
Even with the knowledge that our estimates are uncertain and will undoubtedly change, it is important to set a budget for the litigation. The size of the litigation budget will determine the overall strategy for proceeding with the lawsuit.
The Emotional Pillar
The Emotional Pillar is where we take into consideration the emotional effect of proceeding with a lawsuit. This pillar is often the most neglected, but which often takes the greatest toll as the lawsuit proceeds.
If you have not been involved in a lawsuit before, you might not be aware that the lifetime of a lawsuit is measured in years, not months. It can take as long as three years for a case of average complexity to go all the way through trial. And that doesn’t count any post-trial appeals, or the time, effort and expense that it takes to collect the judgment even if we win. This can be a long, tortuous period of time to live with a very unpleasant subject.
Some clients tell me that reliving the case over and over during depositions and trial was in some ways more difficult that the original wrongdoing itself. Long after the initial emotional rush of striking back against the other person with a lawsuit has dissipated, the clients had to doggedly continue through to completion. This sometimes had serious and long-term effects on their emotional well-being and their relationship with their loved ones.
Other people have a strong sense of justice. Although the emotional drain is just as real for them, they are strengthened by the thought that they are forcing a wrongdoer to be accountable for his or her actions.
Whichever type of person you are, it is important to consider the emotional cost when evaluating whether to proceed with a lawsuit.
The Spiritual Pillar
For many people that have a spiritual component to their lives. If you are one of these persons, the Spiritual Pillar will be where you find the guiding principles to thoroughly analyze the wrong that was done, the motives you have for pursuing this matter in court, and the methods you intend to employ. If you have a spiritual advisor, I recommend that you spend some time reviewing these principles and your case with him or her.
I am only familiar with one type of spiritual guidance. I am a Christian and, as such, I have assisted many other Christians in analyzing their case in light of Biblical principles. If you are a Christian, or if you are interested in learning what the Bible says about conflict resolution and the court, please see my article entitled “A Biblical View of Conflict Resolution.”
An Alternative To Consider: Alternative Dispute Resolution
If all four of the pillars have been analyzed, and all point to continuing with a lawsuit, there may be justification for proceeding. However, there is one final option that is an increasingly attractive alternative: alternative dispute resolution.
Alternative dispute resolution (or ADR) is a generic term that means pursuing some other way of resolving the dispute without going to court. It requires an agreement between the parties that they will not sue each other, at least until after they have tried ADR. By using ADR, the parties can often save time and money. Just as importantly, ADR can save enormous emotional and spiritual “costs”.
ADR consists of several forms, including settlement discussions with lawyers present (or not), mediation, and arbitration. For a thorough discussion of each of the common forms of ADR, see my article entitled “The Strategy of Alternative Dispute Resolution.”
Much more could be written about each of the foregoing pillars and how each affect every decision you make in your case. But the most effective use of these pillars is to discuss them with your lawyer, not only at the outset of your case, but at every point where it is necessary to make a major decision in your case as it progresses. Only after you have applied these pillars to your case and your internal makeup will you be able to make an informed, reasoned decision with which you will be satisfied long after your case is resolved.
Note: This article is presented for your information only and is not intended by the author, nor shall it be interpreted by the reader, as legal advice. Every case is different and every person involved in a legal matter is unique. You should only make decisions about your legal matter with the assistance of a qualified lawyer.