Fixing It Fridays – Is Everything Worth Litigating?

I was fortunate enough to work in the legal industry for over ten years in Alaska, and I learned a lot.  I not only learned about pleadings, and causes of action, writs, and summary judgments, I also learned that maybe everything isn’t a reason to sue.  We hear it on the news everyday.  Courts are overcrowded and there’s too many cases on the courts’ calendars.  Some jurisdictions are running civil court through the weekend and late hours just to get calendars cleared.

Why can’t we think of other ways of settling differences than just going to court?  Are there times when the court system is the appropriate place to go with a dispute?  Absolutely!  However, it may not always be the best case.  Some lawsuits are filed with hardly any work on the parties involved to settle their differences.  Instead of trying to find a common ground many are quick to “lawyer up” and get sueing.

There are other ways of settling disputes besides suing in court.  There are professional mediators in just about every major population area.  Professional mediators are individuals (many times retired judges) who act as arbiters much like a judge does in court.  In fact, many contracts written include a requirement to go for mediation prior to filing a lawsuit.   The level of representation one is allowed to have in the arbitration is either set by State Law or, more frequently, by the contract which is in dispute.  Normally, this situation happens in business…there is a contract, parties agreed to do certain things…someone didn’t follow through on their part…other parties in the contract go to arbitration or sue to ensure conformance, or, in the alternative, monetary compensation for losses incurred due to the party not fulfilling their part of the contract.

And, therein lies the rub.  There is a perception in the American culture that the right thing to do is SUE SUE SUE!  And, many people do.  With thoughts of multi-million dollar lawsuits swimming in their heads, people are lawyering-up faster and faster.  The truth of the matter is, the main sector of society this tendency has helped enrich is…the lawyers.  Sure, there’s no “fee” in most personal injury lawsuits unless you win.  However, there are costs!  And those costs come out of your pocket, not the lawyers.  If you are suing for $100,000 you should not expect to get much more than $50,000 in your pocket.  The lawyer does not absorb the costs incurred in pursuing your suit.  Those are billed to you.  Every stamp, every phone call, every copy made and fax sent, those are costed out and billed to the client when the case is over.  Lawyers will tell you they eat these costs all the time for clients, but I worked as a bookkeeper for over 10 years in law offices, and, well, the times the costs are paid by the lawyer are few and far between.

The courts are overloaded.  They have far more important things to deal with than Johnny down the street breaking Mrs. M’s front window.  Maybe, we should revisit our past and look at how these situations have been handled in the past.  Now in my 50’s, I easily remember how we were watched by all the adults on Auburn Street.  If we did something wrong Mom usually knew about it before we even got home.  If something destructive or damaging was happening an adult would normally appear quickly and kibosh the whole situation quickly.   Johnny down the street was marched back up the street and, if the family didn’t have the funds to reimburse Mrs. M for her front window, arrangements were made between the Johnny, his parents and Mrs. M to make sure that Mrs. M was compensated for her broken window.

Today?  The scenario tends to be different.  Johnny accidentally breaks Mrs. M’s window.  He runs home.  Mrs. M calls Johnny’s parents.  Johnny’s parents refuse to even talk to Mrs. M.  What is Mrs. M. to do?  Luckily, situations like this are handled in states’ Small claims Courts.  No lawyers and there is a cap on how much can be sued for.  What is Mrs. M to do?  On a limited income she doesn’t have the money to replace the window either.    Another example of how this comes down is:  Johnny accidentally breaks Mrs. M’s window.  He runs home and tells his parents.  His Dad takes him by the shoulder and marches him up to Mrs. M’s.  Mrs. M tells them it’s going to take $1,000 to replace the window and slams the door.  Through phone calls and written letters Johnny’s parents try to communicate with Mrs. M to get a copy of an estimate or documents that back up the $1,000 demanded.  Mrs. M ignores their request and continues to demand the $1,000.  What is Johnny’s dad to do?  He wants to be responsible and pay for the damage his son accidentally caused, but working in construction he’s pretty sure the figure is overly inflated.

While overly simplified, the basics are still there.  What’s the common denominator between the examples?  In both examples one party is being unreasonable and simply not doing the right thing.  In the first case, Johnny and his parents need to step up to the plate and at least communicate with Mrs. M to come to a reasonable compromise to fix the window.  In the second, Mrs. M is trying to “ka-ching” the situation by padding the damages to an exorbitant amount and isn’t willing to show the documentation of the costs for repair to Johnny’s parents.  In either case, simple reasonableness (much like it’s kin – common sense) is thrown out the window.

While I hope you never face a situation like any of these — or something for which you would even consider suing — if you do, think reasonableness.  Once you enter the courtroom there’s a good possibility that *you* are the one being unreasonable in the situation.  Think forward – is it about money or making it right.  If we spent more time working with one another to sort out our conflicts ourselves, maybe the courts would have a little more time to take care of more important matters than an accidentally broken window.  Maybe a court isn’t the best place to fix it.

When the window gets broken, think reasonable.  It is reasonable for Mrs. M to expect Johnny and/or his parents to fix her window.  It is reasonable for Johnny’s Dad to ask for a cost of the estimate or receipt.  Mrs. M calls and has the glass folks come out and give her an estimate.  She calls Johnny’s Dad and lets him know the estimate is there.  Johnny’s Dad goes over to Mrs. M and they look over the estimate on the porch.  Johnny’s Dad readily sees that the estimate is reasonable, although more than he expected.  Not having the full $750 cash at the time Johnny’s Dad explains to Mrs. M and sets up an arrangement to make payments.  During the conversation Johnny is detailed to having summer mowing duties for Mrs. M’s lawn to help make up for the payment process.  Three years later Mrs. M is still sending cookies home with Johnny when he stops by after school.

Which fix seems the best to you?  While the golden tableau above is the literary ideal, there was a time when the above happened on just about any street in America – without courts having to get involved.  If we want to lift our energy levels, if we want to be true to what we follow, we have to be willing to live it in the real world.  Good thoughts are good…good actions are world-changing.  I’d prefer the tableau with the cookies!





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