Why We Litigate
Those of us in America come from a proud tradition of firmness. We expect our leaders to be decisive, our business to be brash and our principles to be steadfast. As Abraham Lincoln once said, "be sure you put your feet in the right place, then stand firm." When any of us would set our minds to something, it is habitual, and some would argue instinctual, that we rededicate ourselves to our initial pursuits, strangle our doubts and then commit to a path of action.
Certainly, this is why we have the adversarial litigation system, because sometimes two people in this mindset meet each other. Whether in a business transaction, a land deal, a personal injury, a custody dispute or a divorce, the most common similarity in litigation is not the issues but the clients. For many of my clients, the first case of theirs that I handle is their first case, but it will never be my first case.
Practitioners are consistently aware of the emotional toll of the controversy in litigation, regardless of its subject, and we are aware of both the inconvenience and the intimidation. One of the things taught in the first days of law school is that "if someone is in litigation, something has already gone wrong." In 2015, there is little reason to continue the trend of being an overly litigious society. There is little reason to fight to the bitter end with endless litigation, attorneys' fees, costs and appeals. There is little reason to be so firm in our views. From this point on, we will assume that the controversy does not need to be a zero sum game.
The jurisdiction of the state circuit courts is necessarily limited to protect the rights and freedoms of common people from the courts so much as possible. I must tell nearly all of my clients at one point or another that the Court cannot make you two agree, only encourage it. For instance, in a child custodial dispute, while the Court can create a Parenting Plan that surgically divides the parenting time, both parties will gain value if they set aside their differences and present a mutually agreed written plan which considers their discrete lives and the lives of their children. We can see from the example that there is opportunity to create value by an agreement.
Let's take another example, a mortgage foreclosure case. The average foreclosure case pits two sides wildly apart in resources against each other over a fixed quantity -- the home. Conventional thinking tells us that the end result of a foreclosure can't be that the client keeps her home and the Bank wins. Conventional thinking is wrong. The framework exists today for HAMP modifications, in-house modifications, trial-payment modifications, forbearance agreements and loan restructuring that will allow the homeowner to keep the property at an affordable payment and the Bank to own a mortgage lien that is risk profitable to hold. We'll come back to some of these concepts in later posts.
The trick of understanding how to create value in litigation is to see all the quantity involved. In the custodial case, the time with one's children is the quantity involved, but in my experience litigants have often failed to see the value in maximizing the quality of the time with the children with a workable agreement. In the foreclosure case, the home is the quantity involved, but we have a financial system that can give multiple parties appreciating equity in the same property. There is clearly a positive sum that can be reached through cooperation rather than the "his loss is my gain" narrative every Dick Wolf and David E. Kelly tv shows for entertainment value.
Why we Shouldn't Need to be Right
Readdressing our two previous examples, let's imagine that the parties need to be right. Let's also imagine that these are statistically typical, and simple cases, where there are not additional controversies between the parties regarding the rights of the litigants.
Our child custody dispute case has two parents that need to be right. The emotional strain of yielding joint decision-making to the father has made the mother seriously upset with the results of the litigation. The economical strain of the visitation agreement has led the father to be disgruntled and unhappy with the times in transit between homes with his children. Neither party likes this agreement, and it's often said that if nobody is happy the decision was fair. I agree, the decision is fair, but it's not a valuable one. A Joint Parenting Plan could have solved both of these issues in a way that the parties had reconciled themselves with, that created value for themselves and their children. The visitation strain could be offset by alleviating some costs and pressures elsewhere. The joint decision-making anxiety could be resolved by providing for some of the decisions ahead of the controversies. In 2015, practitioners are getting wise enough to draft for the eventualities of human conflict, and we can avoid them to create value for clients.
Imagining our foreclosure case again, the homeowner could feel personally affronted by the Bank saying she failed to pay. The homeowner will emotionally investigate the debts owed and who claims them. Often, we will hear "I don't know those people," or "I've never even heard of this guy!" in foreclosure cases. This is the emotional response to seeing the machinery of the loan servicing system in place, for better or worse, and it motivates us to be contentious with our finances and our home. However, it is often possible to achieve a result that makes great sense economically if we swallow our pride and admit that it doesn't matter if our positions are right if we can get what we need.
Working out an agreement can often yield results that have so much benefit over conventional litigation.
Sometimes, even Lincoln is Wrong
It's not always right to plant our feet in the right place and then stand firm. What's important is to stand in the right place and walk to our destinations.