MAY 29, 2019 – Occasionally a client wants me to sue the pants off someone. The client is as indignant as can be over a business deal gone bad. The opposing side, he says, is dumb, lying and crazy. The client is so worked up s/he starts in the middle of the story, then travels back and forth between the end and the beginning and among selective points in between.
After offering the client some air and water, I’ll ask lots of questions, then explain what a “lawsuit” entails. I always end by advising, “There’s no such thing as an open and shut case, even when it’s an open and shut case.”
“But . . .” the client will protest. “[Bad Guy] is dumb, lying and crazy! I’ve got him dead to rights!”
“Uh-huh.”
Because we live in the United States of America, a party can’t convert a claim—no matter how valid—into an ATM card, as it were, without going through what’s called “due process.” In plainer English, that means everyone—including a person who is dumb, lying and crazy—deserves that day in court.
This feature of American justice is lost on many people.
The operative word in “due process” is process—often lots of it. This ensures that a legal fight is fought “fair and square”; on an open and level playing field governed by a highly developed set of rules. The idea is not only to give every party its “day in court” but with ample notice of the other side’s arguments and equal opportunity to uncover and marshal evidence in advance of the “day in court.” Moreover, because the whole system is geared to get at the truth, only evidence that is reliable (i.e. admissible according to the rules of evidence) may be considered by the judge or jury. Finally, the whole system is governed by The Law, as codified in statutes and regulations and interpreted by appellate courts, whose opinions we call “precedent“—making us “a nation of laws not men.”
Process takes time. Lots of it.
In addition, your case is just one in a stack of lawsuits assigned to the judge. However compelling your case is—to you—the judge has umpteen other matters to juggle. Furthermore, your judge could well be a total stranger to the area of law germane to your case. If you wind up in front of a jury—they just might see the world quite differently from you.
I’m just getting started.
Sometimes, with an over-confident client who doesn’t seem to appreciate my description of the slow, methodical process of “due process,” I’ll ask this:
“Are you familiar with the poetry of Wallace Stevens?”
I’ve never had a client answer “yes.” I’ve always had a client ask in response, “What does the poetry of that guy have to do with what we’re supposed to be talking about?”
To which I say, “It could have everything to do with your case.”
“Huh?”
“Let me explain.” [NOTE: stay tuned for tomorrow’s post.]
© 2019 Eric Nilsson
