Six Myths About Litigation
There are days when I pause to consider that what we do as trial lawyers and litigators is shrouded in mystery. We study hard for three years, obtain our law degree, then study hard for the bar exam, then spend years acquiring the experience necessary to effectively serve clients and solve their problems. Along the way the sum total of the knowledge we accumulate is substantial, and the process by which we try to explain the law and the legal system to clients can be difficult, complex and confusing.
It is perhaps borne out of this complexity and confusion that clients come to the legal process and system with certain myths or pre-conceived notions about lawsuits and the litigation process. I hear them quite often and thought I would debunk some of them for you:
- “THIS CASE IS A “SLAM DUNK”
Other than in basketball, there are no “slam dunks” in life, and certainly not in the world of litigation. In any lawsuit there are a host of variables that affect the outcome of a case. These include the quality of the attorneys for each party, the ability of the client to withstand the rigors and stresses of litigation, the degree to which the client cooperates with counsel in preparing the case or defense, and the availability and degree of cooperation of third party witnesses. If you’re a plaintiff (the party bringing the case) and the defendant does not have insurance, the “collectibility”” of any judgment may also be in question.
2. “ONCE WE SUE [THE DEFENDANT], HE WILL SETTLE”
It’s a nice thought but statistically, the odds of a “quick settlement” of any case are low. Defense attorneys often are able to persuade their clients that they have one or more valid defenses to a case, and the only way they can “make a buck” on a case is to spend their client’s money (or their client’s insurer’s money) by doing things defense attorneys are good at, such as sending out requests for documents, and taking depositions. Most cases are settled only after these exercises have been completed.
3. “I KNOW A LOT OF PEOPLE WHO ARE WILLING TO SPEAK ON MY BEHALF”
Those people may have told you that, but this is where theory and practice diverge from one another. People have a tendency to want to please the people they know, so they vow to be helpful as a way of expressing their moral and emotional support. But despite those sincere words, most people who are not themselves directly involved in a lawsuit would rather not stick their necks out. You see this quite often in employment cases, where a terminated employee believes a co-worker who is still with the company will come forward with “the truth”. That employee’s loyalty is ultimately to the company they work for, and that’s a big deterrent to getting involved.
4. “I CAN’T WAIT TO BE DEPOSED”
You would probably rather have a colonoscopy. A deposition is a stressful proceeding, even for the most seasoned “deponent”. Attorneys who take depositions typically are quite prepared and find a host of ways to get the facts from even the most prepared and rehearsed of witnesses.
5. “I’M GOING TO CALL THE LICENSING AGENCY AND HAVE HIS LICENSE TAKEN AWAY”
This is a nearly certain formula for prolonging the life of a case, not shortening it. Professionals and others who are licensed feel that people are cutting into raw nerve when they attempt to have a licensing authority impose disciplinary sanctions on them. What I tell clients is simple: If you have a sincere belief that the public needs to be protected from that person, feel free to call the licensing board. But if you’re “dropping a dime” in order to get a “leg up” in a civil case, that strategy is likely to backfire.
6. “I GOT HIM SAYING IT ON TAPE”
You may have gotten him saying it on tape, but the likelihood is that you taped the conversation without getting his consent, and that’s a crime under Massachusetts law. Most taped conversations are not usable in litigation because the taping was done illegally.
7. “IT’S NOT ABOUT THE MONEY…IT”S THE PRINCIPLE”
It’s actually all about the money, but it’s perfectly OK to say so.
Boston litigation attorney, Alan Fanger concentrates his practice in litigation matters involving real estate, wills and probate, and professional malpractice matters. Alan serves the entire Greater Boston and Boston metrowest region including Norfolk County, Suffolk County, and Middlesex County, and the communities of Arlington, Boston, Braintree, Brookline, Cambridge, Canton, Concord, Dedham, Dover, Framingham, Lexington, Milton, Natick, Needham, Newton, Norwood, Quincy, Sherborn, Sudbury, Waltham, Wayland, Wellesley, and Weston, Massachusetts.
