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Lawsuits And Common Sense.

By John Dietz - Email Editor

Date : Aug 22, 2006

No one really knows what's going to happen in a trial. Although you might have a pretty good sense as to how the case will turn out - an "educated guess" if you will - if the outcome was truly predictable, you wouldn't be in court in the first place; both sides would already know what the final verdict would be and wouldn't waste their time.

History
There's a good reason that some lawyers refer to a hearing as "trial by ambush." A seemingly open and shut case can be lost on one small detail - often unforeseeable until the combat of trial. Recently, a client said to me, with regard to going to trial, "Our side is completely in the right, the other side has no case; my lawyer tells me there is a pretty good chance the suit will be thrown out of court. He said the statute was clear and there was a fair amount of case law in our favor! But who really knows? Who can really say, until the jury comes back?"

In order to put the "educated" part to your "educated guess," it's important to understand a few legal terms.

For example, a statute is a formal, written law of either the federal government or a state that is written and enacted by its legislative authority, perhaps to then be ratified by the highest executive in the government, and finally published. Typically, statutes command, prohibit or declare something. Statutes are sometimes referred to as legislation or "black letter law."

Case law (also known as precedential law or decisional law) is the body of judge-made law and legal decisions that interprets prior case law, statutes and other legal authority. For all intents and purposes, case law is "judge-made law," which may or may not be based on statutes. For example, anyone who's ever watched a cop show knows that the police have to advise a suspect that he has the right to remain silent, that anything he says can and will be used against him, that he has a right to an attorney and that if he cannot afford one, an attorney will be appointed for him. Not many people know that those so-called "rights" can't be found in the U.S. Constitution or even in a federal or state statute. Instead, those "rights" were simply made up by the U.S. Supreme Court in a famous case named Miranda v. Arizona.

At first blush, you would think that if both statutory and case laws were on your side that the outcome would be easy to predict. This is known as the "gumball" theory of adjudication - just as in the situation where you put your quarter in the machine and a gumball will drop out, the idea is that if you put your particular facts into the "law machine," the same result will always occur. Unfortunately, neither life nor the law are like a gumball machine. There are plenty of factors that may cause a trial to go one way or another, starting with a judge's interpretation of the law. Each side gives its best argument as to what the law should be in this particular case, and ultimately the judge or a jury makes a decision on what they believe justice should be. As my father is always quick to point out, "It all depends on who is telling the story."

In a way, the so-called "justice system," based as it is on an adversarial model, isn't really designed to find the facts and make a decision based on those facts. Think of it this way: Imagine two photographic slides. The first is focused 25 feet in front of the subject of the photo; the other is focused 25 feet behind the subject. If you were to overlay the two slides on top of each other, you wouldn't have a sharp, focused picture of the subject. Instead, you'd simply have a mess. The same holds true of our adversary system. On the one side, the plaintiff puts on his best case, shading all of the facts and the law in his favor (25 feet in front of the truth, if you will), while the defendant puts on his best case, doing the same for his side (25 feet behind the truth). Does this lead to a crystal-clear understanding of the actual truth of what happened? Only accidentally.

Remember, judges are human, lawyers are human (at least arguably), and juries are human. And humans make decisions for sometimes less than logical or smart reasons.

What if, for example:

-The judge doesn't like you or your lawyer.

-Your lawyer had a bad couple of days.

-The political climate has changed at the courthouse.

-Your witness no longer wants to testify.

-Your witness turns on you.

-Your "expert" doesn't have the credentials you thought he did.

-Your story just doesn't add up (even though it's the truth).

-The other side can tell convincing lies with a straight face.

-The other side puts on a better "show" than you do.

-One of your jurors got ripped off by a guy who looks just like you.

-and on and on.

A lawyer I know always tells his clients, "Listen, it doesn't really matter what the truth is, and it doesn't really matter what happened. What matters is what 12 people who are too dumb to get out of jury duty THINK happened, because they're the ones who will be making the decision in this case. Now, can you guarantee what those 12 strangers are going to believe?"

This all is a bit tongue in cheek, but really, can you predict with any certainty a trial's outcome? It's at best, a perplexing game of chance. In fact, putting your money down on a craps table in Vegas will give you a predictable mathematical outcome, (albeit not the one you would like), but your bets are ever so calculated. In trial, with every fact in front of you, the outcome is about as clear as the muddy Mississippi. If only lawsuits had systematic outcomes that were easy to anticipate, the sports handicappers would be in courtrooms all across the country - and all of those "commentators" on Court TV would (thankfully) be out of a job.

When it comes to lawsuits, take off your business hat, put on your helmet and Special Forces gear. It's war, and there will be casualties on both sides.

So is there a solution - a cure to that tightening in your chest that will inevitably occur when, without warning, a local process server leaves some official-looking court papers on your doorstep, and you realize that you're the loser in the "lawsuit lottery?"

The one and only option is to protect your assets before something happens. It's the option we should practice in every other part of our lives. We should be preemptive when dealing with our health, our family, our business affairs and our legal affairs - especially the unpredictability of a lawsuit. Remember, NO one can stop you from being sued, but you can do some planning for that rainy day so you won't get soaked. And in today's world, you have to understand that the rainy day WILL come.

Life is always more fun when you can sit back at the end of each day and know you have done all you can do. That is the very definition of "relax." You can relax a lot easier if you've protected what you can before it's too late.

Until next time,

John

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