Grudge fights are simply those pieces of litigation that are based on raw emotion and in which one or both sides have lost all thought of valid or sensible cost benefit of the case. Rational analysis of the underlying value of the case or logical evaluation of its true purpose is lost in a sea of anger or some other emotion.
And they come in various types.
It was perhaps two decades ago and during a deposition of the opposing party and my client was sitting next to me. They were fighting over a fence my client wanted removed (so high it violated local ordinances) and had already spent more on the fight than it was possibly worth. The other side was going to lose-all of us knew it…but refused to take down the fence or concede.
He was rich. My client was not.
During a break, while my client was outside smoking, the opposing party watched his lawyer go outside to take a telephone call. The party had just admitted under oath violating the ordinance, thus losing the case as far as I was concerned. I was looking over my notes when he came over to me and smiled.
“You know, you think you just won. You didn’t. I won.”
I was annoyed and showed it. “Really?”
“Your bill last month…five thousand? This month…another seven? That’s twice your client’s pay check. That’s thirty percent of mine. See? I win.”
Then he smugly sat down and waited to lose the case in court, knowing that my client would be a net loser no matter what. Since attorneys fees are not normally awarded in the United States to the prevailing party, if you win five thousand and spent thirty thousand to get it…that’s tough luck. The rich guy had always resented my client, had often argued over sewer lines and who parked what car in front of what house…this case was to “teach my client a lesson.”
But that’s only one type of grudge fight. Another, equally common, is what we call “an emotional basket case” in which one or both sides are so upset about a matter that they engage in the litigation for emotional relief, spending far more than a case can ever be worth to prove their point or justify their emotional condition. Sometimes two or more parties share this condition with resultant escalation of fees and costs.
The court system is expensive and time consuming. See our article on The American System of Litigation. It can be a tremendous economic and emotional blow to become entangled in prolonged and bitter litigation, especially when the “up side” economically is minimal. But such cases are not uncommon and, indeed, are often used on a regular basis by those who seem to enjoy demonstrating their power in the Courts.
And the strategy and tactics necessary to minimize the downside and, perhaps, even gain some advantage in such a case is the subject matter of this article.
Facts Of Life:
The American system of litigation is a carefully honed instrument that developed over three hundred years and is constructed to allow the parties to present their cases in a fair and objective forum after each side has had ample opportunity to develop evidence using extensive tools of discovery unique in the world. It is not made for efficiency. It is not made for economy. It is made to develop a fair trial and presumes each side can afford it.
The American system of litigation has become increasingly complex and expensive as the Courts have developed additional tools of discovery and as the Courts have become increasingly crowded due to a larger population and smaller court budgets for judges and court rooms. What used to take six months to bring to trial in 1945 now takes two years, often more.
In law, you get what you pay for. Both in terms of developing evidence and in quality and skill of legal personnel, it is uncommon for a “case on the cheap” to triumph over a party who hires good people and gives them sufficient resources to build the case and put it on.
One side can normally force the other side to spend money. If I notice a dozen depositions, your counsel will probably have to attend to defend them or ask his or her own questions…thus forcing you to spend money. If I file half a dozen motions, your counsel must contest them. In short, if I want to spend money, I can make you spend money.
The threats of “malicious prosecution” or “abuse of process” to stop someone from engaging in “scorched earth” litigation are seldom effective. The overwhelming majority of abuse of process or malicious prosecution cases fail. As one judge told a friend of the writer, “The courts exist to be used. Unless actions are absolutely objectively outrageous, we have no interest in scaring people away from the courts.”
While most lawyers are ethical, most lawyers also see their role as representing their client’s interest to the best of their ability. Even if they disagree with a client as to the chances of success of a case, they will keep bringing it and fighting it (assuming the client can afford it) with the argument that everyone deserves to get their day in court. Prosecuting a client’s case with vigor is taught as an appropriate professional goal in law schools and most lawyers feel that it is, ultimately, the client who is the best judge as to whether to prosecute a case.
The tendency in our legal system is to allow cases to go to trial so that a party gets his or her constitutional right to a jury trial. The judges are loath to stop a case before then if there is even an iota of evidence to support a party’s claim. And, in most cases, a smart lawyer can always find some argument to advance to convince a judge that a case, no matter how weak, deserves a trial. And that necessarily means that the full scope of discovery will be allowed, with its massive expense…not to mention the trial itself.
People are not rational in many of their decisions. Even if a party has a weak case, they often convince themselves that it is a strong case or are so angry that they are blind to reason. Even discovering evidence that in your mind destroys the opponent’s case may not convince the other side that they will lose…and if they spend money to still go to trial…so do you.
Further, even a party losing faith in their case often adopt what we call “The Vietnam Syndrome.” Essentially, they feel that since they have spent so much time and money to get that far, they cannot settle but must keep going even though their case appears increasingly weak.
And there is no “sure thing” in litigation. While most attorneys can predict the outcome of a case with some accuracy, it is, at best, an inexact science and some cases that are weak still win occasionally. Thus, even the weakest case must be taken seriously enough to contest it effectively. That costs money.
Arbitration, which is a private trial, is much faster and cheaper than litigation…but is only imposed in most case if both sides agree. While we recommend it in all contracts, if the parties have not already agreed to arbitration before the fight begins, it is unlikely they will agree once swords are drawn. Mediation, which is often required by the Courts, is simply an attempt by a professional to make the parties voluntarily agree to settle a case. If one or both sides are engaged in a true grudge fight, that seldom happens.
Those are the simple facts that confront any party engaged in any litigation in the United States. It may be noted as an aside that it would be easy to devise a system that would eliminate most if not all of such cases. Germany has a law that automatically awards full attorneys fees to the prevailing party and further provides that if the losing party cannot pay the fees due to lack of funds the attorney must pay the fees. Few attorneys will file a suit they are not convinced can win and Germany has only a fraction of the cases filed in the United States.
In the United States, where the ability to utilize the court for vindication of personal rights is a treasured power retained by Americans, such an approach, which makes filing suit problematical, has no chance of becoming law. One will have his or her day in court in the United States…but the price is the danger of facing such grudge matches, fighting over cases that can never justify the costs.
So, that’s the problem, The question is, what can be done to minimize the chance of a grudge fight and, if in one, to maximize the possible benefits.
Before The Fight:
Recognizing the above, the wise person will take steps in every situation he or she can to eliminate the chances for such litigation in their lives. Certainly arbitration with the prevailing party receiving reasonable attorneys fees should be part of every contract and lease. Carefully checking out the back ground and litigation history of any potential business person you are considering dealing with is also a very good idea. This is easily accomplished using the internet. Indeed, “Googling” potential business partners is cheap and easy and one who fails to do so is foolish indeed.
The negotiations for a business deal may educate one about the type of business person one is dealing with. See our story on our website, “The Acid Test Clause.”
Truly listen to a potential business associate or buyer or seller of real estate. Listen to the amount of emotion and vindictiveness in their voice. One elderly client who succeeded in business once told me that he never signed a contract with a person that had either not eaten with him or played golf with him. He loved to tell a story of a deal he walked away from when he saw the possible co venturer become irate and start screaming when someone cut in front of him on the free way. “Best deal I never made,” he would chortle.
Get out early. One can often discover that a person with whom one is engaged in business has the tendency to litigate over trivialities. Often one hears stories about past litigations or sees large legal bills sitting on his or her desk. Devise ways to end the relationship. If a fight is already simmering, see if you can quickly settle it, even giving up a little, before it escalates.
Keep a low profile. Most people who enjoy grudge fights pick an enemy and become fixated on him or her. Assuming the person is already becoming angry at X, then it may be a good time for you to quietly exit the relationship.
Control your own emotions. It is easy to become enraged as one is prodded by someone intent on engaging in their hobby of litigation or who has lost control of their own emotions. Don’t get mad. Get even.
During the Fight
1. Polonius had it right. Avoid and dread a fight-but if forced to fight, fight so that the other side dreads you. The moment such a fight begins, it is vital to put together a legal team that can correctly analyze the various tools available not only to cut the fight short, but to perhaps obtain some benefit from the fight. By definition a grudge fight is unlikely to settle. The other side is enjoying it too much. One must alter the landscape for the other side so that they reassess their position and, if necessary face a verdict that will at last put an end to it. But the creation of this legal team is not equivalent to the criteria you would utilize in a typical case. Consider.
- a. A grudge fight is, by nature, an annoyance and an expensive one. One seldom comes out ahead in the sense of making money or achieving a logical goal. One is fighting to remove a parasite from one’s life. Even if the fight is over some asset or right, quite often that asset is not worth the cost of the fight. Assuming arbitration or mediation is not realistic, then one faces an expensive and prolonged struggle. There is a tendency on the part of the victims of this type of fight to blame the system or rant at the lawyers, upset that “good money” is being spent “for nothing.” This is pointless. The same tools of litigation and the same costs of litigation apply whether the asset is worth a lot or one is facing a myopic adversary who enjoys costing you money. Almost certainly you will have to spend as much as your adversary to hold your ground. To blame the lawyer or the system is both pointless and unfair. Understand that a fight is a fight and you need a dedicated and intelligent team to counteract your opponent and that is true regardless of the underlying value of the fight.
- b. Don’t try short cuts. As explained above, such efforts as motions for summary judgments or mediation are unlikely to work in our system. Resign oneself to going all the way to trial and verdict if necessary-offer arbitration, offer mediation, but do not rely on them to save the day.
- c. Stay calm. One intelligent Russian émigré this writer represented quite often found herself in such litigation since that community at times becomes fixated on the courts. She once explained to the writer, “I think of suits like this as a disease. One has to take the right medicine and go to the hospital and there is no point in blaming the bacteria, however much you dislike him.”
- d. Keep flexible. If an opportunity to end it arises, carefully consider it. Do not expect it to arise, but stay alert to it.
2. Look for Counter weights. Ideally, one can find not only cross complaints to give the other side something to lose, but can find ways outside of the litigation to perhaps make the other side reassess their position. One client utilized his role in Rotary Club so that an opponent was ostracized by certain key members who regretted the silly fray. Another client simply stopped his business from buying from the vendor and the vendor’s shareholders had the matter settled quite quickly. If outside the litigation, it is possible that the “litigation warrior” will not find the experience as enjoyable as usual.
3. Keep reassessing the case. Avoid the Vietnam Syndrome discussed above.
4. Fight hard. Most grudge fight proponents are either bullies or emotionally distraught. Acting weak or apologetic seldom will assuage them. What often assuages them are bills from their own lawyers and quite often they become enraged at their own legal counsel and this can undermine their case. One case known to the writer had the opponent go through five law firms before the fight was over.
5. Don’t become fixated on the fight. Give it to the professionals, try not to brood on it, do not wonder why there is no justice in the universe, think of it as a force of nature to be endured, and get on with your life.
6. Check to see if insurance might cover any of the complaint brought against you. This radically alters the power situation and some policies have coverage that is surprising.
7. Move the case along as fast as you can. Do not agree to continuances or delays if you can help it. Such events cost money, delay what may be the end of the matter in court, and simply encourage your opponent to engage in more expensive discovery in the Courts.
8. Make lemonade from lemons. One client after two years of a truly idiotic fight over intellectual property of virtually no value told me that he considered the money spent his university course in contract drafting. “You told me to have arbitration clauses and attorneys fees clauses and I kept saying, yeah, yeah, someday. This is like a final exam. I get the message.” And in his next dispute, involving truly large amounts of money-he had the right clauses in his contract.
9. Don’t blame yourself. We often hear clients bemoan some relatively minor error or statement or letter they wrote which resulted in the existing frenzy of litigation. Perhaps the letter or comment was a mistake-but the escalation beyond all reasonable grounds did not have to inevitably erupt. For that, usually, blame the opponent.
10. And when it is over…walk away and forget it…but not the lessons learned.
The above assumes, of course, that you are the victim of a grudge fight and not its proponent. It is often true that those who engage in the most foolish frays are themselves the cause of it. The type of cost benefit analysis that one uses for every activity is appropriate for litigation and if you have not engaged in that exercise…stop and consider whether YOU are the person who is engaging in grudge fights. A good test: find an acquaintance you trust with good judgment, tell him or her your situation, try to be as objective as you can be…and ask them what they think the case is really worth. You might be surprised.
But if you are the victim and not the perpetuator, do not ignore the facts of life described above and do prepare for a long and, at times, bitter fight. You may win or lose….but you will not most probably have economic profit from the fight.
But that is not the only benefit one can derive from a law suit. You may lose money, but winning a case against a bully can be a very satisfying result, and when one thinks of most of the things that truly matter in life…self respect, a feeling of worth, a feeling of vindication…one realizes that money may be far down on the list of what the litigation is about…and what truly matters to you.
The enemies of the future are always the very nicest people.
-Christopher Morley, 1941.