In each country where I have sued or defended a client, whether in England, France or the U.S., an often bitterly fought dispute ends peacefully. Given the brutal nature of our species, this could be considered surprising. For most of the 30,000 years we have roamed the planet, disputes have ended with one party killing the other. Drug disputes are still settled this way. Yet we rarely notice that ending a dispute peacefully is an historic leap forward.
You may enter the legal system of your own free choice or you may be dragged into it as a defendant. In either case you come to court thinking there will be a fair decision. In your mind, that means winning the case. Yet my client’s cheerful expectations are not always met, nor are those of my client’s opponent, but one of them will come off better than the other. Why is this so? Plato had Thrasymachus say that ‘justice is nothing more than the interest of the stronger party’. Two and a half millennia later things have not changed. The party who pays for the best lawyer normally fares better.
My half century of representing clients leads me to a somber conclusion. If I were accused of a theft which I had not committed or sued for breach of a contract which I had not breached, I would not be serene in any one of the three legal systems with which I am familiar.
Judges are fallible. Even the most competent ones make mistakes. A judge may misapply the law or read reports too quickly or be prejudiced against one of the parties. The judge may in good faith find me guilty of a crime I did not commit or proclaim me liable for a breach of contract that I did not breach. I can appeal to a higher court and hope for a better result, but as long as my conduct is judged by human beings, there will be errors, often the result of negligence, incompetence, prejudice, fatigue and, more rarely in those three jurisdictions, corruption.
Yet a judicial proceeding is not like going to the roulette wheel in a casino. It is more like a poker game with players of varying skill. What cards each player gets is the luck of the draw, but how a professional poker player uses those cards is not. Over many poker games, or many court cases, luck will cease to be a dominant element, but in the short run, which is where my client will be in a court proceeding, luck may prevail. The professional poker player and the skillful lawyer will in the long run have a favorable win rate, but may lose in the short run. As the client only plays the game in the short run, the client’s odds don’t look quite as good.
So if you are about to be sued, what should you do? The best thing may be to settle. A Gallic proverb runs that a bad settlement is better than a good lawsuit. If you are certain that you are right, you may want to reflect on a gypsy curse, “May you have a lawsuit in which you know you are in the right.” Of course, the other party may refuse to settle under any terms. What then? If you are the demanding party, your choices are to abandon your claim or to find the best lawyer you can. If you are the defending party, your choice is more limited. If you can’t settle, all you can do is defend. You must then diligently search for the best lawyer you can find, pray that you can afford the legal fees and hope for the best.
When a client asks me to take on a case to sue or to defend and assures me that victory is certain, I quote a French philosopher, ‘There is no certainty; there are only those who are certain’. It rarely works.
What I do say to my client with considerable confidence is that if you sue or defend, the judicial pace will be painfully slow; fees will be exorbitant, but eventually the case will come to an end, and when it does, the probability is that the client’s life will not be in jeopardy. That is civilization.
The article was published in the May 31st edition of the British journal The Spectator.
