Interviewer: Do you ever get clients that experience hesitation or are discouraged by the process? I’ve heard it referred to as litigation fatigue. Have you ever experienced that?
Robert Cummings: Yeah. I just recently had a client with litigation fatigue. Litigation can be long and costly. Once the complaint is filed, the parties are embroiled in a very complex process and a very expensive process that may not resolve quickly. Thus, while contrary to my economic interests, I think that filing a lawsuit should always be the very last option. The best way to resolve a dispute is to bring the parties together and hammer out the differences between the parties – without attorneys. People should go sit down with their neighbor and say, “Hey, Jim. You screwed up.” “Yeah. Sorry, Bob. What can I do to help?” “Well, can you fix my fence?” Perfect. No lawsuit. Neighbors working together and hammering it out. That way, the parties avoid litigation, and therefore necessarily avoid litigation fatigue.
It is Advisable to Avoid Lawsuits over Petty Matters which May be Resolved Amicably through Mutual Dialogue
If lawyers get involved, the process becomes more difficult because you then have a degree of separation between the actual parties, the two lawyers conversing, and then passing information to their clients. I, as an attorney, cannot speak directly with an opposing party once that party has hired an attorney. Likewise, opposing counsel cannot talk to my client. The parties can still talk to each other, and that is what I encourage almost always is to have the parties continually talk to each other because they are the ones that are going to be able to resolve the dispute in the most efficient manner.
Clients Involved in a Lawsuit May Have to Undergo a Deposition which is a Stressful Procedure
The last thing I want to do for clients is file a lawsuit because two years later, the lawsuit is still ongoing, and the client has had to sit for a deposition. A deposition is where the opposing party is asking questions of my client under oath before trial. Those depositions can be invasive. They can be stressful. You can be reliving very, very painful moments in your past. The opposing party is going to be asking for personal documents and emails, and you have to turn it over. So, filing a lawsuit is not my first go-to. I think that you take a lot of steps, in an effort to resolve a civil dispute, before filing a lawsuit.
People are Generally Unaware of the Potential Consequences of Filing a Lawsuit
Moreover, I think that clients may not necessarily understand how long litigation can take. There are cases out there that have been going on for over 20 years and the disputes are still going somehow, some way. It is mind-boggling. When you are in litigation, you are under a microscope. Anything that you do, opposing counsel could find out about. And, depending upon what happened, the opposing party may file a motion with the court complaining, which you then have to respond to. All of this costs money. Because of that, it can be very expensive for people to hire an attorney on an hourly basis.
Indeed, while expensive, a potential litigant may not consider other implications when filing a lawsuit. For example, a plaintiff sues a defendant because the plaintiff does not like the person and was harmed by the person. Because the defendant harmed the plaintiff, the plaintiff does not want to deal with defendant anymore. But, once the plaintiff sues the defendant, the plaintiff is all of a sudden tied up in litigation against that person for two years. It is public record. Anybody can go on the court’s website and online system and find the lawsuit. Anybody can come in and watch the trial. So, it can be very stressful. I think that a good attorney will sit down and explain these realities to the client, even going so far as asking: “Is it really worth it?”
In a Civil Lawsuit, Attorney’s Fees are Generally Not Recoverable
Consider a lawsuit for $15,000 based upon a breach of contract. Does it make sense to hire me to go after that amount and pay $20,000 in attorney’s fees to recover $15,000? This would appear to be the proverbial “throwing good money after bad.” Almost always, the person asks, “Can I recover attorney’s fees?” The response is, as a general matter, “No.” In the American system, each side pays their own attorney’s fees. In the British system, the loser pays. You can, in the American system, recover reasonable attorney’s fees if authorized by a statute or a contract.
So, for example, with misappropriation of trade secrets, the Utah Uniform Trade Secrets Act allows for recovery of attorney’s fees in some situations. You can also get attorney’s fees if the case is brought in bad faith and is not meritorious. Or, if a person brings an unmeritorious defense in bad faith, a court, in its discretion, can award attorney’s fees. Or, if a contract, in a breach of contract action, the parties agreed, in signing the contract, that a dispute arising under the contract the prevailing party can get reasonable costs and attorney’s fees. Except for those situations, a party general will not recover his or her attorney’s fees.
Personal Injury Cases are Usually Contingency Based Lawsuits Incurring No out of Pocket Expenses for the Client
If you are considering a personal injury action, most attorneys will handle such a case on a contingency basis. This means that you are not paying out of pocket. The attorney will recover costs and pay themselves out of whatever is recovered. If there is no recovery, then the client does not pay anything.