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Legal Fees

The Litigator’s Dream Client

Back in grade two, the class bully and I got hauled off the principal’s office who demanded to know why we were fighting in the school yard. I explained, “he said shut up. I said make me. He was making me.”  I learned fairly early in life that our words and actions have consequences.

Some people do not learn that lesson until later in life.

This is a story about a good guy (my client, of course) and a bad guy. The bad guy was an employee of the good guy. He did some bad stuff, such as setting up a competing business on the side while working for the good guy, soliciting the good guy’s customers while still working for the good guy, and then quitting and setting up a competing business.

The good guy came to see my partner, the big, bad, but exceptionally good litigator. The litigator explained to him that he had a decent case, but that it would be expensive to pursue and that at the end of the day it was very possible that the bad guy had no assets and the good guy would not recover enough money to cover the legal fees. Good, ethical litigator. Laid it all out for the good guy, but did not encourage him to sue. Not an uncommon set of facts. This was law being practiced ethically, the way it should be.

What was different, this time, was the client. You see, the good guy had it in his head that he was in a small industry and that he had to send a message that it was not a good idea to screw with him. So, his instructions to the litigator were: “Take the bad guy down. I don’t care if it costs me $300,000 to try to collect $50,000.00.”   This would make the good guy a litigator’s dream client. Lots of money, not the slightest bit cost conscious.

So, the litigator did that. Got the injunction. Put the bad guy out of business. Got a cost award. Sued the bad guy for damages.

But that wasn’t enough. The litigator made sure that he framed his claim in fraud. When the bad guy went bankrupt to avoid the judgments, the litigator did whatever magic was required to have the judgment survive bankruptcy.

Bad guy was financially ruined. My best guess is that he now thinks twice before he does bad stuff.

Although some may see it differently, there is nothing wrong with this story. The bad guy did bad things. The good guy could afford to do something about it. The litigator explained the downside, the client assumed the risks and the bad guy learned that there are consequences to your actions in life.

If there is a problem with this story, it is that it is not a more common tale in the legal profession. The more common story goes something like this:  Bad guy does bad things. Good guy goes to a lawyer. Lawyer explains the cost and risks of pursuing the claim. Good guy either does not pursue it or settles for much less than he or she should settle. Bad guy, having correctly calculated that the consequences of doing bad things are manageable and that it is profitable to do bad things, does more bad things. Now that, is an everyday occurrence.

I find that people who are unfamiliar with the legal system do not realize that outside of criminal law, personal injury law and a few other areas of law, it is, for the most part, a self-policing system. Someone wrongs you. If you have money, you can easily pursue a remedy. If you do not have money, pursuing a remedy may be difficult or impossible. Even when it comes to criminal law, a victim may find that the authorities do not have the budget or the interest to do anything about a crime. On the other end of things, a criminal defendant without money may find it difficult to secure great representation. Sometimes the innocent goes to jail.

But then, just when you start despairing about the flaws in the legal system, a good guy with an unlimited budget comes along and life is fun again!

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