Legal Fictions and Legal Fantasies

I spend a lot of time explaining the law to my clients. Not the obvious stuff, like the statute of limitations or the Bill of Rights, which most Americans have a reasonably decent grasp of, but the more baffling and basic things, like:

Why does everything take so long?

Why does the judge get to tell me what to do when I don’t want to do it?

Why do I have to pay you for the time you spend in court waiting around and not getting anything done?

Why can the Other Side tell such lies about me and get away with it?

Why do I have to go to court?

Why do I have to come up with written evidence of what I’m saying? I’ve already sworn to tell the truth.

Why are you so friendly to the Other Side’s attorney?

Why do you want to settle my case instead of going to trial?

Bear in mind that my clients are, with a few exceptions, literate, and have at least high school educations and at least normal intelligence. Nonetheless this stuff eludes their understanding.

Why does everything take so long? Actually, that’s an easy one, and most people have no trouble believing the answer, which is that Cook County, Illinois, where I mostly practice, is the largest court jurisdiction in the country (New York City got split up a long time ago), and possibly (pending better information from China) the largest in the world. And of course, taking a long time is not necessarily a bad thing, depending on which side you’re on. But some of my clients have a hard time with that one too. I tell them that, often, you can either get what you want from the court system, or get the case over in a hurry, but not both. Recently, one of my clients asked me to drop his case even though he has already paid me in full and we have at least some chance of winning, because he “can’t take the stress.” And of course, Hamlet adduced “the law’s delay” as one of the possible reasons for committing suicide.

Why does the judge get to tell me what to do when I don’t want to do it? Umm, because if you and the Other Side could work things out without anybody else telling either of you what to do, you wouldn’t need a judge. And from the judge’s point of view, if being a judge doesn’t get him the right to tell people what to do, whatever else it does get him probably isn’t worth the trouble of putting on his robe.

Why do I have to pay you for sitting around in court not getting anything done? Because while I’m sitting around in court on your case, I can’t get anything done for anybody else either, and nobody else is going to pay me for that time. If you won’t pay me for all the time I spend on your case, I won’t take your case.

Why can the Other Side tell such lies about me and get away with it? Actually, they don’t necessarily get away with it. Perjury is a crime. Remember what happened to Bill Clinton? It doesn’t happen as often as it should, but it does happen. And anyway, they don’t get away with it at all if they can’t prove it, just like you. If it isn’t proven, it’s just allegation and nobody has to pay any attention to it.

Why do I have to go to court? Because the judge needs to hear your testimony. You can’t just phone it in (usually, anyway) or write a letter. A live witness under oath to tell the truth can provide evidence. Everybody else is just shooting off their mouths.

Why do I have to come up with written evidence, instead of just swearing to tell the truth? Because the judge wants the best evidence possible. Sometimes neither side has anything in writing, and the judge just has to make do with what is popularly known among lawyers as a swearing contest. Judges hate this, and often make things as unpleasant as possible for both sides if that’s all they have. But if the other side has anything in writing, you had better have something too, or the judge will believe the guy with the documents.

Why are you so friendly to the Other Side’s attorney? What I generally tell the client is that you can catch more flies with honey than with vinegar, which is usually true. But what I generally don’t add is that clients come and go, but if I practice in the same courtrooms all the time, opposing counsels are there forever, or at least as long as I am. And opposing counsels are useful sources of information and referrals. This borders on conflict of interest, of course, but it’s unavoidable most of the time.

Why do you want to settle my case instead of going to trial? There are lots of reasons for this. I sometimes quote Lincoln, who says that the worst settlement is better than the worst trial. I don’t actually believe this, but Lincoln carries a lot of credibility with clients. More to the point is that, in a settlement, we have some control over the result. You won’t get everything you want, but you’ll get a lot of it. While a trial can bring out utter craziness or stupidity in the judge, leading to unpredictable results. If I know a particular judge well enough to know the risks of a trial, the client is likely to take this issue seriously. Or, because going to trial will cost you a lot more than a settlement, so that you may come out behind even if we “win.” Or because this judge will, one way or another, make it impossible for us ever to have a trial, by just continuing it for one reason or another until you die, or he dies, or I die, or the other party dies, or the courthouse burns down. (So far, I haven’t dealt with a courthouse fire, and I am still alive, but I have been in cases involving the death of the other party, the other lawyer, the judge, and my own client.)

Jane Grey

One Response to “Legal Fictions and Legal Fantasies”

  1. Brenda Says:

    In other words, you have just justified being a legalized liar. Let’s review.

    1) Everything takes so long because it means more MONEY. Unless you are gathering more evidence then a stall serves no purpose. I had a case a few years ago which was black and white. The attorneys stalled for a year and a half. The case took all of ten minutes in court and not a lick of evidence was any different than I told my attorney on day one. The only difference was it ended up costing me over ten thousand dollars in legal fees.

    2) I won’t argue with your second reason.
    3) That’s not our problem. You have admitted cases drag forever. Don’t pretend like sitting around for my case is costing you getting precious work done, considering the fact many of us shelled out big bucks and have waited for months, if not years, the least you can do is actually put a few hours work into OUR case. Truly pathetic response.
    4) That’s what gets me about law. Attorneys can do anything they want. If an attorney tells a blatant lie in court, they should be punished just like everyone else.
    5) I can understand number five, the more evidence you have the better.
    6) It is because it is about money not right and wrong. All they are is actors so when they act like they are battling the other attorney, quite often they go out and have dinner after the case because they get paid regardless.

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