Forgive me if I periodically vent here, but I’ll use my diatribes to illustrate important points.
One of my fundamental points is that the practice of law is far more enjoyable if you are on the right side of a case. You can feel great about what you are doing, knowing that you are on the side of justice. You get to fight the good fight with your superhero cape blowing in the wind, while the other attorney knows that his or her only function is to obstruct justice.
Don’t be that attorney.
A case of mine provides an example. My client was a skilled professional who was hired by a company pursuant to an employment agreement. The agreement provided that our client could only be terminated for cause, and if our client was terminated without cause, he would receive a year’s wages as severance. The company breached the agreement by terminating our client without cause and failing to pay the severance. We sued for breach of contract.
Upon receipt of the complaint, the attorney for the company called with the usual posturing, saying that he would bring a string of witnesses to testify that my client had been a terrible employee who couldn’t walk and calculate fractals at the same time. I knew better, so I called his bluff. If the facts were so clear, I suggested we both save our clients a lot of money and use one of our jurisdiction’s expedited programs. We have a program that most attorneys are not even aware of, whereby an entire case can be submitted on declarations and decided very quickly. If that’s too scary, there is an expedited jury trial method where both sides get three hours to put on their case and six or so jurors decide the matter, with no right of appeal.
The only issue in this case should have been whether or not there was cause to fire my client. If defense counsel was so confident that he could show cause, then let’s do it. You put on your evidence, we’ll put on ours, and the judge or jury can decide. Come on, defense counsel. As Dirty Harry would say, “You’ve got to ask yourself one question. ‘Do I feel lucky?’ Well do ya, punk?”
Apparently the answer was no. Defense counsel declined my offer and instead filed a demurrer, based on “uncertainty”. Really? Uncertainty? The complaint alleged very clearly that my client was terminated without cause, and that the company was therefore required to pay the year’s wages.
“But whatever could that mean?”, asked the demurrer. Instead of just answering the complaint, the company paid probably thousands of dollars in legal fees to argue that it could not possibly determine the basis of the claim from the wording of the complaint. Defense counsel claimed we should have alleged additional facts regarding how the termination was without cause.
How can one provide more detail about how a termination was without cause? That’s like alleging that Diet Coke is sugar free, and the other side asking for more details about how it is free from sugar. Maybe if we had used stronger words? “Plaintiff was absolutely, positively fired without cause.” Or perhaps, “Plaintiff was really, really, really fired without cause, and that’s no lie.”
I wish I could credit my brilliant oral advocacy, but in overruling the demurrer, the court would not even allow oral argument. The court said the complaint was fine and ordered the defendant to answer. And so the case went, with the company paying tens of thousands to its attorney until it ultimately settled for the full amount owed.
What did that defense accomplish? Can defense counsel feel good about the time he spent on that case? I’m probably just naïve, but I believe that has to take a psychological toll. What is the distinction between a con artist that tries to cheat someone out of their money, and an attorney who tries to do the same thing by way of litigation?
Don’t be that attorney.