Wednesday, May 5, 2010

Family Feuds

Most litigation settles. The vast majority. While it would be oversimplifying things to say that it's all about the bottom line in most cases, it is mostly about the bottom line in most cases.

Truthfully, most litigation involves some level of personal emotion. We're all people, and even with corporations there are still people involved. People feel wronged. A plaintiff feels wronged and wants to go to Court to have that wrong righted. A defendant feels wronged and wants to avoid paying out anything to the plaintiff simply on principle.

Occasionally, there's merit to fighting on principle. When you deal with large numbers of people in similar capacities, you fight individual cases to send the message to everyone else. An employer who dismisses a bad actor wants to fight the wrongful dismissal claim because it doesn't want other employees thinking that acting up and getting themselves fired is an easy way to a big payout. An insurer fights wherever it can so that people don't start getting the impression that it's easy meat. Or sometimes there is simply enough money at stake to make it worth fighting regardless of legal fees.

But for most folks, it's simply a matter of moral outrage. And in most cases, that moral outrage can be quelled pretty quickly by a couple of interim accounts from lawyers. I like to give interim accounts before getting settlement instructions for exactly that reason: I want my client to have a full understanding of exactly how much the litigation has cost to date, so that they may also get a sense of how much more is riding on the line in terms of legal fees. Makes them ponder just how much their moral outrage is worth to them. Matters settle because litigants finally realize that it's too expensive to move forward for the value of the litigation.

Of the cases that actually need to go before a Court, however, it is astonishing just how many of them are family cases. Separation or divorce situations, support and equalization, custody and access. Or alternatively estate litigation as between family members. You get into estate matters with several law firms involved, and suddenly you have 4 lawyers charging $250 an hour each, spending half a day fighting over a chattel worth three hundred bucks. In what universe is that rational?

Perhaps the worse part is that it all comes out of the same pot at the end of the day. In family law, you deplete your resources and your spouse's resources: Bye bye kids' college fund. In estate litigation, it's quite common for the costs of litigation to be paid out of the estate. So you have an estate worth $250,000, and you have four people trying to split it more favourably for fees may well eat up the whole estate.

A dose of rational "bottom line thinking" would do these folks a world of wonder. But sometimes there's just too much animosity between the family members, that they'd rather divide up the whole pot between the lawyers rather than amongst themselves. It's really quite tragic.


This Blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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