Yeah, yeah……..I know. I’ve been writing a lot lately about compromise. Put water in your wine, give and take, reduce your expectations….all of that Dalai Lama stuff. And don’t get me wrong – In a perfect world, where both sides come to the table with the concept of a fair compromise in mind, it is Nirvana. Unfortunately, like many great concepts in life, it can be nothing more than an idealistic dream if the other side has no intention of giving any ground or coming to a fairly negotiated solution.
I can also tell you that in my 30 years of conducting litigation in the emotionally charged fields of matrimonial and employment law there are many situations where you need – at least initially – a much less conciliatory approach. Quite some time ago I decided that many people need the “sobering reality of the judicially imposed solution” in order to bring them to their senses. And – as always – there are those blockheads who will never bend, never compromise, and who will never have a momentof calm. There is only one way to deal with these people. Start pushing or dragging them to the courthouse door without delay!
Often I take on files where I see that the lawyer before me was writing letter after letter trying to achieve compromise. The unreasonable clown on the other side just giggles…… “ooh, I’m really scared now…..are they gonna send another letter, Jimmy?”. I use the analogy of the old days when those stoic British cops didn’t carry guns – only a nightstick. As the thief outruns the cop, the cop hollers: “Stop!!! Or I’ll say Stop a second time!!!”. Not a lot of deterrence there, folks. I’m a simple guy. I have a simple approach. I start with a simple letter setting out my client’s fair and reasonable position. I tell my clients what a judge is likely to do, and we base our position accordingly. I explain to the other side that my client would truly prefer to do it the easy, fast, and cheap way and I give them a fair amount of time to come to terms. I don’t know about you, but I can make pretty much any deal in a week – seems fair to me. I am always prepared to engage in reasonable negotiations, but am never interested in playing “catch me if you can” or “hide and go seek”. If the opposing party makes it clear that cooperation is not forthcoming, another letter repeating yourself is a waste of oxygen and paper. It’s time to start the court process.
You see, I don’t need to convince the other fella (who has a vested interest in not being reasonable). I just need to convince the judge. While the ex-spouse (or ex employer/employee) might be narrow minded, obstinate, biased and motivated by malice, my judge isn’t. It’s a lot easier to convince an objective and impartial judge of the merits of my client’s position than to try to push butter through cement with someone on the other side who just wants to see my client evaporate. Rather than wasting weeks and months writing letter after letter (which the client pays for, by the way), get with Larry the Cable Guy and “Just get ‘er done!”. Kids should have birthdays – lawsuits should not. You can quote me.
Let me give you a couple of examples. A short while ago I had the pleasure of assisting a senior executive who had worked for many years with a large corporation. The client’s immediate boss was making life intolerable for the client without reason. It was a power trip. I wrote my one letter to the employer proposing a fair resolution that, if accepted, would achieve a result for my client that was better than what the client could expect to achieve at trial, especially with the cost of getting to trial and risk of clawback of earnings being taken into account. The employer engaged an experienced employment lawyer and we literally came to terms and signed off on a fantastic settlement package within 2 weeks of my being retained. File closed – client breathing and happy. The opposite example is a custody matter than I was brought into in Southwestern Ontario to help a parent with a beautiful 7 year old child and an ex-spouse who was simply bent on total destruction. You’ve all heard of this type of ex – he/she defies court orders, has gone through a couple of lawyers, and is now self-represented. There is no negotiating or compromising with this person. This individual sees any attempt at compromise as weakness and only wants to hurt my client as much as possible. As a result, it’s a different approach. So we loaded the cannons and used the only option that the other side left on the table – we fought and we fought hard! We have now obtained orders prohibiting any and all contact with my client, prohibiting any and all contact with the child, as well as prohibiting this self-represented “serial litigator” from instituting any more proceedings – what we call a “vexatious litigant” order. Door closed and the wolf is outside.
A long time ago, I remember reading a quote somewhere that stuck with me. Now, I didn’t have it tattooed on my backside, so forgive me if I mess it up a little. In any event, you’ll get my point – “It does little good for the Sheep to make laws requiring vegetarianism if the wolf doesn’t agree”. You can be the nicest, most reasonable, kind hearted soul on the planet. If your opponent is bent on hellfire and destruction, I suggest you change your game if you intend on surviving the fight. As another wise friend of mine says, “Hope for the best, but prepare for the worst”.
Litigation is simply life under a microscope. What we play out in our personal lives and in court is simply a tiny reflection of the world around us. Today, as we all shed our tears for Paris and La Belle France, who continue to wipe up the blood of the innocents, we need to be reminded of what litigation has taught me for the last 3 decades. We have tried to reason and compromise with the wolf and the wolf retains his thirst for our blood. It’s time to change our game and load our rifle. I feel like a new wolf hat, ‘cause winter is coming.
“…so let us not talk falsely now, the hour is getting late”
Bob Dylan, All Along the Watchtower, 1967.
Justin, tu m’ecoutes?