Our system handles both very small and very high value disputes fairly well. However, it does an atrocious job of handling disputes in the middle. Remember this as you advise your clients on litigation.
I recently completed training to be a Small Claims Court Arbitrator, a system that allows parties with small claims to avoid the months of delay always involved in a trial, and, instead, have their claims decided by an arbitrator on the very first day they show up in court. It’s fantastic: everyone who qualifies gets their day in court and everyone gets speedy results. As part of my training I was fortunate enough to observe a very experienced lawyer treat the parties with dignity, allow them their due time to state their positions and provide evidence, then render immediate awards that will quickly be converted to judgments. If the dry cleaner messes up your clothes (and you can’t otherwise work it out), if FedEx screws up the package (and you can’t otherwise work it out), or if your ex-roommate won’t return the $400 security deposit you gave him (and you can’t otherwise work it out), small-claims court provides fast and low cost justice.
You can get real justice or something close to it at the other end of the money value spectrum. At our firm we handle many multi-jurisdictional, complex commercial matters where the result in the case can make a difference in the millions, or tens of millions, or even more, or where the result determines whether or how someone does business. For such matters, it makes perfect sense to spend a great deal of money on lawyers, especially if you can make your case move quickly in federal court or in arbitration, since the legal fees likely will pale in comparison to the value of the dispute or the result you hope to obtain (or avoid).
The problem is the middle range, and that is the place that perhaps encompasses most disputes of most Americans. If your damages are too high to be in small claims court, but not over a million and “only” $50,000 or $300,000 or “only” about your lower-paying job, then litigation likely doesn’t make sense. That’s because it is very tough to find a good lawyer for a price where the legal fees and other expenses do not in the end swamp the possible recovery. You can find someone good who can handle the case (and some of these relatively low money value cases are very complicated), but that good lawyer may be too expensive. You can find someone cheap—who can offer a flat rate—but those lawyers simply may not be good, since, if they were and charged for their work (i.e., they’re not providing pro gratis legal services), they’d charge a lot more.
This causes a huge problem; a select few only receive justice and many do not (at least when it comes to business disputes). I have ideas on a solution and others do too, but they are well beyond the scope of this piece. Instead, here I simply want to urge litigators to acknowledge this reality when advising clients. As much as you may hate to say it (and as much it may be against your business interests), sometimes you have to tell a plaintiff who has been screwed to just walk away; fighting isn’t worth it. Sometimes you have to tell a defendant wrongly sued just to pay something; fighting isn’t worth it.
For many clients where the damages are low (but not quite low enough), winning sometimes means not fighting at all.
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John Balestriere is an entrepreneurial trial lawyer who founded his firm after working as a prosecutor and litigator at a small firm. He is a partner at trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at [email protected].