The Solution

Note: This is the first chapter from The Pocket Lawyer: Solve Your Own Legal Disputes by Marilyn D. Sullivan, founder of Attorneys for Spiritual Advocacy. This chapter is copyrighted and may not be reproduced in part or in whole without the publisher's permission. This book may be ordered by clicking here.

Solving Your Legal Problem: A Better Route

Please, Not a Legal Problem

As seekers of peace and pleasure, we invariably avoid legal problems when they arise. It's full speed ahead down the happy highway of life. Everything's going pretty much as planned. Oops! One of those ornery obstacles ... an unplanned event. But please - don't let it be a legal problem.

As a society we have effective tools to deal with our emotional and medical problems. Apparently, to resolve them, we recognize the need to be personally involved. But for deep-rooted reasons, legal problems are handled differently. They are not managed in the creative, rational ways we handle other problems. Staring the legal issue in the face often produces the flight syndrome.

Consider some of the ways we respond to problems in other areas of life. How do we deal with an emotional problem, such as the loss of a friendship? Do we hand the problem over to a psychologist and say "Here, handle this for me and let me know when it's over?" No.

We spend weeks, sometimes months, pondering, discussing, and dealing with the problem, sometimes with the assistance of a therapist. Often we buy books, attend seminars, and explore any and all effective tools for problem solving. We realize we must get to the root of our emotional problem, understand it, and work on it. It can't be solved any other way.

Self Help Works

How do we respond to medical difficulties? Suppose you get the flu. Do you rely on your doctor for relief? No, indeed. You put on a pot of chicken soup, take two aspirin, and go to bed for the day. You give your body a rest. What about more chronic ailments, such as back pain or even arthritis? Would you depend solely on your medical practitioner? No. Knowing yourself - your limitations and symptoms - better than anyone, you can research the various solutions and work with the medical practitioner to bring about changes. We can have better health, control the problem, and even prevent the ailment from coming back.

Faced with emotional or medical problems, we seem to realize that identifying and treating the cause is the only way to a cure. Why then do we respond so differently to legal problems? If we are able to take responsibility for our medical and emotional woes, investigate their source, and propose solutions, why do we avoid our legal predicaments?

It's simple. We become intimidated and overwhelmed. We don't like legal issues. In fact, we abhor them. What do we do when a legal problem rears its ugly head? All too often we ignore it and refuse to acknowledge that it's there. Instead of meeting our legal problem head on and seeking a productive solution, we ignore it. Or, we fill up our legal dump truck and drop it off at the fix-it center. With legal problems, that means the lawyer's door.

The Costly Dump Truck Syndrome

Remember your last legal problem? When it surfaced, did you treat it like any other problem? Did you look at it, define it, analyze it, and then make a decision as to what to do about it? Or did you employ the dump truck method - carefully extracting all evidence of the problem, tucking it away in the biggest envelope you could find, plopping it down on some lawyer's desk with a hearty retainer, saying, "Here. Fix it and let me know when it's over"?

Did you hire your attorney by conducting interviews, asking the attorney candidates all the questions you had, until you decided your selected counsel was capable of representing your very important interests? Or did you drop it at the first law office you could find, glad to be rid of it, and run?

Meanwhile, an attorney's services are expensive. Remember how long it took you to read the stack you just dumped on the lawyer's desk? Well, for the lawyer's scrupulous review, multiply that by five. It becomes apparent that saving lawyer time is in your interest. And another more serious aspect of the situation hovers in the background: your opponent hopes you'll be the first to run out of funds to pay an attorney. And if you do, all may be lost.

Many people adopt the dump truck plan. There's no real logic to it. It's more of an emergency disposal. The sooner you get rid of it, the sooner you forget it. Do you see yourself in the dump truck scenario? A legal problem - who, me? If I can't see it, it may just vanish. If I wait long enough, it will just go away. If I give it to a lawyer, I can just forget about it. Out of sight, out of mind. But, when the attorney bills start rolling in, it comes right back into focus. The result - you've compounded your problem by disposing of it instead of responsibly meeting it.

The dump truck method is an expensive, risky way to go. Attorney services are expensive, especially when the lawyer has to step in and do the whole job without any direction or participation by you. But, it doesn't have to be that way anymore. There is a better way.

Be the Director

The prudent legal consumer needs to take a hands-on approach to legal problems. She needs to step up to the batter's box and responsibly choose a course of action. That may be hiring a lawyer or it may be handling her dispute solo with or without intermittent lawyer consultation.

If your decision is to hire a lawyer, interview your candidates carefully. Do it with team work in mind. You will participate with this lawyer in achieving your legal solution. Client participation benefits both clients and lawyers when clients become responsibly involved in their legal disputes. It costs far less for the client, and the result is actually far better than the lawyer achieves alone.

The client brings a factual clarity that sharpens the legal aspects of the case. Furthermore, there is nothing more satisfying to a lawyer than to partner with a client in solution of a case. For the client, legal partnering causes her to feel far more empowered and to accept the result they achieve together more than if the lawyer had done it alone.

Step into your Legal Problem with Power

Some legal problems arise when, as Rabbi Harold Kushner puts it, "bad things happen to good people." There's just no way to explain why it happened. Often, though, we are responsible for our legal problems. Indeed, many legal predicaments arise and develop from our own actions, or lack of them, just as other problems do. People don't see it this way, though.

For the most part they feel that legal problems are obstacles that pop up randomly without cause, refusing to acknowledge their part. When we avoid responsibility for a legal situation, we give up one of the most valuable tools to solve the problem: Our power to affect the outcome now and to change the future.

If someone else - like your attorney - controls the details of your case, you've lost control of your costs. You've also lost control of your ability to intelligently resolve the dispute before it becomes a major battle. The price: powerlessness.

Lawyers Cure Only Half the Problem

Only by taking the bull by the horns can we affect the outcome of our legal disputes. And only through self-responsibility is lasting solution achieved. We may resolve the legal issues, but the underlying mechanism remains in place - fertile ground for the seeds of future legal problems. As we detour past defining our role within the dispute, potential conflict-producing factors remain, ready to take over once again after you unravel this problem and start back down the happy highway of life.

For this reason, the legal system alone invariably fails to achieve lasting solution. You've missed an important step. The attorney takes care of the legal aspect, but only half a solution has been found. Your conduct, if not addressed, remains. If change doesn't occur, the problem is sure to raise its ugly head - but next time, it will roar much louder.

We are not powerless to solve our legal problems. Indeed, we can help bring about better legal solutions if we involve ourselves responsibly in the legal process. What's more, we can prevent future problems when we address their source now.

Legal Intimidation

How did we become so overwhelmed by our legal problems? It began centuries ago when we were fooled into thinking the legal system is out of reach to ordinary folk. A privileged legal forum arose, using Latin terminology and complex, warlike tactics. This ivory tower was accessible only by scholarly doctors of jurisprudence.

These first lawyers positioned themselves on pedestals and constructed the legal arena beyond the reach of the layperson. Lawyers were assured large fees and rising power. These arrogant ways and cryptically carved customs held reign far too long.

For almost as long as the court system has been in place people have complained about its workings. The solutions handed down are not satisfactory. And handed down is precisely the right terminology. You sit there for the most part, powerless, waiting for the next round to mete out the next disempowering and dictatorial consequence.

As a result, the legal participants - the very people most interested in their disputes - have had very little to do with their cases. Attorneys scoop up the problems, dress them with legal jargon and offer them for legal determination. Then in comes Lady Justice to pick a winner and loser. The result - the disputing parties are intimidated and often outraged by the process.

People report investing substantial sums in the court system, but their results don't justify the expense. They feel unheard and ripped off by a complicated legal system and by attorneys who charge too much. The fact is, most people are not heard, the court system is unduly complicated, and attorneys are expensive.

How Much Justice Can You Afford?

Often, the result of your court case depends upon the work quality of the lawyer you hire and the amount of time assigned to your matter. Each factor depends on the supply of money you can spend on the case. If you have a sizable bankroll, you can hire the best attorneys and conduct voluminous investigations. You can literally outpaper your opponent and win a case not on its merits, but upon how much time your lawyer puts in and how many documents your lawyer can produce.

Understandably, this is a popular strategy in the legal community. Is it right that the winner is the one who has the most resources? Should our system operate this way? Should we do something to change it? This lopsided quality prompted British novelist William McIllvanney to write:

Who thinks the law has anything to do with justice? It's what we have because we can't have justice.

When the results yielded by a system become sufficiently skewed, the system invariably gives way. And it has. This is one reason why our legal system is now undergoing major reform.

Terrors of Court Trials

Now to the decision makers. Although the judges are doing the best they can to dish out justice, they don't have sufficient time or resources to dedicate to the increasing volume of cases before them. Understandably, this serious impairment often affects their decisions. It has happened in more cases than I could ever begin to mention.

In one such case I am currently involved in, after 26 years of the plaintiff accessing the beach through defendant's property, defendant suddenly blocked access. The plaintiff filed suit to establish an easement across the neighbor's property, recording a claim on title to the neighbor's property. As the case unwound, the court ordered the claim recorded against the defendant's property expunged, and when the defendant wrongfully recorded a claim on title to the plaintiff's home, the court refused to expunge it. The case proceeded with the wronged plaintiff unable to refinance or sell her home while the wrong-doing defendant was able to freely use his property. The case was upside down.

In another case, defendant home seller concealed important facts from the plaintiff purchasers. The written contract between the parties contained an attorney fees provision granting attorneys fees to the prevailing party in any dispute between them, but no mediation or arbitration provision. The case went to trial after each side spent an average of $100,000 in attorney fees. Although the plaintiffs won the trial before the jury, the judge awarded attorney fees to the losing defendants, labeling them the prevailing party.

What about an appeal? The U.S. Court of Appeals heard the case. This three-judge panel refused to reverse stating that the determination of the prevailing party lies solely with the trial judge. The end result was the purchasers, who had won at trial, paid their own attorney fees along with defendant's fees in the total amount of $215,000. The amount of attorneys fees they paid exceeded the award they received at trial. The attoneys fee award should have been the other way around. This is another example of the injustice that occurs more often than anyone would like to admit in our overbooked court system.

These are merely two examples of the imperfections of the legal system. Recall the O.J. Simpson case? There's another example. Most people who have had involvement with the court system have an example or two of their own - where Lady Justice has run amok. After nearly a quarter of a century in the court system I could write an entire book about the skewed results that have resulted in just the cases I have handled or had involvement with.

Overburdened Courts

Think about it. The court system is open to everyone - without limitation. Anyone can file a lawsuit: walk up to the court clerk's counter, pay a minimal filing fee, and away you go. You have yourself a lawsuit. There are no citizenship or residency requirements - you don't have to be an American citizen, or a resident of the district in which you file suit. There are no financial requirements - your income, or lack of it, doesn't matter. These days courts even have form complaints - all you need do is fill in the blanks.

Unfettered access to the courts brings mixed blessings. Anyone can use it, but increased use of the system has congested and overburdened it. Thus, entering the legal loop isn't difficult. But after you pay your initial dues in the form of a filing fee, the process gets quite complicated and costly. After you pass through the portals, survival within the legal system requires an endless supply of money and energy.

Lady Justice and Her Scales

Far too many people believe the court system always produces a just result. They expect justice - their version of justice. Because of the symbols selected to represent justice, they are convinced that the legal system is finely tuned, balanced, and invincible - until they have their first court experience.

Their legal vision is of two scales equitably weighing justice in perfectly balanced proportions. They see Lady Justice - so pure, blind to bias and partiality. Law libraries swell with legal books jam packed with carefully articulated black and white rules and regulations. A scrupulous system records volumes of decisions applying these rules and regulations. The naïve litigant believes these legal icons assure truth and justice to all who enter the courtroom door.

Justice Is Not Exact

But the truth is, when it comes to justice, there is no absolute right or wrong. There are no rigid rules for people to judge one another's conduct - and that's what the justice system does. It decides whether people have done what they were supposed to do.

Justice is a hybrid of philosophy and morality. It is defined as "the use of authority to uphold what is right, just, or lawful." British author D.H. Lawrence summed it up: "The only justice is to follow the sincere intuition of the soul, angry or gentle. Anger is just, and pity is just, but judgment is never just."

Most people with at least one court experience have observed the unpredictability of court decisions. There are many versions of justice - yours, your opponent's, the judge's, and each of the juror's.

Thus, it follows that a system set up to evaluate and judge conduct can never be exact. Ideally, justice should be able to assign each person what he or she is due. But the problem lies in defining what is right and what is wrong. Criminal conduct is relatively easy to define, since it is so blatantly far afield of the norm. But civil conduct is not.

Civil conduct comes in many sizes, shapes and ranges, none of which are truly offensive. Civil conduct doesn't fall under any clear-cut law that says you strike your neighbor and you have committed battery, calling for a defined criminal penalty. The 14.5 million civil cases filed each year ask one question: "did the defendant violate a duty?"

Unpredictable Court Results

The answer to this question is quite tenuous - it depends on a lot of varying factors. So the legal system strives to apply a myriad of complex standards to determine what is right and what is due. Understandably, with such a mission, court decisions are unpredictable, to say the least.

So, yes, the halls are adorned with lady justice and equitable scales. But beyond mere symbols of purity and accuracy, law has no place for either of these qualities. It does the best it can to render everyone their due. But who's to say what the answer should be, when there really is no right answer. Invariably, when a system's task is to pick a winner and loser, the result is unpredictable. As litigants clamor for justice, the gavel thus falls sometimes here and sometimes there and that's about as consistent as our court system gets.

Is There Enough Justice to Go Around?

An analysis of the court system is not complete without reference to the inherent shortcomings of any publicly funded organization. The court system operates under the same deficits as any other public system that is accessible without limits: it is seriously under- funded, understaffed, and overburdened. Case filings are increasing each year while staff is downsizing. The job of meting out justice just can't be done well under these circumstances. With these restraints in place, no wonder the system's results are less than perfect.

For these reasons, society demands better ways to facilitate our legal disputes. It has taken us a long time to implement these new ways. As Abraham Lincoln profoundly observed 150 years ago: "Mercy bears richer fruits than strict justice"

We have borne the results of strict justice long enough. We now turn to alternative ways of resolving our legal disputes - mercy among them.

The Answer Is in ADR

So, if there is no exact justice available, why spend years in a court system seeking it? Why not get your justice quickly and inexpensively? If our court system is so overbooked and underfunded that it can't do its job, why give it your case? These are the primary reason to consider alternatives to the court system. And, the timing is ideal.

Now, as we begin a new century, our bursting court system admits it can't do the job. The court process can't address legal problems with current solutions. Many cases are not heard for a good three or more years after a dispute arises. By the time the case is heard, nobody has a clear recollection of the actual facts. But the litigants vividly remember the excessive time and money they spent getting there.

Acknowledging its shortcomings, the courts nationwide are setting hearings after initial case briefing for the purpose of referring their litigants to alternative dispute resolution (ADR) mechanisms, such as mediation and arbitration. All around the country, these alternative ways to resolve legal disputes out of court are becoming accepted, even preferred. In fact, most courts now require litigants to mediate or arbitrate their case before gaining access to the courts.

The best news of all is that ADR is user friendly. Although the court system continues to be too complex for people to represent themselves, ADR was built to be available to the hands-on legal consumer. The pieces are all in place for you to be able to handle your case if you want to. If you don't, you still have the option of hiring an attorney. But, at least you finally have the choice.

California, the leader in ADR programs, boasts that 85 percent of its court cases referred to mediation settle. And many other states log in with equally praiseworthy figures. The American Arbitration Association, the leading ADR provider in the country, vigorously supports mediation and arbitration. For attorneys, it means the end of laborious trials and enormous fees. But emerging client satisfaction is so great with these streamlined processes that it brings new meaning to the legal professional who adapts to and advocates the new legal system.

Why Not Avoid the Court System Entirely?

If you do not have a written mediation or binding arbitration agreement signed by your opposing party, you have to use the court system to hear your dispute. But, since the courts will just require you to undertake mediation or arbitration before letting you weave your way to trial, why not just avoid the court system entirely?

The average litigant spends a lot of time and money getting to the stage where the court requires alternative dispute resolution. Typically, it takes hiring an attorney, about three months attempting to resolve the dispute informally, then another six months after filing suit before you get to alternative dispute resolution.

Why not cut out this expensive, time-consuming step entirely? You can. All you need to do is enter into a written alternative dispute resolution agreement (contained in the appendix and discussed throughout this book) with your disputing party(s) before you all spend major time and money in phase one of the court system. If everyone understands the circuitous route your dispute will follow before it ends up in alternative dispute resolution, all disputing parties will willingly cut out several thousands of dollars of attorneys fees to take a more direct, productive route.

Have a Written ADR Agreement with all Parties you Deal With

Public and private industry swell the ranks by including mediation and arbitration provisions in their contracts. Nearly every contract in each aspect of our lives now contain these provisions. Formal arbitration and mediation training is increasing in popularity among attorneys, and the legislature is responding, as well. Each state and federal court system is setting these alternative systems in place to help the general public resolve, rather than perpetuate, conflict.

Your best option would be to enter into a written alternative dispute resolution agreement covering any dispute that may result in your life. It may sound a bit paranoid to ask everyone you have dealings with to sign such an agreement, but it is the wave of the future and the answer to the legal conundrum we are in.

Take Responsibility to Set You Free

Now that the courts encourage outside methods of resolution and industry has demanded it, your voice can be heard - but only if you participate more fully in the legal process. The time has come to change the way we deal with our legal problems. To do so, begin with a tour through The Legal Analyzer program in Chapter 6. After using The Legal Analyzer you will be far more informed about how to proceed with your dispute, and do so with confidence. You may then choose to interview an attorney for a more in-depth review of your options, including alternatives to going to court. (See Chapter 13, How to Hire a Lawyer, which includes an Insider Checklist.)

In the chapters that follow, you will discover that being heard, simplifying the system, and cutting attorney fees can all happen. In fact, attorney representation may not be necessary for your dispute. Or, you may choose to partner with counsel in a variety of job-sharing ways. You have the ability to create these changes. This is an ideal time for change now that the tools of legal solution are finally at your fingertips.

Change Is Here

At long last, our rigid court system has responded to public clamor for faster, easier and less costly ways to resolve disputes. The legal system is changing, opening its gates to new ways. The time is ripe for us to move forward and make a difference with our own legal problems. It's time to access a new way of justice through personal involvement and alternative dispute resolution.

Note: This is the first chapter from The Pocket Lawyer: Solve Your Own Legal Disputes by Marilyn D. Sullivan, founder of Attorneys for Spiritual Advocacy. This chapter is copyrighted and may not be reproduced in part or in whole without the publisher's permission. This book may be ordered by clicking here.