News and Insights
28 September 2016
Don't get caught with your pants down
Many people have their own preconceived notions about lawyers and how we do business. There are no shortage of lawyer jokes and insults but few draw the ire of lawyers like the use of the term “ambulance chaser”; a term which is unambiguously derogatory, implying a mixture of greed, desperation and exploitation. The term is applied equally to lawyers who follow ambulances to the hospital, peddle their services and then convince the injured person to issue frivolous proceedings, or to lawyers who improperly solicit clients with meritorious cases.
A misconception to be addressed
I Googled (other search engines are available) “most ridiculous civil cases in history” and the results included countless outrageous and entertaining examples of civil courts gone mad.
Take, for example, the infamous American case of Pearson v Chung, colloquially known as the “pants lawsuit”. Mr Pearson, an administrative law judge in the District of Columbia, sued a dry cleaning company following a dispute over a lost pair of trousers. Mr Pearson initially demanded $67 million for inconvenience, mental anguish and his costs for representing himself.
My search also reminds me that coffee cups must now bear a warning that the contents may be hot; jars of peanut butter must caution that the product may contain nuts; and Winnebago handbooks contain a disclaimer that setting the cruise control does not allow the driver to leave the vehicle to its own devices whilst he makes a coffee in the back (this last one is an urban legend). However ridiculous they may sound, daft examples tend to inform public opinion and I would like to address the general misconception that lawyers pursue frivolous actions without having regard for the consequences.
Greater exposure to litigation
We live in an age where our exposure to litigation is growing at an exponential rate. We become party to far more agreements than ever before, perhaps doing so without giving enough thought to the potential consequences. Every order we place online; every time we check that box saying we have read the terms and conditions; or every time we download an app, a few clicks or taps create a contractual relationship which could give rise to liability and litigation.
Add that to the various customary law duties of care which we owe one another. Every time we get behind the wheel we assume a duty of care for other road users and pedestrians. Another example which many may not be aware of is the Jersey customary law duty not to interfere with your neighbour’s quiet and unimpeded enjoyment of his land.
With most aspects of our lives governed by the agreements, we make it is almost inevitable that at some point we will find ourselves embroiled in a dispute. The decision to issue or defend proceedings raises the stakes and is not one which should be taken lightly.
Do I have a case?
This is the one question that all clients ask at their first meeting, whatever the nature of the dispute and whether the client is the person who has suffered the wrong or someone who has been threatened or issued with proceedings. Our ability to assess the case and answer that question is the nature of our business and the reason you come to us. The answer however, is not always straightforward and cannot necessarily be answered at that first meeting.
We will discuss some key information with you to form the basis of our advice:
Nature and elements of the claim
What type of case do you have? For example, have you been injured as a result of someone else’s negligence? Has someone breached the terms of an agreement with you? Are your property rights being interfered with?
Every legal claim has certain elements that must be proven. The person bringing forth the case, (the “plaintiff”), generally has the burden of proving these elements. For example, in a claim for breach of contract (written or oral) the plaintiff must prove not only the existence of a valid contract, but that the other party has breached the contract so as to cause actual loss that is not too remote. In discussing your case we can establish whether the elements of the claim are likely to be made out. If we take the view that they cannot, then there is no claim.
Does anything preclude you from bringing a claim?
Do the terms of your agreement prevent you from bringing an action? Is there a clause requiring you to mediate or arbitrate rather than litigate? These are important matters about which you must be clearly advised. Most causes of action also have a “prescription period”, within which proceedings must be issued. We can advise you about the relevant prescription period and, if it appears that your claim is time barred, whether argument can be made that your claim should be allowed to proceed.
Do you have enough evidence to support your claim?
You will have to prove your case. To do this you must consider what witnesses and/or documents you have to support your claim. If you do not have supporting documents (for example if you entered into an oral agreement) or witnesses, your claim may still be successful. However, there is always more difficulty in proving a case where it is your word against the other person’s. You may be required to give evidence as to your recollection of events and you may be cross-examined. It is an unfortunate reality that sometimes people do not always tell the whole truth. That may change a strong claim into one that is very hard to win.
Cost is often a major concern for those wishing to bring claims. Legal fees can be expensive but there are several funding options we can discuss with you. Once you issue proceedings you are potentially liable for the other side’s legal costs as well as your own.
Have all efforts to resolve the matter amicably been exhausted?
Issuing proceedings (or if you are the person being sued, defending the claim in court), should be seen as a last resort due to the cost, stress and risk of an adverse result. Before you bring a claim you might consider whether it would help to talk to the other party or send a letter to let that person know what you are seeking and why you feel they should do or pay what you want. We can assist with this and would recommend it as a vital step before issuing proceedings. Even once proceedings have been issued parties are encouraged to resolve the dispute without the need for a final hearing, which is the most expensive part.
You may be able to settle your dispute with the other party to avoid the time and expense of going to court. This means that you may need to consider a compromise. We can advise you as to the strengths of your case and the risk that you might lose the court case and be ordered to pay the other party’s costs.
Amount of damages
Even if you are able to demonstrate each and every element of the claim, it may not make economic sense to pursue expensive and time-consuming litigation. We can advise you about how much you can expect to recover if you win your case. You must then consider whether the potential award outweighs the cost and inconvenience of pursuing the case.
Ability to recover – is it worth it?
You should always assess the financial position of your opponent as this may affect your ability to enforce any judgment in your favour. Enforcement can be complex but, broadly speaking, it is helpful if you can tell us whether the person or business has money, assets that can be sold or seized or substantial debts owed to it. Even if they do not have money now, you may be able to enforce your judgment in the future.
At Viberts, we will ensure that all aspects of your claim are considered before the decision is taken to issue proceedings. We take the view that it is better to identify and anticipate potential weaknesses in your claim sooner rather than later. Whilst we recognise you may be entirely reliant upon our advice and expertise, the more information you can give us at the early stages, the more efficiently we will be able to advise whether you have a case. We will warn you about the consequences of issuing proceedings and the potential costs involved (including those of the other side if you lose). You can be assured that we will never advise you to issue proceedings if we do not consider it to be in your best interests; we recognise that there is too much at stake.
Oh, and what became of Mr Pearson?
The DC Superior Court ruled resoundingly in favour of the Chungs. On appeal the DC Court of Appeal held that the trial court correctly ruled that Mr. Pearson’s claims had no merit whatsoever. He was ordered to pay substantial costs to the Chungs. When his position on the panel of administrative judges (with a salary of over $100,000) came up for review, he was not reappointed, in part because his suit against the Chungs demonstrated a lack of “judicial temperament”. As far as I am aware, he also never got his pants back.