“It ain’t what you don’t know that gets you into trouble.  It’s what you know for sure that just ain’t so.”  Mark Twain

Virtually every client who comes through our doors with a claim for personal injury or who has suffered a life-altering wrong will make that statement sometime during our first conference.  Invariably, victims feel a need to apologize.  After all, everyone knows that the courts are flooded with “frivolous lawsuits” filed by greedy lawyers and their clients.  Whatever knowledge falls within the category of “everyone knows” is usually wrong.

Trial lawyers typically represent injured people on a contingent fee basis, often paying the expenses of preparation from their own pocket.  Even cases that have merit are expensive to prepare, negotiate and try in court.  Politicians who fulminate about “frivolous lawsuits” never explain why a lawyer would accept a frivolous case on a contingent fee basis.  The contingent fee system is the best guarantee that a client’s case has merit.  One-third of zero is zero.  As a rule of thumb in our firm, if we would be unwilling to accept a case on a contingent fee basis, we should be unwilling to accept the case at our customary hourly rates.

Contrary to what “everyone knows,” the number of civil cases filed nationally in state courts has been falling during the past couple decades.  According to the DOJ’s Bureau of Judicial Statistics, the “total number of civil trials declined by over 50% from 1992 to 2005 in the nation’s 75 most populous counties.”  According to the Bureau, in 2005 plaintiffs won 56% of all general civil cases tried in state courts, while the award in the average tort case was only $24,000.

In Maine the number of civil filings has been constant, despite the growing population.  For example, the total number of civil filings in Maine’s Superior Courts (including contract, foreclosure, tort, and other civil matters) was 4,208 in 2005; six years later in 2011 the number was 4,194, with only one civil filing for every 317 Maine residents.

These figures hardly reflect a crisis in the courts.

You have no reason to feel guilty about your decision to file a lawsuit when necessary.  Our rights are meaningless unless we are willing to stand up for them.  Insurance companies and corporate defendants have good reason to run public relations campaigns designed to instill cynicism in jurors and a sense of guilt in anyone who might have cause to sue.  Ask yourself: When was the last time you heard a politician thundering about a frivolous defense?

Whether to file a lawsuit is a major decision, not to be taken lightly.  You may seek reassurance and guidance from your family and friends.  But if you have been seriously injured, either physically or economically, you should seek the advice and perhaps the services of an experienced and knowledgeable trial lawyer.

Cursed is the man who moves his neighbor’s boundary stone. Deurotonomy 27:17

My grandfather mowed his lawn to a specific line on the lawn.  His neighbor mowed to the same  line.  The line was visible only because they usually mowed at different times, but its location never deviated in more than 40 years.  Since becoming a lawyer I have often thought: “Wouldn’t it have been awful if a surveyor had ever told them that the mowed line on their lawn was not their boundary.”

There is something about boundary line disputes that causes good people to act badly and contrary to their best interests.  Frustrated expectations will do that.  If we have long-believed a fact to be true – whether in boundaries, politics or in life – it will take a lot of convincing to persuade us that the fact is not true.  When boundaries and easements are at stake, that “lot of convincing” can translate into legal fees and related costs.

The lesson here is simple: unless the consequences are grievous, boundaries and easements should conform to mutual expectations.  When a surveyor reports that a boundary is ambiguous, wise landowners will meet at the site or over coffee and agree on a boundary or terms of the easement.  They will instruct the surveyor to depict on the plan the locations of the agreed boundary and easement.  They will then retain a lawyer to draft and record the formal documents necessary to make the agreement “official.”  By making an agreement consistent with their mutual expectations and needs, neighbors remain friends, which can be at least as important as a couple feet of land — especially in the small Maine towns where we live and work together and no one remains unknown for long.

However, it takes at least two to make an agreement.  The catalysis of a land dispute is often the frenetic or paranoid personality that, in our office, we characterize as “the neighbor from hell” — the neighbor who makes unreasonable demands and cares nothing about the expectations and legitimate needs of his neighbor and friend.  The “neighbor from hell” is the playground bully grown to adulthood.  These are clients whom we usually decline to represent once their penchant becomes apparent or when they consistently refuse to act in their own best interest.

If you should learn that a boundary or easement is in doubt and if you are so unfortunate as to be faced with the “neighbor from hell” whose demands are unreasonable, you need an attorney.  You may try to resolve the issue over coffee, but you will not be successful.  The only way to deal with the bully is to stand up to him.  As always, you should ask around.  Lawyers in small Maine towns tend to be well-known.  Find an attorney who is experienced in real estate litigation who will represent you competently and fairly.

If you are the person doing the suing you have choices: you can file the lawsuit, negotiate a resolution of the controversy, procrastinate, or forget the whole thing and get on with life.

If you are the person being sued, you have two options: pay up or defend the case.  lf you do nothing after being served with process you will  be defaulted, and a judgment will be entered against you.

When you sense that a controversy may not go away and the stakes might be high, that’s the time to consult with a lawyer who is knowledgeable and experienced.  Don’t feel that you need the angriest, most belligerent  SOB in town — that scowling fellow you sometimes see in television commercials.  Beware of the warrior lawyer.  Fellow lawyers and judges know who they are and often roll their eyes at mention of their names.  Bluster is not a substitute for quiet competence.

The trial lawyer’s job is to persuade and seek solutions. Occasional aggression is only one of the many arrows in a trial lawyers’ quiver.  With all due reverence to Abraham Lincoln, “time and advice” are not a lawyer’s “stock in trade.”  A  lawyer’s stock in trade is credibility. When a lawyer gives advice to a client, the client must believe that the advice is sound.  When a lawyer expounds to an opposing party or to a judge or jury, that party, judge or jury must believe that the lawyer believes what he or she is saying and that the lawyer’s belief is truly grounded in expertise and honesty. The best lawyers will never permit any client to diminish the store of credibility that he or she has labored so hard for so long to enhance.  When a lawsuit looms, you want a lawyer who has stored credibility.

The mission of a defense lawyer is avoidance of litigation when possible — often through informal discussions and negotiations.  In some cases formal mediation can produce results.  Parties might opt for arbitration, avoiding much of the cost prolonged of litigation. (Mediation and arbitration will be the subjects of future postings.)

Remember, though, you are probably paying your lawyer by the hour.  Legal services are expensive and must be used efficiently.  Never-ending letter-writing and negotiations can become a financial black hole.  Much of your leverage in negotiation is proportionate to your willingness to “go to court.” At some point your lawyer may advise you to terminate negotiations, at least until later — after preparation for trial is underway and both sides are better acquainted with the strengths and weakness of their cases.

Addressing the prospect of litigation involves judgment calls that you should not attempt alone.  Ask around.  Know the reputation of the lawyer before you call.  After all, most of us have the reputations that we deserve.

Maybe.  Sometimes.

The answer is not easy.  Everything depends on (1) the facts of the case, (2) the law governing the case, and (3) what is at stake.

Let’s discuss the third factor: what’s at stake — putting aside the rare case when the client and lawyer fight for principle.  (Fighting for principle will be the stuff of another posting.)

Litigation is by far the most expensive use of legal services.  When clients request an estimate of the cost of a lawsuit, the answer is: “It depends.”  Will the suit require discovery, including requests for production and analysis of digital records? Will we need expert testimony? The cost of litigation involves more than just legal fees.  A medical malpractice case, for example, can seldom reach verdict at less than $30,000 to $75,000 costs.  Those costs do not involve legal fees; that’s just the lawyer’s out-of-p0cket costs for expert witnesses and consultants, record production and evaluation, depositions, travel, etc., etc., etc.  Our firm was once involved in plane crash litigation in which the out-of-pocket costs paid by the lawyers exceeded $250,000.  (Fortunately, we won the case!) Such cases are usually handled on a contingent fee basis and the costs are often paid by the attorney.  The attorney recovers costs and a legal fee (usually 1/3 of the recovery) if the case is successful.  If the case is not successful, the lawyers go hungry.

People should sue when they have to — when they have no other choice and the consequence of passive acceptance of their fate is untenable.  Such cases may involve serious personal injuries or uninsured damage to property, or commercial matters involving large sums of money.  In this part of Maine, boundary and easement issues keep lawyers busy.

Some of us at Hale & Hamlin make our living preparing and trying cases.  We enjoy it.  Our clients seldom share the pleasure.  Litigation is stressful, hard on the wallet, and often seems interminable.  Lawyers often say that starting a lawsuit is like getting up to dance with a gorilla.  You won’t sit down until the gorilla is tired.

If you think you may have a case, consult with an attorney.  (What you should expect when you consult an attorney will be the topic of another posting).  If the injury is small, be prepared to walk away, perhaps with the benefit of a lesson learned.  We sometimes tell business people with minor commercial complaints, “The lesson you have learned is cheaper than  Harvard Business School and it will stay with you longer.”  The comment may be unappreciated, but it’s often true.

Whether to sue is always a personal decision.  It may involve the weighing of financial benefits and costs or emotional benefits and costs.  But if you have a valid claim involving a serious personal or financial loss, and you are are acting with the advice of a knowledgeable and competent attorney and you have made the financial arrangements necessary to conduct the litigation, go for it! And good luck!