Making the most of wasted time
- Subtitle: The Accidental Mentor
The fishmonger’s story
One of my first files in litigation involved a court action by the owner of a seafood boutique with a doctorate in marine biology. The construction contractor working next door had inadvertently cut off the electricity to the fish shop’s fridges for a few hours during a Toronto heat wave. On the day of the incident, there ensued the predictable exchange of words between the professor and the guy in the hard hat. Later that week, the contractor, who self-insured at that level of exposure, apologized in writing, and asked the shopkeeper to sell what could be sold. The contractor then offered to pay for the rest of the ruined stock. He had honoured the principle of restitutio ad integrum, making the victim of a tort whole, without having to consult a lawyer.
The learned fishmonger replied with a long epistle purporting to educate the contractor about the “intangible economic effects on his reputation as selling the freshest fish in town.” The contractor handed the letter over to his lawyers. A battle of epic proportions was in full swing.
The boutique owner had decided to sue for much more than the monetary jurisdiction of the Small Claims Court, and handed the dossier over to my law office. Some poor corporate-commercial lawyer had to read my client’s letters, each signed with “[his name], PhD” The art of using a thousand words, to say what could be said in 50, never knew a better exemplar. Fish was not the only stuff bearing a warm-weather smell.
Highly educated lay people, finding themselves in a legal dispute, often bear an overwrought preconception of law. Bringing a knife to a gunfight never made much sense, but some will insist on carrying a tin opener and a can of worms. In theory, my client was correct, in that he may have suffered intangible economic losses resulting from actual physical damages. But the law is not kind to the overly sensitive.
My job as a lawyer was not to give voice to his commercial insecurity, but rather to bring him back from the brink of a lawsuit that could bury him in lawyers’ bills. It was unfortunate my client’s insurance, like many property policies, excluded damages resulting from electricity failures. The “fish story” ended with replacement of ruined stock, paid for by the adversary. In the bargain, I ended up being paid in part with boxes of vacuum-packed smoked salmon.
The fishmonger’s story could easily have gone completely awry. Within the stack of letters from the condescending professor were a series of frustrated, inconsiderate responses from the contractor’s lawyer. It’s hard to remain professional when one’s pen pal spews verbal rubbish, but no one said being a lawyer would always be easy. The contractor’s lawyer tried to win the intellectual argument instead of avoiding litigation.
Let them show low regard for your profession. You then know how much they fear you.
Lawyers of all vintages often get upset when dealing with self-reps, after spending a long time trying to persuade or educate them. I must confess still falling into that trap from time to time. We are, after all, a teaching profession. Having made the mistake of engaging the president of a condominium corporation in a principled argument, the tone of his e-mails went south. I realized he was just picking a fight to get what he was after, and to spar with a lawyer. After expressing my concerns, the following ensued:
1) He provided a half-baked statement of the applicable law, and then added, in faint praise, “but then you know that already.”
2) He pointed out I was raising frivolous points (as legal arguments tend to be) and demanded that if I was not interested in co-operating, that I “just say so.”
3) After I directed him to specific places in a statute to show the basis of my concern, he withdrew his request and simply replied, “I’m sorry you wasted your time.”
Part of me was, of course, furious. He could have convinced me to agree, provided he addressed my concerns. He was not prepared to do so, because he prejudged my concerns as ones only a lawyer could express. In his own frustration out of contempt for me as a lawyer, he lost his opportunity to get what he wanted. Once I appreciated how he had lost the moment, it was not for me to hand it back to him by engaging him in a further retort. His request, de facto, had been withdrawn.
Of course, it was not really a waste of time on my part at all. As lawyers, part of our job is to say “no” unless we are persuaded otherwise. With apologies to Roger Fisher and William Ury, authors of Getting to Yes, when dealing with a belligerent lay counterpart, getting to no in a purposeful and professional way is an art.
Be correct, rely on evidence, avoid emotional responses, and eventually they will go away and stop bothering you and your client. Resolving a conflict in peace does not mean you have to make your adversary your friend. Sometimes it means drawing a defensible line, and making sure parties do not cross it.
Cognitive loggerheads: don’t try it with deluded litigants
The first two examples illustrate non-litigious dealings with non-lawyers, and how our professionalism guides us not only to the high road, but also to the desired result.
Litigating with self-reps cannot be so easily reduced to verbal etiquette. Once a lawsuit has been launched, procedural barriers and costs consequences can bar the way to a face-saving exit.
Whether we are solicitors across a negotiating table or barristers duking it out in court, our respect for our common profession goes a long way. Even when our faces turn beet red, we find ways to listen to each other. Clever self-reps are rarely so ethical or open-minded. The law society does not govern them. You, as a lawyer, are an obstacle to what they want, and nothing more. They distrust you and observe you intently for weaknesses.
At some point, hopefully early on, the futility of reasoning with some people will reveal itself in clues:
a) excessive familiarity with the rules of court — it means they’ve done it before, and often;
b) banter with court staff or interpreters — similar to a) above, but they believe the administration of the courts exists solely for them;
c) lawyers withdrawing for lack of payment — people who respect lawyers pay their bills;
d) calling you by your first name — a sign of respect and endearment from a client, but from an adversary it is an attempt to erode your professional status; and/or
e) tangential outbursts or religious invocations, signalling mental illness.
In the Alice in Wonderland legal world of pro se litigants, negotiation is often futile — resistance is the only option. Once, after I had secured a dismissal of an insurance claim, I had a litigant tell me his children would visit me in my dreams. Until I live out my life, I will never know whether they will.
On another occasion, a fellow with a master’s in engineering asked me how I expected to win, when all I had was a lowly bachelor’s degree. I would later have my LLB degree re-issued as a JD, for other reasons; but the memory of that conversation did come back to me as I hung my new diploma on the wall. In that engineer’s world, those with lower academic degrees were in the category of those who should not speak unless spoken to.
Litigation is a form of dispute resolution through appealing to logical and emotional norms. Settling out of court can be achieved as part of this process. Where one side of a dispute does not have a grasp of such norms, you can either shelter in the institution that upholds the norms, or you can negotiate with an unpredictable opponent. That means, before you waste more time and client’s money, you must keep a clear path between you and the court.
Every time you want something, send them a letter, and give them a grace period to agree. Chances are, they won’t agree. Wait for them either to say “no” or not to respond, then take out a court appointment. Just think: your chances of succeeding in court are high, but the likelihood of persuading your pro se adversary that you are right and he is wrong is low. Seen in this light, which way better serves the interests of your client?
Lee Akazaki is a bilingual civil litigator and a partner at Gilbertson Davis Emerson LLP, with a focus on commercial litigation, insurance and professional liability. A past-president of the Ontario Bar Association, he advocates for a fearless and independent bar and the advancement of women and equity-seeking groups. His blog, leeakazaki.com, is devoted to mentoring new lawyers. He can be reached at email@example.com and on Twitter @LeeAkazaki.
Column: The Accidental Mentor