[Guest post by Michael A. Babiarz, J.D.**]
When might it make sense to play offense, choosing to take action against who or what caused your chaos? Should you be a plaintiff in a lawsuit? Does it make sense for you to recoup financial losses that are inflicted upon you by another’s actions?
If you seek compensation, you are typically pursuing a court action founded in either tort or contract. I taught in a college program instructing paralegal students. Two of my classes were introductions to these subjects. Contracts was a challenge to teach as the material can be a bit dry. But torts could be made more lively through our tendency as human beings to laugh at ourselves.
Oversimplified, a tort action is one where a person pursues money damages for an injury to person, or to tangible or intangible property. Although it was easy to create hypothetical examples of what could give rise to tort causes of action, one assignment that I enjoyed giving my students was for them to find a fact pattern and then delineate one or more possible lawsuits from it. I encouraged students to search out humorous or unusual examples. This is where the power of search engines shone brightly. The world wide web is rife with examples of people doing dumb, inappropriate or crazy things. Sometimes the potential plaintiffs within these absurdities were victims and sometimes they were perpetrators.
I would divide a torts class into small groups of three or four students each — usually to much groaning and grumbling — and have them work on finding a fact pattern. I encouraged stories that were entertaining, provided students kept to tales that would be rated PG if viewed upon the big screen. Despite the initial protestations, my paralegal mentees wound up having fun with this task.
But if chaos rears its ugly head in your life, chances are you will find little humor in your situation. Maybe someday you’ll be able to laugh about where the tornado left your bedroom mattress or how the stupid hacker tried to rip off your identity despite your 400 FICO score. At the time, it’s not amusing.
And in most cases, you suffered financial loss. If your loss was due to another’s carelessness, should you pursue compensation? What if the person who caused you harm has an insurance company safeguarding his actions? If so, the pocket into which you are reaching to be made whole is corporate, not personal. Attorneys representing plaintiffs will tell you whether or not insurance is involved is a key strategic point to consider in any potential court action. Does it matter to you if you knew that an insurance company would be paying any settlement or verdict and not the particular person who injured you or damaged your property? Should it?
When deciding to pursue a cause of action to recoup losses as a result of chaos, there’s a number of factors involved. Not only does a competent lawyer have to figure out whether or not your particular matter fits within one of the tort or contract (or other) actions, the attorney has to decide whether it’s worthwhile for him to pursue it on your behalf. There are also time limits within which you must bring your case. Furthermore, obtaining a judgment against a bankrupt company or against a ne’er-do-well may provide psychological satisfaction, but it’s not going to get you back on the road to recovery. And it’s not going to help your attorney pay his overhead either . . .
Moreover, most of us live in areas where the judicial dockets are crowded. Litigation is complex, with many steps. Between dialing a phone (or clicking a mouse) to inquire about representation from a lawyer and the end of the road of your lawsuit, including potential appeals, you may literally spend 10-20% of an average human being’s life span. You will have to make your own personal value judgment as to whether that time element makes sense for you.
So should you seek lawyers, guns and money? I’m not recommending a stockpile of firearms. But what about retaining an attorney to obtain money damages?
It’s not something you enter into frivolously. In fact, political pundits notwithstanding, responsible, professional lawyers don’t file frivolous cases. The ethical rules under which attorneys operate prohibit such things. Notwithstanding, your decision as to whether or not to play offense with respect to your chaotic situation is not one that you should take lightly. You may obtain closure from litigation or it may prevent you from doing so. You may receive compensation or bust. You may be anxiety-ridden over years of court matters or relish the exercise of your rights.
Deciding to be a plaintiff is not easy.
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* Zevon, W. (1978) Lawyers, Guns and Money on Excitable Boy (vinyl) New York, NY, Asylum (recorded 1977). It sounds like the subject of this particular song got into a bit of hot water during some third-world travel misadventures, creating some chaos of his own doing. Tumultuous to be sure, but a bit outside of the scope of this article. Nevertheless, a fun tune if you haven’t listened to it in a while.
** Michael is a retired attorney, now working with me in my coaching practice, and he no longer offers legal advice. The information, ideas and suggestions in this article are not intended to render legal, financial, accounting, investment, medical, health or any other professional advice. Before following any suggestions contained in this article, you should consult your personal attorney or other competent professional advisor. This article is not a work of journalism, merely one man’s opinions.