Here’s a simple question to frustrate your attorney: “Is it legal to do _________?”
For one, if it’s something you have to ask, there’s likely no clear answer to it. No matter what area of law it is, online or off, if you need to ask whether something is legal you’re probably doing something that’s at least of dubious ethics, if not dubious legality.
But the bigger problem with the question is that it misses the larger issue. By asking if something is legal, you’re asking “If someone sues me over this (or, even worse, if I get arrested over this), will I likely lose at trial?”
Unfortunately though, that’s the wrong question to ask.
Whether you can win or lose in a trial is irrelevant, it’s unlikely that any dispute you have will ever make it to a trial and, even if it does, the law itself is only a tiny part of what you have to factor in.
The better question, most of the time, is “How likely am I to get sued (or arrested) over this?”. While your lawyer can never promise definitely you want be sued, it doesn’t matter how legal or “right” your actions are if you can’t survive a lawsuit or draw a legal challenge from someone larger than you, what the letter of the law says doesn’t matter at all.
Though a trial is supposed to be an arbiter of justice, in truth a trial is something to avoid and something any good attorney looking out for your best interest will work to the bone to keep you out of.
Here are five reasons why that’s the case:
1. Most Litigation is Really Negotiation
It’s easy to think of lawyers as being people who defend you at a trial or in front of a judge, but the truth is that well over 90% of what an attorney does is working with other attorneys.
In many ways, a lawsuit is like a game of chicken. Two sides racing confidently and bravely to an undesirable conclusion that neither wants. The goal, to see who has the upper hand and, in the end, who gives ground first.
The truth is that, usually, neither side really wants a trial and what really determines who “wins” or “loses” a legal dispute has more to do with the ability of the two sides to negotiate and their relative positions to do so.
In short, the end goal of nearly all litigation is settlement and almost all litigation is done with the hopes not of with the hope of winning a trial, but positioning themselves so they likely could, giving them a stronger negotiation position.
In short, this is what attorneys do, negotiate and resolve disputes, not try to get judges or juries to resolve them. Most actually have very limited experience with trials and work hard to keep it that way.
2. Trials Are Expensive
Most attorneys charge by the hour and, usually, the rate isn’t cheap. You can typically expect to spend at least $100 per hour on a good attorney. While that rate may be on par with a doctor or plumber, most of the time you probably only pay for an hour or two with either of those at a time.
And that’s normally true with a lawyer as well. Litigation is very slow so, during the build up, you’ll likely only need a few hours here or a few there to draft a letter, take a call or have a meeting.
A trial, however, is a lengthier affair. Even just a one-day trial gobbles up eight hours of a lawyer’s time, plus preparation. Legal costs skyrocket with a trial even before you get to court costs and other variables.
Sadly, if you’re on the defense, there’s no way to avoid paying this money (short of getting free legal help) and, often times, even if you’re in the right technically, it makes more sense to settle the case quickly than to pay a lawyer to fight it out.
3. Trials Take Forever to Reach
There’s no set timetable for how long a legal dispute will take. Many variables affect how long it takes a case to get to trial including the complexity of the case, how eager one or both sides are to drag the case out and how eager the judge is to let it get to a trial.
However, even a relatively quick case can take well over a year to go from filing to trial, even longer if you start the clock when the dispute begins.
While this doesn’t mean there’s always things going on in the case, every case has long periods of little or nothing happening, it means that the case is a part of your life, on your mind and a constant worry for you.
Every day that a case is ongoing, it’s something for you to worry about, something for you to consider and a possible life-altering (or even life-shattering) event on the horizon. Once it’s over, almost no matter how it ends, it’s a burden lifted off your shoulders.
Nothing is more precious than your time and time spent worrying or involved in about a legal case is time wasted. The quicker a case ends and you return to “normal” the better. That is why most lawyers will work to end your case quickly, even if it means making sacrifices.
4. Trials Are Unpredictable
No matter how confident you are in your case trials are always a risk.
If there were legal certainty in your dispute, a judge most likely would have thrown it out well before it reached a full trial. If it’s gotten to the point both sides are in court arguing it out in front of a jury, both sides are rolling the dice.
Trials are unpredictable. It’s impossible to predict how juries (or judges in some cases) will rule. Will they follow the letter of the law? Be swayed by emotion? Who will they sympathize with? The list goes on. There are a million variables that impact who wins, who loses and how much money is awarded.
Trials might be about the law but they are decided by humans and, in the case of juries, decided by laypeople. You might know who deserves to win a dispute, but you never know who actually will until the verdict is handed down.
5. Trials Rarely End a Lawsuit
You might think that after all of the expense, time and uncertainty, at least after a trial the case is over and done. It’s a burden lifted from you and you can move on with your life. You would also be wrong.
If a case has already made it to a trial, there’s not much stopping the losing party from filing an appeal, even if it is a long shot. After all, if everyone let the case get to a trial despite more reasonable attempts to resolve the dispute, an appeal isn’t that outrageous and is pretty low-risk from a cost/benefit standpoint.
But even if there isn’t an appeal, then comes the issue of collecting on any damages or fees you were awarded. This is often the most difficult and time-consuming part of any litigation.
Even if you receive your wish and get vindication from a trial, it could be a long, long time before you see any money from it. A settlement check may be smaller, but at least it’s in hand right away.
In short, a good lawyer will fight like a rabid dog to keep you out of a courtroom, including encouraging you to take deals that might seem less than ideal.
This isn’t because lawyers are lazy or don’t want to best represent you, but because they have experience in this area and are looking out for the whole of your interests. Sure, your legal rights are important, but those do no good if you’re broke, miserable and suffering under the weight of a legal case.
In short, the goal of a lawyer is to improve your life as much as possible, even when it means making sacrifices in your case. While they’ll always follow your directions (within reason) it’s likely best to listen to their advice.
It’s what you’re paying them for.