A long time ago, I saw a cartoon drawing of a cow. Across the cow’s body was printed the word “Lawsuit.” A man labeled “Plaintiff” is pulling on the cow’s head, and a man labeled “Defendant” is pulling at the tail. On either side of the cow, milking as hard as they can, are two attorneys.
I usually don’t remember cartoons, but so much truth resonated in that picture for me that I never forgot it. I’d love to find a copy and so far Google has proved futile, although I did find the original source of the idea, a political cartoon from 1848 showing the three presidential candidates fighting over the issue of slavery. (Zachary Taylor won the election over Lewis Cass, even though Martin Van Buren, the third-party candidate and former president was the one depicted milking the cow — and presumably the votes.
(I tell this because if Van Buren hadn’t run and milked some of those votes, those Ogden residents living on Taylor Avenue would probably be living on Cass Avenue.)
But back to the lawsuit. Lawsuits cost money, time, effort and emotional stamina, not to mention attorney fees. The civil court system is designed to resolve disputes that can’t be handled without court intervention. The system has rules, procedures and guidelines to make sure that each side is treated as fairly as possible. The rules and laws take into account that the court system is not a machine of mechanical parts, but a group of humans gathered to try to create a semblance of something we like to call “Justice.”
The civil courts administer justice by allocating money. Money is the medium of justice.
If you are wrongfully injured, the court cannot restore your health, but it can award monetary damages. If your marriage dissolves, the court can’t force your ex-spouse to be a great parent, but it can force child support. If someone infringes on intellectual property rights, the remedy can’t undo the previous infringement, just give monetary damages.
Even then, the court’s power is limited — a court can say money is owed, but that doesn’t ensure that the money will be paid. Like it or not, the civil courts are about who owes whom money and if it can be collected.
The cost of litigation has to be weighed against the potential gains and losses. Rather than justice seekers, litigants should don the hat of the economist, conducting a cost-benefit analysis of the lawsuit. A sense or a need for “justice” or “what is right” can become very expensive and, counterintuitively, make obtaining a fair resolution less likely.
I’m not saying that our courts don’t do a fantastic job of maintaining a civil society. Our wealth and businesses require a well-functioning and reliable judicial system. Imagine that your job was to take groups or individuals who were fighting and couldn’t resolve their differences and deal with them all day, every day (and on top of that, administer societal justice in the criminal court system), and you will realize just how well our system works.
After observing the law and its operations closely for more than 20 years, the disappointment and frustration people feel arise out of demanding too much from a system whose main job is to assign and allocate money. Understanding the system’s limitations can be as important as knowing what your legal rights are.
So, if you find yourself needing to use the law, remember the limitations of litigation and you are more likely to get your share of the cow’s milk.
E. Kent Winward is an Ogden attorney. He can be reached at firstname.lastname@example.org or 801-392-8200.