Archive for March, 2013

Judicial Thinking – Part 1

Wednesday, March 27th, 2013

Perhaps because Passover is almost upon us, or perhaps because of being in court yesterday reminded me of it, I will start the series on judicial thinking with what I call the “Rule of Solomon”.

For those of you who might remember your Bible lessons on Sunday mornings, 1 Kings Chapter 3, Verses 16 to 28 tells the story of the two mothers who go before King Solomon.  Each mother claims that the child is hers and wants custody of the child.  Solomon says “OK, cut the baby in half and give each mother half and they’ll both be satisfied.”  One mother says “no, please don’t do that, give the baby to the other woman and let the child live.”  The other mother says “that’s fine, go ahead.”  Solomon gave the child to the first woman since she was clearly the mother and loved it.  This story lead to the (incredibly gruesome if you think about it) saying of “cutting the baby in two” to determine a dispute.   (Of course, all sorts of weird things happen to babies in sayings – they get thrown out with the bathwater, candy gets taken from them, etc.)

I was once told by a judge “I know I’ve made the right decision if both parties walk away and are both ticked off with my decision -but for different reasons.”  And that’s where the judicial thinking comes into play.  Everyone thinks of litigation as having one winner and one loser.  But is that really the case?  I would suggest that it isn’t the case.  It is very rare that there will be a 100% winner and a 100% loser.  A plaintiff, for example, will want 5 types of relief.  The judge may give him/her 2 or 3 types of relief.  Who is the “winner”?  The plaintiff who wins on 2 points or the defendant who wins on 3 points.  The plaintiff went from nothing to, say, $100,000 in damages.  The defendant went from facing a claim of $2,000,000 to only having to pay $100,000.

In many cases, the judge will “cut the lawsuit”.  Perhaps not in two, but into something less than the whole of what was sought.  The result is that if you are suing someone, you should be prepared from the absolute outset to realize that you are unlikely to get everything that you ask for in the lawsuit.  On the flip side, if you are defending you should be prepared from the outset that you are likely to face the plaintiff getting at least SOME relief and you should be prepared to have to pay something at the end of the day.  If you go into your lawsuit realizing that you are likely to win something and lose something, it will make you assess more quickly the strengths and weaknesses of your case and determine how far you want to fight the lawsuit and, in turn, how much money you want to spend for the fight.

Something to think about.



Judicial Thinking – The Series

Wednesday, March 27th, 2013

If you recall, one of the things I said at the beginning of this blog was that I was going to post when I found things that were worthy of writing about.  If I wanted to keep it current, I could write about the latest decision of the courts on what constitutes a valid contract, etc., etc.  But if this decision doesn’t add anything new to the law and just applies the same old rules and if it didn’t have anything special to small businesses, I wasn’t going to write about it just for the sake of saying something.  The problem with that approach, though, is that eventually one hits a bit of a “critical mass” and there isn’t a lot of new items to talk about.  So I have to wait until I can think of something interesting to write about.

Well, I’ve finally figured out a new series of things to write about and it is going to be a series from time to time about judicial thinking.  In other words, our system is based on laws but it is also based on principles of equity – that is, fairness.  This mixture means that there are definite rules, but also enough exceptions that the system remains “human”.  If it was simply making and applying rules without exceptions then we wouldn’t need judges, we could just hand disputes over to a computer and it would run some calculations on the variables and spit out the judgment.

Since we have a “human” system, I have come to learn a series of what one of my kids would call “cheat codes” that sometimes can help to understand the system or to appreciate what you might expect if you have to go through a lawsuit.  So, in this series, I will provide some of these examples of judicial thinking.