Simple Justice: Why is
Justice so Expensive? by Jonathan S. Gelber, Esq.
Sometimes one of our clients will talk to me about the simplicity of his or her case. My client explains to me how simple and obvious this case is! And yet the case soldiers on and on and on. The question arises time after time: “My case is so simple, and justice is on my side! Why is this continuing on, and why must I pay so much for it?”
There are answers to this. While they are not the ones my clients always want to hear, I felt it was worthwhile to put those answers in writing.
First of all, the legal system is adversarial. For every person or party that is pushing one position, there is generally another party pushing the opposite position. Any party with an attorney will generally receive some form of defense. Attorneys are compelled to “zealously” advocate and represent their clients. In fact, who would want a lawyer who is not a zealous advocate? Therefore, there usually is an attorney on the other side whose job it is to simply to push back. That’s the first answer.
Beyond that, there is an even greater issue. There is a clear distinction between subjective issues and facts, and objective issues and facts. The objective is represented by the concrete facts. A year is composed of 365 days. Water boils at a certain temperature. A car travels at a certain rate of speed. These are all objective facts.
On the other hand, some assertions and truths are subjective. They depend upon the viewer. One may believe that one’s spouse or significant other is the most beautiful or attractive person around. One may believe that the home sports team is better than all the rest. These may be true, but only subjectively so.
That being the case, justice is subjective. But law, on the other hand, should be entirely objective.
Allow me to illustrate. In baseball, if the runner beats the ball to a base, the runner is safe. Conversely, if the ball arrives at the base before the runner, the runner is out. Simple! It is all very objective and there is no question about it. It doesn’t matter if the runner is Mother Theresa or Satan himself. The rules themselves are entirely objective, and impossible to argue with.
But let’s look at another situation, one that can be highly subjective. Take a divorce in which custody of children is an issue. Who is the better parent? Who deserves to have custody of the children? What is in the best interest of the children? All of these are questions are subjective, and therefore murky. There is no scientific answer – there is no machine or meter that can objectively determine what should be done.
Most litigants, and many of my clients, have a highly subjective view of their cases. In fact, very few people will litigate while acknowledging that they are wrong. Moreover, sometimes people have differing memories of events. It is therefore the job of the court, and sometimes a jury, to sort out the relative merits, subjective positions, virtues, truths, and justice in the case. And when the other side presents their position, sometimes my clients view this as mere rationalizing. But rationalizing is a part of advocacy. And advocacy, as well as their time, is what lawyers sell!
So, as it turns out, the answer to the original simple question is not so simple. First of all, the case is taking so much time, effort, and money because there is a zealous advocate on the other side. Second, the truth of the assertions and facts, and the justice of the case have become subjective. Someone, a judge, or even possibly a jury, will need to walk through and process these issues in detail and determine what side is right, and which side is wrong.
I feel my client’s pain when they tell me how frustrating it is that the other side doesn’t recognize the justice of their position. One must keep in mind, however, that someone new, a judge or a jury, with no prior familiarity with the case, has to sort through the issues, and that’s why the subjectively simple has become so complex.
All of this may sound meaningless until you hit this point in litigation. But you will recognize it when the time comes. You are not alone in this frustration; it is common. There is no magic button in our office to make the other side see the light, and to stop the other side from advocating their position. I get it. Unfortunately, I can’t always stop it.
If you have any questions about this please contact our firm.