In deciding upon an appropriate course of action in the legal arena whether it be deciding to institute proceedings, gathering evidence and discovery or deciding on how much money one should accept to settle a case, it is important we, lawyers and clients, try our best to use proportional thinking.
Proportional thinking can serve as a tool directing attention to different aspects of what is implied in any rational assessment of what is too much and what is too little. It is an explicit value judgment as to what is just right, rather than a simply intuitive or reactionary assessment.
Sometimes a principled position needs to be the subject of a fully contested hearing to prove the other party is wrong and bad and has always been so, but other times it may be better to settle early and to compromise on those precious principles when one takes into account the financial, physical, social and emotional costs of litigation.
It is always the case that the longer the dispute continues the higher the legal fees will be. It is not always the case that the more money one spends in legal fees the better will be one’s outcome. Litigation is guaranteed to be uncertain to some degree. In relation to legal costs, Courts are going to apply proportional thinking as to whether and to what extent a “winner” can have their legal costs paid by the “loser”.
Thus, one can win but not recover one’s legal costs because the Court may well form the view that all or part of the legal costs incurred were out of proportion to the value and importance of the matters in dispute (for example, one could sue in defamation but only obtain $1 in damages with no order as to costs, a Pyrrhic victory indeed). Winning a Court case could ruin you!
Moreheads Lawyers recommend that proportional thinking be applied when selecting the best pathways given the options we will advise are open and worthwhile. Having clients who provide us with proportional instructions is very important to the success of our practice of the law.
To assist in structuring client thinking, and as part of our costs disclosure and agreement, we go further and recommend that clients take self-auditing steps:
- Do not assume facts are true if there is a chance they are not and at the least factor in the possibility of assumptions being incorrect;
- Communicate your questions and/or instructions clearly (to avoid misunderstandings) and preferably in writing using texts or email;
- Please don’t take it personally if our advice to you is that the outcome your seeking is not worth the potential costs (we may put this to you in slang by saying something like “the juice isn’t worth the squeeze”);
- Do your best to keep us up to date with changing circumstances by email;
- Consider the cost-effectiveness of available legal options at various stages whether before or during proceedings and re-evaluate your course of action from time to time;
- Keep in mind that we apply proportional thinking in providing advice.