Thursday, May 23, 2013

Theory vs. Practice

As law schools all over the country are matriculating a crop of new would be lawyers, I'm struck by the difference between the legal theory we're taught in law school and the realities of legal practice.

An illustration: an artist acquaintance was venting about a deal gone bad.  She had signed a contract for a performance in Europe.  Only after arriving and the day before the show, the promoter informed her that he couldn't afford the original contract price and would only be paying her half.  She had spent almost that much just getting there, so needless to say she was less than pleased.  At this point in the conversation it turned to the all too familiar refrain, "Tanya, you're a lawyer - can't I sue the little bastard?"

And the little law school prick buried in my head (we all have one, go ahead and admit it) started picking out all of the legal theories on which a case could be made.  Like a law school exam question I pulled out all the issues I could spot - clearly there's a breach of contract, maybe some detrimental reliance.  Did performing after the price cutting conversation constitute an amendment to the contract?  Nah, but even if it did she clearly only agreed under duress as she need to recover the cost of getting to Europe.

And then, my better judgement woke up and I stopped myself from going too far.  What did it matter?  Yes, of course she could sue.  But why would she?  The legal fees alone to litigate the matter would eat up any recovery she might be awarded - if the 'little bastard' actually had anything to pay her with.  Even if she went the small court route without an attorney, she was going to waste her time and was unlikely to get anything out of him.  He'd already proven that a written contract didn't mean anything to him, would a judgment mean more?  Did she want to go through the hassle and expense of trying to have a judgment enforced for a couple of grand?  A better solution would be to invoice him for the unpaid contractual amount and after he didn't pay, turn it over to a collections agency on a contingent basis.  Not as emotionally satisfying but realistically it's a much more practical answer, and just as likely to lead to her actually recovering anything of value.

And that, my friends, is what makes lawyers so valuable.  Our American legal systems allows a person to sue for a lot of reasons.  Some of them are even just.  But the real value lies in knowing when to ignore the theory and do the practical - and in the ability to convince your client that just because you can doesn't mean you should.

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