The Real American Skating Stars

Lawyers filed thousands of lawsuits claiming silicosis injuries. Defense lawyers demonstrated the medical evidence was phony. A federal judge threw out most of the cases because of pervasive fraud. The lawyers? They skated.

Lawyers filed hundreds of lawsuits claiming sterility based on pesticide exposure. Defense lawyers showed that most of the claimants had never even been exposed. A California state judge threw out the cases because of pervasive fraud. The lawyers? They skated.

With alarming regularity, ambitious prosecutors have convictions tossed out because they withheld evidence. Clear cases of prosecutorial abuse. The lawyers? They skated.

Is there a pattern here? Evidence is manufactured, altered and withheld, but the lawyers suffer no consequences. Why? It's not unlike the Senate ethics committee investigating one of its own. When the inquiry ends with the inevitable conclusion that there's no credible evidence of wrongdoing, are you really shocked? In California, one lawyer has just been disbarred for the third time. So much for the idea of a profession policing itself.

When other businesses get caught with their hand in the cookie jar, Congress holds hearings. But when lawyers get caught? Nine point eight. Almost a perfect score. Man, those lawyers can really skate.

Is That Even Legal?

Consider the tale of a trucking company. It was a good company, but still had its share of accidents. As you might expect, the company was sometimes dragged into court. The trusted defense lawyer did a good job defending the lawsuits, but the owner was deeply troubled by the expense and disruption. After thinking long and hard, he discovered a pattern. Most of the accidents occurred when his truck was making a left turn. Within a year, he significantly reduced the number of accidents and the number of lawsuits. How? He issued a simple directive: my trucks don't make left turns.

I first heard that story on June 12, 1986. It came from Louis Brown, professor Emeritus at the UCLA Law School and the Father of Preventive Law. It took less than a minute, but forever changed my perception of the business/legal relationship.

For over a decade Professor Brown lavished time on my apprenticeship. As both mentor and friend, he inspired, encouraged and challenged me to help people avoid needless legal entanglements. His objective was no less than world peace. So far I've had to settle for helping people avoid lawsuits when they can and deal with them when they must. But as a recovering lawyer whose powers can only be used for good, I'm not finished yet.

Rx for America's Legal Health

Here's an eight word prescription for America to slash the cost of health care and end the obesity epidemic to boot:
    * eat reasonably
    * drink responsibly
    * exercise regularly
    * don't smoke

That's it. Simple. Intuitive. Obvious. And you know it would work wonders. But not easy.

Likewise preventive law. Never heard of it? I'm not surprised. Although widely embraced and religiously practiced by big companies, small business hasn't gotten the memo.

Professor Louis Brown coined the phrase "Preventive Law" In his 1950 book of the same title. A genuine thought pioneer, he delivered the core message persuasively in the very first sentence: "It usually costs less to avoid getting into trouble than to pay for getting out of trouble."

Ah, but therein lies the rub. You have to recognize trouble in order to avoid it. Like Wesley in the fire swamp in the cult classic "The Princess Bride," once you learn to identify the hazards you can easily avoid them.

When life collides with law, you land in the lawyer-infested toll thicket and own a crisis. When law comes to life, you avoid needless entanglements and create opportunities.

Lawyers didn't deliver that message to big business. Big business demanded that service from lawyers. Architect or fireman? Prevention or remediation? A simple choice. And it's easy, too.

Rubber Yardstick

A lawsuit to collect on a promissory note has very few moving parts. A properly signed note and an allegation of non-payment will do. Defeating the action takes proof of payment or proof of fraud.

The promissory note I sued on gave the lender the right to declare the whole amount of the note due immediately if the borrower missed a single payment. The borrower missed several payments and finally refused to pay anything at all. The lender exercised his right to claim the entire unpaid balance. The case went to trial. I presented all the evidence in less than five minutes. The borrower didn't have a lawyer and offered no evidence. Zero.

The judge looked at the promissory note and then at me. "Well counsel," she said, "you've established the facts and the law certainly supports your claim."
Then she looked at the defendant.
"Do you have the money?" she asked.
"No," he replied.
Then she looked at my client -- not at me -- and said, "Why don't you just take the payments."

The gavel came down. The trial was over. The judge slinked off the bench and into chambers. The bailiff had to restrain me from following her.

Why would a judge brush aside the facts and ignore the law she had sworn to uphold? What on earth caused her to act as she did? It was nothing I brought into the courtroom. She said as much. It was nothing the defendant offered as evidence. He offered none. Must have been something she brought with her. Could it have been empathy hiding under her robe?

Within thirty days of that verdict I sold my law practice and started a two year sabbatical. Now President Obama seeks to appoint judges with empathy. Be afraid. Be very afraid. Personally, I'm scared to death.

A Blessing Well Disguised

  Do you believe every cloud has a silver lining? Me neither. But a lawsuit can test your team in a way the good times won't. Take advantage of the teaching moment by grasping the learning opportunity.
  Roll up your sleeves and manage the lawsuit. Yes, you can. By the time it's over, you'll have a much better handle on your own business. But it's never really over. Even effective lawsuit management is a booby prize. The best way to manage a lawsuit is to manage to avoid it. Having experienced a lawsuit, you're better positioned to avoid a rerun. Lessons learned can lead to changes that reduce the likelihood you'll get sued in the first place and, at the same time, better position you to effectively defend those lawsuits you can't avoid.
  Once you've endured first hand the pain of getting out of a lawsuit, you'll appreciate the wisdom of staying out. The presence of an absence takes on real value. Sometimes the path to something wonderful begins with something terrible. Sometimes a cloud has a silver lining.

Dancing with the Bars

The one page letter generously offered to accept a token million dollars in full settlement of a claim for which we were "solely and indisputably liable." I couldn't have accepted the Friday offer even had I wanted to. Plaintiff filed suit the following Monday.

Our investigator needed less than an hour to determine the facts. A motorcyclist crashed. A motorcyclist suffered injury. The sheriff used our product to mark the spot where the motorcyclist went over the cliff.

Our attorney shared those facts with the plaintiff's lawyer. Eight months and thousands of dollars later, he still refused to let us out of the case. Our attorney penned a nastygram explaining what would happen next if he persisted in his unreasonable refusal to let us go. The priceless response from plaintiff's lawyer to our defense attorney? "Why get your knickers in a twist? You're making money, aren't you?"

So sad, but so true. Without the plaintiff's bar, the defense bar would have nothing to do. One lawyer in town might starve. With two lawyers in town, both do well. Lawyers thrive on lawsuits. Your loss is their gain.

But a trusted defense attorney is not the enemy. Even though your wagons are hitched to different stars, an effective working relationship is key to navigating the legal landscape. Indispensable guidance and insight provide the foundation for dealing effectively with the plaintiff's lawyer and the lawsuit. The disconnect simply underscores the importance of rolling up your sleeves and diving into an effective, collaborative relationship with your defense attorney.

Expect defense counsel to help you through the lawsuit. Just don't expect him to show you how to avoid lawsuits in the first place. That's your job.

The Defense Disconnect

Three definitions:

1. activity \ the quality or state of being active
Processionary caterpillars blindly follow one another. Naturalist John Henry Fabre arranged several in a complete circle around the rim of a flowerpot, nose to tail. He put food in the center of the pot, and the procession began. For seven days and nights they marched, finally dropping dead of starvation and exhaustion - with an abundance of food only inches away. For an entire week, the caterpillars were engaged in activity - the quality or state of being active.

2. productivity \ abundance or richness in output
Thomas Edison invented a machine that recorded votes by moving a simple switch. He obtained a patent and showed the chairman of Congressional Committees how his machine could eliminate the tedious business of marking and counting ballots. The chairman complimented Edison on his ingenuity, but promptly rejected the idea. "Delay in the tabulation of votes is often the only way we have to defeat bad legislation," he explained. Edison was stunned, and later said, "Then and there I made a vow that I would never again try to solve a congressional issue." Edison's efforts exemplify productivity - richness in output.

3. achievement \ successful result brought about by resolve, persistence, or endeavor; attainment of the desired end or aim.
Put a man on the moon. Build a computer chip. Develop a polio vaccine.  Invent a cell phone. Earn an Olympic medal. Win a promotion. Raise a prize-winning rose. Achievement is the progressive realization of a worthy goal - on purpose.

Activity means busy. Productivity means busy with an output. Achievement means busy with an output on purpose.

The Demand: What Does Business Want?
Activity isn't enough. "Putting in your time" is a universal indictment. Productivity is better. But business values achievement most - increased sales, higher profits, better service. Achievement adds value.

The Supply: What Do Defense Lawyers Sell?
"Time is a lawyer's stock in trade." As bargained-for exchange, the billable hour reigns supreme. Occasionally they charge a flat fee, and very rarely a fee tied directly to achievement.

See a disconnect here?

Mythunderstanding Justice

Pity the poor 19th century sea captain. Gone for three years, he returns home to his wife and a brand new bouncing baby boy. "You have a son," she says. And she's legally correct. For the law conclusively presumes that a child born to a married woman is a child of the marriage. No DNA required. No DNA allowed. Why? The English jurists pronounced a rule: "The law abhors a bastard." Maybe they knew the little bastard would be a ward of the state if daddy didn't support him. Whatever. And what was true in England of old has been dragged kicking and screaming into 21st century America. It's the law in 34 states. Justice? Perhaps. Hey, he married the wench.

Many a litigant has left the courtroom dazed and confused, impaled on some Latin phrase he can’t even pronounce. At the end of the day, the law is no more and no less than what nine people in black say it is. Any resemblance to truth, justice and the American way is purely coincidental.

Lawsuits aren't about justice. Lawsuits are about law.

Mythunderstanding Truth

The truth, the whole truth and nothing but the truth. And nothing could be further from the truth. Complex rules govern the court's selective appetite for truth.

Consider the driver stopped by an officer for speeding. The driver appears nervous and sweating. The officer is suspicious and finds drugs in the back seat. Defense counsel screams unreasonable search. The drugs are excluded from evidence. The driver walks.

Or consider young Juan. The 17 year old didn't have a license to drive, but borrowed a motorcycle and a helmet anyway. His blood alcohol was 0.12 -- way drunk. He was doing 106 miles per hour when he crashed through a guard rail and center-punched a white oak tree. His estate thought the helmet should have saved him and filed a lawsuit. What facts does the jury get to hear? 17. 106. That's all. The rest of the story can't be told.

Lawsuits aren’t about truth. Lawsuits are about law.

Mythunderstanding Morality

A little old lady complained to the Karo company, "I've tooken two bottles of your corn syrup and my corns is just as bad as they ever was."

Fanciful notions, myths and misunderstandings permeate law and create unreasonable expectations that can't be met. Unmet expectations create disappointment. Disappointment leads to whining, complaining and blaming -- all of which amount to a colossal waste of time and a major distraction. So let's clear the air.

I was sitting in the Toronto airport when I first heard the news: JURY FINDS OJ INNOCENT. Not so. The media got it wrong. The OJ jury said "not guilty." The opposite of "guilty" is not "innocent." Courts don't decide right or wrong. Courts decide whether the proof is adequate. Don't confuse "immoral" with "illegal." Newly minted civil defendants commonly lament, "But we didn't do anything wrong." The court won't decide if you're right or wrong. It's not their job.

Lawsuits aren't about morality. Lawsuits are about law.

Birth of a Vigilante

Truth, justice and the American way are in trouble.

Corrupt lawmakers, creative judges and predatory lawyers have twisted the legal system into a diabolical machine for the reallocation of wealth. Truth does not live there. Justice is an unwelcome stranger.

The legal system is radically dysfunctional to even the casual observer. Who's going to change that? The government can't. The lawyers won't. It's up to you.

Webster defines a vigilante as a member of a vigilance committee -- a volunteer committee of citizens for the oversight and protection of an interest when the processes of law appear inadequate.

My definition: a citizen who acts on purpose in concert with others to secure vital interests when the law can’t or won’t.

You already have the power. Do you have the courage? My mission: help you help yourself keep lawyers from pillaging your business.