There are probably a whole host of analogies that can be used to explain what it is like suing someone, or being sued, in a court of law, for those who have never had the pleasure. But I’m not sure that getting a prostate exam is the best analogy – litigation is not quite as pleasant and it’s a bit more invasive.
I am not sure that any one common experience can quite capture how inconvenient, time-consuming, difficult, intimidating, unpredictable, costly, invasive and often just plain painful, court can be – even small claims court – whether you’re doing the suing or someone is suing you.
If you have thousands, and sometimes tens of thousands, of dollars to hire an attorney to represent you and do most of the work for you, it’s not always a terrible experience. If you do not have that sort of money lying around and you’re considering a lawsuit, or worried about being served with one, you’re going to be in for quite a shock. Whether it is a ‘Small Claims’ or a ‘General’ civil suit it makes little difference in practice. You can read about the ‘Cost of Small Claims Court vs. Online Arbitration’ in another article I wrote if you’re interested in why it’s often not just a matter of a couple hundred dollars for filing fees – the costs add up.
The best way to describe the experience to the uninitiated is to ask you to imagine a few situations you are likely familiar with all rolled up into one. Litigation is like contesting a speeding ticket in front of a judge, completing your own tax return and then being audited, but instead of the auditors coming to you, you have to go to them.
Litigation is much more involved than fighting a speeding ticket. To contest a ticket all you have to do is check a box on the back of it and mail it in, or possibly go to the court-house to book a trial date. You do not have to file a plaintiff’s Statement of Claim with all the detailed information about yourself and the case you intend on presenting in court to the judge, you do not have to gather all the evidence from various sources to prove your case, you do not need to pay to get documents notarized and make copies of everything for the court and the defendant, you do not need to know the prescribed way to properly serve the statement of claim and copies of the evidence on the defendant so your case does not get adjourned on a technicality, nor do you have to file everything in person with the court, and you do not have to spend hours trying to figure out the often cryptic procedures and rules of the court that must be followed for any chance of success.
As frustrating as it can be trying to complete your own tax return and determining what you can legitimately claim and what you cannot, the rules and procedure of court can be equally frustrating to decipher. Even lawyers sometimes have a hard time with them, and often make fatal or near fatal mistakes.
As with a tax audit, you have to collect and present evidence to prove your claim is legitimate and possibly answer some probing questions into some personal aspects of your life. At least in a tax audit those answers are not public. With litigation that information is open for public consumption – documents filed in court are available for the public to search and read. So if you’re suing over some type of augmentation surgery gone horribly wrong, you might want to consider arbitration instead since it can be kept private and confidential.
One nice aspect of a tax audit is that the inquisition comes to you. You don’t get that perk with a lawsuit. You often have to make multiple trips to the court-house, wait in lines, and sit in court room for hours until you’re called by the judge to present your case.
Does anyone have a better way to describe their experience with litigation? If so, please share it here in a ‘comment’ to this post. Horror stories welcome.