Dispute Resolution: 1 – Claim Assessment

All disputes pass through a series of phases. By the time a person is in a room talking to an attorney, the disagreement has probably exceeded the conflict-resolution skills of the people who are directly involved. Here is a roadmap for dispute resolution for these higher conflicts.

Claim Assessment

Justiciability

The first thing the attorney must do is assess the justiciability of the claim. Justiciability has to do with whether the conflict lends itself to a solution under the law, particularly in a court of law.

People often face disputes that are nonjusticiable, meaning that they are not amenable to a legal solution. Examples of nonjusticiable solutions include a conflict between spouses over the temperature of the house, whether a video game museum is a worthwhile visit during a vacation, and whether one spouse or the other ought to get a job.

These are all legitimate conflicts, relevant to the people involved and sometimes they have to be submitted to an outside arbiter (friend, counselor, etc.) for resolution. However, none of these conflicts touches on a legal question and thus would fall into the category of nonjusticiable.

If a dispute involves a nonjusticiable issue, an attorney might not be the ideal agent for resolution. It's true that attorneys can write letters and place phone calls even where legal action may not be appropriate or possible, but any communication from an attorney to a non-attorney raises the possibility of creating more conflict in the future.

Another important consideration is whether the attorney's knowledge is broad enough to determine the ultimate justiciability of an issue. For example, an attorney who does not have broad experience in the business or legal world might determine that a claim is nonjusticiable when really the claim implicates an area of law with which the attorney is not familiar.

For example, you might be upset that your neighbor's "surveillance" cameras are aimed over a short six-foot fence that surrounds your home. A family law attorney might tell you that you have no legal claim while an attorney familiar with Texas common law would say to you that you might have a strong case under Texas jurisprudence that recognizes a right to privacy.

Value of the Claim vs. Cost of Exonerating It

If you and your attorney determine that you have a justiciable claim that your attorney is willing to handle, the next step is to determine the range of likely outcomes:

  • What's the worst of the expected outcomes? (A)
  • What's the best of the expected outcomes? (B)
  • What is the cost to pursue your case? (C)
  • How much can you stand to lose? (D)

In other words:

(A) is the loss stemming from your worst likely outcome;
(B) is the gain from your best likely outcome;
(C) is the cost of pursuing the case (legal fees, missed work, etc.); and
(D) is the worst total loss you can endure.

Assuming:
     WorstOutcome = (A) - (C)
     BestOutome = (B) - (C)

Then:
     If BestOutcome > 0 And WorstOutcome > (D)

You can afford to pursue your claim. There are two problems hidden in this seemingly objective algorithm. First: The variables are almost impossible to quantify up front. An experienced attorney can help you estimate (C), the cost of pursuing your claim, but the estimate is subject to significant variability depending on many factors that are not under your control.

Second: Very few claims involve no more than the present value of money. In commercial litigation, we are often working with estimates of the future value of gains and losses and the assumed benefits of positional dominance. In family law matters, we try to figure out what peace is worth.

Conclusion

All clients want their claims taken seriously and pursued with alacrity and determination. A client is best served by an experienced attorney who has broad experience in the legal and business world and who can assess claims realistically and compassionately.

We're Here to Help

We are experts at analyzing claims and advising clients whether and how to pursue them. When a client has an unwinnable or nonjusticiable claim, we disclose that up front and take a pass on the business. If the client has a justiciable claim outside of our legal focus, we will refer the client to one of the many experts we affiliate with who win cases in other areas of law. And when a client brings us a justiciable claim in family law, we provide energetic, effective representation and win cases.

Call us today: 972-985-4448.

Leave a Reply