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Civil Dispute Victims Generally Obtain Less than a Full Remedy
Summary
The civil dispute system is imperfect. Realistically a person seeking a remedy must either: (1) successfully negotiate a resolution; (2) win a lawsuit or arbitration, then enforce it; or (3) live with the situation and accept the consequences. The imperfect nature of the civil dispute system almost always means the victim achieves less than a full remedy for many reasons. Among the reasons that the victim achieves less than a full remedy are the facts that (1) the burden is on the victim; (2) the system costs money, which comes from any remedy paid; (5) it is difficult to win a lawsuit or arbitration and the system favors settlement, meaning the victim takes less for the benefit of the system; (4) successfully suing or arbitrating only generates a piece of paper that then requires another process, collection/enforcement to actually obtain money; and
Three choices to resolve civil disputes: (1) negotiate; (2) sue; (3) live with it
Technically, the choices in any civil dispute are: (1) convince the opposing party to actually do something you want; (2) win a lawsuit or arbitration and obtain a written and enforceable order that the opposing party to actually do something you want; (3) do nothing, live with the status quo and accept the consequences.
The imperfect nature of dispute resolution often leads to less than full remedy for the victim
Each of those three remedies tends to lead to imperfect results for several reasons.
The primary reason that dispute resolution tends to lead to one side getting less than a full remedy is that a dispute is usually caused by a “bad actor,” meaning someone who has broken the rules, meaning they will continue to break the rules.
And this leads to the second reason that dispute resolution leads to one side getting less than a full remedy, the “bad actor,” meaning a rule breaker uses procedures to delay and make obtaining a remedy costly.
This leads to a third the third reason that dispute resolution leads to one side getting less than a full remedy, the systems that exist to help victims obtain a remedy are imperfect and costly, as well as directed and operated by imperfect and self-interested people. In other words, dispute resolution is an industry that generates profit from others’ losses.
Add to this that the judicial policy is to “settle,” meaning take less than a full remedy for the benefit of unburdening the dispute resolution industry, victims almost always end up getting less than they deserve.
Obtaining a remedy through lawsuit requires proving liability and damages
In the United States civil dispute system, the burden is on the party seeking a remedy to prove the claims. Proving the claims requires proof of each element of the claim on the preponderance of the doubt by competent and credible evidence, as well as proving damages.
As a practical matter this is easier said than done. The standard for admissible evidence in legal proceedings is more challenging than what a reasonable person would require. Next, often the law and the evidence simply do not mean what people think they mean.
Fact finders determine facts. A fact finder is the jury, or when there is not a jury, the fact finder is the judge or arbitrator. People seeking a civil remedy are understandably focused on their problem from their perspective. However, fact finders have their own different perspective. Additionally, fact finders are biased. Furthermore, in this author’s experience almost all people have a strong preference for the status quo, meaning people need a significant reason to prefer any change at all.
Fact finders also start with a suspicion of any person seeking money. Any system can be abused, and it is well known that at least a small number of people who have obtained money from a lawsuit obtained that money despite the fact that the lawsuit had no merit. So, fact finders ascribe at least a small likelihood that the person seeking the remedy does not deserve any money.
As will be discussed next, when seeking money or possession of real estate, even winning a lawsuit or arbitration only results in a piece of paper, as a practical matter, after winning a lawsuit or arbitration the winner needs to collect or enforce that judgment.
Enforcement is risky, time consuming and costly further reducing the possible remedy
The process of enforcement, including collection of an award of money is complex, and a full discussion is beyond the scope of this blog.
However, when seeking money or possession of real estate, even winning a lawsuit or arbitration only results in a piece of paper, generally called a judgment. A judgment is just a piece of paper. In order to get money or possession of real property, an entirely separate and different process called enforcement or collection must be undertaken.
For evictions, after a judgment is issued, the Court needs to issue a Writ of Possession. Then, written instructions must be delivered to the County Sherrif along with that Writ of Possession, before the County Sherrif will actually remove people from the property.
For money judgments, the winner of the lawsuit or arbitration becomes what is known as the judgment creditor, and the loser becomes the judgment debtor. The judgment creditor has numerous tools to collect the money judgment that include debtor’s exam to identify sources to pay the judgment, wage garnishment, bank levies, liens and foreclosures. However, these tools are complex and difficult to execute and come with costs and fees. As with anything in life, the judgment creditor either must complete these procedures himself or herself, or pay someone else to. The costs, fees, as well as time and expertise in enforcement all cost money and that money generally comes from the remedy.
Lastly, perpetrators of civil wrongs, as well as supposed neutral parties who get paid to enforce civil law are all well-aware of the costs to obtain a remedy and therefore as a matter of business assert pressure on the victim to simply accept less to avoid the time and cost associated with getting less in the end.
Conclusion
For all the above reasons, people who seek a remedy almost always end up with less than they deserve. It is not fair; but It is a sad, but, often, true fact of life. Moreover, those who administer civil “justice,” take a jaded approach and assert pressure and judgment on victims who simply don’t submit to taking less for the sake of the faults in the system.
People who seek a remedy will likely be more satisfied with any results, if they start the process with a realistic understanding of the shortcomings and defects in the process.
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