Wednesday, August 6, 2014

"It's not the money. It's the principle!"

There is an oft-repeated story of an attorney who told the jury in his closing argument that the case was "not about the money, but the principle."  The jury responded by finding a verdict in his client's favor and awarding him the grand sum of a dollar in damages.  

Litigation is akin to warfare.  Thucydides said that nations have three motivations when going to war: fear, honor, and interest.  The same is true in litigation, and it is best to note that the three motivations tend to overlap.

One of the first zoning cases I worked on involved a proposed subdivision of a couple hundred houses in a rapidly growing part of the county.  The developer was pushing for higher density than the zoning board wanted to grant.  As a matter of policy, he always appealed to the courts when he was turned down.

A lawsuit against a local government is often in the interest of a land developer who has invested considerable sums to acquire land but been denied the rezoning necessary to develop it.  The developer might fear loss and bankruptcy.  Moreover, he has appeared at public hearings to request the rezoning, spent considerable sums on engineering and plans, and been publicly denied, sometimes with harsh comments from citizens and public officials.  Thucydides' three motivations were all present.

In that case I represented the local government, and I thought our case was a winner.  The developer should have had considerable trouble proving that the denial of the rezoning from agricultural-residential to residential was an unconstitutional taking of his rights.  The litigation, however, barely moved, and settlement negotiations were ongoing for months.  During those months, the judge ruled against my client in two other zoning cases, and I learned that he almost never ruled in favor of a city or county against a landowner in a land-use case.  Thus, the developer pressed the settlement negotiations and eventually got most of what he wanted.

In contrast, it is possible and even common to overplay one's hand in litigation.  I once tangled with another developer who was often in court.  He wanted to be feared and had been part of many reported cases; he almost never gave up until the state's highest court issued a decision.  In one case, he had pursued the eviction of a very small tenant- a little shop in a strip mall- and did not accept defeat until the state supreme court ruled in favor of the tenant.  I do not know the facts of the case, but from my dealings with him, I suspect that his constant fear of loss and his pride inflated his assessment of the interest he had in the tenancy.  Honor is a virtue, and pride is its disguised corruption.

"The man's undone forever; for if Hector break not his
neck in the combat, he'll break it himself in

Wm. Shakespeare, Troilus and Cressida, 3.3.271-3, Thersites to Achilles

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