A Cynic's Guide to Civil Litigation; Intro? - Be a lawyer; Be a Liar.

I was going to title this section "Introduction", but I checked myself before putting pen to paper. (Yes, I am from the generation of quill pens and parchment paper). “Introduction” reeks of boredom. No one reads anything that starts with "Introduction". The caption "be a lawyer; be a liar" seemed more of an attention grabber, but will probably just piss some people off. It is what my grandfather said to my father when he decided to become a lawyer instead of an engineer. My grandfather was always a “spot on” dock worker type who didn’t drink and had a horde of kids. "Be a lawyer; be a liar" was honest in his eyes, and it grabs your attention even if “Killer Legal” didn’t. I am a grabby person. These opening remarks will give you some perspective and set the tone of this book.

While I was mulling over writing this book, I was mulling over who might use a Civil Litigation Guide. Who would be interested in learning some of the blood and guts of daily practice? I figured it might be a tool for law students. They are certainly interested in the law. I remember getting quite bored at my mandatory text books, course outlines, and generally anything but attractive law students. I also remember law students don’t get taught the blood and guts of daily practice. It was all that really interested me other than those attractive law students. Later when I lectured, I was very popular because I began every lecture with something that creates some authentic interest, like what to do when you walk into a courthouse on your first criminal case. It was a colorful way to teach some blood and guts.

I also thought this book might have some value to people who are involved in a civil litigation, or thinking about getting involved. Maybe some people are looking into going “pro se” – representing yourself. Because there might be non-lawyers, or not yet to be lawyers reading this book, I put a lot of thought into how to design it, but no quill to parchment paper until I wrote a book outline. I was trained to do outlines. Hell, in law school you study off course outlines. It is the only way you can remember everything. My outline wasn’t really a book outline. Just notes really.

• Entertain.

• Be honest.

• Be candid.

• Give plenty of information.

• Don’t worry about being politically or culturally correct – you are a lawyer.

• Don’t worry about offending anyone – you are a lawyer.

• Make money.

The last item on my outline was important. I did not write this book to better mankind. If it helps you, well, helping mankind might be considered a “bonus”. Truthfully, I would appreciate a money bonus over a pat on the back. I wrote this book to make money. That is my basic pitch. Money. It is an honest pitch too. Direct and candid.

I need to make another pitch. If my “mulling over” is accurate, then some are investigating representing themselves. While you do not have to be brilliant to be an attorney, it does help immensely if you have experience. I want to talk to you about lawyers before you decide to represent yourself, because it is a dangerous way to go.

There are a lot of jokes about lawyers. We make ourselves targets. We are an arrogant bunch. We think we are great and smart and better than you. We also have cornered the market on figuring out legal stuff and we make you pay for that advantage. We cost a lot of money and if you don’t pay, we don’t play. Most people consider us parasites, but we are no different than you. I am not calling you a parasite, but you like money too, don’t you? If you had the chance to screw us lawyers out of our fee, you would take it, wouldn’t you? My point is we all are trying to get more even if it costs the other guy. Being greedy is not a bad thing. It’s a motivator.

I’ll make a deal with you. I won’t poke fun at you, and you don’t poke fun at me. You be honest with me, and I will be honest with you. I won’t force you to sign a contract for this deal. We will just rub elbows.

Before I startle you with my massive intellect and the wisdom I gained over the ages, I want you think about the law. Now, immediately you thought of the legal, didn’t you? Well, that’s fair but that’s not what I meant. I meant all law. If you think the law is the law is the law, you are sadly mistaken. In fact, the law you are thinking of is not the law. The law is that if you have no heart pumping in your chest, you are not living. Biology. The law is if you flood a campfire with water, you will extinguish flames. Physics. The law is if you mix two oxygen molecules together you get O2. Chemistry. These are laws. They are immutable. Man can manipulate chemistry, biology, or physics to a degree, but we are bound by the laws of physics, chemistry, and biology, because however we manipulate these laws, there will be a consequence we cannot change.

So, what about laws of the legal? The legal is man-made. It is not natural, nor could it possibly be considered “natural” laws. They are a construct designed to address one thing and one thing only. One thing that is overabundant in the human world…lying! That is not to suggest animals do not lie. They do, but they have limited motivation and it is part of their makeup. The stalking of a lion is a lie. “I’m not here. Nothing to be concerned about. I am just slinking around.” There are many examples, but humans have an uncanny talent. We lie all the time. We lie when we wake until we sleep. We look in the mirror and compliment ourselves on how we look. We look awesome. Nope. We look atrocious. We lie to ourselves, leave the house, and get the quizzical look, “hey, don’t you got mirrors in your house?”. If we see that look, we smile and lie to ourselves. We tell ourselves they are looking because we are so awesome, not because a runaway truck would do anything to avoid hitting us. Ridiculous. We lie about everything. We convince ourselves what we are lying about is true. We are very sophisticated liars. It is the heart of human social interaction and what sets us apart from all other” beings” on the planet. We are on the top of the “chain” because we have incorporated lying into our social consciousness to such a massive degree, it has become essential to the fabric of our lives and our economy. Without it we would suffer a pandemic of apathy.

Our motivations for lying have nothing to do with an animal instinct or food. We have so many reasons to lie, they cannot be listed because we will always make up more. Sex, money, ego, ambition, drugs, alcohol, loyalty, power, vengeance, intimidation, extortion, and on and on and on. We even lie about not lying. We take oaths, under God, in front of the whole world, hand on the Bible or some other such religious text, and swear we will tell “...the truth, the whole truth, and nothing but the truth” and then, two questions later, we lie. We have a remarkable ability to lie with moral and ethical impunity.

Here is the kicker. When we do tell the truth, the chances are pretty good nobody will believe us. So, we lie. We lie to get to the truth. Once we are at the truth, we are so used to lying, the truth is not believed, only the lie. They should spell “liability” , “Lie-ability”. At least it would be more accurate.

To handle all this lying, we made laws. We tell you not to worry about lying because we have laws. In a courtroom among your peers, we will get to the truth. That jury seated right there, those fine men and women, will tell you what the truth is because we have laws. NOT TRUE. If you think that is what will happen, you are lying to yourself…again. What is true is that no matter what is true, what happens in a courtroom may have absolutely nothing to do with what is true. I get a kick out of comments uttered by lawyers after a verdict. In almost every instance the winning lawyers announces that yes, the jury system works! The best the losing lawyer can say is that the jury has spoken. If he had any balls whatsoever, he would say the verdict sucks and the jury got it all wrong. But God forbid we criticize the system that gets us paid!

Think about laws then. Think about lying. Accept that our whole society is based on lying and you will gain some great insight into the “law” and why my grandfather stated so eloquently, “be a lawyer; be a liar.”.

By now you probably think I am an incredible asshole and, if this is the way I think, perhaps I should just hang myself from the rafters. You misunderstand. The ability to lie is intimately connected with the reason why we are on top of the “chain”. Humans can imagine because we can lie. When we imagine, we create things that are fictitious. Think for a minute. Name an animal that can create anything fictitious. A lion may imagine how to best stalk an antelope in the moment the lion is stalking the antelope, but he is not creating a fictitious antelope! It is just as likely the lion is following instinct. We humans not only have created the fictitious, but we also breathe life into the fictitious so much millions of people believe the fictitious is real. Corporations are legal entities, religion captivates millions if not trillions of people, millions and millions of people attest to featly in government organizations, even national pride or sports team affiliation is a fictitious construct. We humans validate all these fictitious constructs with rewards. The holy grail of the fictitious is money. The exchange that makes us all feel worthy, better, more important, and allows us to be condescending. What could be better than condescending?

Now I sound like a lawyer, right? Before you poke fun at lawyers, acknowledge that lying is the backbone of all human interaction…or don’t… just keep lying to yourself.

Maybe your reading this book because the only thing you hate more than lawyers, is paying lawyers. We need to talk about the money part of all this.

Do you think all lawyers are rich? That is bullshit. Most of us are struggling day by day just like you. If we get lucky, you, as the client, get lucky, but most of the time we are lowering our fees to settle a case because you think "contingent fee" means "My ship has come in and I didn't even have to buy a ticket!"

The better we are at our job, the more money we make. We do not have to wait for a raise or for some supervisor to die to make more money unless we work for a conglomerate law firm. If we apply ourselves individually, we can make more money quickly and efficiently. You get the benefit of that work. You will get more money or better your life when we get a good result for you. You might even be happy or satisfied. Notice how everything is connected?

Lawyers like to get paid. That is our main goal. There are certain things that help us get paid. Reputation helps. A good reputation means more work and more money. It means people will call. It means we will and can charge more money for what we do because we are popular. Doing a good job is important. That is part of the whole reputation thing. If we do a good job, we get a better reputation. If we do a good job, you get a better result. I am not so deluded that I believe you will be happy with the result of any legal tangle. Happy and the courtroom seldom mix.

Making you happy is nice, though. If you are happy, maybe you will hire us again and pay us again. Maybe you will tell your friends and they will pay us. So, it is nice if you are happy. I doubt you will invite us to your backyard barbecue, but happy is a good result, because it means more money. There is a low percentage of happy in the law. Satisfied is probably the better description. If we do a good job, you might be satisfied because you did not get completely screwed. Lawyers have a saying, (we have a lot of sayings), “If both parties leave the table thinking the other party got the better of them, then it’s a fair settlement”. The full saying goes like this, “If both parties leave the table thinking the other party got the better of them, …and the only winners are the lawyers, then it’s a fair settlement”. There is a lot of truth in this saying. It is common. We end up with our fee. You pay our fee. That is all we wanted. You get something out of your case, but it is probably not all that you wanted to get. We don’t talk “happy”. We talk satisfied. Lawyers have learned to shoot for satisfied. Clients prefer to be satisfied. I guess you could say if we are both satisfied, we are happy. That makes sense. Or am I just being a lawyer?

Lawyers are not important in a well-functioning society, but if you need one they are critical. Critical “need” is not a great recipe for “happy”, but it can lead to satisfaction. Some of us lawyers aren’t that bad. A lot of us think we are decent people, that goes with the arrogant hero thing we got, but some of us are fairly decent humans. I bet you would think I am a decent person. If you like honesty you would think I am a decent person. If you want someone to hold your hand, you would not like me. I have sweaty palms and I do not like the psychological. If you are an emotional person that has needs, I will not give you empty assurances. Every time I have tried, it comes back to haunt me with a “But, you said….”. I will talk about your emotions later in this book. In these opening comments, I will tell you what I tell all my nutty clients. “What is going to happen, will happen. I will work endlessly to get you a positive result, but what will happen, will happen. You can choose to drive yourself sick thinking about what could happen or focus on us working towards a good result. You pick. There is a puke bucket in the corner. I take Venmo©.”

Having said all that, I have tried to focus on explaining civil litigation in a way that you understand and in a way that is helpful. I don’t guarantee anything. I am certain other lawyers will tell me I opened myself up to liability by writing this book knowing the demographic that might buy it. The title is designed to draw you in. It is not meant to suggest you can represent yourself.

If you think you can be a lawyer after reading this book, then you are borderline psychotic. Don’t pay a lawyer to sue me (or use this book to sue me) because you followed something I said, and it blew up in your face. If you did, then they need to create a whole new set of jokes for you. Do not stand up in court punctuating your point in the air with your eyeglasses in one hand while pointing at the culprit of your intolerable pain and suffering with the other. Try hard not to be too much of an “idiot”. Copying what Hollywood lawyers do in the movies is not a good approach. It hardly ever works for us. It will not work for you.

I am forced write this book with a broad stroke. I don't live or practice in every state. Every state has its oddities and rules, but the broad stroke should cover quite a bit. Plus, this book doesn’t cover trials. That is another book.

Well, I hope this wasn’t too terrible and I hope you can read this book. Lawyers think they are great writers. I can tell you, based on my experience, very few of us lawyers know how to write anything, and I am no different. I hope you don’t gag on my writing.

I will explain different terms as I use them. Or you will get a list that explains the words, terms, or language we use. Lawyers are big list type people, spreadsheets, and charts too. I will put things into words you understand. You will not find a section that is entitled "Terms and Definitions" though. That is just too damn boring. Nobody reads those sections anyway.

Finally, I struggled over how to make this book interesting to the “masses”. I can’t think of anything that could be as uninteresting as a book explaining the law. Maybe watching grass grow or paint dry. This book would come in a close second to either of those, or not. In one of my dumber moments, I thought I could stuff the cover with a ten-dollar bill and charge you more than ten dollars. Some desperate junkies would just run through the bookstore and grab all the money. Besides everything is electronic. Maybe a Venmo® certificate. (I take Venmo!) Nah. None of that would work. It was a stupid thought anyway.

I decided I would pepper this book with “war stories”. These are humorous stories or painful stories that happen to all lawyers at one time or another. I am thinking even the people I drive to tears of boredom might read this book just for the war stories. Or I am just so boring I think the war stories are funny or interesting? I don’t know. I put them in anyway. They are not strategically placed. They probably have nothing to do with what you are reading when they pop up. I put them in because, well, when I was writing, even I got bored! I hope you enjoy the war stories – at the very least.

I’m Joseph J. Balliro, Jr.

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