What About Pro Bono?

To the extent possible, Tuesday evenings in the summer are reserved for a drive in the Healey to Audrey Avenue in the hamlet of Oyster Bay, where a “cruise night” is held and car guys hang out with each other and discuss car guy stuff. Knowing less about cars than most, I tend to do more listening than talking so I don’t confirm my ignorance. Let them guess.

Another guy, driving a beat up old Land Rover defender, one of the truly great British cars even though it has a roof and too many doors, has been telling me about his litigation for a couple of years now.  He’s been at war with the neighbors over a fence built on a common right of way. A typical problem, sadly, and one of the reasons common drives make for miserable neighbors. I’ll call the guy Gino because, well, that’s his name.

The alternative to listening to him gripe about the law is listening to his rude comments about attractive women, which would be offensive if it wasn’t for the fact that Gino can barely get out of his chair, rendering his commentary utterly absurd. Still, whenever he lapses into his appreciation of women, the group of British car owners who hang out together respond as one with a universal, “Gino, shut up. You’re disgusting.” He just laughs.

For the better part of the past year, he has regaled me with the awfulness of his neighbor, the horror of the legal system and how much he hates his lawyer. I mostly nod, as his stories tend to be ten adjectives to every fact, a particularly unhelpful ratio. But then, he’s just venting to a friend, and the least I can do is pretend to listen and care.  I told him two years ago to change lawyers, but he didn’t and, well, squandered my empathy.

Last Tuesday, he asked me to take a look at an order he had just received.  He told me that his lawyer suggested he take an interlocutory appeal because the judge was wrong. I read the order, which denied upon reargument a motion for summary judgment that had been denied the first time around as untimely. It seems his lawyer neglected to file it within the necessary time limits, and failed to proffer an excuse for his late filing. On reargument, he blamed the judge for not deciding the motion on the merits, still offering no explanation for its grossly untimely filing. The judge spanked the lawyer hard for his insolence, and Gino got spanked along with him.

The problem now was twofold. Gino explained that his lawyer explained to him why going to trial was a horrible idea, which even Gino realized was total nonsense. Either the lawyer couldn’t try a case or he wasn’t going to do it for what Gino was paying.  It seems that he got the lawyer through his union at a “discounted” hourly rate, which was why he never changed lawyers. But it was going to tap Gino out to pay for an appeal, and that would be the end of it one way or the other. He asked me what to do.

After explaining the order, the situation, reminding him that I told him to change lawyers years before and that he wasn’t going to win on appeal, he sat there completely deflated. He was into the case for a substantial sum, believed himself to be utterly in the right, and yet found himself about to crash and burn. How could that be? The legal system sucks, he concluded.

Then Gino turned to me and asked me the question that gives rise to this post: What about pro bono?

After the group stopped laughing, I turned to Gino and gave him some pro bono advice. What the hell is wrong with you? Your beef with your neighbor over a stupid, friggin’ fence has nearly bankrupted you, made your life hell and sucked all the joy out of your home for the past few years. And I bet it did the same for your neighbor, who thinks he’s just as right as you do.

Everybody hates lawyers and the legal system, and with good reason. But unlike criminal cases, nobody made you use it. You could have gone for a beer with your neighbor and worked it out. You could have dealt with it between yourselves. Instead, you yelled at each other and decided that it would be a much better idea to lawyer up and go to war. What were you thinking? We are an absurdly litigious society, expecting the legal system to fix whatever ails us and, equally absurdly, back us up in our every angst-ridden fantasy of propriety. We are right, and therefore we shall prevail. Both sides say that same thing, and believe it with every fiber of their being. Get real.

Society has created a laundry list of things that can’t be accomplished without the intervention of the law, from divorce to wills. Some things, like personal injury lawsuits, are best left to lawyers because the other side has a huge advantage otherwise. Some things, like criminal prosecution, demand lawyers as the deliberate imbalance leaves no option. But if you have a beef that doesn’t demand legal resolution, work it out. Figure it out. Come up with a way to get along and deal with your differences.

Sometimes, the best choice is to let go, as the cost of winning can exceed the cost of losing. Too often, it’s some bizarre sense of macho, even when it doesn’t involve men, that compels a person to pursue a lawsuit over the ordinary disputes that dot our days. Our honor demands vindication, and so we turn to the law. And lawyers. And misery. Gino wanted pro bono? He got it, though it wasn’t what he wanted to hear.

Having already made the mistake, the best I could offer was to cut his losses, let go of his need to prove he was right over such a nonsensical dispute to squander his savings and sleepless nights.

But it’s the same advice I offer here, before you start down a path that will more likely bring you misery regardless of whether you win or lose. If you can avoid engagement with the legal system, do so. Give a little. Talk a little. Get along. The alternative sucks, no matter what the outcome.  No charge.

8 comments on “What About Pro Bono?

  1. Fubar

    Too often, it’s some bizarre sense of macho, even when it doesn’t involve men, that compels a person to pursue a lawsuit over the ordinary disputes that dot our days. Our honor demands vindication, and so we turn to the law. And lawyers. And misery.

    In a word: Amen.

    Maybe if enthusiasm for litigation at the drop of a hat were proposed for classification in DSM-VI, … I kid. I kid.

  2. Jack

    We need to bring back dueling – but with pellet guns or something that won’t necessarily kill you. Gino could have retained his honor and it wouldn’t have cost him years worth of attorneys fees. Worst case scenario is it cost you a few stitches and a desire to never be shot at with a pellet gun (or any gun for that matter) ever again. He could have learned the valuable lesson that it is futile to prove you are right no matter the cost without bankrupting him.

    Plus, I would imagine beating someone in a duel would bring much more satisfaction than being able to say “See! That guy right there in the black robes agrees with ME, not you! I’m right. You WERE an asshole for putting up that fence!!!” Even if Gino lost – he would have a new “duel story” to tell at your car meets instead of whining about how the legal system sucks and have a few “badass battle scars” to show off. That’s got to be a better story…

    This can’t possibly be more absurd that going to court and spending thousands of dollars on attorneys fees over a fence, right?

    1. SHG Post author

      I’m not sure how satisfying it would be to resolve a property line dispute by who’s the better shot, but whoever loses will surely come to appreciate the virtues of peaceful resolution. Pellets hurt.

    1. SHG Post author

      Sorry about that. I was in the middle of correcting a typo and the blog crashed, and took away the formatting. I hate the internets.

  3. Stephen Meltzer

    When my clients run out of money, when potential clients want free legal advice, or, when I have the audacity to ask a client to pay up on an outstanding invoice, I am often asked if I do any pro bono work.

    My answer is always as follows: “Yes, I do lots of pro bono work. However, I choose my pro bono clients carefully so that I am able to use my legal skills, experience and knowledge to advance a public good. Your private problem is not in the public interest – no pay, no play.”

    The public needs to understand that pro bono does not mean legal services for free – it means legal representation “for the public good.”

    To your point, consumers of legal services in the pursuit of private, elective matters need to understand that litigation is, more often than not, a destructive not constructive process that is expensive and undertaken by professionals who expect to get compensated for the highly technical, often tedious and time-consuming work.

    Pro bono, on the other hand, is our opportunity as members of the bar to use the skills we develop for the greater good – it still is highly technical, tedious and time-consuming – but more satisfying than a private boundary dispute.

    I’ve been a public defender, and I have represented very nice folks in boundary disputes. I find it much easier to answer the question, “how can you defend those people?” when asked about indigent criminal defense of an accused child molester than when asked “why are you involved in that?” when asked about a little spat about a lot line.

    1. SHG Post author

      Very well said. It bears noting that “pro bono” is short for “pro bono publico.” Just because we tend to leave the publico off of the shorthand reference doesn’t mean it isn’t at the core of the concept.

  4. A Voice of Sanity

    Give him a copy of Bleak House by Charles Dickens. Point out to him the description in there of the English Court of Chancery. Observe that the US legal system is heading there in a gallop.

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