Society is so afraid of “being sued” that the simple world “lawyer” causes the average person to feel anxious.
When it comes to real estate, people do get sued, but not as easily as a lawyer would have you believe…
I’m not looking to stir up any controversy here (no, that wouldn’t be like me at all…), but I do want to open a discussion about the reality of “being sued.”
Civil litigation in Canada differs drastically from that in America, where an old lady can pour hot coffee into her lap at McDonald’s and successfully sue for $8.2 Million. In Canada, if you lose, you have to pay the legal fees for the defendant.
Maybe that’s why we don’t see people suing eachother for millions and millions of dollars for the most non-sensical reasons. Remember the obese man who sued a fast-food chain because he felt that employees were laughing and being mean to him? Could that ever happen in Canada?
But it’s not the frivolous mutli-million-dollar lawsuits that I want to talk about today. It’s the small things.
I come from a long line of lawyers, but after years of my father telling me, “Law is dead. There’s too many lawyers.” I went into real estate, where clearly there aren’t too many people working in the industry…..ahem…
I feel as though every person walking the streets is afraid of the simple word: lawyer.
A lawyer is many, many things.
A lawyer is likely smarter than you or I, and probably more intelligent. A lawyer is crafty, sly, devious, conniving, and thinks outside the box. A lawyer is strategic and quite calculated.
But there are many things which a lawyer is not.
A lawyer is not a police officer.
A lawyer is not a judge, nor a jury.
A lawyer is not a collection agency.
A lawyer is not a repossession company, nor can a lawyer break down your door.
In real estate, people constantly threaten to “go to their lawyers.” It’s supposed to make you quiver, but it shouldn’t.
People say, “I’m gonna have my lawyer call your lawyer!” Really? Okay, go ahead.
Disputes between buyers and sellers arise all the time, and they go unresolved as often as they end in any sort of amicable resolution. But just because somebody makes a threat to go to their lawyer doesn’t mean you have to worry. In my experience, threats often have zero merit.
Until you’re in small claims court with a judge finding in favour of the plaintiff, then you don’t owe anybody, anything.
I’m not arguing against resolving conflicts – I’m just saying that I’m tired of the empty threats, which in my industry, are spiralling out of control.
I’ll give you an example that hits very close to home. I’ll use myself as an example because I don’t want to write about ongoing issues with buyers and sellers that I know of.
As you all know, I sold my condo a month ago and it closed a couple weeks back.
The day after closing, I received an email from the cooperating agent that asked about a couple of small, trivial things.
In the bedroom, there was a ceiling fixture that might have cost $50 new at Home Depot. This fixture was present when I purchased the condo five years ago, and it was missing a small glass cap on one of the five lights. The buyer urged his agent to bring this “issue” to light (no pun intended) and ask where the glass cap was.
In addition, there was a “loose” soap dispenser on the dishwasher – a brand new dishwasher that was purchased and installed in May of 2011 – a dishwasher that is under warranty, with free service calls. I swear on my life that never experienced a “loose” soap dispenser while I was living there, but the buyer was furious.
So furious, in fact, that he took PHOTOS of the ‘missing’ glass-cap and the ‘loose’ soap-dispenser, and had his agent email them to me.
I emailed the agent back and said that I wouldn’t entertain any further discussion about these ridiculous issues. I understood that he was doing his job, and I wouldn’t hold it against him.
No property closing is perfect. When I took possession of my current condo, none of the bedroom outlets were working. Four in the master, and three in the second bedroom. I called in an electrician and he fixed them for $150. Did I threaten to sue the seller? No, because it would never go anywhere. The seller lives in Hong Kong for goddsake!
A few days after I received the email about my condo and the missing glass cap and loose soap dispenser, my lawyer’s assistant called me to say that she had received a letter from the buyer’s lawyer requesting “an immediate response.” The buyer’s lawyer had even sent the photos along with the letter!
I told my lawyer’s assistant to throw the letter in the garbage, and to direct all further correspondence on the subject to the same garbage receptacle.
Come on, folks. Really? Is this really worth our time?
Even if I was at fault, which I’m not, how much could this cost? $50 for a new light fixture? $100 for a service call for the dishwasher (which is under warranty anyhow)? Is this really worth going through lawyers?
No lawyer works for free, and the buyer is now chasing a couple hundred dollars by spending several hundred dollars.
What I said earlier – about a lawyer not being able to “invoice” somebody, is true. A lawyer can’t just send a “bill” for these items. A lawyer can’t find you guilty and a lawyer can’t order you to pay out any sum of money.
The buyer’s only remedy here is to launch a small-claims suit, and that would cost thousands of dollars and take years.
That is why I told my lawyer to throw out all further correspondence about the missing glass cap and the goddam soap dispenser. Well, that, and the fact that it’s just so utterly ridiculous that it bothers me to no end.
I’m sure some of my readers will suggest that I should stick to real estate and refrain from giving out legal advice. But I’m just suggesting that the average citizen not be so afraid of the word “lawyer.”
A letter from a lawyer isn’t worth the paper it’s printed on, unless you let it instill fear in you.
Until you’re standing in a court of law, it’s just a letter. Sure, a letter can start the ball rolling, but most of the time, it’s still just a letter.
A short while back, I was involved in a dispute with a Realtor from another brokerage. We weren’t able to resolve our differences, and he finally threatened, “David, I feel the need to tell you – a letter has been drafted.”
Sound the alarm!
A letter has been drafted.
Is that supposed to mean something?
Is that supposed to make me feel scared?
I chuckled a bit. “A letter? That’s it? That’s your grand plan?”
He was basically telling me that his clients’ lawyer had drafted a letter and maybe even put it in an envelope. Maybe he’d already put a stamp on the envelope, and maybe, just maybe, his tongue was ready and willing to lick the glue…
He was telling me that if I didn’t cede his demands, then his clients’ lawyer would send a letter to my clients’ lawyer.
This is nothing but fear-mongering, and part of me worries that most members of society might unnecessarily cave at this point. But a letter is just a piece of paper, nothing more.
Lawyers often end letters with things like, “We look forward to your response by November 5th, 2011.” Uh-oh! What is this date? What is this magical, special date that the lawyer has set forth? Is this some sort of legal guideline I should follow? Or is it……nothing?
It’s nothing. It’s nothing but an arbitrary date, pulled at random, which is yet again – another fear-mongering tactic. The person in receipt of that letter will likely fixate on that date. That date will bounce around in the person’s head and give them anxiety every time they see a clock, a calendar, or a day-planner.
Let me take a step back here for a moment and make a couple things clear: I am not a lawyer and I’m not in a position to give legal advice, I am not suggesting that every legal action is meaningless, and I’m not advising people to dodge their responsibilities. But I am saying that just because somebody says “You’d better do A, B, or C, or else I’m going to sue you,” doesn’t give it merit. And I am saying that just because you receive a letter from a lawyer doesn’t necessarily mean you’re in trouble, or will ever be in trouble.
Many of my clients are lawyers and perhaps they’ll get a kick out of this, or perhaps they’ll disagree. As I said – I have several lawyers in my family, and it’s not the lawyers I’m finding fault with, but rather the people who use their lawyers to launch meaningless actions that will never go anywhere.
Most of my readers are far too smart to ever find themselves in a position that I describe above, but ask the average Joe what he or she feels when that letter comes from “Smith, Jones, & Johnson & Associates,” and they’ll likely say that their heart skips a beat.
What can I say?
It’s the Friday Rant.
If you don’t like it……sue me…
Moonbeam!
at 7:50 am
Unless your lawyer works for free, he will ask for a large retainer upfront and regular top-ups thereafter… charging for every phone call, letter, engineer’s report, document filing, etc.. A plaintiff should think long and hard about ‘taking legal action’.
Meanwhile, the defendent can stall and delay and put off even retaining a lawyer… Civil actions take years and years, and the plaintiff will pay and pay.. hoping for a favourable ruling, if not a paltry settlement in his favour…
jeff316
at 9:16 am
Great rant. Buyers need to chill it out a smidgen. We moved in to find a ceiling light broken – although the owners were nice and left a note with 50$ for a replacement, the full repair ended up costing about 200$) – and then a few days later it turned out the a/c was on the fritz too, to the tune of $250. It had been a cool spring and the previous owners hadn’t unwrapped it yet, let alone fired it up. We weren’t happy about it but what are ya gonna do, sue them for 449.99$?
On the second half of the rant, well sure a lawyer’s letter doesn’t carry all that much heft, but it’s a great tool to get people to spring into action, or to get a response from an uninterested party. It’s a good way of saying “hey, wake up – I’m serious about this.” But It’s all about when you use it, and what far.
Ru
at 11:42 am
right on mate!
but if i may add, spoken like someone who has the privilege of having a dad as a solicitor – just in case… 😉
great points though.
Appalled@Everything
at 12:26 pm
I don’t like what you wrote. I’m calling my lawyer on speed-dial and getting him to draft up a letter!
Geoff
at 2:50 pm
Just a note on the ‘hot coffee’ lawsuit – it wasn’t frivilous. It was actually a legitimate complaint that became late night tv fodder and entered the public zeitgeist.
” Mrs. Liebeck’s injury was anything but trivial. The scalding-hot coffee caused third-degree burns over 16% of her body, including her genital area. She had to be hospitalized for eight days. She required extensive skin grafts and was permanently scarred. She was disabled for a period of two years. During the ensuing trial, Mrs. Liebeck’s physician testified that her injury was one of the worst cases of scalding he’d ever seen. ”
http://www.slip-and-sue.com/the-famous-infamous-mcdonalds-coffee-spill-lawsuit-revisited/
Krupo
at 3:04 pm
Further to the thoughts above, don’t most sales agreements have “as is” clauses anyway for pretty much everything ‘minor’ like this, and even most of the ‘major’ things as well?
Devore
at 7:39 pm
“A short while back, I was involved in a dispute with a Realtor from another brokerage. We weren’t able to resolve our differences, and he finally threatened, “David, I feel the need to tell you – a letter has been drafted.””
Haha! Someone pulled that on me once. My response was “my paper recycling bin is overflowing, so thanks for the heads up!”
Chuck
at 8:25 pm
Further to the hot coffee thing… there was a documentary created around the topic… here’s the trailer.
http://www.youtube.com/watch?v=bBKRjxeQnT4
It’s very eye opening. And yes, her injuries were very substantial.
David Fleming
at 9:08 pm
@ Geoff & Chuck
I guess I picked the one frivilous lawsuit that wasn’t frivilous…
Jamie
at 10:38 am
The point isn’t that her injuries were significant – because they very clearly were. The point is that she got away with blaming her own clumsiness on inadequate labeling on the coffee cup (by the way, the hot coffee you ordered is hot). This is what makes it frivolous. In the states it is all too easy to blame your own shortcomings or mistakes on other people and be rewarded millions of dollars as a result.
jeff316
at 2:32 pm
No, because there is a big difference between “Coffee you ordered is hot” and “Coffee you ordered is so hot that it will third-degree burns that will require hopsitalization should you accidentally spill it on yourself” – it’s not blaming someone else for her clumsiness, it’s that that the coffee was well beyond necessary temperature or the reasonable expectation of coffee hotness.
Jamie
at 5:28 pm
I might be remembering this wrong, but I’m pretty sure the basis of that argument was scientifically inaccurate.
If I recall, the key argument, as you said, was that the coffee burned her skin because it “was well beyond necessary temperature or the reasonable expectation of coffee hotness.” Or something like that anyways.
However, it has been shown (well before cases like this came about) that coffee served at a “reasonable” temperature can also cause serious injury to your skin in seconds as well. So, with this in mind, it is “reasonable” to expect that hot coffee will burn you, no matter how or where it was brewed.
I believe this (http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1934304/pdf/amjpathol00502-0018.pdf) is the classical paper that shows the relationship between temperature and tissue damage.
Anyways, I don’t mean to beat this horse too far beyond death, but my understanding was always that the US courts got this case wrong on a scientific basis. For the record, I do think McDonald’s should have ponied up medical costs and all that, but I can understand their hesitation in not wanting to open the floodgates. 🙂
jeff316
at 8:35 am
I get where you’re coming from but the issue is the expectation, and this expectation is not based on any scientific studies. Yes, most people would expect to get a burn from freshly brewed spilt coffee, however there is the expectation that the handling of such coffee is not going to give you third degree burns; and in particular that the restaurant would not serve you something intended for immediate handling and consumption that could scar you like battery acid 😉 Anyway, I don’t want to pollute David’s blog but as someone who (gulp!) worked in fast food for quite a while, I have the scars that attest that, until the last ten years or so, the coffee and hot chocolate served at these restaurants was often form instant boilers and well beyond the “normal expectated hotness” of coffee intended for immediate consumption. 🙂
WEB
at 12:20 am
A glass cap on a $50 light fixture and a loose soap dispenser? And their lawyer has written a letter to you about it? Now that is one scary MF! This guy has managed to make the Occupy Bay Street people look reasonable! And I never thought that would be possible!
waqasalirealtor
at 2:33 pm
true! lawyer is more intelligent than you (lawyer not being able to “invoice” somebody, is true)