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Winners, losers and lawyers

Winners, losers and lawyers

I went to the Ingram Micro Showcase last Tuesday. I saw quite a few of you, and fell in love – with that cute wee Asus notebook (but that’s another story). One of the exhibitors started talking to me about giving accurate quotes and estimates to prospective clients. He ran out of steam when I said “I’m a lawyer. I just tell them it will cost zillions of dollars and then send them a bill.” This isn’t strictly true. I use that line mostly with clients who have a sense of humour and strong constitutions, when they ask me for a quote for one of those jobs where the correct answer will be “It’ll take me longer to quote it than to do it – are you sure you really want a quote?” There is a lot of legal work where you can only give the vaguest estimate because it’s really “how long is a piece of string?”

Before you decide to get into a legal dispute, remember that for every court case there is a winner and a loser. Anton Teutenberg, who carved the wonderful gargoyles on the Auckland High Court building, left us a subtle reminder of that point: carved into the original main entrance arch, just at eye level there are two faces opposing each other – one crying and one smiling. But even winners can lose when all of the costs are taken into account. It’s usually more sensible all round to settle (perhaps with the assistance of a mediator) and get on with life. There were two graphic illustrations of that last week.

First, a judge from Washington DC lost his $54 million lawsuit against his drycleaners after they temporarily mislaid a pair of his trousers. Their sign said “satisfaction guaranteed” and the judge said he wasn’t satisfied… The judge who decided the case said “A reasonable consumer would not interpret ‘Satisfaction Guaranteed’ to mean that a merchant is required to satisfy a customer’s unreasonable demands.” Surprise! The same result would have been reached here. The drycleaner’s lawyer suggested that the judge will have to pay about US$100,000 to the drycleaners to cover their legal costs. Of course this is on top of the judge’s own legal costs, plus thousands in court fees. And I suspect his position will be reviewed.

In contrast, fashion designers Tamsin Cooper and Trelise Cooper settled a trademark dispute without going to court. Trelise Cooper had been concerned that prospective buyers of her clothes might be confused by competitor Tamsin’s similar brand. However, after spending some time going down the path to litigation, the two designers decided to call it quits. Tamsin described the outcome as “amazing” and Trelise called it a “win-win situation”. And it is – they can now both get on with their lives and their businesses.

I always suggest to clients who want to file a claim in court that they should think long and hard about the costs involved – money, time, and business opportunity costs. Sometimes there is no choice. But more often than not, Trelise and Tamsin’s approach will be the right one. Rather than exhausting yourself and your bank balance in court, putting that time and effort into growing your business will reap better rewards. At least you know one thing about litigation: if you walk into my office and tell me that you want to go to court, I will indeed tell you that it will cost zillions of dollars.

This article is intended for general information, and should not be relied on as specific legal advice. You should consult a lawyer for advice relating to your own specific legal problems. Rae Nield can be contacted at raenield@marketinglaw.co.nz. Read Rae Nield’s previous columns online at: reseller.co.nz


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