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<xTITLE>If You Want Your “Day in Court”, Don’t Go to Court</xTITLE>

If You Want Your “Day in Court”, Don’t Go to Court

by Michael A. Zeytoonian
July 2017

Dispute Settlement Counsel by Michael Zeytoonian.

Michael A.  Zeytoonian

"I want my day in court.”

This is one of the most frequent desires and sentiments expressed by a new client in our initial conversation about their legal dispute.   Here are some other common emotional responses when someone finds themselves in a dispute:

“I want justice to be done.” 

“The other side has to pay for what he/she/it did to me; it was just wrong.”

“I want the other side to feel the pain in some way for what they did.”

“I need someone who is a scorched earth litigator to get some degree of vengeance.” 

“A wrong has been done and it needs to be made right.”

If someone wronged you in some way, or brought a claim against you that is totally frivolous or without any merit, your emotions are your first responders.  As a lawyer, someone whose purpose as a legal counselor is to walk alongside my clients and guide them, give them sound advice and direction, I am often talking them away from that emotion-driven cliff.  In its place, we work together to develop a solid strategy, one that is designed from the outset to achieve their goals and meet their needs.

In dispute resolution, we often talk about satisfying our clients’ needs and helping them shift their focus from their “positions” to their “interests”.   (Interests are often the substance behind the emotion-based statements of position; the “why”.)  For lawyers to best serve our clients, we need to ask the extra question and find out the reasons behind their positions.  Then, we can help them recalibrate and work toward getting the best resolution possible.

Let’s go back to that desire for their “day in court” because it’s important to think that through.  We know that clients who start by filing a lawsuit with the courts and litigating rarely if ever get their day in court.  Statistically, less than 3% of the cases filed with the courts ever go to trial.  They settle.  It is almost guaranteed that the client will never get his/her day in court by filing a complaint with the court.

If you know from the start that 97% of the cases filed with courts settle, the logical conclusion is not to initiate a draining, cumbersome process designed to prepare for a trial that will almost never happen.  It makes overwhelming sense to work from the beginning to resolve it by intention, using processes designed to settle cases.  Wouldn’t it be more logical to work with lawyers trained in resolving disputes and focus on the goal of reaching the best possible resolution, rather than pursuing a goal of winning a trial that will most likely never happen?

Of course it does.  But most of us make decisions with our hearts and emotions, not our minds and or rational side.  It is up to us lawyers and mediators not to fan those emotions, but to productively address and satisfy that desire for one’s day in court, knowing that a trial won’t be happening.  We have to be their advocate and get them their day, but another way.

What does “getting one’s day in court” really mean?  How would we satisfy our client’s needs, knowing that our client will likely never see that trial in court?  I’ve often asked my clients what that day in court would look and feel like, and asked them to tell me how that day in court would satisfy their interests.

When we delve into the question of why our clients want their day in court, and why it is so important (the interests behind the position), here’s what we hear:

“I want to be heard.  I want to be able to tell my side of the story and have the other side, as well as the lawyers and others involved in this process, quietly listen and hear what I have to say.  I want to be able to speak about this matter and have the other side listen without interrupting me or shouting me down.  I want them to have to think about it and how to fix what isn’t right.  I want to be respected and given my fair due.” 

Getting one’s day in court is all about being heard.  It is about being respected, being significant and having worth in the eyes of partners, employers, spouses, co-managers, and colleagues.  It’s about being appreciated and treated with dignity.  It is rarely about the money.  Money damages and “winning” are positional concepts.  While they may satisfy one’s ego and give people a short-term emotional high, they don’t provide a complete solution or satisfy the needs of a person to be respected and treated with the level of dignity and acknowledgement a person of value desires.

It sounds counterintuitive, but if you want to get your “day in court”, the road to getting it is not usually through the courthouse.


Michael A. Zeytoonian is the Founding Member and Director of Dispute Resolution Counsel, LLC and is a lawyer, mediator and ombudsman. He is formerly a partner and now Of Counsel at Hutchings, Barsamian, Mandelcorn & Zeytoonian, LLP, in Wellesley Hills, MA. He specializes in employment law, business law, special education law, mediation, collaborative law and administrative law. He is admitted to practice in the state and federal district courts of Massachusetts and New York (Southern District) and the state of Connecticut. He has served as a mediator on the MWI panel in the district courts and on the BBA panel in the Boston Municipal Court.

He is a member and Massachusetts Bar Association and is chair of the MBA’s ADR committee and a member of the labor/employment section. He is a Past President (2006-2007) and member of the Massachusetts Collaborative Law Council, the International Academy of Collaborative Professionals and the New England Association for Conflict Resolution. He writes frequently on collaborative law and alternative dispute resolution (ADR) and has trained lawyers and presented in collaborative law and ADR around the U.S., Canada and Ireland. He has lectured at Northeastern University School of Law, Suffolk University School of Law, New England Law Boston, UMASS School of Law and Roger Williams University School of Law.

He served as Assistant Attorney General in the Office of the Attorney General of the State of New York, as a deputy overseeing litigation in the State Counsel Bureau in Westchester, Rockland and Putnam Counties and working on consumer advocacy cases. Prior to his work at the Attorney General’s Office, he was an Assistant County Attorney in the Westchester County (NY) Law Department, in the litigation and family court bureaus. His litigation work at both the County Law Department and the Attorney General’s office included cases in employment; labor; state, county and local municipal matters; environmental law; construction, administrative and tort law, and the prosecution of child abuse and neglect cases. His undergraduate education was at Boston College and Iona College, where he received his Bachelor of Arts degree is history and education. He earned his J. D. from Pace University School of Law with a Certificate in Environmental Law in 1990.

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