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Business and Company Law Litigation

‘Building a Case’-It’s Time to Put the Shovel Down

building a legal case

From time to time I am approached by a potential client who wants to ‘build a case’ against their former employer. Or against a competitor, or neighbour, or business rival.

Or against some guy or girl who caused offence at one time or other, just to ‘teach them a lesson’.

I quickly let the person know I have no interest in ‘building a case’, and advise them against it, too.

Let me tell you why.

If you have a valid legal claim or cause of action the ‘case/claim’ should be able to stand on its own two feet, without any requirement for ‘building’. To win a legal case you will need to do two things:

  1. Prove the facts that support your case
  2. Prove the law that supports your case

If you do not have facts that support a case from the outset all the building in the world will do you no good. You will be scrabbling around in desperation to try to cobble together some mish mash to get one over on your former employer, or the other party if it is not an employment related dispute. You would be far better off recognising that you are aggrieved, perhaps insensibly angry, and want to teach him/her a lesson.

But you run the risk of making an even bigger mess for yourself, and wasting time and money in the process if you embark on a course of ‘building a case’.

Look: when you are in a hole the first thing you need to do is put the goddamned shovel down.

Don’t misunderstand me. If you have a case a decent lawyer will recognise it very quickly.

What you need to do is give him/her the facts and relevant documentation surrounding your employment. Your solicitor will quickly recognise

  1. Whether you have a cause of action
  2. What the likelihood of success is
  3. What the possible remedies are.

When you have this information you will be ready to make a cool, rational decision about proceeding or not.

‘Building a case’

Building a case is not like building a wall or a dog house. When you are building a wall and there are no blocks you can use bricks, or stones. Building a dog house can involve all sorts of alternative materials.

But a legal case or claim must stand on its own facts. You cannot make them up. You cannot have ‘alternative facts’ as the White House spokesperson claimed in relation to Trump’s vainglorious claim that his inauguration crowd was the biggest since the pan was sliced.

Alternative facts are an oxymoron-a contradiction in terms.

Neither can you have alternative law-there has either been a breach of the law, and a consequent breach of your rights, or not.

It doesn’t matter whether it is an employment matter, defamation, property dispute, personal injury, breach of constitutional right, probate dispute, a commercial dispute, or a family law row.

The facts are the facts and the law is the law. Sooner or later your ‘case’ is going to have to face these inescapable facts and you are going to have to discharge the burden of proof to win your case.

As Charles Dickens said in Hard Times,

“Now, what I want is Facts. Teach these boys and girls nothing but Facts. Facts alone are wanted in life. Plant nothing else, and root out everything else. You can only form the minds of reasoning animals upon Facts; nothing else will ever be of any service to them.”

I do not agree with this quotation, not in the slightest. Children should be taught much more than facts. Things like decency, honesty, kindness, generosity, an appreciation for beauty, art, literature, etc.

But when you are considering commencing legal proceedings or bringing an employment related claim you would do well to remember this quotation, for your case will walk slowly at first, and then run; or fall flat on its face.

Spend your time scrambling around in the weeds for stuff to ‘build a case’ and you will almost certainly fall.