Litigation, often thought to be driven by financial gain, is frequently driven by vengeance. Litigation and its precursor claim presentation are frequently driven by emotion such as vengeance not reason not even financial gain. Even in the most seemingly pedestrian disputes between companies the underlying motivation for the claim or the defense is personal satisfaction not financial reward.

Experience has shown that the rational motive of financial gain is often not the primary driving force behind either the Plaintiff’s claims or the Defendant’s defenses. Emotional issues are the force that drive litigation to excess in overreaching claims and wayward defenses.

Proof of this fact is that the litigation frequently costs much more in legal fees and expenses than the amount of judgment awarded or avoided not counting the hidden costs of wasted management and employee time and emotional stress suffered by the principals and their supporters. No thoughtful or analytical study can justify such expense on the possibility that a judge or jury will favor the proponent’s claim.

Ultimately, at least, one party wants some sort of vindication; some public recognition of the rightness of its cause. Even in disputes over mundane contract matters which seem devoid of emotion, the need for personal vindication surfaces to control the case at least for a time.

A terrific example is one in which the Plaintiff, a small limited liability company (LLC) possessed a claim against a multi-state electric utility for payments on the utility’s rebate program for installing energy efficient lighting. A utility company manager and lawyer rejected the LLC’s claim for rebates on unstated personal grounds not on the basis of the real terms of the rebate program. The reason given by the utility for rejection of the rebates was patently without merit.

The LLC filed suit, probably on a contingent fee basis, to recover some of its investment. The claim at best was worth about $100,000.00. The utility is a multi billion dollar company doing business in at least three states which probably spends more than $100,000.00 per month to clean its headquarters.

The utility took some discovery, subpoenaed records and filed an ill-conceived summary judgment motion. The discovery yielded nothing for the defense and the summary judgment motion was denied by the judge, who would hear the case, with a clear statement of factual issues to be determined at trial. The utility had claimed the case for jury trial but why a jury would be favorably disposed to a public utility is hard to understand. The utility eventually waived the jury trial but was then faced with a trial before the judge who had denied its summary judgment motion and who had at least a plausible view of the facts to be proved and determined. The summary judgment opinion was a clear view into the Judge’s thinking of the proof needed by the LLC to present to the jury and dictated the outline of the jury charge. The case was a Colorado CAPP case so there was no real possibility for the utility to augment its disclosures or to enter additional witnesses or documents later in the proceedings.

Apparently, at that point, cooler heads in the utility prevailed and the case was settled for a dollar amount for which the case could have been settled at the beginning. The result was a somewhat favorable for the LLC, although a compromise for sure, and a clear loss for the utility since it suffered the expense of discovery, motion practice and trial preparation only to pay what could have been paid before a plaintiff’s lawyer ever was retained. The utility’s personal animus toward the operators of the LLC is the only possible explanation for such bizarre behavior by the utility. The proof of this issue is that the utility refused to mediate the case early on when a cooler more dispassionate view of the case might have prevailed. The fundamental irony is that the LLC was promoting the ultimate goal of the utility by installing energy efficient lighting.

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