Last newsletter, we discussed a recent mechanics lien case, in which my client obtained a judgment on a theory of quantum meruit (a Latin term meaning the amount earned or sometimes the amount merited).  When that was written, an appeal was speculative.  Now it is real.  Dave the Defendant has appealed, claiming that the Judge gave way too much money to Sam.  Dave claims that the only way to value the benefit to him is to subtract the original value of the property from the current value of the property, and then add in what he paid toward increasing the value.  Whatever is left is the benefit.  Of course, that does not take into account any of what Sam paid (materials, taxes, etc.) or the value of his labor.

There are a lot of fallacies in the defense argument, not the least of which is that it is not supported by the case law.  But this is not the place to dispute the details.  Our lead appellate counsel will be filing an answering brief soon, and that will detail our position. 

Probably the most significant lesson this provides is the amount of time that litigation takes.  There is an old saying, Justice delayed is justice denied.  The famed American jurist and Supreme Court Justice of the early 20^th century, Oliver Wendell Holmes Jr., has been erroneously credited with saying that, but in truth William Gladstone, a British politician of the 19^th century (Prime Minister on several different occasions, for a total of more than 14 years), said it.  Many have used the quote since, and it certainly continues to be an indictment of our legal system.  Our system is slow, painfully so.  This case was filed in December 2002, tried to a judge alone in January 2005 (more than 2 years later), and the defense opening appellate brief was just filed in October 2005.  We can expect many more months to go by before the Court of Appeals can act on the briefs, and if they decide to hear oral argument, their decision may not be rendered for another year!

If they deny the appeal, the Court of Appeals will likely end the case with their decision, unless Dave the Defendant seeks a writ of certiorari to appeal to the Colorado Supreme Court (that is like asking the Supreme Court for permission to appeal).  But if the Court of Appeals remands the case to the District Court for any reason, it will be months later before the District Court can make a new decision, and that does not prevent either side, if unhappy with the remanded decision, from appealing again.

Justice?  When it takes 4 years or more to reach finality, that is not justice.  After nearly 38 years in this business, I have learned to live with the inevitable time that every case, even the simplest, takes to be finalized.  But for the average citizen whose contacts with the legal system are pretty minimal, the delays must seem to be unjustifiable and unfair.  And they are, both.  Some are caused by dilly-dallying by the attorneys involved?too busy, too many other cases, that sort of thing.  But some are caused intentionally as a means of defense, often on the theory that an impatient plaintiff will knuckle to an inadequate offer, and often that is exactly what happens.  And some are just the system, a system that has become overloaded by using archaic methods to address modern problems.

What I really think this teaches all of us is that there must be better ways to solve problems between parties than litigation.  Our society has become litigious, and it has been that way for many years.  I want my way, and if I cannot get it, I will sue.  Never mind that I have no reason to sue and no basis for suing.  I will just scare the other side into capitulating by suing.  The result, of course, is that legitimate controversies are lumped together with the junk cases, and nothing gets resolved quickly and fairly.

As I have matured in my profession, I have tried harder and harder to minimize litigation.  Look at it this way:  In only a few hours in the courtroom, it is impossible to teach a judge and jury the details of a case as well as the litigants know them.  Reasonable discourse, perhaps with mediators assisting, can save everyone lots of time and money, and the results likely will be fairer to all than litigating the controversy in trial.