As lawyers, the business model is fairly simple: We sell our time, multiplied by our hourly rates.
This creates a huge disconnect between clients and lawyers. All clients want their matters resolved in their favor, but also quickly, smartly, and cost-efficiently (that’s a nice way to say for as little legal fees as possible). On the other hand, the lawyer-industrial-complex wants lawyers to ponder, research, litigate, bill, examine, depose, etc. (i.e. for as many billable hours as possible).
First off, run away from lawyers like that.
Second, if you’re a lawyer and want clients to be happy, you should read this new Tennessee Court of Appeals opinion, which discusses the concept of res judicata. That’s a doctrine that allows parties to avoid unnecessary, duplicative litigation, when the issues have already been decided by a court.
The facts aren’t that important, so I’ll just focus on the legal discussion. The Court wrote:
The doctrine of res judicata . . . bars a second suit between the same parties or their privies on the same claim with respect to all the issues which were, or could have been, litigated in the former suit.” Jackson, 387 S.W.3d at 491. In order for a party to successfully assert the defense of res judicata, the party asserting the defense must show: “(1) that the underlying judgment was rendered by a court of competent jurisdiction; (2) that the same parties or their privies were involved in both suits; (3) that the same claim or cause of action was asserted in both suits; and (4) that the underlying judgment was final and on the merits.” Id. (citing Lien v. Couch, 993 S.W.2d 53, 56 (Tenn. Ct. App.1998)). In order to show that they are entitled to summary judgment on the defense of res judicata, Appellees must show that the undisputed facts in the record below reveal that each element of the defense is met. See, e.g., Gerber v. Holcomb, 219 S.W.3d 914, 917 (Tenn. Ct. App. 2006).
A party, who asserts the defense of res judicata, or estoppel by judgment, has the burden of proving it and must show that the right in question was determined on the merits in the former judgment. And, if the judgment itself leaves the matter uncertain then it must be proved by other evidence. (citing Garrett v. Corry Foam Products, Inc., 596 S.W.2d 808, 809 (Tenn. 1980)).
In short, res judicata may allow a party to avoid a second lawsuit, when the cause of action was–or should have been–raised and resolved in the first lawsuit.
My advice to lawyers is this: If you represent the plaintiff, be sure to add any relevant, secondary issues in your first lawsuit. That way, your initial judgment includes all claims and causes of action, and you don’t ever have to file a second lawsuit.
This is a critical issue in many areas of law, including bankruptcy and foreclosures. For example, did you know that a post-foreclosure detainer judgment operates as res judicata to any of the prior owner’s subsequent attacks on the foreclosure process?
In the end, sure, you bill more hours to fully litigate two matters, but it’s a terrible use of the client’s time and money. The effective lawyer’s goal shouldn’t be to bill more hours; it should be to make clients happy.
Creditors Rights 101 