By Dustin R. Matthews
I recently had a hearing in a case in which my client was being sued for the second time for breach of contract from one agreement. The agreement ended almost six years ago, and the original breach of contract suit resulted in a judgment against my client. Since that time, my client has paid the judgment and continued in his pursuit of happiness. After being sued the second time, and meeting with me, we decided to proceed in a way that would most likely dismiss the case as quickly and inexpensively as possible: file a motion to dismiss. The grounds: A fundamental principle of law called res judicata. Res judicata is Latin for “a matter already judged.” The idea behind the legal doctrine is that once someone has made a claim against another person, and final judgment has resulted, the claim cannot be raised again in a second lawsuit. The modern approach to the doctrine takes into account the already saturated court system, and also precludes claims that should have been included in the initial suit.
Prior to meeting with me, my client had no idea that res judicata existed; however, to him, the second lawsuit did not pass the smell test.
So we proceeded with filing a motion, and with the motion, a memorandum of law explaining the basis and appropriateness of the dismissal. I was a little surprised when the judge requested a hearing on the matter, because I felt that the argument was simple and unquestionable, requiring no further consideration.
Nonetheless, we attended the hearing. The ruling: It doesn’t seem like you should be able to bring two separate breach of contract law suits from one contract, especially when they’re almost six years apart, but let’s give the plaintiffs every opportunity they can to justify their lawsuit. The plaintiff must now file a memorandum showing the court legal justification for the second suit, and my client, if he wishes, may file a responsive memorandum opposing the Plaintiff’s position.
Now, my client, who is not very wealthy, must either choose to pay more in legal fees to defend a principle in law that has been in place for hundreds of years, or sit idle and hope the judge rules consistently with the law.
How much justice can my client afford? It’s a common joke in the legal world С that you can buy justice. Unfortunately, it carries more truth than humor.
The Utah Bar Association has recognized that even those above the poverty level find the legal system unreachable because of the costs of litigation. Accordingly, the Bar is encouraging attorneys to offer alternative types of agreements such as discounted fees, limited representation (only making one court appearance or only providing representation for mediation only), or special counsel (advising and guiding a pro se litigant.)
Certainly, alternative types of representation provide access to justice and equity like never before. However, for my client, what happens if the judge decides to make a decision contrary to res judicata? You might answer, “Well, he could always appeal the judge’s decision.” Could he? Certainly the rules provide for that, eventually. My client’s finances have already been drained by the initial lawsuit. He is still attempting to recover financially. Can he navigate the appellate process on his own? Comparatively speaking, very few attorneys offer appellate services in Utah to begin with. The ones who do generally ask for heavy retainers.
My client has been afforded justice in that he can be heard. The judge will listen to my argument on his behalf, the judge will read the additional memorandums requested, and will hopefully make a decision on the right side of the law. If my client wants more justice, he can buy it.
So the truism continues: How much justice can you afford?
My hope is that Utah lawyers respond to the Bar Association’s efforts to build up the community by offering alternatives for clients, while also thinking outside of the box, and increasing access to justice and equity for those who genuinely seek it. In so doing, perhaps we can find more humor and less truth in buying justice.
-Dustin R. Matthews, Esquire, is an attorney working in private practice in Bountiful