November 25, 2024
Gaithersburg, MD--The story goes something like this. There was a young, extremely sick heart transplant patient waiting for a new heart. The nurse came running into the hospital room to deliver the good news to the patient, who was on his last breath.
“I’ve got great news!” shouted the nurse. “We found not just one, but two hearts for you. You can take your choice of the two, because they will both be a biological match!”
“Well, what are my choices?” asked the patient.
“We’ve found a heart from an Olympic marathoner who was unfortunately killed in an auto accident. He was twenty-six years old, he was in fantastic shape, never smoked nor drank alcohol or used any drugs,” explained the nurse.
“That sounds great,” said the patient. “And what is my other choice?”
“It’s not as promising,” said the nurse. The heart came from a 70-year-old lawyer. He was unhealthy, overweight, smoked a large cigar and drank heavily,” responded the nurse. “And his story gets even worse.”
The patient immediately interrupted the nurse. “I’ll take the heart from the lawyer!” exclaimed the patient, without any hesitation in his voice.
The nurse, somewhat puzzled by the dying patient’s choice, inquired as to why on earth would the patient choose the lawyer’s heart.“It was an easy choice,” said the patient. “I want a heart that’s never been used.”
After hearing this story, I began to wonder about our society and lawyers and people just not getting along so well. There is too much division where we should instead be working together. We have become very litigation oriented and confrontational, and I am convinced that there has to be a better way to resolve disputes. Sometimes I wonder why on earth a particular dispute ended up with two lawyers involved, at much expense to the parties, in order to resolve an otherwise simple dispute.
In thinking about it, I have an idea where this may all have started. It had to be that case that we studied in my Real Property Law class in Law School. I dug through some of my old law school textbooks, and I found the case that was in the back of my mind. It has been nearly 43 years since I took that class, but at least I remembered the general facts of the case. It was Pierson vs. Post.
According to the factual summary of the case, one Mr. Post, along with his dogs, while “upon a certain wild, uninhabited and unpossessed wasteland called the beach,” hunted, chased and pursued a fox. Meanwhile, Mr. Pierson, knowing full well that the fox was being hunted and chased, did, in plain view of Mr. Post, kill and carry off the fox. Mr. Post was incredibly angered by the action of Mr. Pierson and Mr. Post did exactly what any hunter would have done under these trying circumstances.
No, he didn’t take the law into his own hands, which is exactly what I am guessing most of you thought was going to be the outcome of this story. Instead, Mr. Post made Judge Judy proud. He took Mr. Pierson to Court. For killing “his” fox.
The case raised several questions in my mind. First, where is this “uninhabited beach?” I would love to find a private beach to lounge upon. I have to admit that my favorite part of the beach is the smell of the Boardwalk French fries, but it is hard to turn down a private beach. Next, why would any lawyer take this case in the first place? I understand that times may have been tough back in the 1700’s, but certainly there had to be a better way to settle the dispute. And did the lawyer take the case on a contingency fee? If we win, the lawyer gets 40% of the fox? And why, exactly, was this case in my Real Property law book in the first place? Was it about the beach? Or the fox? Or the uninhabited land?
Somewhere in the Judge’s written opinion was something about occupancy and possession and land and rights to animals. But perhaps the Judge said it best when he wrote that the case should be “submitted to the arbitration of sportsmen.”
This brings me to the point of the whole story. When I get a call from a potential client, I often find that their first instinct is to want to file suit against someone. For something. Because they did me wrong. And it is the principle (which it isn’t…it’s the money). In the end, everyone ends up looking and feeling bad for filing the suit, I often explain, and the lawyer, while enjoying an increase in their child’s college fund, often looks the worst. Because he or she should have helped convince the combatants to submit their dispute to the arbitration of sportsmen and sportswomen.
This reminds me of a settlement that I had recently conducted. The Seller was supposed to remove their dog, the dog pen and all of the stuff on the ground that dogs deposit which inevitably ends up on the bottom of my throwback Nike Air Jordan sneakers, if you know what I mean. And I think you do. It seems that the Seller removed the dog pen, but left the dog and all of the dog stuff on the ground. This meant that the Buyer could not walk in the back yard without the risk of being attacked by the dog. Or taking the wrong step and ruining the bottom of their throwback Air Jordans as well.
And then the phone call came.
“We want to file suit against the Sellers for not removing the dog and the dog stuff,” the Buyers explained. “Will you take the case, Mr. Parker?”
It was at this point that I flashed back to Mr. Post and Mr. Pierson, and I decided that I did not want to end up in some Real Property textbook as the definitive case on dog stuff. So, I declined to take the case, but helped them work to a solution. Peacefully. And with that decision, I hope that perhaps a trend will be started where maybe we settle more disagreements like good sportswomen and sportsmen, that we recognize that everyone has a story and perhaps a reasoning behind their motives, and while acknowledging that, we do not always settle our disputes in Court, despite what Judge Judy may want.
Oh, and by the way, Mr. Pierson won.
David Parker is an attorney and the Managing Director of Village Settlements-an Atlantic Closing and Escrow Company. His columns have appeared regularly in local newspapers, magazines, and newsletters. He is the co-author of the book, “Real Estate Practice in DC, Maryland and Virginia.” If you have a topic that you would like him to write about, he can be reached at dparker@villagesettlements.com
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