The Wisdom of Water

Having tried over 60 trials to verdict, litigated at least a couple hundred more, and counseled clients on perhaps five hundred disputes over the past 20 plus years, it took me until the last few years to understand a very important concept involving legal disputes:

Often, the best route to resolution—like water—is the path of least resistance.

Wait, I can hear some of my opposing counsel say, “What? Zimberoff’s claiming all legal disputes can be settled by giving in and rushing to settlement.” No, that tact does not work when parties are fully entrenched in protracted litigation. My point, and my experience handling disputes, is that many conflicts can be resolved early, prior to both sides becoming embedded in their positions, and well prior to legal fees skyrocketing.

There is a window of opportunity early on in a dispute to reach resolution. But once that window closes, the next opportunity does not avail itself until well along in the process—often after litigation has commenced.

It is said that over 95 percent of civil legal disputes are resolved short of trial. In other words, in over 9 out of 10 cases, the parties reach an agreed resolution; which means that some level of compromise has occurred. If, ultimately, the parties are going to settle, doesn’t it make sense to be open-minded to compromise from the outset?

For community association boards or owners involved in a clash, I recommend the following course of action:

  • Read, understand and follow your Governing Documents and applicable state laws. The key to almost every community association dispute lies in the documents. Make sure you are reading and following the appropriate sections or provisions. I can’t tell you how many times one of the parties has cited the wrong statute—one that does not even apply to that association.
  • Consult with a professional. Instead of relying upon an unqualified expert (we used to call these people “sea lawyers” when I was in the Navy), make sure you seek guidance from your professional manager, or seek counsel from the association’s attorney.
  • Treat the other party with respect. Vitriol and rudeness are the breeding grounds for conflict.
  • Remain open to a differing conclusion. Reasonable minds may disagree. Even after reviewing the proper section or provision of the Governing Documents or statute, interpretations may vary.
  • Lastly, always utilize common sense. Does it make sense to go to battle, risk tearing apart your community and incurring thousands of dollars in legal fees over an owner who failed to pick up after their dog or bring their trash bin?

Sure, some disputes will only be resolved after a lengthy court battle. But for a large percentage of “neighborly” community association quarrels, it might be helpful to follow the guide of that droplet of water you see trickling down the side of the house—by following the path of least resistance.