Sunday, May 29, 2011

Money Matters

“It’s not about the money, it’s about the principle.”

The client is sincere. It is the outset of the litigation and he feels wronged, violated. He wants his day in court. He demands justice and financial considerations are far from his mind.

But that will change. As the case progresses and hits the inevitable roadblocks, as resolution is delayed by rules intended to assure fairness often achieving the diametric opposite, the bills will add up. And what was once inconsequential will assume paramount importance.

It is my job as counsel to focus the client on the financial realities of litigation. It is sometimes said that a bad settlement is better than a good trial, and there is truth to that. Settlement stems the financial bleeding, ensuring that the parties will survive to live (and possibly litigate) another day.

And so, at the outset of litigation, I focus the client on both the legal and financial aspects of the case. Because, in the final analysis, it is about the money and the principle. The two are often inseparable.

There was a time when wars were waged to strengthen struggling economies. The Romans, for example, used war to bring new riches into the empire. Triumphant parades were held in which the vanquished enemy was displayed in chains, surrounded by gold and other valuables forfeited to the conquering legions. Plunder routinely followed victory. The goods of the defeated became the assets of the victors.

But all that has changed. Today, victory in war is routinely followed by rebuilding of defeated nations, at least for Americans. Wars are expensive, and the financial bleeding does not end when the last shot is fired. Thus, success in war is no longer measured by the outcome on the battlefield. Human casualties are almost an afterthought. Success in war today is measured by dollars and cents.

Which is why the federal government’s prosecution of steroids users in sports is perplexing. Barry Bonds, Roger Clemens and Lance Armstrong have become the new public enemy, pursued relentlessly by prosecutors intent on making them examples for their lack of candor in the government’s steroids investigations. The message is clear: if you lie to the federal government, we (the government) will come after you, especially if you are a public figure and your fall from grace will be spread across tabloid headlines.

The federal government pursued Barry Bonds, the all-time baseball home run king, for more than half a decade because of his perceived lies to a grand jury over his personal use of performance enhancing drugs. A few weeks ago, after years of pre-trial proceedings, rescheduled trial dates, appealed court decisions, and a one-week trial in which the defense did not introduce a single witness, the jury deadlocked on the most significant charges against Bonds and found him guilty only of obstruction of justice, a result which will likely lead to probation, and no jail time for the athlete.

The cost to the taxpayer of Bonds’ prosecution is estimated to exceed 10 million dollars, which raises the question: in a difficult economy, where Congress spends most days cutting social programs to try to bring the federal deficit within some measure of control, should we be spending such amounts pursuing professional athletes for disrespecting authority? We can all agree that lying to the federal government is a bad thing, but does it justify the government’s pursuit of the perceived liars at all expenses?

If government were run like business, the pursuit of Bonds would have been subjected to a cost-benefit analysis at the outset. The correct business conclusion would likely have been not to spend so much on the prosecution and instead redirect funds to more profitable ventures.

Government is, admittedly, not business. The social contract that exists between a government and its people must be considered alongside issues of finance. The correct decision for government will not always be the most fiscally sound, particularly when issues of national defense are at stake.

But Bonds, Clemens and Armstrong pose no threat to national defense. They are athletes whose questionable actions have little discernable impact on societal norms. That is why finances must be considered by prosecutors deciding the extent to which they will pursue such athletes for lack of candor.

Bonds, Clemens and Armstrong are clearly being made examples by prosecutors intent on proving that no one, no matter how wealthy and famous, is above the law. But those prosecutors, as representatives of the people of the United States (the case is, after all, United States of America vs. Barry Bonds) owe a duty to the people to make decisions that are in the people’s best interests. And, in the present economic climate, finances must be considered.

Principle does not override all, not even for government employees intent on making a statement. Prosecutorial restraint must be employed to ensure that correct decisions are made, even if it means abandoning pursuit of public figures caught in a public lie. Money does matter, after all, despite our often cavalier attitude about its impact on what we perceive to be important.

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