For Non-Lawyers: Tips for Potential Litigation

By: Carlos E. Villalobos Jaén – Partner

“The Soul of the Gown” – Ángel Ossorio

Legal practice is not merely an academic pursuit but a professional commitment. Our university degree is in “Law,” not “Lawyer,” which authorizes us to practice as lawyers. Therefore, if someone does not dedicate their life to giving legal advice and seeking justice in the courts, they may hold a degree, but they are not a true lawyer.

Francesco Carnelutti, in his work “How Law Is Born,” states:

“If jurists are the skilled workers of law, not everything in law is their work. While there may be no need for specific training to apply laws necessary for daily life or participate in law-making in Parliament, there are skilled workers, the jurists, to turn to in times of need. However, this assumes that general culture, which should be provided to citizens to navigate daily life, includes a basic understanding of law. Without this knowledge, citizens wouldn’t even know when to seek a jurist for complex cases. Many issues, especially in contracts, arise because people are unaware of the consequences of their agreements.“

We are all connected with others, whether individuals or entities, through various relationships—personal, commercial, civil, etc. These connections (obligations or rights) can arise from agreed-upon relationships or unforeseen ones (extracontractual), which can lead to litigation.

For agreed relationships through contracts, it’s advisable for those unfamiliar with the subject to seek legal assistance from the start. Seeking help only when entering the execution or litigation phase complicates matters, often requiring both a specialist in the contract subject and a procedural law expert.

When it’s time to execute the contract or a dispute arises, you must adhere to the agreed rights and obligations. It’s difficult to remedy poorly agreed terms at this stage, except for nullity or voidability under the law. Therefore, it’s crucial to have a lawyer assist you when contracting to ensure that your rights are protected and obligations are fair, avoiding any imbalance against your interests.

Unfortunately, in countries like ours, litigation is high because law schools do not emphasize conflict resolution outside of litigation. We are taught to be more combative than conciliatory, often advising in ways that lead to litigation rather than avoiding it.

Consider the saying, “May you have lawsuits and win them,” which refers to the significant losses a lawsuit can cause, even if you win. The financial and emotional toll can be immense. Therefore, legal advisors should help clients avoid litigation whenever possible.

Reducing excessive litigation will help decrease the court case load, allowing judicial processes to advance faster and reducing delays.

In a judicial process, the key is having evidence to support your position against the other party. For extracontractual issues, document everything from the moment the damage occurs to establish the causal relationship between the harmful act and the responsible party. Consult your lawyer immediately to gather necessary evidence for a strong case or defense in unforeseen conflicts.

I leave you with words from Piero Calamandrei, who in his book “Too Many Lawyers” (1921), stated:

“It’s not an exaggeration to say that in a complex judicial system like that of modern civilized states, justice couldn’t function without legal professionals. Judging would become enormously difficult, practically insurmountable, without lawyers and procurators to bridge the gap between the judge and the legal inexperience and bad faith of the litigating parties.“