In theory, the law prevents others from violating your rights. In reality, not so much.
For better or worse, we do not receive electric shocks or any other automatic punishment for breaking the law. To stop others from breaking the law and breaking your rights, you need to act. You actually need to enforce these rights.
If you’ve ever tried to say to someone, “It’s against the law!” or “You are violating my rights!” then you probably know that this usually doesn’t fix the problem. Often times, if you want to enforce your rights, you have to call in a lawyer and file a lawsuit.
Bringing a lawsuit is exhausting.
For those who have never hired a lawyer, the process is not easy. First, research which lawyer could help you and who you should specifically contact. Second, contact an attorney, take a recording, wait for a response, and seek advice. The first lawyers likely won’t be the right choice or won’t be interested in taking your case – so you’ll have to shop around and repeat the process. This is both time consuming and emotionally stressful.
When you’ve finally found an attorney you like and ready to take on your case, you’ll need to agree to his or her fees, which averages from $ 200 an hour for an individual attorney to $ 1,600 an hour for one big lawyer partners. From there, you invest a lot of time to be actively involved in the lawyer’s process in creating a case. While lawyers sometimes make quick settlements possible, many legal disputes drag on for years – and put a strain on you both emotionally and financially.
Even if another party has obviously wronged you, it is almost never easy and quick to take legal action. You will realistically only go through this process if you have really been wronged and are very interested in correcting the wrong or if the potential financial benefit is large enough to invest in what is normally a lengthy and expensive legal process.
Those who understand these realities – especially people and companies of greater power – can fearlessly disregard the law.
Powerful players know they can get away with it.
Think of the numerous landlords who leave bail illegally. From a legal point of view, any deposit that is not used for a proper purpose (usually unpaid rental and ancillary cost bills, penalties for premature termination of the rental agreement, cleaning and damage to the device in the event of above-average wear and tear) must be returned to the tenant when the contract is concluded. When landlords refuse to obey the law, many tenants attempt a confrontation, but ultimately it is unsuccessful. Why? Because landlords know an attorney is unwilling to help a tenant recover a bond between $ 500 and $ 3,000. The potential financial benefit to the attorney would be negligible when it comes to such a small amount of money.
Employers also get away with many violations of workers’ rights. Suppose a boss puts his hands on an employee’s shoulders and inquires about their dating life in a way that exceeds the legal sexual harassment threshold. There would be few, if any, sexual harassment attorneys raising hands to take the employee’s case. Why? Because, in relative terms, the breach is minor and an agreement would not generate enough money to make the work of litigation worthwhile.
Or think of a disabled employee who has been denied the “adequate placement” of a standing desk to which they are entitled under the Americans with Disabilities Act (ADA). An ADA attorney may be willing to take legal action for this minor violation, but it would not be worth paying the attorney’s fee hours and fighting your way through the arduous litigation process. Especially if the alternative of buying your own standing desk was faster, cheaper and easier.
There’s a hammer on a desk.
Andrew Harnik-Pool / Getty Images
Finally, think of the immense power that insurance companies wield over their policyholders. If a health insurance company misrepresents the law or the language of its policy in order to refuse a claim to expensive but potentially life-saving treatment, the insured has little opportunity to reverse the refusal. While most insurance companies have an in-house complaints procedure, these procedures are so complicated, tedious, and excruciating that most people – especially those ill with less time and physical or mental energy – eventually give up. Again the insurance wins despite violations of the law.
Unfortunately, many bad actors take advantage of the impracticability of a lawsuit and become deliberate repeat offenders.
What injured parties can do.
It is not my intention to worry that your rights are far less protected than you previously imagined. However, I would like to draw your attention to the practicalities of lawsuits so that you can be more rational about what to do if your landlord, employer, insurance company, or other powerful party tramples on your rights.
Here are some alternatives to filing a lawsuit. Small Claims Court is a less strenuous option for financial disputes under a certain dollar amount. There, injured parties use the enforcement powers of the courts without having to accept legal fees or lengthy legal proceedings. For example, a dispute over the deposit could be settled in a small claims court.
Many agencies can also help you enforce your rights without having to hire your own lawyer. The Equal Employment Opportunity Commission (EEOC) enables individuals to file lawsuits for discrimination based on race, color, religion, gender, national origin, age, or disability. For some, filing a discrimination lawsuit with the EEOC is only the first step before filing a lawsuit, but for others, the EEOC process actually leads to a solution between the parties. In addition, a government agency such as a state health department can, among other things, help injured persons attack inappropriate health insurance rejections, and a state or federal department of labor can help workers enforce their rights under labor protection laws. Government processes, however, are notoriously slow and frustrating; They feel very different from hiring your own personal attorney to fight for you.
Some nonprofits (as well as most large law firms) also offer pro bono services to low-income individuals. For those entitled, this makes filing a lawsuit much less of a hassle as it eliminates the cost of hiring a private attorney. Of course, using these services means that you have much less choice as to who represents you.
Class actions are also worth mentioning. Participating in a class action as one of many plaintiffs has helped numerous individuals enforce their rights against much more powerful actors. It allows a person to avoid the time-consuming and expensive aspects of filing their own lawsuit, but still offers the option of appeal and substantial reward.
Perhaps, in the future, other avenues will be paved for resolving disputes which, for practical reasons, remain undisputed. The fastest and cheapest way to resolve a dispute right now is informal resolution – without lawyers or legal proceedings. And if this or one of the alternatives above is not possible, consider whether the potential benefits of filing a lawsuit actually outweigh the costs.
Jennifer Shulkin is a graduate of the University of Pennsylvania and Harvard Law School. She has served as a federal attorney, assistant district attorney in Manhattan, and a private criminal defense attorney for white collar crime. She lives in Washington, DC
The views expressed in this article are one’s own.
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