October 18, 2021
At some points in our lives, we all come to feel we have been ‘wronged’ in a certain circumstance. If you think you have been wronged and are determined to find a solution to your problem, the following process can help. A good lawyer uses the same methodology to ‘untangle a problem’ and find solutions.
We, as humans, seem to have an inner compass which tells us what is wrong or right. But from a practical/legal point of view, the first step in this exercise is to pinpoint the source of right which you think has been impinged. Most commonly, sources of rights are: 1. Contracts 2. Legislation 3. Torts, such as negligence .
Example 1: you have rented a place which has a balcony and a parking spot for x amount of dollars per week for 12 months. Two months into your tenancy, due to roofing works, you cannot access the parking or the balcony. You feel ‘wronged’ if you are asked to pay the same amount in rent as normal. The source of right in this example is the tenancy contract whereby the landlord provides the property including balcony and parking for your exclusive use and you pay the landlord x amount of dollars every week.
In example 1: the landlord is breaching the contract in a non-major way. It is non-major as the main object of the contract was to provide a residential place, and parking and balcony are not essential aspects under normal circumstances. The categorisation of major/non-major can change based on specific circumstances of course. For example, if you have a luxury car that you cannot possibly park on the street and the landlord knew about it.
In example 1, lets assume that the breach is non-major. For non-major breaches of contract, you can seek damages, ie a rent reduction in this case for the period that you could not access the parking and balcony.
It goes without saying that there should be valid evidence to support each step. We will deal with evidence in a separate article.
This seemingly simple exercise is easier said than done. Good lawyers use the same model to provide advice and solve problems. I have had the privilege of working with excellent barristers and what I have learnt from them is to ‘untangle’ every single issue. Even in complex litigation matters, the same model applies, but instead of having one issue, there is usually several issues between the same parties. For example, the parties have entered into a contract 20 years ago, then entered into deed of release of the same contract 15 years ago, there is also an applicable piece of legislation that can be interpreted in two or more ways. Nevertheless, and as you can see the framework for problem solving/clarification remains the same.
I have learnt these tips from the best counsels and judges in the process solving a legal problem and they have served me very well:
We are driven by emotions, but they don’t serve us well in solving problems. Emotions do not have a place in legal disputes, unless there is proven psychological damages in certain limited circumstances. Try to focus on the problem in its objective form and how can it be solved.
A good lawyer will never entrench a problem by exacerbating your feelings of hurt. There is a difference between a ‘firm’ lawyer and someone who creates more drama, costs and heartache by aggressive behaviour mainly focused on how evil and bad the other side is. It is disappointingly common in family law matters and it is not helping anybody.
Even though we might feel it is 100% the other side’s fault, more often that not, it is not. In example 1, we can safely say that the tenant had no part in the roof repair, but it is conceivable that the landlord did not know about the roofing issues prior to signing the lease either.
Example 2: if you hire a cleaner and they break one of your antique statues, you need to accept and take responsibility for putting the statue in a place that could have been easily accessed and damaged. This is your contributory negligence.
Example 3: In a CPD run by Family Court Judges, one of the judges made a very good point. Her Honour noted that your client, in a parenting dispute, needs to understand that the other parent is someone they had a relationship with once and had been intimate with them at least once, so it is not helpful to elaborate on how evil the other parent is. It is not about them; it is about the children and their best interests. Your client needs to put the best interests of the child first. This is my favourite example.
These tips have served me well solving legal and non-legal problems. Hope they are of use to you as well. Afterall, if you can identify the problem and potential solutions, you would feel much more confident while negotiating.
Great sources on problem solving:
 These sources are not exhaustive. More on causes of actions later.
This short aricle does not constitute legal advice and should not be relied as such.