Sorry, Litigants: You Cannot Recover Time Lost to Litigation
Benjamin Franklin famously wrote that “time is money.” While generally true, this statement has some significant exceptions, including time expended by parties involved in lawsuits.
An absolute truth about lawsuits – whether they relate to real estate or any subject — is that they are time suckers.
Litigation naturally consumes countless hours for Attorneys working a case, clerical assistants and court staff. In some cases, attorneys expended (and bill for) thousands of hours of their time in a single case. Big trials frequently result in overtime for court officials and law enforcement officers.
Too often overlooked, however, is the amount of time that a lawsuit drains from the litigants a/k/a “the parties” or “the Clients.” This time commitment is significant, and must be considered when determining whether to commence or continue with litigation.
LAWSUITS DEMAND CLIENT TIME, AND LOTS OF IT
Virtually all parties to lawsuits are required to assist their attorneys through information-sharing meetings, responding to discovery requests, appearing for depositions, and showing-up at Court. Where cases are fact or testimony-specific, these encounters become more lengthy and involved.
Since most lawyers have daytime office hours, many clients are required to use vacation or other time away from work to meet about their cases. Obviously, this can result in lost pay, or at least an unpleasant way of using prized PTO.
Self-employed parties often have opportunity costs associated with sitting in their lawyer’s office or court, rather than attending to income-generating activity.
Naturally, clients who have been required to expend or even “waste” time dealing with litigation want — and sometimes expect — to be compensated. Unfortunately, the law generally does not provide for this. As a result, client time expended in connection with litigation is generally considered “lost.”
CLIENT TIME LOST TO LITIGATION IS GENERALLY NOT COMPENSABLE
Under Texas law, “litigation expenses, including the value of lost time due to litigation, generally are not recoverable unless expressly provided by statute or contract or recoverable under equitable principles.” See Profitlive Partnership v. Surber (Tex. App. – Ft. Worth 2010). See Eberts v. Businesspeople Pers. Servs., Inc., 620 S.W.2d 861, 863 (Tex. Civ. App.-Dallas 1981, no writ) (holding lost earnings due to time spent on litigation by plaintiff’s president and other employees are not recoverable); Shenandoah Assocs. v. J & K Props., Inc., 741 S.W.2d 470, 486-87 (Tex. App.-Dallas 1987, writ denied) (holding expenses of litigation, including “litigant’s loss of time and that of his employees,” not recoverable as costs or damages).
Unfortunately, “[I]t is settled that time lost [due to litigation] is an expense of litigation for which recovery is not allowed.” See Beasley v. Peters, 870 S.W.2d 191, 196 (Tex. App.-Amarillo 1994, no writ); “The general policy of the Texas law appears to be that parties to a suit are not allowed recovery, either as costs of suit or as damages, for expenses incurred in prosecuting or defending the suit, such as attorney’s fees, traveling expenses, etc., unless recovery for such items is expressly provided for by statute, or is recoverable under usages of equity.” Brandtjen & Kluge v. Manney, 238 S.W.2d 609, 612 (Tex. Civ. App.-Fort Worth 1951, writ ref’d n.r.e.) see also Texas Mut. Ins. Co. v. Ray Ferguson Interests, Inc., No. 01-02-00807-CV, 2006 WL 648834, at *8 (Tex. App.—Houston [1st Dist.] Mar. 16, 2006, no pet.) (mem. op.) (holding that “financial loss due to time spent by [party’s] employees on litigation maters” cannot serve as basis for jury award of damages unless contract or statute expressly provides for such recovery).
THE EXPENDABILITY OF TIME IS A MAJOR FACTOR IN DETERMINING WHETHER LITIGATION IS FEASIBLE
I make a special point of telling Clients that by filing suit, they are making a major commitment of money, time, energy and emotion. All of these factors, and undoubtedly countless others, are implicated when deciding whether to pursue litigation or resolution. No matter how great of a case you may have, it is unwise to assume that ANY of these will be recovered or compensated as a matter of course (i.e. a “sure thing”).
Unlike money, time is a “non-renewable resource.” Once seconds, minutes and hours have been expended, they are gone forever. Not only will you not get those moments back; in Texas, you most likely won’t get compensated for expending them in a lawsuit.