“Memes” are expressions, catch-phrases, events, ideas, fads, fashions, or concepts that resonate and reverberate through our culture constantly.
Some are so large that they shape entire generations (e.g., 9/11, Vietnam). Some are small and limited to niches of our culture (e.g., “n00b“). Others catch fire, persist for a while, then fade and ultimately end sentences that begin, “Remember when people used to say _____” (e.g., “Aaaaeeeyyy!” “Show me the money,” “Fight the power“).
If you don’t know what the now-memes “upside down” or “underwater,” bless you. You’re very fortunate (or possibly very dense). For the rest of us, these terms mean being in debt as to a particular property in an amount that exceeds the property’s value. It is painfully common among American home-owners these days. Fancy people call it “negative equity.” But negative equity is nothing new. Litigators (and, more to the point, their clients) have had to deal with it forever.
In the context of civil litigation in the United States and, of course, in Minnesota, any legal claim in which a plaintiff seeks less than $100,000 is very often “underwater” from the start. That is, there is a substantial risk that the cost of getting the money through civil litigation will exceed the amount of the recovery and the unfortunate litigant will end up “upside down.” (The problem is undoubtedly worse on the coasts where lawyers tend to charge a lot more per hour.)
Last week’s ruling by U.S. District Court David S. Doty (D. Minn.) in R&D v. Western Thrift & Loan, et al., illustrates the problem (and, perhaps, a remedy for the plaintiff though time will tell). Judge Doty found defendants to be liable to plaintiff for $98,000. The plaintiff’s attorneys’ fees and costs to get the $98,000 judgment: around $150,000.
Fortunately for plaintiff, Judge Doty also awarded the plaintiff its attorneys’ fees.
Unfortunately for plaintiff, there is a substantial difference in value between winning a judgment and getting cold hard cash. (Two of the three corporate defendants in the R&D case allowed default judgments against them. Good luck finding their assets. The third, Western Thrift & Loan Corp., is a Reno, Nevada corporation. They know a thing or two about being underwater…)