One of the axioms that govern lawsuits is that litigating about litigating is almost always the best first strategic move by the defense. It is almost always the Plaintiff in a lawsuit that has suffered some loss and then to recover the loss legal fees and expenses must be paid. This has the impact of deepening the loss without certainty of recovery. Also, litigation choices, which are almost always at best guesses about future events in a case, e.g., whether this expert witness will persuade when another might not, or whether a witness will give reliable trial testimony or whether a deposition should be taken to reduce that uncertainty, will drive the cost but not always the outcome.
An example of this is Ministerio Evangelistico International v United Specialty Insurance Company, Slip Op. (SD FL, Miami Div., 2017). Ministerio endured water damage from a roof leak and could not reach an accord with its insurance carrier. The opinion does not disclose the reason for the dispute but a reasonable speculation might be that the insurance carrier thought a neglected maintenance issue was the culprit rather than roof damage from a casualty loss. Regardless, Ministerio sued but sought a declaratory judgment, a declaration of rights under the policy, rather than merely a breach of contract claim or a bad faith claim. The insurance carrier moved to dismiss the declaratory judgment claim, only one of two claims the church had, and the court dismissed it. The case continued as a breach of contract claim but Ministerio likely incurred legal fees resisting the carrier’s motion to dismiss the declaratory judgment claim. The case started in state court at the end of 2015 and by April 2017 had only reached the Answer stage, meaning a year and a quarter passed. Many federal courts in the United States can still bring a case to conclusion in that amount of time.
The longer a case lasts, higher legal fees, higher expenses, and greater fatigue are often the result. Insurance carriers, however, because litigating risk is part of their business model and part of their cost of doing business, are less sensitive to such fatigue than would be a church. Thus, a lesson from this case is that church litigants should be focused and not scattershot in their lawsuits to avoid, if possible, the trap of litigating about litigating. Indeed, in this case, after a year of litigating about litigating, the case is not over but is barely under way.