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Never Stop Fighting Until the Fight is Done

Never Stop Fighting Until the Fight is Done

Confessions of a relentlessly insane Franchise Attorney

re∙lent∙less

rə’len(t)ləs

ADJECTIVE

Oppressively constant; incessant.

Synonyms: persistent, continuing, constant, continual, continuous, nonstop, never-ending, unabating, interminable, incessant, unceasing, endless, unending, unremitting, unrelenting, unrelieved.

in∙san∙i∙ty

in’sanədē

NOUN

Extreme foolishness or irrationality.

“it might be pure insanity to take this case”

Synonyms: folly, foolishness, madness, idiocy, stupidity, lunacy, silliness, craziness

I just got back from mediation in a case in which I represent 33 franchisees against a franchisor in the automotive repair industry. I love meditation. However, as happens so many times, the parties came in with drastically divergent expectations and the majority of the mediation involved the parties figuring out the other’s expectations. It’s never good when, in the opening session of mediation, a session in which all parties are present, the mediator, a man nationally known for settling huge cases, states that based on the parties’ positions it will be a tough assignment to get the case settled. Nevertheless, we trudge forward to make any progress possible to move the process forward.

I always spend the next day or so after a failed mediation questioning my choice of profession. As I was heading back from Boston after this last mediation, I once again started evaluating my career choice. As I get older and more experienced, I would also like to think wiser, I no longer harbor thoughts of chucking the profession to become a blackjack dealer (with the ultimate goal of attaining the rank of pit boss). Now, I start to evaluate how I view myself as an attorney. That brings us to the two definitions at the top of this diatribe.

I love the word “relentless.” I think every trial attorney wants to be seen as relentless in the pursuit of justice on behalf of their clients. In my view, for an attorney to be relentless, he or she must believe so strongly in their client’s cause that no matter what happens in the case, the attorney continues seeking justice for their client. I am fortunate to be able to have my own firm which allows me to choose the types of cases I take. For the past several years, I have chosen to concentrate on representing franchisees in cases against their franchisors. My clients start every case at a disadvantage. They do not have the financial resources of the franchisor and the law is definitely not slanted in their favor. It’s a tough way for an attorney to make a living. For every success, we experience ten setbacks. If an attorney does not have the stomach for such odds, he or she will not last in this area of law. I have found my true calling. Every case I do is based on one idea: righting the wrongs done to my clients. If that means putting up with setback after setback to reach the ultimate goal, I will do it. If I keep myself in that “relentless” state of mind, then the setbacks aren’t setbacks at all. They are merely a chance to test my commitment to my clients.

That brings me to the second definition – insanity. I have also heard “insanity” defined as doing the same thing over and over again expecting a different result. That definition describes my practice perfectly. In every single franchise case we do, I hold out hope that the franchisor will realize that their failing system has caused my clients to suffer devastating financial losses and will want to do the right thing. It has never happened. If it ever does happen, I will know that I need to get ready for the end of the world. Franchisors will always blame my clients for their losses and will always hide behind the law to evade their own culpability. After all, they’ve spent a lot of money through their trade associations (i.e. the IFA) to get that protection. Based upon the definition, I’m insane for believing that one of these days a franchisor will do the right thing by its franchisees. Nevertheless, I continue to go forward with cases on behalf of my franchisee clients. I’m sure that many attorneys would consider that true insanity. In my post-mortem of this recent “setback,” I have now come to the conclusion that I suffer from a condition known as “relentless insanity.” I speak to hundreds of franchisees a year. The stories I hear are gut-wrenching tales of lives destroyed simply because someone wanted to “enhance their lifestyle and secure the future of their family” (a phrase taken directly from AAMCO’s website pushing the sale of franchises). These are good, honest, hard-working people who were taken advantage of at a vulnerable time. They were excited to pursue their dream of being their own boss with the help of an experienced franchisor. What they found is that the franchisor was only concerned with that initial fee. Once that was paid, the franchisor cared nothing about them or their success. I make a commitment to these people that I will make their stories known in the hope that the franchisor will offer them some help. However, I always have to tell my clients that in the end, the franchisor will not really care. The franchisor is driven by one motive and one motive only: profit. We do the same thing over and over again hoping that, just once, a franchisor will acknowledge its role in the failure of its own system. I have yet to see that happen. Knowing that it will never happen, I commit to my clients that I will do whatever I can to fight for them and try to get some justice for them. I tell my clients that I will fight as long and as hard for them as long as they are also committed to the battle. I instill in my clients the same “relentless insanity” which infects me.

This all brings me back to the franchisor involved in my recent mediation. I won’t say the name of the franchisor. I’ll only say that it begins with an “A” ends with an “O” and has “AMC” in the middle. That franchisor needs to understand one crucial fact: not only is it dealing with a “relentlessly insane” attorney, but it is dealing with “relentlessly insane” franchisees. It is a lethal combination. The franchisor needs to understand that this is not about money. It is about stepping up to the plate, taking responsibility, and doing the right thing for franchisees that made only one mistake: they bought into a system that was not transparent and could never be sustained. One of my favorite movie quotes of all time is from the movie The Untouchables. In that movie, after Al Capone is convicted, Elliot Ness goes up to Capone and says: “Never stop, never stop fighting till the fight is done.” I think that is a rather fitting definition of “relentless insanity.” I think I’ll write a book and title it Never Stop Fighting Till The Fight is Done: Confessions of a Relentlessly Insane Franchisee Attorney. Thanks for taking the time to read this.

Jonathan Fortman