Question: Should you file a lawsuit? How do you know whether you should file a lawsuit? Do you know why you are suing?
Answer: I know that as a country we are generally sue happy people, but before you file that lawsuit please take a second to stop and ask yourself the following:
1. DO I HAVE A GOOD CASE?
First, try the “one sentence approach.” If you went to a lawyer that only allowed you one free minute of his time, would you be able to summarize how you have been hurt, harmed, wronged? Would you be able to tell him clearly who did what, when, and how?
For example, I paid for X goods, but Y’s delivery was three months late causing me to lose Z amount.
If you are having issues articulating the one sentence “theory” fo your case, then perhaps you are not ready to proceed with a costly lawsuit. Of course, I am grossly simplifying a real world scenario, but eventually you will have to present a judge or jury in a very limited fashion the “theory” of your case, or your one sentence.
2. DO I HAVE ENOUGH EVIDENCE TO PROVE WHAT I’M SAYING?
It is one thing to allege that someone failed to do something or that they are responsible for causing you some hurt or wrong, but can you prove it? You have to go on more than just a hunch, gut feeling, or a “because I said so.” Have you actually been wrong and what piece of paper or person can back you up?
3. IS THERE AN ALTERNATIVE?
Filing fees increase almost yearly. It now costs nearly $500.00 to file a lawsuit ask: Can you negotiate payments? Can you settle the matter out of court? Can you resolve at least some of the issues between you and the other side? If the answer to any of these is yes, then wait before filing because filing fees are non-refundable.
4. EVEN IF I WON, COULD I COLLECT?
Think, if the person failed to pay me the X amount they owed, after we get through the lawsuit can they afford to pay me: X amount + Fees + Costs + Interest? It may not be worthwhile to pursue a lawsuit that will merely end in a bankruptcy court. You may not be the only person standing in line to collect.
There are of course exceptions, if you are a secured creditor or the person committed non-dischargeable fraud. STOP AND THINK: Why spend $5,000 to fix a $2,000 problem?
5. AM I PREPARED FOR THE POSSIBILITY OF A CROSS-COMPLAINT?
Whenever you file a lawsuit, be prepared for a cross-complaint, or what is known in some states as a counter-suit. The other party always has the opportunity to claim that you harmed, wronged, or hurt therm. Your recovery may be contingent on whether you had some part to play in the dispute.
6. AM I EMOTIONALLY PREPARED FOR A ONE TO THREE YEAR ORDEAL?
Finances are merely one part of the equation when determining whether to sue. There is also an emotional cost involved. Litigation can bring out the worst in some people. You also have to consider whether your family and/or spouse are prepared to go through the lawsuit with you. If you are looking for “justice” or are suing for the “principle” of the matter, will you really get the emotional remedy you are seeking? Often times I advise clients that they may be better served seeking out counseling or therapy to obtain the emotional remedy they are seeking. If emotional or mental relief is what you seek, you will not find it in a courtroom.
by Attorney Judith Elaine Hoover on 07/14/11