So you’re ready to file a lawsuit (or you think you are). Below are a few things you may want to consider before you take the plunge to file a lawsuit.
1. Determine what “causes of action” to file
The first aspect before you file a lawsuit is figuring out what you are suing for – the causes of action. These are your legal claims, and this is generally what an attorney will figure out for you. The causes of action, or claims, are the heart of your lawsuit. For instance, you may be suing for “breach of contract,” “copyright infringement,” “tortious interference with business relationships,” or something else. And, in most cases, there will be more than one cause of action. Once these cause(s) of action are determined, you can have a guideline of what you need to prove for your case and what potential defenses might exist.
2. Determine possible defenses
There are two types of defenses: Legal and factual. Your attorney will figure out the potential legal defenses, which can include tons of things you may have not thought about – special privileges, waivers, estoppel, etc. – as well as the statute of limitations for each cause of action. It is important that, if you file a lawsuit, you do it within the applicable statute of limitations.
Meanwhile, you should be thinking about factual defenses. What witnesses will the Defendant call to disprove your claims? What documents will they show? If you have these documents, your attorney needs to see them.
3. Collect evidence
Once you get a list of the things you will have to prove, based on the causes of action, and the things you may have to disprove, based on potential defenses, you’ll need to start collecting evidence. If you think a piece of potential evidence has any relation to proving your claims or you damages, collect it. You’ll need letters, emails, contracts, voicemails, photographs, and more.
It is important to know, early, whether you will be able to collect evidence. If you do not have any evidence, your suit may come down to a he-said, she-said dispute, which increases your risks of loss after you file a lawsuit.
4. Collect witnesses
In addition to documentary evidence, you’ll also need to collect witnesses. Get their names, addresses, telephone numbers, email addresses, and any other contact information. Find out what they would say, and, if possible, get them to write it down. See if they have any photographs, emails, etc.
In addition to lay witnesses, you may also need expert witnesses. Your attorney can help you determine what points of your claims you may need an expert witness to help prove.
5. Consider: Might the Defendant sue you back?
This is something to consider. Every time you file a complaint, there is a potential that the Defendant might file a Counterclaim, or Countersuit, basically, suing you back. Think about any reason you think the Defendant might have to sue you and discuss them with your attorney.
I have represented Defendants in many cases where plaintiffs file a lawsuit that is so frivolous that my client has more claims against the Plaintiff; in these instances, sometimes, on their behalf, I will help file a counterclaim. In some of these cases, the entire lawsuit is turned around and the Plaintiff ends up paying the Defendant. So – be careful – if you want to file suit, consider whether it can also happen to you.
6. Evaluate your chances of winning
This is very important, and often it will consider reviewing all the applicable evidence. It is also something that may change depending on new evidence discovered, new defenses being raised, and other factors.
In most cases, when you file a lawsuit, it is like you’re gambling. You never know what cards the Defendant will lay on the table, or what the Defendant will hold. You don’t know what the judge will do or say. Because of these unknown variables, it is good to have a good estimate of the odds before you determine whether to roll the dice.
7. Evaluate the Defendant’s collectability (is it worth it?)
Even if you can obtain a judgment for a million dollars – sure, that’s great – however, can you collect on it? Does the Defendant have any money or other assets that would not be considered exempt?
Another risk is – what if the Defendant files bankruptcy? I’ve seen plaintiffs spend lots of money to obtain a favorable money judgment against a Defendant who then files bankruptcy – it’s a huge buzz kill.
8. Determine why you really want to file a lawsuit
This is important: Why do you want to sue? Do you want justice? Do you want your money back? Do you want to just imagine the look on the Defendant’s face when they get served?
Most lawsuits are usually filed for one of two reasons: money or principal. In many cases, it is a combination of the two. However, the more money you spend in litigation, you may become less principal-motivated and more money-motivated.
You also may be in a situation where you’re not suing for money but rather for injunctive relief – getting someone to do something or to stop doing something.
Regardless, determining what you really want and evaluating those wants is very important at this stage.
9. Explore other alternatives to getting what you want
Once you figure you figure out what it really is that you want, see if there is any other way to get it. Before you jump into the expense and stress of litigation, it is usually wise to start with something like a demand letter, which is a letter to say: (1) You’re serious; (2) This is what you want, and (3) If you don’t get what you want, you’ll sue. The risk is minimal in comparison to when you file a lawsuit, and the chances of achieving results are not that bad.
Other alternatives include simply talking to the opposing party – one and one – without attorneys, and trying to work it out. Or, if the two parties cannot agree, you may want to consider meeting in front of a professional mediator for pre-suit mediation. A mediation can result in an agreement, drafted by and between the parties, that will be binding on both of you.
Now, after you’ve considered all these points, as well as the costs and stresses of litigation, you might be ready. If you would like to discuss your potential lawsuit with the law office of Cynthia Conlin, P.A., feel free to contact us.