A lot of people contact attorneys wanting to sue for…something. People often cannot articulate any one particular thing that they want to sue for but feel that they have been wronged and that they have legal recourse. Sometimes, the people who call do have what is referred to as a “cause of action”. Other times they might have been wronged but cannot provide any evidence of that wrong other than their own testimony, and then there are the people who think they have a basis for a lawsuit but do not. Having a basis to sue in civil court is only the beginning of deciding if you should sue someone. Read on the find out more about if you should sue and how a civil litigation attorney can help you make the right decision when it comes to choosing litigation.
So You Want To Sue Someone?
For a person to sue someone, they must have a legal basis to do so. Failure to provide a clear legal basis for a lawsuit will only result in the lawsuit being dismissed. This is known in the industry as a motion to dismiss, where, instead of filing an answer to the complaint, the other side points out the lack of legal basis for the lawsuit, and the court dismisses the matter. You must have a solid cause of action before filing a complaint against someone, or you run the risk of wasting time and money on the complaint and any opposition to a motion to dismiss. Here are some of the broad categories of topics people file a lawsuit over:
Property
Someone took your property or damaged your property. When you think about property, remember that it can be real property, like a piece of real estate or intellectual property, as in a patent or trademark infringement.
Agreements
You have an agreement with someone or a company, and they didn’t do what they agreed to do or didn’t do all they agreed to do.
Damages
Damages are what a party is awarded when they win a lawsuit. Damages are the legal system’s attempt to restore the wronged party to where they were before the other side engaged in illegal activity.
Changes to Your Business
Suppose you own a company of any size; you might need to make changes to a partnership or defend your company against wrongdoing. This could mean a lawsuit between business partners, enforcement of an agreement, changing fiduciaries, or some other cause of action.
The preceding are the broadest possible categories for the possible basis of a lawsuit. Of course, that begs the question, what is a lawsuit?
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What Is A Lawsuit?
A lawsuit is when one party who has been wronged files a complaint with the court stating the factual and legal basis for the wrong and asking for relief, usually in the form of damages but sometimes for injunctive relief. Injunctive relief is simply asking the court to order a party to do or not do something. The lawsuit can be just between two people, or it could include numerous plaintiffs and defendants, comprised of people, companies, or other like entities. The lawsuit may start small but end up adding more parties along the way as information and causes of action come to light through the process of discovery, which is where each side asks the other side for information related to the matter.
A cause of action, which has already been mentioned in this article, is the set of facts that are listed in the original complaint that justifies the lawsuit. For example, if you had an agreement with someone or something and they didn’t hold up their end of the deal, you would have a cause of action for breach of contract, and your attorney would draft your complaint accordingly.
Should I Sue?
This is always the big question, should I sue? The answer typically is “it depends”. The reason it depends is that every set of facts is different. An experienced attorney will be able to evaluate your individual facts and circumstances and tell you whether or not you have a case, in other words, whether there is a cause of action and some evidence to back it up. There will never be any hard and fast answer for a person considering suing. There are multiple factors to consider.
If you have been wronged in some way and you meet with an attorney to discuss whether or not you have a case and what your legal goals are, there are some things that you will need to be aware of before filing:
- Do I have any evidence other than my own testimony to present to the court?
- What evidence might the other side have in their favor?
- Have I also engaged in some form of wrongdoing?
- What are the laws in the jurisdiction (state) in which I would like to sue? Are they favorable to me or my opposition?
- When it comes to financial support, which side has more money to litigate?
- What will I do if I lose?
- What is my goal here? Money? Injunctive relief? Bragging rights?
- Is the law specific as to any recovery I might receive? (ask your attorney)
- Do I have the stamina it could take to see this through to the end?
- Am I open to a settlement?
All of these questions should be thought through before filing a lawsuit. Many people, in the heat of the moment, want to charge ahead and begin litigation, but it is never a step to be taken lightly. Litigation can be time-consuming and emotionally draining because it is stressful and, most of all, costly. The entire process of litigation and any undesirable outcome is expensive. If you lose at any stage of the litigation, you could be responsible for attorney’s fees for both yourself and the other side, depending on the issue.
Additionally, attorneys typically do not work on contingency. Many people assume that because they see personal injury commercials on television, all attorneys work on contingency, which is incorrect. Contingency agreements are when an attorney wins a certain amount in damages on behalf of a client from the other side and takes a percentage from that amount. Most attorneys work by the hour, with no contingency agreement in place, which means you will pay out of pocket for the litigation.
What’s The Lowest Amount I Can Sue For?
Strategically, you should never sue for the lowest amount. You should sue for the highest amount you and your attorney reasonably believe you can recover to be made whole again. If you want to sue for a low amount to “teach someone a lesson” or because “it’s the principle of the thing,” you should think about that reason much harder. Suing someone to teach them a lesson or because you think it’s the principle of the thing can be a costly undertaking for you with no guarantee of the result you are seeking. Suing just for revenge or bragging rights will not work out well for you. Litigation is rarely a total slam dunk, and you should never go into a lawsuit thinking that you will get everything you ask for exactly how you asked for it. Anytime you go into court, you should expect a 50/50 chance of winning, which means there is also a 50% chance of losing. In other words, the court is not the place to go when you want to “teach someone a lesson.”
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What Happens if I Get Sued But Have No Money?
If someone wins a lawsuit against and receives a judgment in their favor, it is likely there will be monetary damages awarded to them. If you cannot pay the damages, the court will eventually enter an order to garnish your paycheck every payday. The court can also have any property you own seized in order to pay off the judgment. This can vary by jurisdiction, so be sure to ask your attorney about possible consequences if you lose and cannot afford to pay the damages. For more information on being served a lawsuit read our article, What Happens When You Get Served with a Lawsuit.
Alternatives to Filing a Lawsuit
There are always alternatives to consider before deciding to file a lawsuit, and your attorney will be able to talk these through for you. Typically, most attorneys will start by drafting and sending a demand letter to the other side. The letter will include how you have been wronged, any applicable law on your side, and a demand for a settlement amount plus attorneys fees and costs. This less expensive option could result in a desirable result for you.
Your attorney may also suggest attempting mediation if the demand letter starts a conversation about resolving the issues presented. Mediation is a good approach if you don’t want to get involved in a drawn-out court battle.
If the dispute is centered on an agreement or contract breach, there might be an arbitration clause in the agreement. If you agree to arbitrate any dispute, you will have to adhere to the agreement. Arbitration is a more simplified version of litigation, with simple procedures concerning the evidence presented and testimony given. A trained arbitrator will hear the matter instead of a judge. The arbitrator is a neutral third party who will receive evidence each side has to offer, listen to each side of the story, and then present a decision privately. Typically, the arbitration is binding, meaning you cannot appeal or disregard the arbitrator’s findings after the process is complete. Think carefully before you agree to submit to binding arbitration.
As you can see, the decision to sue someone is complex and requires a great deal of forethought and commitment. Litigation is always challenging, and many people start with a great deal of energy and enthusiasm. Later in the process, many people get emotionally and financially worn out and wish it would be over. It is essential to be clear on what you want from the litigation process before deciding to start it. If you are considering suing someone or a company, it’s vital that you sit down with an experienced litigation attorney who can review your situation and have a frank discussion with you about your cause of action and the chances of success. If you are looking for an experienced litigation attorney, feel free to give O’Flaherty Law a call, we would be happy to help you.
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