Americans love to sue. Whenever there is a dispute or property damage, the first thing suggested is often: "You should sue someone." Sometimes legal action is the best way to resolve matters, but just as often, you could resolve the matter with some discussion and negotiation.
Before filing a lawsuit, prospective litigants should consider what they want from a case. Civil courts can only give you money or return property. A judgment cannot fix an underlying family problem or neighborhood feud. Lawsuits cost time and money, even if you get court costs awarded with a judgment in your favor.
Here are 10 questions to ask yourself before you decide to fill out a complaint form and pay the filing fees in your lawsuit.
1. Do you have a good case?
Just because you have a grievance does not mean you have a case. You must have a legal claim or "cause of action" before you can sue. For instance, being in a car accident does not mean you can sue the other driver. You must also have suffered an injury for which the other driver was responsible.
In civil cases, you are responsible for proving your claims. In a personal injury claim, for example, you must have proof of your injuries, such as medical records, doctor's reports, witness statements, police reports, and other documents.
The opposing side can present a defense or even file a counterclaim against you. They may claim you did something to cause your injuries or create the problem. For example, in a breach of contract case, the other party may claim they did not pay you because you did not complete your work. Before beginning your lawsuit, be sure you can prove your case and counter any claims made against you.
2. Did you try to resolve the issue?
Most civil courts require the parties to resolve their differences before litigation. In a business dispute, the injured party must send a "demand letter" describing the type of harm and the desired fix. In a landlord-tenant case, the landlord must give the tenant time to pay past-due rent. If the parties don't do this, the judge may send the parties to mediation or arbitration.
In many cases, alternative dispute resolution can resolve the problem without going to court. Mediation and arbitration are informal processes that bring the parties together with a neutral third party to reach a settlement without going to court. Community disputes and small claims cases do well with this type of solution.
3. Were you injured?
Although you can sue someone for almost anything, you can only recover in court if you suffered an economic loss, known as "damages." There are some areas of law where the result is something other than a monetary award, such as criminal law. In civil cases, the only thing you can win is money.
In this type of case, you may be awarded:
- Economic damages, such as medical costs, property damage, or lost wages
- Non-economic damages, such as pain and suffering or emotional harm
When deciding if you have a good case, look at your actual injuries. You cannot sue if something "might have" happened. You must have suffered a tangible loss.
4. Can you collect the judgment?
The court will grant you a judgment, but you must collect it. A judgment says you have the right to collect the money from the defendant. The court will not provide any assistance in the collection process. Before you file a lawsuit, look at the person you plan to sue, and decide if they can pay your damages.
Most personal injury lawsuits involve insurance companies and big businesses because they have the resources to pay the judgments. Individuals and small businesses cannot afford those judgments. If you don't think you can collect the judgment, consider alternative dispute resolution for your case.
5. Can you afford the lawsuit?
Court cases are expensive. Some of the costs you must pay upfront include:
In some jurisdictions, parties must "bear their own costs," meaning you cannot recover attorney's fees and court costs. In some places, "loser pays," meaning if you file a lawsuit and don't win, you must pay your costs and the winner's costs. One question to ask an attorney or legal aide is how much you might win versus how much you might lose. Then you'll have more facts to help you consider whether you can afford your lawsuit.
6. Do you have time for a lawsuit?
Lawsuits take time. Even with electronic filing and remote court hearings, you must appear in person at least once when you file with the court clerk. You must appear in person or remotely when hearings are set. The courts are not lenient with people who appear from their workplace or their car.
If you do not hire an attorney, you must complete all the other paperwork yourself. Although legal services can help you fill out documents, they cannot give legal advice. Subpoenas, requests for documents, or motions must obey court rules, or the clerk's office will send them back.
If you don't have time to learn all these things, you should consider getting legal help.
7. Have you met the statute of limitations?
Statutes of limitations are legal rules that limit the amount of time parties have to bring legal action. Statutes of limitations vary from state to state and depend on the type of case. Statutes of limitations ensure parties file lawsuits in a timely manner and while evidence and witnesses are available.
If you plan on filing a lawsuit, check with an attorney to see what the time limit is for your case in your state. For instance, in some states, the statute of limitations for personal injury claims is one year, but for medical malpractice, you could have four years to bring a suit.
8. Do you know whom you'd be suing?
Your complaint must say exactly whom you are suing and where they reside. There are specific rules about how individuals and companies receive service of court documents. If the complaint does not describe who is being sued and the document service, the defendant may receive a default judgment for "improper service."
For instance, companies may have a business office in one state, be incorporated in another, and receive their legal documents in a third state. Your complaint must explain all this and serve the correct office. Even if you are suing your next-door neighbor, you must have their full name and current address.
9. Can you file in small claims court?
All state courts have a small claims court that handles disputes below a certain dollar amount. This figure varies depending on the state, so you should check with the court's website or clerk's office. It is usually below $10,000.
If you want to file in small claims court, you must represent yourself. Small claims courts do not have attorneys representing the parties. Judges grant the parties more leeway in small claims courts when presenting evidence, questioning witnesses, and going through other court procedures. However, you still need to maintain decorum and obey court orders.
10. What if you lose?
You could go through all this, have a good case, and still lose. There are no guarantees in law. You should ask yourself what will happen if you lose your case. If you consult an attorney, you should hear about all possible outcomes, not just the rosy ones.
If you lose, you could be required to pay all court costs and fees, including those of the other parties. Some states, like Nevada, are "loser pays" states, meaning the loser in a lawsuit pays all court costs. If you lose a personal injury claim, you will be out of pocket for your medical expenses and other costs.
You have the option to appeal your case, even in a small claims case. However, appeals are more expensive and time-consuming than the original case. Always think carefully before entering into any legal action.
Talk to an Attorney Before You Sue
You should consult an attorney before plunging into a lawsuit. For experienced lawyer referrals near you, try FindLaw's referral service. Peace of mind is worth the time.