Filing a Lawsuit: Should You Sue?

When deciding to file a lawsuit, approaching that decision carefully and thoroughly is crucial. You’ll want to fully understand the potential consequences of starting the legal process.

In general, you must be able to answer three questions before considering filing a lawsuit: 

• Do you have a good case?
• Would you be satisfied with a settlement or going to dispute resolution?
• Assuming you win your lawsuit, will you be able to collect any form of judgment?

If the answer to any of these questions is “no,” reconsidering your decision to take legal action may be best. But consult with a civil litigation attorney if you have questions about whether to sue. This article will explain these questions, but a lawyer can help you answer them at a consultation.

Only Sue if You Have a Good Case

In legal terminology, you can break down almost any lawsuit (cause of action) into the necessary steps or components for legal action. To ensure you have a “good case” as the plaintiff, you will need to go down this checklist of elements and ensure you can satisfy or prove each one.

Depending upon the cause of action in your lawsuit, you must prove different elements to have a court order in your favor. To illustrate this point, consider the two types of cases below.

Case Example 1: Breach of Contract

Suppose that you’ve hired a contractor to do a kitchen renovation in your home. But instead of starting the work, the contractor takes your money and only rips out the kitchen floor. Then, the contractor buys beer for his employees with the rest of your money. You decide to sue under the theory that the contractor broke the contract. A plaintiff must prove all of the following elements for a breach of contract, including:

• A valid contract existed: To even start a breach of contract suit, you must be able to show that a valid contract existed between you and the other party. If you have a written contract signed by both parties, the case is relatively straightforward. But if you only had an oral agreement or some other handshake agreement with the contractor, you may have difficulty proving that an enforceable contract existed.
• Performance: To succeed in a breach of contract action, you must show that you held up your end of the bargain under the terms of the contract. In this situation, you have paid an amount of money to the contractor, thus fulfilling your obligation.
• Breach: You must prove that the other party breached the contract to win a breach of contract suit. This means they didn’t do what they promised to do. For example, you must show that the contractor did not complete the kitchen renovation.
• Damages: Here, you must be able to prove your economic damages. For instance, you may need to hire another contractor to complete the job that the first contractor failed to do. In addition, if you’re doing business from your kitchen, you may be able to include any lost profits in your damage calculation.

Case Example 2: Negligence Leading to Personal Injury

Suppose you think someone’s actions are negligent, and they have injured you.

To prevail in your personal injury suit, you’ll need to show the following elements:

• Duty: This element is often phrased in a question, “Did the defendant owe a duty to the plaintiff?” The law recognizes such a duty in many forms. 
• Breach of duty: After defining the duty, one must determine whether the defendant breached it concerning the plaintiff. To prove this element, you must show that the defendant failed to act as a reasonable person would in fulfilling the duty owed to the plaintiff.
• Cause in fact: This is commonly called the “but-for” test. If you can show that the plaintiff would not have been injured, but for the defendant’s actions, you have satisfied this element. 
• Proximate cause: This relates to the proximity of the defendant’s actions to the harm that was caused. This element has an air of “fairness” around it and often asks whether it is fair to attribute the injury to the defendant’s actions.
• Damages: The same applies in a breach of contract suit. You must be able to prove damages. 

Consider a car accident as an example. Drivers have a duty to all other people on the road to drive safely and not endanger others. Suppose the defendant breached this duty by driving drunk, so they hit and injured a pedestrian. If the defendant had avoided drunk driving, the pedestrian would not have suffered serious injuries. In a personal injury civil lawsuit, the pedestrian may seek money for medical bills and pain and suffering caused by the injury.

At the hospital, the injured pedestrian called their grandma to tell her about the accident, and the grandma suffered a fatal stroke. This loss of life may be outside the proximate cause of the defendant’s actions.

Don’t Sue Before Trying Settlement and Mediation

Although you may be able to prove all the elements of your court case, it’s still not time to head to the courthouse. In the American legal system, parties settle many more cases and controversies before or outside court than they litigate to a conclusion.

Often, the best solution to a problem is to sit down with the other side and discuss it. Perhaps a dispute resolution can be reached without resulting in criminal or civil court action.

Mediation services have become prevalent, and free and low-cost mediation is often found in major cities. Mediation is a great way for a neutral third party to sit in on a conversation and suggest ways to solve legal matters.

Remember that the court may ask you to try mediation or arbitration before proceeding with a formal legal process. For instance, many contracts routinely include arbitration clauses requiring the parties to attempt to mediate or arbitrate a dispute before filing lawsuits. Similarly, many courts encourage parties in a lawsuit to mediate their differences before setting an actual trial date.

Only Sue if You Expect To Collect at the End

Having the ability to collect a money judgment from the defendant can be one of the most important questions when you’re thinking of filing a lawsuit. Remember that it will do you little to no good to win a lawsuit against someone who can’t pay a monetary judgment to you if you win. Good feelings about prevailing and vindicating your position won’t pay your legal fees or attorney’s fees.

Courts only have the power to tell you that you’re legally entitled to a monetary judgment. They can’t help you collect it.

If you’re having a hard time collecting a judgment, you’ll likely need to go to the sheriff’s office and get help from the authorities. Such assistance may include wage garnishment, liens, or even direct cash collection from a business.

Consider the Defendant’s Resources

Carefully consider the person you are going to sue. If you think a court judgment will be substantial, you should pick a defendant with “deep pockets” or the ability to pay. Insurance companies will pay out any judgment in civil litigation, especially car accident cases.

Consider Your Collection Leverage

Finally, before suing, you should consider different ways to address the judgment collection issue. Using the example above involving the kitchen renovation, you have several options if you obtain a judgment against the contractor and he refuses to pay. If the contractor is personally responsible for his business, you may be able to garnish his wages or place liens on his property.

If the contractor is licensed, you also may be able to get the state licensing board to revoke his contractor’s license until the judgment is satisfied. Keep in mind, however, that if you get this license revoked, he may need help to make money to satisfy the judgment.

After considering all possible courses of legal action to collect, it may or may not be in your best interest to file a lawsuit.

How Much Does It Cost To Sue Someone?

The costs of a lawsuit vary greatly depending on the needs of your case. Though this answer is frustratingly open-ended, it’s true. Lawsuits involve many variables that affect the total cost you pay before and after a judgment. 

These costs can be intimidating, especially when there’s no clear answer. Potential litigants may believe starting a lawsuit is too expensive no matter what kind of claim they have. But plaintiffs who are able to secure a monetary judgment may come out ahead with a net positive financial gain. In certain cases, like personal injury claims, attorneys also use creative fee arrangements to make starting a lawsuit more affordable for their clients.

If you are worried about the costs of suing, the questions described above can provide clarity. If you don’t have a winnable case, you’ll still need to pay any fees for trying to sue out of your own pocket — unless you hired a lawyer on contingency. If you can settle or mediate your case, you may reduce your overall legal costs. If you don’t expect to actually collect from the defendant, you won’t be able to recoup those costs. 

That’s why it’s important to consider whether suing is worthwhile before you start the process.

Seek Legal Advice Before Suing

If you’re looking to sue someone, seeking legal advice is helpful. An experienced litigation and appeals attorney can provide the legal help and guidance needed for you to navigate the complex criminal or civil procedure effectively. Whether you’re dealing with family law matters or involved in a class action lawsuit, an attorney can help you assess your legal matter. They can help you look at all potential outcomes and strategies tailored to your case.

You don’t have to face these legal challenges alone. Visit our litigation and appeals directory to contact an attorney near you.