Counsel's Corner: Suing Someone? Look Before You Leap

Determining the best way to solve a conflict and whether to proceed with filing a lawsuit is a business decision that must be made with the big picture in mind. It is very important to evaluate your goals and assess any potential personal impacts as litigation is serious business. In the midst of high emotions when you have been wronged, it is important to take a deep breath and carefully weigh what I believe are four key factors. 

You should first evaluate the merits of a case. This seems like an obvious first step, but it must be more than just letting your emotions guide you. You must take a close and careful look at the law and the surrounding facts. Be sure to look at important documents and see if they support your position. Often, cases are decided based on a simple distinguishing fact or subtle exception to the law. In addition to helping you decide whether to pursue an action you should consult an experienced litigation lawyer.  Doing so early on will allow you to frame your claim carefully and may avert any early challenges to your lawsuit.

Secondly, you should discuss with your lawyer the litigation expenses. Litigation expenses vary depending on case complexity, number of parties, witnesses, consultants and experts involved, potential for early resolution, the risk of protracted litigation and appeals. Litigation expenses can be managed in various ways, including developing case budgets, using outside litigation services for various matters or working out alternative fee arrangements. Also, consider whether there is a provision in a written contract or a statute that gives the prevailing party the right to recover attorneys’ fees. However, keep in mind this may or may not work in your favor and is usually limited to what a judge considers “reasonable.”

Third, you and your lawyer should carefully assess your priorities. If you are looking for monetary recovery, consider the amount of damages at issue, including potential punitive or treble damages. Equally important is the opposing party’s solvency or whether the recovery is covered by insurance. A case may still be worth pursuing if you are seeking injunctive or equitable relief, ordering the opposing side either to refrain from doing something or to take some affirmative action that is equally or sometimes more important than monetary damages. Injunctive relief can often be obtained early on in the form of a temporary restraining order or preliminary injunction. Such orders not only provide immediate, although temporary relief, but give you the court’s preliminary assessment of the merits of your claim. Understanding your ultimate goal first will help you assess the best method to resolve a particular conflict. If litigation is not feasible, there may be alternative methods to pursue.

Lastly, determine if your case can be resolved early on without litigation. Discuss with your lawyer how this can be done without compromising the case. Rather than sending angry emails or making threats, a simple phone call may get the parties talking. The matter may be able to be resolved informally through early mediation or another form of alternative dispute resolution. Sometimes, opposing parties are even able to preserve their relationship.

The decisions about how to resolve conflict and whether to pursue litigation cannot be done in a vacuum. You must consider certain factors and remember that far greater than the conflict at issue is the ultimate need for you to avoid the aggravation and expense of protracted litigation.