8 things to consider before filing a lawsuit
Updated: May 6, 2020
In my experience, many people's expectations about lawsuits are driven by depictions on television and in movies - cases are direct, take seemingly little time, and when the verdict is rendered the case is over. Don't take this the wrong way - as attorneys that is the goal for our clients. But the reality is often different.
1. Is a lawsuit the best way to resolve the problem? With the advise of a good attorney, it may be possible to privately negotiate a resolution and avoid the time, expense, and disruption of litigation. There are also formal mediation and arbitration processes available that may provide a more manageable outcome of the dispute.
2. Have you gathered all the documentation and information needed? A thorough review of contracts, communications between the disputing parties, and the law supporting your case is critical before filing the lawsuit to ensure the case will go as smoothly as possible.
3. Are you going to be able to recover your attorney's fees? Although there is a common belief that the opposing side has to pay your attorney's fees if you win, in Florida, unless there is a legal basis for the award of attorney's fees, such as the existence of a written contract with an attorney's fee recovery clause, or a specific statute that authorizes the recovery of attorney's fees, the party who prevails in the lawsuit won't have a right to recover fees. So there is a practical consideration to weigh before filing the lawsuit since the expense of attorney's fees can outweigh the amount of the judgment you obtain.
4. When you win a lawsuit that seeks an award of money as damages, are you going to be able to collect the damages? If the losing party is "judgment proof," as might be the case if the person's significant assets are legally protected from the claims of a judgment creditor, "winning" the case may mean all you have done is obtained a nice piece of paper to frame on the wall. A significant amount of time in a lawsuit can take place after the judgment is entered because of the need to locate assets that can be accessed to pay a judgment.
5. Are you going to be able to find all the necessary parties to the lawsuit? Sometimes the person you need to sue has moved away or died. A sometimes overlooked expense of preparing for a lawsuit is conducting a proper search to find the person.
6. Are you prepared for the time and personal energy it may take to go through a lawsuit? Filing the initial complaint with the court is just an initial step. Moving through the case usually involves "discovering" facts about the case by requesting information from the opposing party or conducting interviews ("depositions") of the opposing parties and of witnesses, expert or otherwise, and often involves preparing and filing a variety of different motions to resolve important issues that arise during the case before an actual trial occurs. And court dockets are crowded with existing cases. So the process often takes many months, sometimes several years, before a case even reaches the trial stage.
7. Are you willing to listen to legal advice? Sometimes no matter how strongly you feel about your case or how wrongly you feel you may have been treated, the legal outcome may not favor your position, and that doesn't mean your attorney is not in your corner. It is important to be prepared to step back and look at a situation from a different perspective.
8. Are you willing to be completely open with your attorney about the case? Information you might consider minor or unimportant or even embarrassing to disclose might have more legal significance that you imagine. It is important to have a full and open discussion with your attorney so that the attorney can provide you with the best representation of your position.