To Sue or Not to Sue?
A common question faced by attorneys in regards to litigation, and one I get asked almost daily by potential clients, is should one party sue another party for a perceived wrong doing. The question often goes like this, “Ajay, So-and-So did me wrong, now I want to sue them. Can you help me?” This question is almost associated with at least some level of emotion. In most instances, the opposing party did, in fact, commit some level of wrongdoing . An emotional response by the aggrieved party in such instances is completely reasonable. The person was wronged, they want retribution, they need help.
However, when weighing the strength of a new potential lawsuit, it is vital to minimize the emotional aspect in order to analyze the merits of the case objectively. I often urge potential clients to ask themselves a series of questions to help them decide whether or not filing litigation is the best course of action.
1. DO I HAVE THE RESOURCES TO PURSUE LITIGATION?
It’s no secret that litigation can be costly. Filing fees and attorney fees are not cheap and most lawsuits involve many attorney hours before a proper resolution can be reached. However, this notion is often overlooked when someone thinks about their own dispute through an emotional lens. The reality is that the initial filing fee, not to mention the fees for preparing case documents, is typically several hundred dollars depending on the scope of the case. When the costs of preparing your documents and prosecuting the case are factored in, litigation can easily cost thousands of dollars per month. The other reality is that many cases cannot be taken on a contingency basis, meaning the costs of bringing the lawsuit cannot be deferred until after recovery is obtained. The cost of litigation is a very important factor to consider when initiating a lawsuit.
2. I’M MAD NOW; WILL I STILL BE MAD IN 18 MONTHS?
In addition to being inherently costly, litigation is also time consuming. The California Courts have been burdened by budget constraints recently and as a result, many routine hearings get pushed out months down the road. This translates to a timetable of 18 months to 2 years before a matter can typically reach trial. If your matter is more complex or if the opposing side is particularly litigious, it can take even longer to reach trial. It is not uncommon for people to discover that after several months of costly litigation, they may not feel as strongly about their dispute as they did at the onset of litigation. As a result, some people decide to enter into less-than-ideal settlement agreements which may not offset the costs of litigation, and in some instances, may even choose to dismiss the case without any compensation. These types of situations can often be avoided if the timely and costly nature of litigation are accurately assessed.
3. WHAT ARE MY (MONETARY) DAMAGES?
At its heart, civil litigation boils down to money. Person A sues Person B because Person B allegedly owes Person A money. While there are other aspects of civil litigation, such as injunctive or declaratory relief, by and large the majority civil disputes revolve around money. As such, it is crucial to accurately assess your monetary damages when analyzing the strengths of your case. As outlined above, litigation can be expensive and lengthy. You need to be able to determine whether or not it is worthwhile, from a financial standpoint, to engage in a costly legal battle. I receive many calls from people who have had a legitimate wrong committed against them; however, the measure of monetary damages is such that it is simply not financially sound to pursue litigation. The analogy I often use in this situation is, just because you got hit by a car, it doesn’t mean that you were necessarily injured. The unfortunate reality is that sometimes, it is simply too expensive to pursue legal recourse if the ends do not financially justify the means.