Nearly all of us have either thought or said it – I should have sued! Whether it be for personal injury, discrimination, wrongful death, fraud, malpractice, harassment, or other common lawsuits.
However, deciding whether or not to sue is not usually that straightforward. Indeed, deciding on whether or not you should sue requires you answering three fundamental questions:
- Do I have a good case?
- If I win – will they pay?
- Is there any alternative available to me apart from to sue?
Lawsuits: Sue or Not?
Although these questions may seem to you to be obvious, in fact most reputable lawyers will ask you the same three questions when they first meet you. Here, if there is even a vague chance that your responses to questions one and two are unsure, it is likely they’ll recommended you don’t proceed with your lawsuit. Likewise, if there is even a remote chance that you could find an alternative remedy to going to court, most reputable lawyers will suggest, at minimum, that you exhaust that avenue before considering commencing legal proceedings.
Do I have a good case?
Now, it’s highly likely that you are not going to know whether or not you have a good case – after all, that’s why you may be talking with a lawyer in the first place! However, even with a basic understanding of the law, you should still be able to tell whether or not you have some sort of chance of suing; for example:
- Do you have a contract with the other person?
- If “yes”; is that contract in writing?
- If “no”; what type of action are you looking to take – tort or something else?
- Can you clearly identify a clause in the contract that has been breached or a statute/law – or is it the case that you think it is a good idea to sue because you think you have a case? If it is the former of these, you may do well to talk to a lawyer. If it is the latter, don’t hold your breath.
If I win – will they pay?
So, having determined that you do have a case, the next thing to do is to decide whether or not you’ll be paid if you do win. Indeed, you have to consider whether being paid is what you want – you may want some other type of remedy, such as specific performance of the contract. Always keep in mind that winning a lawsuit where the other party either cannot pay, or won’t pay, will end up costing you money – because the lawyer will still expect you to pay for his fees and costs.
When considering whether or not the other person will pay then, you have to consider whether or not they have the collateral or net worth to pay. Also, bear in mind that if you win and they won’t pay, the next thing you have to do is hire a private detective to track down their assets so you can ask the court to make a judgment order against those assets; and so on and so on… all of this will end up costing you more money, which you’ll likely not be able to reclaim.
Is there any alternative available to me apart from to sue?
Finally, is there an alternative to suing – such as a compromise agreement? Finding a mutually beneficial solution, rather than suing, will likely work in both your best interests – so before you slam the door shut on this idea, work-out how much it is going to cost you to sue, what you’ll likely win, take away the costs you won’t be able to claim from the amount you’ll likely win and then this should be your threshold compromise acceptance amount. Anything higher, you’re effectively in the money. Anything lower and it may be worth considering suing.