“Should I File a Lawsuit?”

Filing a lawsuit is expensive and time consuming, and can lead to arduous discovery, depositions, motion practice, trial, and possibly even an appeal. Before expending the monetary resources to file and serve your lawsuit, it is important to sit down with a seasoned attorney and review a variety of pertinent factors.

Do You Have an Actionable Claim?

The first and most important step before filing a lawsuit is to research whether the facts of your case meet the standards for a cognizable claim under the applicable law.

This research includes determining whether evidence exists to support all elements of the cause of action. While some elements of your claims may easily be met, it is important that you have evidence to support each element.

A similar consideration is whether the statute of limitations has run. To ensure claims do not become stale, statute of limitations force litigants to file their claims within a certain proscribed period of time. Thus, it is important to determine that your claims can be timely asserted or, if the statute of limitations has run, whether an argument exists that the statute of limitations should be tolled. In some situations, an otherwise time-barred claim is permitted to go forward, often due to the opposing party’s misconduct.

Analyze the Technicalities

After concluding that evidence supports your claims, the next step is to solidify your purpose for bringing a lawsuit and decide the amount of time, energy, and resources you are willing to commit to potentially reach your goal. In other words, is the inherent risk of litigation worth the reward?

How Much Will a Lawsuit Financially Cost? One of the most important technicalities you should evaluate before filing a lawsuit is the potential financial cost necessary to bring your claims to trial. Experienced attorneys and expert witnesses are expensive and can be vital to your success. As part of this analysis, you should consider the recoverability of attorneys’ fees. While the “American Rule” is that attorneys’ fees are to be borne by each party, if your claim is based on a contract, there may be a contractual provision requiring the losing party to compensate the prevailing party for its attorneys’ fees.

If your action involves a contract and you think you will prevail, the fact that you may be able to be recover attorneys’ fees under a contractual provision or A.R.S. § 12-341.01 which allows for a permissible award of attorneys’ fees to the prevailing party in actions that arise out of contract, could factor into your analysis. On the other hand, if the likelihood of success on your case is less certain, are you comfortable with the possibility of owing the opposing party their attorneys’ fees in addition to your own attorneys’ fees in the event of a loss?

What Is the Personal Cost of Filing a Lawsuit? The amount of your own time and energy devoted to a case is invaluable and should be factored into your decision. As indicated above, discovery can be arduous, time-intensive, personally invasive, and expensive. So too with motion practice. Further, litigation is a matter of public record, meaning that the details of your case will be on display for the world to see.

A related factor you should consider is whether you want to involve witnesses whose testimony may be important to prevailing on your claims. Their knowledge may be key, but perhaps the witness is someone you do not want to testify on your behalf at trial or maybe you do not want to impose the burden of doing so on the witness. While you may be willing to be deposed and testify at trial, the same might not hold true for your witnesses.

Can You Collect? An additional consideration is collectability. If you are pursuing monetary damages and win, is it likely you will be able to recover on your judgment? A defendant with several other outstanding judgments and tax liens likely means you would be last in line for payment. If so, full-fledged litigation may not be worth your time and expense.

A similar consideration is simply what do you believe your damages are and do you have evidence to support that figure? It may not be worth spending tens (or hundreds) of thousands of dollars in legal fees, court costs, documentation expenses, and expert fees for a potential recovery of a relatively nominal sum.

On the other hand, if you are seeking injunctive relief, the primary purpose for bringing your case may not necessarily be monetary recovery. In those cases, are you willing to expend the resources necessary to set a standard but not receive a monetary judgment?

Where Should I Litigate? A final technical decision is determining the appropriate venue for your case. If you are suing based on a written contract, there may be a provision requiring that the case be filed in a designated arbitration forum. If no such provision exists, should the case be brought in federal court or state court? Each of these venues has their strengths and weaknesses, and you should consult with your attorney about these factors if more than one potential venue exists.

Appreciate the Uncertainty of Litigation

Litigation is inherently filled with uncertainty and understanding that fact is critical to having the appropriate mindset before filing a lawsuit.

• Can the opposing party be served quickly and inexpensively?
  

• Will the opposing party behave irrationally during the litigation, such as filing numerous motions that cause delay and you to incur additional expense?
  

• Will discovery disputes arise?
  

• Is settlement even an option for the opposing party?
  

• Which judge will be assigned to your case?
  

• Will the judge have a background in the type of claims you are asserting?
  

• How will the jury composition play out?
  

• Will the jury be sympathetic to your cause?
  

• Will something come up in your own life that would cause you to be unavailable for an extended period of time?
  

All of these questions are unknown before filing a lawsuit but could sway how your claims are litigated and potentially the outcome of your case.

Furthermore, the percentage of civil cases that proceed to trial has plummeted during the last 30 years. Some studies show that less than 1% of civil cases actually reach trial, with the remaining disposed of by settlement or dismissal. This fact, which indicates that settlement and/or dispositive motions may have taken on ever-increasing roles in litigation, makes it all the more important to select a respected lawyer to represent you in your case to give you and your cause credibility with the opposing party.

Will Pre-Litigation Methods Work?

Engaging in pre-litigation strategies are often helpful to reach an acceptable compromise before incurring the expense of litigation. For example, if time allows, it might be worthwhile to send a demand letter to the opposing party to put him or her on notice of your dispute. Furthermore, the opposing party’s response could give you helpful insight into potential areas of weakness (or strength) in your own claims that you had not previously considered.

Another pre-litigation approach is to mutually engage a third-party neutral and attempt to resolve the dispute through mediation. If both parties participate in good faith, having an objection, third party review your claims and the opposing party’s defenses can help encourage a workable, less expensive settlement.

Notably, in some actions, certain pre-litigation actions are required. For example, in some contract actions, the contract specifies that before filing a lawsuit, the party must try to resolve the dispute in good faith with the opposing party. Other examples include medical and legal malpractice actions which require a written opinion from an expert that malpractice occurred before the complaint can be filed. Accordingly, on top of all the practical considerations you should review, you must ensure that you have completed all legal prerequisites before filing a lawsuit.

Conclusion

A seasoned attorney will stand by you and advocate for you, while also maintaining an objective view of the evidence and intricacies of the case to properly guide and advise you throughout the litigation. If you have questions concerning commercial or civil litigation, we would be happy to discuss your potential case with you.