Just because you were harmed, slighted, or suffered minor damage does not automatically mean that you have a real legal case and should sue. Ask yourself why you are suing. Is it for money? Respect? Revenge? Principal? Is it really worth the time, effort and expense to pursue a suit that may take years to resolve?
Weighing the Good and Bad
In most circumstances, there are noble reasons for filing a lawsuit. Many people who choose to file a lawsuit are motivated, at least in part, by the belief that the litigation will prevent others from experiencing a similar situation. People are also often motivated by the desire to stand up for their personal beliefs and principals and may even file a suit to change current law or policy.
While there may be many good reasons to sue someone, it is important to understand that litigation can be a long, drawn-out affair that often requires steadfastness in the face of roadblocks, disappointment, and negative responses. In addition, even if the type of case pursued provides for an award of attorneys fees, there is always a risk that your suit may be partially or wholly unsuccessful.
Research Before Filing
"I'm filing a lawsuit." Uttering these four words takes little time or thought, but there is far more to filing a suit than the simple desire or determination to do so. Filing a suit before taking the time to adequately research and prepare can add anxiety, frustration and potentially doom the suit before a claim is filed. Before heading to the courthouse with filing fee in hand, you or you and your attorney need to do take several steps, such as:
- Researching the merits of your claim including potential immunity of the defendant from suit and whether the all elements of a potential cause of action are present
- Researching similar cases to find out what kind of compensation you might expect
- Collecting evidence to prove your claim
- Contacting witnesses to see if they are willing to give statements and testify
- Evaluating your state of mind and ability to manage a possible jury trial
- Collecting necessary funds for court costs, filing fees, and attorney fees
- Considering whether a countersuit is likely to be filed and, if so, prepare accordingly
- Considering whether you will be able to collect any judgment awarded
- Researching the applicable statute of limitations, which vary from state to state
- Taking advantage of all reasonable opportunities to settle your claim out of court, which may be required before filing in your state
What Type of Suit Can Be Filed?
The particular facts and circumstances surrounding the parties' dispute dictate what type of case should be filed. There are many different types of suits that can be filed, the most common are:
Tort claims - involve a civil wrong, including actions based on negligence, defective products, medical malpractice, nuisance, unsafe premises, and unsafe products.
Contract claims - typically based on an alleged breach of the parties' oral or written agreement and often involve commercial issues;
Discrimination and harassment claims - usually brought against an employer or a government entity.
Family law claims - include child custody and support claims and property distribution disputes.
Property claims - may involve real estate or personal property.
Where Should My Suit Be Filed?
Before a lawsuit is filed, you and or your attorney determines where the suit can be filed. Several factors may influence where a case should be filed including the:
- Type of case
- Type or amount of remedy sought
- Circumstances of the parties
Some suits have to be filed in federal court, others have to be filed in state court, and others may be brought in either federal or state court. Moreover, several factors, including the defendant's residence, should be considered when filing suit. If your claim is less than $5,000 (amount varies by state), you may even consider small claims court.
A court must have jurisdiction over the parties to the suit, particularly the defendant, (personal jurisdiction), and jurisdiction to hear that particular type of case (subject matter jurisdiction) to resolve a dispute. If a party files suit in the wrong court then a court will generally transfer the case to the appropriate court, but the transfer may result in additional delay and/or expense.
Typically, federal courts only have jurisdiction when:
- The parties to a lawsuit are citizens of different states and the plaintiff is seeking damages over a certain amount (diversity jurisdiction) or
- A material legal question in the case rests on a matter of federal law (federal question jurisdiction)
State courts have jurisdiction to hear almost all disputes, as long as the suit is filed in the appropriate geographic region and the type of court, considering the nature of the suit being resolved.
For example, although the rules differ from state to state, a state lawsuit generally must be filed in a geographic area where the defendant has a presence or has transacted business and in the particular court designated by state statute to hear the type of proceeding at issue; e.g., family law issues must often be filed in a separate family court branch of the state's judicial system.
Working With An Attorney
If you decide to file suit, contact an attorney to evaluate your claim. Even though you may be able to sue without hiring an attorney, legal representation is often needed to best prepare your claim and protect your interests.
Make sure that you understand your legal rights and any potential consequences of your decision to sue and that you fully develop a strategy before proceeding. . Moreover, even after you file suit, you should ask yourself if it makes sense to resolve the dispute using means such as negotiation, mediation and arbitration that are often more efficient, less expensive, and less burdensome than traditional litigation.