Should You Sue?

Reviewed by David Goguen, J.D., University of San Francisco School of Law
To sue or not to sue. It's a big decision. Here's what to consider before heading down the long and winding road of civil litigation.

There are any number of reasons to file a civil lawsuit. Maybe you've lost money, had your property damaged, or suffered a physical injury because of someone else's actions. Perhaps your losses are significant, and you're feeling a profound desire to right a wrong. Or maybe you mostly feel slighted and want the “other guy” to pay.

Whatever your circumstances, the decision to file a lawsuit should be made with careful consideration. After all, the lawsuit process may hold the promise of (eventual) justice, but it can be a costly wait in terms of time and money. So before you head down the long and winding road of litigation, let's look at the pros and cons of filing a lawsuit, how to weigh the merits of your case, and some procedural considerations.

The Good, the Bad and the (Potentially) Ugly

No matter what kind of case you're considering, if you file a lawsuit and its decided in your favor, there's nothing like having your position validated by a court of law. Some litigants are motivated, at least in part, by a belief that their lawsuit will have a positive impact on others or on society in general in the form of changes to current law or policy. Even an out-of-court settlement prior to trial can be a very positive result for a plaintiff who has clearly been wronged.

On the other hand, litigation can be a long, drawn-out process that can end up being a significant drain on your time, money, patience, and sanity. And there is always a risk that your suit may be partially or wholly unsuccessful, and that you'll walk away with nothing to show for all that expense and effort.

And finally, parties to a civil lawsuit may not exactly be the best versions of themselves while the case is playing out. Tensions and emotions can run high, and things can get pretty contentious. So, if you do decide to file a lawsuit, be prepared for a fight.

Do You Really Have a Case?

"I'm filing a lawsuit." Uttering these four words takes almost no time or deliberation. But before heading to the courthouse, you need to make sure you've got a viable case, and that filing a lawsuit makes sense on a number of fronts. Specifically, it probably makes sense for you (and your attorney) to:

  • research the merits of your lawsuit, including whether all elements of a potential cause of action are present
  • research whether the person you're trying to sue might be able to claim some kind of legal defense or even immunity
  • research similar cases to find out what kind of compensation you might reasonably expect
  • collect all necessary documentation and evidence to help prove your side of the case
  • contact witnesses to see if they are willing to give statements and possibly testify
  • consider whether a counterclaim is likely to be filed and, if so, prepare accordingly
  • consider whether you will actually be able to collect any judgment the court awards you (winning and collecting are two very different concerns), and
  • make sure you still have time to file the lawsuit under the applicable statute of limitations.

What Type of Suit Can Be Filed?

The details of your dispute or grievance will of course dictate the kind of civil case you should file. But let's get a sense of the possibilities by looking at some of the most common types of lawsuits.

Tort or Personal Injury claims include actions over harm caused by carelessness (“negligence”), defective products, medical malpractice, unsafe property, and unsafe products.

Contract Claims typically arise when there is a breaking (“breach”) of an oral or written agreement, often in the business setting.

Discrimination and Harassment claims are typically brought against an employer or government entity, alleging unequal treatment on the basis of some legally protected characteristic (gender, age, disability, etc.).

Family Law cases include divorce, child custody, child support, and spousal support, and property distribution.

Property disputes typically arise over use of land, boundaries, trees, noise, and ownership issues.

Learn more: Understanding Your Legal Issue.

Where Should My Suit Be Filed?

Several factors may influence where a case should be filed:

  • subject matter of the case
  • the type or amount of the remedy sought, and
  • the location of the parties.

A court must have jurisdiction over the parties to the suit, particularly the defendant (personal jurisdiction), as well as jurisdiction to hear that particular type of case (subject matter jurisdiction) before it can step in and resolve a dispute.

Some suits need to be filed in federal court (including bankruptcy and immigration cases), while others are typically filed in state court (including most family law and estate planning cases), and others may be brought in either federal or state court.

The amount at issue also affects where the lawsuit should be filed. Most states' civil court systems include a hierarchy of levels -- “superior” court, “municipal” court, and “small claims” court; or “court of unlimited jurisdiction,” “court of limited jurisdiction,” and “small claims” court -- with the amount at issue determining where the case should be filed. Certain kinds of cases (such as family law disputes) often must be filed in a branch of the civil court that's devoted to resolving those kinds of disputes.

Learn more about the different Steps in a Lawsuit and When You Need an Attorney's Help with a legal dispute.

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