Evaluation of a Case

What are the Motives of the Case?

When there is a dispute, every client wonders whether they should file suit. You have to decide why you want to sue: to gratify emotions, for the principle of the matter, or to gain money. You must consider your motives very carefully.

To Gratify Emotions?

Suing to gratify your emotions is a temporary relief. When you file suit, your emotions may be gratified, however, this has happened at a great cost. You are now in a lawsuit and the cost of that suit can be very high. How much money would you pay to gratify an emotion? Tens of thousands? A hundred thousand? Do you think such a trial will gratify your emotions? In the end, you will have to decide if the emotion was worth the financial cost. I will not file a lawsuit for you based upon your emotions alone. It never turns out well. In hindsight, you regret having spent the money.

For the Principle of the Matter?

The same is true, if you want to sue “on principle”. I will not file a lawsuit for you on principle alone. In practice, I usually find that you want to sue upon both—emotion and principle. The two are intimately tied together. When one undertakes a great cost based upon these emotions, one usually regrets having spent the money. I will not file a suit for you based upon emotion and principle alone.

Financial Goals

You must have a financial goal to justify a suit. Or at least one that I will file. You must think—not believe—that you will get more money than you will spend. To reach this conclusion, you must have some idea of your chances of winning, how much you can collect, and what the cost is.

Evaluating your chances of winning is a challenging task. One cannot say 60-40 or 70-30, with a degree of accuracy. I will tell you if you have a strong case, and are more likely to win, than not. In contrast, I may say the outcome is 50-50. If I say that you have a weak case, it is probably best to not sue.

You measure your chances of winning against how much you can collect, if you win. Notice that I did not say that the measurement is against how much a judgment will be, if you win. Many judgments are worthless-because nothing can be collected. You do not sue an insolvent defendant. You had better sue someone who has more assets than you can reasonably expect a judgment to be. I can also help with this assessment.

Lawsuits cost a lot of money. You may think that you can file one, and then drop it, if a settlement does not occur quickly. What if the defendant countersues you? Then you cannot just drop it, on your own. To get the defendant to drop the suit with you, you will most probably need a settlement, even if it is not on the terms you would like. Let’s say that you file, and negotiate a settlement. Including the draft of the settlement documents, you may have spent ten thousand dollars. Many people think that mediation is a low-cost means to reach a settlement. It is true that mediation usually results in a settlement. However, it will probably take five thousand dollars or more to participate in a mediation. So, let’s say the total cost is fifteen thousand. But wait, the defendant must also want to mediate right away—which is usually not the case. Some discovery will have to be done, before both parties are prepared to mediate. Some discovery will cost at least ten thousand dollars. Maybe thirty. You get the idea. If you try the case, depending upon its complexity, you may altogether spend from seventy-five thousand to two hundred thousand. I will also help you through this phase of your evaluation.

Once you have judged whether proceeding is a good financial decision, you must acknowledge the personal cost to you of filing suit. Lawsuits may take as little as three months, if the defendant is willing to mediate. Perhaps fourteen months, if you have to try the case. Along the way, you must devote time to the suit. And, the suit always causes some stress. You do not know what the outcome will be. This is just not stressful; it is also a distraction.

Whether to sue is a joint decision—of you and your lawyer.