SOME THINGS TO CONSIDER WHEN CONTEMPLATING FILING A LAWSUIT

Thinking of filing a lawsuit, are you? Someone has wronged you, or breached a contract, or whatever? Fine, filing a lawsuit is the civilized alternative to settling disputes as our ancestors did, fighting it out with fists or sticks or rocks or firearms or whatever came to hand. But filing a lawsuit is, like everything else, a trade-off, even if you end up prevailing. There are things you should bear in mind before deciding to proceed, which in my experience many clients don’t consider because no one tells them and so they don’t know what they don’t know. Here are a few of those considerations:

1. It will be expensive. The American legal system is designed to give everyone one their say, and lawyers—who are on average bright people who could be well-compensated for doing something else—are not cheap. The infrastructure that supports the lawyers—the technology, office space, well-paid staffers, and on and on—are also expensive. A lawsuit is just another investment, and you should consider carefully the expected costs of legal fees and expenses such as expert witnesses’ fees, court reporters’ fees, and the cost of organizing all the discovery materials, against the likelihood that you will prevail; how much the award might be; and the likelihood that you will be able to collect on it.

2. Don’t get “stars in your eyes”—think of it as an investment. Don’t overdo “standing on principle”! Take a breath and take some time (not too much!—see # 4 below) to calm down and see if you change your mind once your emotions have settled some. The majority of lawsuits, no matter how they start, always seem to come down to money. You’ll get over the anger and desire to vindicate a principle; don’t get mad at your own money.

3. You should “brace for impact.” Many clients think their antagonist will fold up like a cheap lawn chair at the merest hint of a lawsuit. That happens, but in my experience, it’s pretty rare. Consider also that there is a high likelihood that you will get a countersuit. The vast majority of cases settle, and that has increased the desire of defendants to get some leverage for negotiations and one of the best ways to do that is to come up with a counterclaim. Discuss with your lawyer (tell the truth!) not just the pros, but also the cons, of your claim and whether the other side might have a claim also.

4. Don’t “sleep on your rights”. The best time to consult a lawyer about whether to file a lawsuit is the first time you think of it. There are explicit time limits in statutes and case law and some of them are pretty short (I know of one that is six months from the date of the event, not the date you find out about it). Even if your case will not be barred by an explicit limitation such as a statute of limitations or repose, memories fade over time, witnesses move or die or become incompetent, documents (especially electronic ones) can become lost or unavailable, and on and on.

5. You likely have no concept of how aggravating, time-consuming, distracting, and stressful this process can be, unless you are a veteran litigant. Win or lose, you “go in a pig, and come out a sausage.” And remember that your opponent will get to take discovery from you on almost any topic that is reasonably related to the issues in the lawsuit; is there anything in your files, or your tax returns or books, or credit card statements, or internet search history, that might be relevant but that you’d rather not disclose? Remember that most or all of it may end up in the public record, for all to see, forever. And there are real deadlines for responding to some of the requests, and some of them have to be answered under penalty of perjury.

None of this is intended to dissuade you from filing a lawsuit you ought to file; rather, some of these points don’t seem to be explained in advance by most lawyers, and their clients bear the brunt of the ensuing ugly surprises. I think it’s much better to explain to clients what they are getting into when they are thinking of filing a lawsuit and now you know, too—at no charge.