When Should You Sue?

"How do I know whether suing someone is a good idea?"

If that question or something close to it brought you here, you're in the right place. Unfortunately, we can't tell you the one thing you really want to know: If I sue someone, will I win? No one can gaze into a crystal ball and promise you success.

What we can do is help you zero in on the factors that should be front of mind in your lawsuit decision-making process. Those factors boil down to four fundamental—and fairly obvious—questions.

• Is there no real chance of a fair settlement?
• How strong is my case?
• Can I handle the stress and anxiety of a lawsuit?
• Can I collect if I win?

Keep in mind that there aren't any "right" or "wrong" answers to these questions. How you answer them depends on the facts of your case and your personal circumstances. And those facts and circumstances might bring to mind additional concerns we don't cover here. If you're unsure, your best move will be to get advice from a local attorney.

The Big Picture

Take another look at our four questions. If you think about it, all of those questions are concerned with:

• how much risk you're able to tolerate, and
• the chances that your lawsuit will end with a favorable outcome.

These considerations—your appetite for risk and the odds of a good outcome—are really "the big picture," so to speak, when it comes to deciding whether to sue. As we work through the questions, be honest with yourself. There's no precise mathematical formula involved. Logic and reason might take a back seat to what your intuition tells you is best.

If the stress of suing someone is going to keep you up at night and make your life miserable, will a good result really feel like a win? What happens if—as often is the case—the final result isn't quite up to your expectations? Will your anger or regret over deciding to sue haunt you for weeks or months? In the end, the balance is one only you can strike.

Is There No Real Chance of a Fair Settlement?

As most any experienced trial lawyer will tell you, filing a lawsuit should be your last resort. Before you sue, be sure to explore all realistic avenues to find a mutually agreeable compromise. And yes, compromise is key to a settlement. You won't get everything you want, but neither will the other side.

To decide whether there's a chance of a fair settlement, you need to know at least two things:

• what a fair settlement would look like, and
• why your case might not settle.

What's a Fair Settlement?

Generally speaking, your damages—amounts you lost or paid because of the other side's wrongdoing—will be the biggest factor in estimating a fair settlement. If your suit succeeds, you can expect to recover what the law calls "compensatory damages." As the name suggests, these damages are meant to compensate you for your actual losses and injuries.

When thinking about a fair settlement, you should have in mind a range of high and low figures, not a single, fixed number. Why? Because in addition to your damages, a number of other factors likely will influence what you might be willing to accept.

In a breach of contract case, for example, a fair settlement range might depend on whether you think you can collect a court judgment (discussed below). In a car accident case, what you're willing to settle for likely will be influenced by how much you were to blame for the wreck.

Why Your Case Might Not Settle

Put simply, cases don't settle because the parties are too far apart on settlement terms. This usually means one side is demanding more than the other is willing to pay. Settlement negotiations can bridge some of this gap. But occasionally, differing case valuations simply can't meet in the middle.

The parties also might disagree about liability—who's to blame, and how much how much legal responsibility each party should bear. When the facts are clear and liability is obvious, this won't be a problem. Unfortunately, the cases that don't settle, and that end up being decided by the judge or a jury, usually are those where liability is a tossup.

How Strong Is My Case?

To figure out whether you have a strong case, you must know these two things:

• whether you can prove all the elements of your claim, and
• whether the defendant (the party you're suing) has defenses that will defeat your claim.

Proving the Elements of Your Claim

The law breaks each type of claim into a short list of legally required elements. If you know the elements of your claim and whether you have the evidence to prove them, it's usually fairly easy to determine whether you have a good case. Let's illustrate with a breach of contract example.

A lawsuit against a contractor for doing substandard construction involves a breach of contract claim. The legal elements are:

• A binding contract. You must prove you have a legally binding contract with the defendant. A written agreement should take care of this element. Without a written contract, you'll have to show an enforceable oral (spoken) contract, or that an enforceable contract can be implied from the circumstances.
• Breach of the contract. You must show that the defendant "breached" the contract—failed to do what was required. Whether there was a breach, and if so by whom, usually are the key issues in a breach of contract claim. You'll need to prove that the contractor failed to do agreed-on work or did work of unacceptably poor quality.
• You performed. You need to prove to the court that you did what was required of you under the terms of the contract. Did you pay what was required before the defendant failed to perform? If there's a fight over how much you owe, did you offer to escrow that amount while you and the defendant work to resolve your differences? Proof that you held up (or tried to hold up) your end of the bargain should satisfy this element.
• You suffered damages. You must show that you suffered an economic loss because of the defendant's breach. Assuming the work must be redone or properly finished, this element should also be easy to prove.

The legal elements for other types of lawsuits are different. You can find outlines for most in Represent Yourself in Court: How to Prepare & Try a Winning Case, by attorneys Paul Bergman and Sara J. Berman (Nolo).

Does the Defendant Have Defenses to Your Claim?

Proving the elements of your claim is only half the battle. You also must anticipate and be prepared to defeat any defenses the defendant might raise. Possible defenses come in several forms. Here are a couple common types, couched in terms of our breach of contract example.

• You waited too long to sue. Every state has statutes of limitations—laws that put a limit on your time to file a lawsuit in court. Wait too long and the statute will expire, meaning you can't sue. While they vary from state to state, breach of contract statutes of limitations typically range from three to six years, though some are as long as ten years. Statutes of limitations can be very tricky. If you're unsure how much time you have to sue, speak to an attorney in your state.
• You're missing an element. The defendant might claim that you're missing an element of your claim. Most often, they'll deny that they breached the contract and argue that you were the first to violate its terms. Or they might claim that you "waived" (gave up the right to complain about) a particular breach and agreed to revised contract terms.

There are different defenses for different kinds of claims. An effective defense can stop your claim dead in its tracks. If you're faced with defenses you don't know how to defeat, you'll need help from experienced counsel.

Can I Handle the Stress and Anxiety of a Lawsuit?

In addition to being costly and time consuming, lawsuits can be very stressful and anxiety-provoking. These are among the top reasons why:

• you're not sure if you can afford a lawsuit
• you're in unfamiliar territory, and
• you'll have to relive the events that harmed you.

What's at Stake?

Before you file, think carefully about whether you can afford a lawsuit. Even a simple case will be expensive. You'll have a filing fee (depending on the court, usually ranging from $50 to $350), costs to serve the defendant with your court papers, and a variety of other expenses, such as:

• attorney's fees
• copying charges
• costs for medical records and other documents
• charges for court reporters and transcripts of proceedings
• witness fees, and
• amounts you're out-of-pocket for time off work.

In addition, lawsuits take time—often lots of it. Make sure you have the time to devote to your case. Finally, don't forget about your emotional investment in the case.

You're in Unfamiliar Territory

Chances are you haven't spent much time in courtrooms, or knee-deep in lawsuits. To most, these are starkly foreign places, with a language, rules, and procedures all their own. Unless you're in small claims court, your lawsuit will be governed by mind-boggling rules of civil procedure and evidence, rules which—at best—you'll find confusing, frustrating, and at times, impossible to understand.

Truth be told, in all but the simplest of cases, a courtroom (other than small claims court) is no place for amateurs. If the defendant is represented by counsel and you're on your own, you'll soon be in over your head. Experienced trial lawyers know how to make quick work of unrepresented parties, and you won't get any help from the judge.

Reliving the Events That Harmed You

In cases that don't belong in small claims court, you'll have to participate in "discovery" after you file your lawsuit. As the name suggests, discovery is a process—subject to the court's control—where each party gets to learn about the facts, claims, and defenses the others will rely on if the case ends up in trial.

As part of discovery, you'll have to provide answers to written questions (interrogatories), review and supply documents (requests to produce), and answer the other side's oral questions, under oath (a deposition). At each stage of this process, and later at trial, you'll have to relive the events that caused you harm. For many, that's a nerve-wracking and unpleasant experience.

Can I Collect if I Win?

Your answer to this question is incredibly important, and every bit as important as the first three. There's no point in getting a court judgment if you can't collect it. While most reputable businesses and individuals will pay what they owe, if they don't have it, they can't pay you.

If the defendant tries to stiff you, you're in for a struggle. Worse still, you're on your own unless you hire experienced counsel. The court won't collect your money for you, or even provide much help. It'll be up to you to identify assets you can grab.

When the defendant is working or owns valuable property—such as bank accounts, land, or investments—you'll have a chance to collect. You can instruct your local law enforcement agency (usually the sheriff, marshal or constable) to garnish the defendant's wages, or you can put judgment liens on their non-exempt property. If collection is a problem, you should learn more about your state's judgment lien laws.

For a successful business, especially one that receives cash directly from customers, you can authorize your local sheriff or marshal to collect your judgment right out of their cash register. And in many states, if you're suing a contractor or a businessperson with a state license, you can apply to have the license suspended until the judgment is paid.

But if you can't identify any collection source, think twice before suing. A judgment will be of no value to you if the business or individual is insolvent, goes bankrupt, or disappears.

Next Steps

Armed with the information we've covered here, you should be in a better position to decide whether suing someone is right for you. That said, deciding to file suit is rarely an easy call.

If you're not sure, it's probably a wise investment to buy an hour or two of time from an experienced lawyer. They've been down the road you're traveling many times before, and they understand the difficulty of your decision. An attorney can review the pros and cons given the facts of your case and your own circumstances, and likely offer perspectives that haven't occurred to you.

Regardless of the path you decide to take, once you've made the decision, be at peace with it and move forward.