Before You File That Lawsuit

People ask me for legal advice all the time. I have a powerful desire to be helpful. The most useful suggestion I have for anyone who accosts me is that they seek counsel from an attorney who reviews the facts and researches the law, in a thoughtful, thorough manner. Life is complicated; law is complex: nothing worth consulting a lawyer can be resolved in the abstract and off-the-cuff.

Nonetheless, there are a few guiding principles that can be shared with anyone who has a legal dispute. Regardless of whether they are a potential plaintiff aggrieved that they have been wronged, or a defendant who has been sued and served in what they are sure is a meritless complaint, there is a framework for analyzing the issues.

Every good lawyer warns a would-be client about pursuing a lawsuit. I mean good in the sense of competent and also good in the sense of ethical. They offer thoughts, general but universal, such as the below.

Rational people start with the merits. That is as it should be. They would like to know if they are in the right or in the wrong. The substance is what is most important. Society likewise would prefer that the outcome of litigation be based on the content of the matter.

In a system that relies on human decision-making, however, even in the best circumstances all that can be presented are probabilities. There are no certainties. In a jury trial, a dozen peers might may come to their own conclusions about credibility. Predictions conceal risks.

But a good lawyer will proceed to the process. Few laypeople, as smart they may be in their profession, anticipate the time, cost, and stress of legal disagreements. A day in court is rare. Almost all cases settle.

Even if a party is right on the merits, if the substance is strong, and the outcome ultimately favors them, the result is neither guaranteed nor automatic. They can be angry about it, but there is no workaround that will reduce the transaction costs to anything approaching zero. Winning isn't free.

Finally, the best lawyers will consider collateral consequences. People who are so far into an argument they are discussing it with a professional generally are not disposed to account for these factors. They are too angry.

What is beyond the law, in many more instances than not, turns out to be decisive. Whether someone is willing to sacrifice their relationships with family and friends, the goodwill of colleagues, their reputation in the community, and so on: nothing, not even the lawyer's bill, causes greater regret at the end than these personal details. It all must be weighed.

To the question "what should I do" about a lawsuit, I present a question as my answer. It isn't merely whether you have precedent and evidence on your side. It's also whether you understand what it means to fight and are willing to do so, in the strict terms of the law and in every other respect as well.

The Enlightenment philosopher Voltaire allegedly said he was ruined but twice: once when he lost a lawsuit; the other time when he won. In that vein, I urge anyone who might file a lawsuit to consider whether they really want what they think they want.

Many people who could prevail don't want to live through what it would take. Others who don't have such good odds are willing to be aggressive anyway.

For me as a lawyer, I respect the former and am glad I don't have to represent the latter. My responsibility for friends who request advice is to guide them in determining for themselves which category they belong to.