Five things a client should consider before pursuing a lawsuit

I chose the photo above because it depicts the beginning of Frodo and Sam's three-movie saga from the Shire (depicted above) to Mordor, where Frodo has been tasked by the wizard Gandalf to destroy a magical ring by throwing it into a volcano in Mordor. Frodo and Sam's journey is arduous, tremendously difficult, and comes at great cost and expense to both of them. Much like Frodo and Sam's journey, clients routinely underestimate the cost, time, and stress of litigation, and sometimes believe they are near the volcano in Mordor when, in actuality, they haven't even left the Shire yet. Not all lawsuits are created equal. There are good, high-quality lawsuits filed each day by smart litigants prepared to go the distance, backed and supported by great attorneys who do great work. But that is not every lawsuit. One of the hardest things I've had to tell potential clients is that, even when they have been wronged, and even though they have a right to bring a lawsuit, this does not necessarily mean that they should. Instead, in the hopes of assisting potential litigants and clients decide whether to bring a potential lawsuit, I have compiled a list of five questions each potential litigant should ask themselves before meeting with an attorney and filing suit. Disclaimer: this list is nowhere near exhaustive, and each particular case turns on its own particular set of unique facts. This article does not create an attorney-client relationship between me as the poster and anyone reading or reviewing it, and no one should rely solely upon this article for legal advice in their own case. Instead, after reading this article, you should consult with an attorney in your area to discuss your case further if you feel comfortable moving forward with a potential lawsuit.

1. How likely is the other party to settle or resolve this case without litigation? The first thing I typically see when a client comes through my door is that there has been a severe and longstanding breakdown in communication between the two parties, especially after either something terrible has happened, one of the parties has expressed their dissatisfaction with the other parties' goods or services, or when a large amount of money has been exchanged or received. Even if the other party broke their promises to you and did not live up to their side of the bargain, you should still reach out to them to see if the two of you can reach a compromise. Pick up the phone, and email them a few times. If you come to an agreeable compromise without an attorney, you may have saved yourself tens if not hundreds of thousands of dollars in court costs and attorneys' fees. Even if it is not 100% of what you want, it may be close enough that you feel comfortable with the closure and just moving on, especially because it may not be worth spending thousands of dollars in order to dispute the remaining 10, 15 or 20% remaining in dispute. In settlement agreements, I always stress to my clients that they should get as much money up front as they can, and that the settlement agreement should be in writing, signed by both parties and notarized. Some attorneys believe the notarization requirement is unnecessarily, but based upon my experience, it's better to be safe than sorry. In fact, if you have resolved the case, you can always retain an attorney just to review and fix the settlement agreement before the parties have signed it, so you have fewer problems potentially enforcing the agreement down the road if you need to. This is something you should seriously consider, even if you are able to settle the underlying dispute without an attorney's assistance.
2. How much is actually at issue? We as attorneys call this the "amount in controversy." The higher the amount in contoversy that can be credibly proven or approximated, the more likely it is worth pursuing. As I tell my clients, there is a difference between the cost of being right and the cost of proving that you are right. The lower the amount in controversy, the more likely this amount is going to be quickly overshadowed by court costs, the parties' attorney's fees, etc. At that point, the true principal amount becomes a minor technicality in a war where neither party is financially able to back down, and where the losing party may face disastrous financial consequences that could not have been anticipated when the lawsuit was originally filed. Lawsuits can be very expensive, and it does not make financial sense to spend $50,000.00, $60,000.00, or more fighting to get back half or even a tenth of that amount. To play devil's advocate, I will admit that it does not always have to be about just the money, and I have assisted clients in smaller dollar disputes where the issue is of intense personal significance or importance to the particular client. That's okay. But for clients where the sole issue is one of dollars and cents, it does not make sense to throw good money after bad and spend a small fortune pursuing a small claim.
3. Who is on the other side? Is it a friend? You may want to seriously consider question 1, and then consider whether permanently losing that person's friendship, and all related benefits that have come with that person's friendship (i.e. their network and their friends) is worth this lawsuit. Is it a long-standing business partner or affiliate? You have to ask yourself if it is worth permanently losing that person's or company's business to pursue this lawsuit. Even if this is just a small lawsuit right now, lawsuits are unpredictable, and they can escalate and become overly personal at just a moment's notice. This just happened to a client of mine. The opposing party told my client that my client was either going to drop the lawsuit, or the parties were never going to do business again. My client decided to press forward, at great risk to itself, and this required a long conversation with them beforehand about the risks and potential benefits of pursuing this litigation. Is the opposing party a deadbeat with no assets, in jail, a dissolved company, or a company on the verge of bankruptcy? Just because you win a lawsuit doesn't mean the other side has to pay you. If you win a judgment against a party, they become known as a "judgment debtor" and you become known as a "judgment creditor". If the judgment debtor has assets that are recoverable or collectable (and this varies by state), then you can pay your attorney additional fees and costs to pursue those assets, but you should expect a fight from the opposing side. If the judgment debtor does not have assets, they are commonly known as being "uncollectible" and your judgment has little to no value. This is definitely something to consider on the front end, because the last thing you want to do is spend tens if not hundreds of thousands of dollars winning a large judgment against an individual/company who has no assets to pay you.
4. How recent did the injury occur?  Each state has what is typically referred to as a "Statute of Limitations" where the parties can only bring particular causes of action for a predefined term of years. Florida's Statute of Limitations can be found at Section 95.11, Florida Statutes. Even if you are correct that you have a claim against the other party, if the claim occurred after the terms set by the state's applicable Statute of Limitations, then, absent extraordinary circumstances, you are likely barred from pursuing your claim. Determining whether the applicable Statute of Limitations applies to your claim can be a very difficult question, and so while I have said repeatedly that you should consult an attorney, especially when you think this may be a particular issue, I strongly recommend finding an attorney who can assist you with this. But long story short: if you think the Statute of Limitations is coming up on your cause of action, you should run, not walk, to an attorney to help determine whether you have a claim and whether you should file a lawsuit. The last thing you want to do is have your high-quality lawsuit barred because you missed an arbitrary deadline.
5. What is the opposing party likely to say? I don't care if it is true or not, or whether you hate them for saying it, but as an attorney, I need to know what the other side is going to say about your claims and about you. This can vary widely, from not responding (i.e. if the soon to be judgment debtor has no assets, he/she/it may also have no assets to defend the lawsuit with, either, and this is a large red warning flag if they decide to roll over on liability and let you just pursue a judgment against them), to arguing that you are lying, to arguing that they are actually the aggrieved party and you should be barred from bringing your claims for a plethora of reasons, and finally, to filing counterclaims against you for a variety of causes of action. If you have filed a lawsuit against a defendant, that defendant will likely respond to the complaint, if they do not want a judgment entered against them. You will save time and money if you explain what you expect the response will be from the other side before your attorney receives the response. Attorneys understand you cannot predict the future, but one of the best things you can do, especially on the front end, is keep your counsel prepared for what you expect the other side will say. It is always an interesting telephone conversation when Attorney #1 (for the Plaintiff) asks Attorney #2 (for the Defendant), how they plan on addressing the issues in the complaint, and Attorney #2 blindsides Attorney #1 by asking Attorney #1 how Attorney #1 plans on handling a much larger or much different issue. This happens. But it happens less when our clients keep us informed. If you inform your counsel, they will be more prepared. The more prepared they are on the front end, the less work they have to do on the back end to be as prepared as they would have been had you just told them about "issue X" beforehand, meaning this can save you money.

In the end, lawsuits are never fun, but can be necessary when all else fails. Considering these questions before meeting with an attorney should help you and your attorney determine the necessity of filing a lawsuit, and if deemed necessary, these questions can help you and your attorney begin developing a roadmap towards success down the road. Remember: even though Frodo and Sam's journey was arduous and came at great personal sacrifice to each of them, it was necessary, there were no other options, their goal was important, and it was ultimately a very, very important thing for them to do, notwithstanding the risks or costs or time they spent on their quest.