The one major question that every lawyer has to deal without throughout their professional life, whether it be from potential clients, or friends and family is the eternal question: “Should I sue?”.
“Should I sue?”
It seems like such a simple question which logically, should merit a simple answer. Unfortunately, there’s a reason that attorneys spend years at law school. Each and every case pertaining to a claimed wrongful act has a different set of facts and circumstances and must be analyzed individually before an answer can be given.
Civil wrongs are very wide ranging and could fall under many different areas of law. The claimed wrongful act could be a matter of business law or contract law, for example, one party accepts money from the other party and then fails to perform their side of the contract. The wrong could also fall under the law of torts, for example, personal injury resulting from negligence on the part of somebody who owes the plaintiff a duty of care. There is therefore no clear-cut response to such a wide-ranging question as “Should I sue” without a much more in-depth analysis of the facts.
This legal analysis is often referred to as “The 4 Cs of case evaluation.” Before one can even consider pursuing a claim four components of a case must be present. These are:
- The Claim
Does the person wronged have a valid legal cause of action?
In other words, can the person wronged actually sue? and if he does go ahead and sue, will he likely win his case?
Claims are wide ranging and may include, amongst others, breach of contract, negligence, defamation, nuisance, employment discrimination and wrongful termination.
Furthermore, each claim must have all the elements of the claim fulfilled. Every category of claim is different, for example in a personal injury claim resulting from negligence four elements must be present in order for the claim to have a chance at succeeding. In the case of personal injury resulting from negligence the elements are duty, breach, causation and damages.
Once all the elements of the claim are fulfilled it must be deduced whether one person’s claims are better than the opposing side’s claim and defenses. If the person who was wronged has claims that are not enough to counter the opposing side’s potential claims or their defenses, then it may not be worthwhile pursuing the claim or heading in to litigation.
Is the aggrieved party entitled to compensation? In order to be entitled to compensation, the aggrieved party must prove that he suffered damage that is compensable.
There are many instances when the damage is not compensable. For example, in a case in which an airline loses one’s luggage and is not able to deliver the luggage to the passenger for several hours. If the passenger has not suffered any financial loss from their missing bag the claim would not be actionable. The mere frustration that the passenger suffers as a result of their missing bag is not compensable damage.
If on the other hand the airline breaks something in your bag, for example a twenty-dollar souvenir, it is possible that the airline is at fault and the aggrieved passenger might win on a negligence claim. But is it worth the passenger’s time, money and energy to sue over such a small financial loss?
There are two important questions to be asked here:
- How much money has the potential plaintiff lost?
- Have compensable damages been suffered?
In cases where the compensable damages are small, the potential plaintiff must ask himself whether he wants to shell out the thousands of dollars associated with suing in the civil courts.
Small claims court is often used for more minor payments, but even small claims court might cost around $100 to file and serve. On top of this the potential plaintiff must take into account the amount of time and effort required to bring the claim to small claims court. The paperwork for a claim can take hours to fill out, the potential plaintiff must find a process server, find a way to serve the defendant, file more paperwork, get all their documents and evidence ready for court and sit in court for what could be hours waiting for the claim to be heard.
In certain cases, damages are difficult to evaluate, and the plaintiff may need to seek equitable relief rather than monetary damages. An example of equitable relief is an injunction, (an order to perform or to stop doing something). Cases in which monetary damages would not make any sense, but an actionable claim is still present include cases in which the plaintiff has been threatened by the defendant, or cases in which the defendant is misappropriating the plaintiff’s name or using an image of the plaintiff without his permission. There is not necessarily any compensable financial damage present, but the aggrieved party may desire, and be entitled to an order for the defendant to cease and desist.
The aggrieved party needs to deduce whether there is evidence, witnesses or experts to testify to the facts of the case. Does she (or he) have anybody or anything to help her confirm her story and help prove that her side of the story is true?
In contract law cases, there is usually a written contract to refer to. This is the most obvious form of evidence to back up a claim for breach of contract. If there is merely an oral agreement it will be much harder for the potential plaintiff to be able to provide evidence to support the claim.
In cases which fall outside the realm of contract law, for example, in a products liability case, the aggrieved party would need to prove that it was this particular product that caused the damage. Ways of proving this might include testing the product to prove that it is defective.
In cases of medical malpractice for example, the plaintiff would need to bring an expert before the court to testify that the defendant’s behavior fell below the typical standard of care.
The plaintiff must always expect that the defendant will bring his own expert before the court to combat the plaintiff’s claims.
Before heading into litigation, the potential plaintiff must ask whether he or she will be able to collect compensation if there’s a win.
- Does the defendant have accessible assets?
- If the defendant does, how difficult will it be to collect from him?
Problems that could arise include being forced to take the matter to collections, or the defendant filing for bankruptcy.
In order to be able to answer in the affirmative to the question ‘should I sue?’ the aggrieved party must fulfill all of the 4 Cs. If one of the elements of the claim is unable to be fulfilled, the aggrieved party should examine whether or not it is worth moving forward with the litigation. There is huge potential for time, money and energy to be wasted if one of the elements of the claim is missing.
Even in cases where all four elements of the claim are present this does not guarantee a successful outcome in the potential plaintiff’s case. Depending on a variety of factors, the judge or jury could still find in favor of the defendant.
The best plan of action is to consult with an attorney who is well versed in the area of law in which there is anticipated litigation.
Thanks to our friends and contributors from Solve & Win, PC, for their insight into civil lawsuits.