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Filing a Lawsuit: Should you Sue?

As any lawyer will tell you, you should always sit down and carefully think about filing a lawsuit before you go ahead with the process.

There are, in general, three questions that you must be able to answer before you can seriously consider filing a lawsuit. First, you must ask yourself if you have a good case. Second, you have to ask if you would be happy with a settlement or going to mediation if you end up filing a lawsuit. Finally, assuming you do win your lawsuit, you need to ask yourself whether or not you will be able to collect any form of judgment.

In order to proceed, you should carefully consider these questions. If you come up with "no" for an answer to any of them, you may want to refrain from going to court.

A Good Case

In "lawyer-speak," almost any lawsuit (a cause of action) can be broken down in a series of steps, or components of legally required elements. To ensure you have a "good case", you, the plaintiff, will need to go down this checklist of elements and make sure that you can satisfy or prove each one. Depending upon the cause of action in your lawsuit, there will be different elements that you will have to prove in order to be successful. To illustrate this point, consider the following case examples:

Case Example 1: Break of Contract

Suppose that you have hired a contactor to do a kitchen renovation in your home. The contractor, instead of starting the work, takes your money, only starts performance by ripping out the kitchen floor, and then buys beer for his employees with the rest of your money. You decide to sue under a theory that the contractor broke the contract. A plaintiff must prove all of the following elements for a breach of contract, including:

A valid contract existed. In order for you to even start a breach of contract suit, you must be able to show that a valid contract existed between you and the other party. If you have a written contract that has been signed by both parties, then this is relatively straight forward. However, if you only had an oral agreement or some other handshake agreement with the contractor, you may have a more difficult time proving that an enforceable contract existed.

Performance. In order to succeed in a breach of contract action, you must be able to show that you held up your end of the bargain under the terms of the contract. In this situation, you have paid the money to the contractor, thus fulfilling your obligation.

Breach. It seems pretty straightforward that in order to win a breach of contract suit, you must prove that the other party breached the contract, meaning that they did not do what they promised to do. Here, you will need to show that the contractor did not complete the kitchen renovation.

Damages. Here, you must be able to prove your economic damages. For instance, in this situation, you may need to hire another contractor in order to complete the job that the first contractor failed to do. In addition, if you run a business out of your kitchen, you may be able include any lost profits in your damage calculation.

Case Example 2: Negligence Leading to Personal Injury

Suppose that you have been injured by someone's actions that you think may be negligent. In order to prevail in your personal injury suit, you will need to show the following elements:

Duty. This element is often phrased in a question, "Did the defendant owe a duty to the plaintiff?" Duty arises in many forms that are recognized by the law. For example, drivers on roads have a duty to all the other drivers on the road to drive in a safe manner that does not put others in danger.

Breach of Duty. After defining the duty, a determination must be made as to whether or not the defendant breached the duty with respect to the plaintiff. In order to prove this element, you must show that the defendant failed to act a reasonable person would in fulfilling the duty owed to the plaintiff.

Cause in Fact: This is commonly called the "but-for" test. If you can show that, but for the defendant's actions, the plaintiff would not have been injured, then you have satisfied this element. For example, but for the defendant's drunk driving, the pedestrian would not have been injured.

Proximate Cause: This relates to the proximity of the defendant's actions to the harms that were caused. For example, if the defendant hit and injured a pedestrian while driving, and then at the hospital, the injured person called his grandma to tell her about his broken leg, and the grandma suffered a stroke, this may be outside the proximate cause of the defendant's actions. This element has an air of "fairness" around it, and often asks whether it is fair to attribute the injury to the defendant's actions.

Damages: Just like in a breach of contract suit, you must be able to prove damages. In a personal injury case, for example, damages often include medical bills as well as damages for pain and suffering caused by the injury.

Settlement and Mediation

Although you may be able to prove all the elements of your case, it is still not time to head to the courthouse. In the American legal system, many more cases and controversies are settled before or outside court than are litigated to conclusion. Often times, the best solution to a problem is to simply sit down with the other side and talk about the problem to see if a resolution can be reached without resulting to court action. Additionally, mediation services have become quite popular and prevalent, and free and low-cost mediation can often be found in major cities. Mediation is a great way to have a neutral, third-party sit in on a conversation and suggest ways that a problem could be solved.

Keep in mind that you may be required to try mediation or arbitration before heading to court. For instance, many contracts routinely include arbitration clauses that require the parties to attempt to mediate or arbitrate a dispute before filing lawsuits. Similarly, many courts encourage parties in a lawsuit to mediate their differences before setting an actual trial date.

Collecting at the End

The ability to collect a money judgment from the defendant can be one of the most important questions for you to answer when you are thinking of filing a lawsuit. Keep in mind that it will do you little to no good to win a lawsuit against someone that has no possible way of paying a monetary judgment to you in the event that you win. Good feelings about prevailing and vindicating your position won't pay your court fees.

Courts only have the power to tell you that you are legally entitled to a monetary judgment; they cannot help you collect it. If you are having a hard time collecting a judgment, you will likely need to go to the sheriff's office and get help from the authorities in collecting a judgment. Such assistance may include wage garnishment, liens or even direct collection of cash from a business.

Carefully consider the person that you are going to sue. If you think that a court judgment will be a substantial amount, you should pick a defendant with "deep pockets," or those who have the ability to pay. In personal injury cases, especially car accident cases, insurance companies will be the ones paying out any judgment.

Finally, before suing, you should consider different ways to address the issue of judgment collection. To demonstrate a possible solution using Case Example 1 involving the kitchen renovation, if you obtain a judgment against the contractor and he refuses to pay, you have a number of options. If the contractor is personally responsible for his business, you may be able to (with the help of the sheriff) garnish his wages or place liens on his property. In addition, if the contractor is licensed, you may be able to get the state licensing board to revoke his contractor's license until the judgment is satisfied (keep in mind, however, that if you get this license revoked, he may have no way to make money in order to satisfy the judgment). After considering all possible courses of action to collect, it may or may not be in your best interest to file a lawsuit.

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