What you need to know before you sue someone
By WORLD Law Direct [January 12th, 2011]
Think hard before you rush off to the court clerk's office to file a lawsuit. The idea of victory may tempt you, but as you probably know, lawsuits can be expensive, time-consuming and emotionally draining. It's far better to resolve your disputes out of court. One way to do this is through mediation. And there are other ways to settle disputes without suing, including demanding payment before you go to court or attempting informal negotiation. But if all else fails and a lawsuit seems inevitable, you'll want to be sure you have a good case and prepare yourself well before you forge ahead. This brief article contains tips on what to do before you sue.
Deciding Whether to Sue Someone
What you need to know before you file a lawsuit. You need to answer three fundamental – and fairly obvious – questions as part of deciding whether it's worthwhile to bring a lawsuit:
- Do I have a good case?
- Can I achieve my goal in some other way – for example, by proposing a compromise settlement or mediation?
- Can I collect when I win?
If the answer to question one or three is no, or to question two is yes, you probably won't want to sue.
To figure out whether you have a good case, it helps to know that lawyers break each type of lawsuit ("cause of action" in attorney-speak) into a short list of required elements. It follows that as long as you know what the elements are for your type of lawsuit, it's usually fairly easy to determine whether you have a good case. For example, a lawsuit against a contractor for doing substandard construction would be for breach of contract (the contractor agreed either orally or in writing to do the job properly). The legal elements for this type of lawsuit are as follows:
Contract Formation You must show that you have a legally binding contract with the other party. If you have a written agreement, this element is especially easy to prove. Without a written contract, you will have to show that you had an enforceable oral (spoken) contract, or that an enforceable contract can be implied from the circumstances of your situation.
Performance You must prove that you did what was required of you under the terms of the contract. Assuming you have agreed upon your payments and otherwise cooperated, you'll have no problems with this element.
Breach You must show that the party you plan to sue failed to meet her contractual obligations. This is usually the heart of the case – you'll need to prove that the contractor failed to do agreed-upon work or did work of poor quality.
Damages You must show that you suffered an economic loss as a result of the other party's breach of contract. Assuming the work must be redone or finished, this element is also easy to prove.
The legal elements for other types of lawsuits are different. Even if you decide you have a good case, don't rush down to the courthouse to file a lawsuit. First, think about ways to settle your dispute out of court.
Finally, the answer to the third question – Can I collect if I win? – is of much interest. There is no point in getting a court judgment against a deadbeat.
Here is how to think about it. Most reputable businesses and individuals will pay you what they owe. But if your opponent tries to stiff you, you may be in for a struggle. Unfortunately, the court won't collect your money for you or even provide much help; it will be up to you to identify the assets you can grab.
Normally, if an individual is working or owns valuable property – such as land or investments – collection isn't difficult; you can instruct your local law enforcement agency (usually the sheriff, marshal or constable) to garnish her wages or attach her non-exempt property. The same is true of a successful business, especially one which receives cash directly from customers; you can authorize your local sheriff or marshal to collect your judgment right out of the cash register. And in many states, if you are suing a contractor or other business person 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 – for example, you're dealing with an unlicensed contractor of highly doubtful solvency – think twice before suing. A judgment will be of no value to you if the business or individual is insolvent, goes bankrupt or disappears.