We speak with people weekly who have been mistreated, are angry and want to file a lawsuit. The concept of sticking up for yourself and fighting back just feels right – and it often is right! There does come a time when filing could be harmful to you. It is important to know when to file a lawsuit and it is also important to know when not to. A lawsuit is an important, indispensable legal tool. It will resolve a dispute where all other solutions have failed. But lawsuits have limitations. It is possible to win a lawsuit but still lose because the cost of the lawsuit exceeds any possible recovery.
Below is the analysis we discuss with our Clients before filing a lawsuit:
- Is there a good claim? This requires learning the facts and researching applicable law.
- Is the claim large enough or important enough to make a lawsuit worthwhile? Costs can be substantial, you don’t want to put money into a claim where you don’t stand to gain more than you are putting in. Sometimes people file solely on principal, and that is the only instance where cost doesn’t need to be considered.
- Will the Client be exposed to potential counterclaims? If so, what is the merit of these claims?
- Are other, less expensive, options available? The goal is to solve a specific problem. Sometimes other solutions make more sense.
- Can the Client afford the cost of pursuing the lawsuit without hardship? There must be a plan for payment to fund the case, if coming up with the funds harms the client, then it is not in their best interest to pursue in court.
- Can the Client accept the risk of loss? Winning can never be guaranteed.
- Can the Client stand the emotional stress and uncertainty of a lawsuit? This is often intense, especially in lawsuits between family members.
- Are attorney’s fees awardable? Usually attorney’s fees can be awarded where a contract provides for fees or where the dispute arises out of a contract within the meaning of ARS Section 12-341.01. In other cases, attorney’s fees are generally not awarded unless there is a statute allowing an award.
- Finally, once a judgment is obtained, can it be collected? This question is often one of the most important. We frequently recommend hiring a good private investigator to obtain a pre-filing investigation of the proposed defendant’s assets, debts, and whether there might be insurance coverage for the claim. There is nothing worse than winning a judgment and discovering that it cannot be collected.
If you have a potential claim or are thinking about filing a claim meet with an experienced civil litigation attorney. Ask your attorney do a pre-filing due diligence investigation and advise you as to the strength of your claim and give an opinion as to the potential for a successful result. You need as much information as possible before making a decision.
The lawyers at Platt and Westby, P.C. have been practicing in the area of Civil Litigation for over 40 years. Contact any of our Phoenix Civil Litigation lawyers at 602-277-4441 or use our contact form to schedule an initial conference concerning any matter involving any civil dispute or lawsuit. We will answer your questions and, where appropriate, suggest potential solutions.
Platt and Westby, P.C. has offices in Phoenix, Arrowhead, Avondale, Scottsdale and Gilbert, Arizona.