Deciding to file a lawsuit is not always easy. Parties are emotional and want retribution. It is important not to file a lawsuit out of impulse or principle. Before filing a lawsuit, there are several factors that you should consider.
What Are You Hoping to Accomplish by Filing the Lawsuit?
Filing a lawsuit should be no different than any other business decision. If you are thinking of suing a party, you should decide what you hope to accomplish. In a civil suit, you can request the Court to grant you different types of relief in order to make you whole, including asking the Court to order the party to:
- pay you for money that is owed to you, or
- require a party to stop or perform an act (i.e., require the party to return your property, or require the property to retract a defamatory statement).
If you are seeking to recover money from another party, the answer to these questions are important:
- Does that party have the money to pay you what you are owed?
- Do I have the resources to fund a lawsuit?
- How much time will the lawsuit take?
Will the Lawsuit Cost More than it is Worth?
Unfortunately, there are times when parties end up spending more than what their lawsuits are worth. That is why it is a good idea to ask your attorney to provide you with an litigation budget. In addition to the fees you will pay an attorney, there are additional costs. These include filing fees, fees for serving parties, as well as court reporting fees.
In order to keep your expenses down during litigation, you should consider speaking to an attorney about taking your case on a contingency or mixed contingency basis. When an attorney takes a case on a contingency fee basis, the attorney does not collect a fee unless they prevail on your case. In a pure contingency case, an attorney will typically receive between 33%-40% of the damages collected.
Another option you can consider is to ask your attorney whether the attorney will represent you at a reduced rate with a percentage of the damages paid to the attorney at the case. Attorneys refer to this as a mixed contingency, or bonus for the work that they have done. These options may be available to make it more affordable to pursue your claims.
Further, if you prevail in a lawsuit, a judge will enter a judgment in your favor. While this is a good thing, you want to make sure that you can collect the damages you seek from the opposing party. If the opposing party does not have the means to pay for a judgment, then a lawsuit is likely not worth the time and expense.
Where Will I have to File the Lawsuit?
This is an important question. Several factors can affect where a lawsuit should be filed. These factors include where the defendant resides, where it is that you suffered damages, where the wrongful conduct occurred, and whether there was an agreement that affects where the lawsuit should be filed. For example, if you were in a car accident, you will likely have to file the lawsuit where the accident occurred. Litigating a case can become difficult if you have to travel to attend hearings and trial.
Do I want to Involve Witnesses in my Lawsuit?
In every case, there are people who have knowledge about the lawsuit. Many times, these people are not parties to the lawsuit, and will have to be examined by an attorney prior to going to trial. If the case does not settle, these individuals will serve as witnesses at trial. Before filing your lawsuit, ask yourself if you want attorneys contacting witnesses, and whether you want them to know all the details of the lawsuit. Once you file lawsuit, it is difficult to keep information from witnesses and the public.
Will I Be Able to Collect the Attorney’s Fees that I Spend for the Lawsuit?
In Florida, there are three ways that you may be able to collect attorney’s fees if you prevail in your lawsuit. The first is if a statute authorizes fees for the type of claim that is filed. The second is if there is an agreement that is signed by the parties that provides for a prevailing party to recover their attorney’s fees. The third is if you make a written offer to the other side to settle the case, and you prevail by at least twenty-five percent of your offer. This is called an offer of judgment/proposal for settlement. An offer of judgment is always something that you should discuss with your attorney.
There are definitely circumstances where lawsuits are justified and rewarding. However, lawsuits can be difficult. Before filing a lawsuit, make sure you have considered the factors discussed in this article. If you should need any assistance, please contact De Varona Law, a South Florida law firm that serves Dade, Broward, Palm Beach and Martin Counties for a free initial consultation.