Before you file a lawsuit, you need to think through some important steps in the process. Make sure to take the following 10 steps into consideration before you file a lawsuit:
- Seriously consider whether you have a good case. Even if you think you have a good case, take some time to think about whether you can win the lawsuit.
- Determine the theories of law under which you will file your case. Do some research on the law and see if it supports your theories.
- Determine whether you have evidence to prove your case. Think of and, if possible, locate evidence you will use to prove your case, including documents, writings, objects, records, and so on. Determine whether the evidence you think you have exists and, if so, determine where it is, whether it is in your possession, whether you know where you can find it, and whether you will be able to obtain it. Is there a chance that the evidence will spoil, decompose, deteriorate while you are awaiting trial?
- Determine whether there are witnesses who will help prove your case. Was there anyone who observed first-hand any of the issues to be determined by your lawsuit? Are there witnesses who can testify about the different types of evidence you will present at trial? Will any of these witnesses be willing to testify on your behalf or would you have to summon them to court? Is there a witness in ill health or about to move to a different location who would be unable to testify for you in court? Can you lock in witness’ testimony through an affidavit or declaration?
- Determine the expenses you will incur in bringing the lawsuit and consider sources for obtaining the money. Consider the money that you will have to spend to pursue a lawsuit, including filing fees and costs, earnings lost while you pursue your lawsuit, other litigation-related fees, and attorney fees. Can you take money out of your business or out of your home? Do you have savings that you can use to pursue the lawsuit? Do you know anyone who will loan you money to pursue a lawsuit? Is there anything about your lawsuit that would qualify you for any aid in paying for representation? Are you covered by insurance for the matter of the lawsuit?
- Consider whether you have the physical and emotional energy to pursue a lawsuit. Whether or not you hire an attorney to represent you, you will be either representing yourself or aiding your attorney in your representation. Either way, you will have to spend a considerable amount of time and energy pursuing the lawsuit. Not only will a lawsuit consume a great deal of your energy, it will also likely be an emotional experience.
- Think about whether the defendant will sue you back. There is always a possibility if you sue someone that they will sue you back (i.e., countersue). If this occurs, not only will you be committing the time, energy, and money to your own lawsuit, but you will also be spending time, energy, and money defending a lawsuit.
- Carefully consider whether you will be able to collect on a judgment if you are successful in court. It rarely makes sense to file a lawsuit if you know in advance that it is unlikely you will collect on a judgment. Conduct an investigation of the party you wish to sue to determine what types of assets are available to satisfy any judgment you might receive.
- Check whether your lawsuit is timely. Certain types of lawsuits must be filed within certain proscribed periods of time called statute of limitations. If you are not filing within the proper statute of limitations, your lawsuit will be dismissed. Check to see which statutes of limitations apply and whether you are within the proscribed times.
For a detailed discussion about statutes of limitations, see Statute of Limitations Basics.
- Before you file your lawsuit, make another attempt to settle your dispute. Consider whether there is any other way to resolve the dispute other than by filing a lawsuit.