Litigation Warrior – Pre-litigation strategy
Taking the decision to litigate and file a lawsuit is a big step. Before you decide to move forward and file either a state or federal lawsuit there are a few things to consider. This blog highlights some of the important things to consider before you file your lawsuit.
Attorney Steve's Top 5 Tips
1. Are you likely to prevail in your case? The first and most important thing is to figure out whether or not you actually have the type of case that can win. You need to look at what your case facts are. What evidence do you have? Can you meet the elements needed to prove each cause of action, or have the type of evidence that can overcome summary judgment? One thing we do early on is to look at the jury instructions for the causes of action that you plan on filing. What are the elements that you, as a Plaintiff (who has the burden of proof in a civil lawsuit) must prove. Look closely at the evidence you have, and the evidence you realistically believe you will be able to obtain after discovery (interrogatories, requests for admissions, depositions, etc.). Knowing whether or not you have a solid cahnce of winning your case is an important first step in the case.
2. Do you have an attorney or law firm that is passionate about your case? In order to take a case through summary judgment, and trial if need be, you must have a law firm that (a) believes in your case, and (b) is willing to work as hard as possible to present and advocate for your position. There are many lawyers who are just “out for the money.” A great law firm believes in your case and wants to pursue justice and bring home the largest verdict possible, or defend your case with a “no liability” verdict depending on who we represent. Our law firm is not cash-strapped like some solo law firms are. We only take cases we believe in, and we fight tenaciously in those cases. Having the right law firm advocate on your behalf is number two on the list of top five.
3. Do you have the “stomach” and the “wallet” to litigate. Assuming your case is not a contingency case (we do take certain cases on contingency fee, for example financial elder abuse cases) but many are paid litigation cases. What this means is, depending upon the type of party you are involved in litigation with, the litigation could last many months, and sometimes possibly a year or more. You have to understand this and take this into account. Financially, you have to budget for this, and weigh this against what you are hoping to gain, or win in your lawsuit. Additionally, litigation takes a toll on some people. While some people love litigating, and it is sort of a “sport” to them, and enjoy having a law firm fight for them to vindicate or defend their legal rights, still others are not really cut out of costly and protracted litigation, so you need to know your self, your goals, and what you really want to do in your case. If you are not sure, you should discuss your concerns with our lawyers. We want to understand your objectives, and help you cost-effectively navigate the legal system while seeking to prevail in your case.
4. Is there any other way to resolve your dispute without filing a lawsuit? For example, can you send a legal demand letter? Can you negotiate a resolution informally? Can you submit to mediation or arbitration to resolve your dispute? Does it make sense to “let it go.” These are some things to think about before filing a lawsuit. Sometimes when you file a lawsuit you get locked into your position and are forced to fight. Before filing a state or federal lawsuit, it is important to consider whether there are any other possible avenues to resolve your dispute. If not, you litigate.
5. You always have to keep in mind what the other party (Plaintiff or Defendant) might do in a case. For example, will they counter sue you? Will they try to remove your case to federal court? Will they be seeking their costs and attorney fees if they win? Litigation can be somewhat unpredictable at times, so you have to be willing to accept some of the moves your opponent might make, and be will to front not only the costs of your litigation (ex. deposition costs, expert witness costs, fees, etc.) but also run the risk of facing legal maneuvers that seek to put you on the defensive. This is how litigation goes. So as long as you are comfortable with the above, then litigation may be an acceptable move for you.
These are some of the main things to consider. Filing a lawsuit is always a big deal for our clients. We want to make sure you are as informed as possible, and have considered all the angles before filing a state or federal lawsuit. If you have more questions, issues, comments or concerns, please discuss with one of our litigation attorneys before a lawsuit is filed.
Watch Attorney Steve® explain in this video the most important things to think about BEFORE you try to sue a person or company
Do you have insurance coverage that will pay for your defense?
One final separate issue you need to explore and be comfortable with, is whether or not you have insurance that has a duty to defend you in the case you are considering filing. If you are not sure, contact your insurance carrier or broker and ask them if your insurance policy might cover you. In some cases, Clients are surprised to learn that a certain type of dispute may actually be covered by one or more insurance policies. When you move forward litigating with our firm, we will assume you have done the due diligence on your end (you need to look into this, as we do not assume any liability for looking into this), and if there are questions, this should be discussed in advance of filing suit.
Contact our litigation attorneys
We are strong negotiators (who try to keep you out of a lawsuit), but also fierce litigators if a lawsuit is deemed the best option to pursue. Give us a call at (877) 276-5084, or fill out the contact form below, leaving your name, and phone number and general description of your case. We have flexible legal fees, and we believe we are the best litigation firm you can hire for your California or Arizona lawsuit. We have offices in both states and each of our attorneys is licensed to practice law in both California and Arizona.