Should You Sue?
We spend a lot of time on here talking about what happens when you are in a lawsuit but the first question which should be addressed by someone in every lawsuit is whether the case should be pursued in the first place. To answer this they would need to consider several factors.
(Incidentally, we discuss this in more detail in our upcoming book The Guerrilla Guide to Small Claims Cases, coming soon.)
There are three major questions which should be examined first:
- Is my case worth pursuing?
- Would I be better off trying for a settlement?
- Can I collect if I do win?
Is my case worth pursuing?
This needs to be an unemotional and analytical evaluation of the case both from a legal and factual point of view. This evaluation would include studying the cause of action to be certain each element can be met, the facts to be sure that they can be proven as well as how you would prove those under the Rules of Evidence.
We briefly discuss and explain the concept of causes of action and how to determine the elements of them in this post but the most important thing to know is that if you can't prove all of the elements of your cause of action then you cannot win your case.
In addition, filing a lawsuit requires a willingness to invest a sizable amount of time and effort into preparation. If you are not willing to dedicate yourself to preparing your case, researching the legal issues, doing discovery, and all of the other matters then you absolutely should not represent yourself. You can still hire a lawyer and have them do it for you but a lack of preparation not only means you are likely to lose your case but you also stand a good chance of incurring the wrath of the judge for wasting their time and you could end up being sanctioned and actually having to pay the other party for bringing the lawsuit in the first place.
Would I be better off trying for a settlement?
In most of the cases handled by lawyers the cases resolve before court and many times before a lawsuit is even filed. I don't have any statistics for this but I would say, based on my experience, the same is not true when pro se litigants are involved. There could be any number of reasons for this, including the fact that lawyers are more amenable to settlements, but I suspect the main reason is that pro se parties tend to take things more personally and are unable to look at either the facts or the value of their case objectively.
There are a number of different ways to resolve a lawsuit through processes known as Alternative Dispute Resolution. This can include anything from simply telephoning your opponent and trying to settle to more formalized methods such as mediation or arbitration.
Settling a case offers many advantages. It's faster, cheaper, and causes less hard feelings. However, as most arbitrators will tell you, a good arbitration is one where everyone walks away at least somewhat satisfied but thinking they could probably have done better at trial.
Can I collect if I do win?
This is an issue which 1) absolutely must be considered, 2) is always considered by lawyers, and 3) is rarely considered by people representing themselves.
A judgment is nothing more than a piece of paper if you can't collect.
Every state has certain exemptions for debtors. What this means is the state allows people who owe money (debtors) to exempt certain property from seizure by the entity to which money is owed (creditor). Some states do not allow the seizure of wages, homes, vehicles, or other property either in whole or up to certain amounts. Items such as Social Security payments, income tax refunds, and other are exempt by federal law and cannot be seized anywhere in the U.S.
Before bringing a lawsuit a person should research carefully what the exemptions are in their state so they know whether the time, effort and expense are worthwhile.