WASHINGTON, April 18, 2012 – Imagine … an attorney cautioning you about filing a lawsuit.  I do so because my experience tells me that often you are better exercising restraint. 

Life provides daily disputes, some of extraordinary significance. Accidents happen, we find ourselves harmed by others’ neglect or sometimes intent, and business dealings often go awry. 

Even family situations can present in such a way that we consider legal options.

Sometimes there is no choice but to use the courts. Othertimes, I believe a calm look at things will allow you to save time, avoid stress, save money, avoid embarrassment, spend more time with your family, keep friends, and vote for Democrats.  Okay, had to throw that in…

Here are some thoughts to consider before filing a lawsuit.

1. You must have a valid legal claim.   Because you have been wronged, or injured, or someone used you, does not mean you have a legal claim.  Slipping in the grocery store is not necessarily the basis for a claim – the owner must be shown to be responsible.  Someone insulting you likewise may not be a basis for a suit. 
2. You must be able to prove what occurred.   We know you are honest, but courts assume that of all litigants, so, “my word vs. your word” usually is not going to be your strongest case.  Witnesses, documents, photographs and other “independent” evidentiary proof are normally necessary for you to prevail.
3. Talk to the other party first.  This may be obvious, but most people who know they are at fault will try to make the situation right, rather than be forced into court. 
4. Consider compromising. Take a realistic look at the other point of view. Perhaps there is a valid argument, or even a potential claim against you. If so, modify your thinking. If money is at issue, you might want to take less than fight, spend money, and have a resolution delayed. So you will know, there is no guarantee you will win in court, or that you will win everything expected.
5. You may not have the knowledge, time or experience to file a lawsuit.   Except for Small Claims Court, our court systems across the country are not user-friendly.  If you are not an attorney, you are probably not familiar with court rules, deadlines, and forms, leaving you with a learning curve or with possible game-ending stumbling blocks. 
6. Legal fees can be expensive.  Injury claims allow you to retain an attorney without “up front” expense for legal fees, as these cases are usually handled on a contingent basis – the lawyer is paid a percentage of the recovery if and when you recover.  Most other types of cases, such as business disputes or family law matters, typically involve the up-front expense, called a retainer, and will require continuing legal fees payments.  Because you win does not necessarily mean the loser pays your legal bills. Ask your lawyer for an estimate of legal fees, and do the calculations. It may be financially prudent to settle.
7. You need to have the resources to devote to litigation.  Depending upon the complexity of your case, money might be only the first of these needed resources; add to the list the ability to devote your time away from your work, family and social life.
8. Even if you win, you may not be able to collect or get what you want. The other party may not have money, assets or resources to pay you.  Over the years, I have had requests to sue people who assaulted the potential client.  I advised calling the police and then asked if we sue them, and win, then what?  Realistically, does someone who beat you up usually have any money?
9. Results in court are not guaranteed even though you are honest.  Can you think of any court results that shocked you, and shocked everybody else?  Think of “sensational” criminal cases.  There are a multitude of reasons you could lose. 

I am an attorney.  Most cases settle before lawsuits are filed.  Every attorney will tell you the same thing.  Maybe your case is so pitched, so involved, so impossible, that court is the only resort.  My advice is to recognize that it might be best to make it the last resort.  Talk things out.  Spend a little money and talk to an attorney first to explore your options.

Courts are there for all of us; visiting them first is not always the best choice.

 

Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980.  He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website. He is also available to speak to your group on numerous legal topics.  Paul is the featured legal analyst on the Washington Times Radio, on the Andy Parks show, on Wednesdays at 5:15 P.M., and he is a columnist on the Washington Times Communities.

His book The 8 Critical Things Your Auto Accident Attorney Won’t Tell You is free to Maryland and Virginia residents and can be obtained by ordering it on his website; others can obtain it on Amazon.

 

 

 

 

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