It is generally accepted that you must be able to answer three questions before you can even contemplate the possibility of initiating a lawsuit: First and foremost, you must determine whether or not you have a strong case. Second, if you do decide to file a case, you must consider whether you would be satisfied with a settlement or going through mediation. Finally, even if you are successful in your case, you must consider whether or not you will be able to collect any kind of judgement against the other party.
You should carefully examine the answers to the following questions before proceeding. If you find yourself answering “no” to any of these questions, you may want to reconsider taking your case to court.
A Well-Constructed Argument
In “lawyer-speak,” practically every lawsuit (a cause of action) may be broken down into a number of stages, or components of legally needed requirements, which can be broken down further. It is your responsibility as the plaintiff to go through this checklist of factors and verify that you can satisfy or establish each one in order to have a “good case.” Different components of your case will need to be shown in order for you to be successful, depending on the cause of action you are pursuing. Consider the following instances of real-world situations to demonstrate this point:
Typical Situation 1: Breach of Contract
Consider the following scenario: you have hired a contractor to do a kitchen makeover in your house. Instead of commencing the job, the contractor accepts your money and only begins by taking off the kitchen floor, with the remainder of your money being used to purchase beer for his crew. You decide to file a lawsuit against the contractor on the grounds that he breached the contract. In order to establish a breach of contract, a plaintiff must establish each of the criteria listed below:
There was a legally binding contract in place. In order to even file a breach of contract lawsuit, you must be able to demonstrate that you and the other party entered into a legally binding agreement. In the event that you have a formal contract that has been signed by both parties, this is a rather simple process to follow. It is possible that if you just had an oral agreement or some other kind of handshake agreement with the contractor, you will have a more difficult time demonstrating the existence of an enforceable contract.
A successful breach of contract lawsuit requires the plaintiff to demonstrate that he or she performed their obligations under the terms of the contract in question. In this instance, you have paid the money to the contractor, and so have fulfilled your contractual commitment.
Breach. It seems to be very obvious that in order to win a breach of contract lawsuit, you must demonstrate that the other party violated the contract, which means that they failed to perform the obligations that they agreed to. You will need to demonstrate that the contractor did not finish the kitchen makeover in this instance.
Damages. You must be able to demonstrate that you have suffered economic losses in this situation. For example, in this circumstance, you may be required to employ a second contractor in order to finish the task that the previous contractor was unable to complete successfully. Furthermore, if you operate a company out of your home, you may be entitled to deduct any lost income from your total damages estimate.
A Second Case Study Involving Negligence That Caused Personal Injury
Consider the following scenario: you have been wounded by someone’s acts that you believe to be careless. The following components will need to be shown in your personal injury lawsuit in order for you to be victorious:
Duty. It is common to ask the question, “Did the defendant owe a responsibility to the plaintiff?” while addressing this part of the case. Duty may manifest itself in a variety of ways that are recognised by the law. In the case of drivers on roads, for example, they have a responsibility to all other drivers on the road to drive in a safe way that does not endanger others.
Failure to perform one’s responsibilities. Following the definition of the obligation, it is necessary to determine whether or not the defendant broke the duty with regard to the plaintiff. In order to establish this condition, you must demonstrate that the defendant did not behave in a manner consistent with what a reasonable person would have done in performing the obligation due to the plaintiff.
Cause in Fact: This is referred to as the “but-for” test in certain circles. If you can demonstrate that the plaintiff would not have suffered an injury had it not been for the defendant’s acts, you have achieved this requirement. For example, if the defendant had not been driving under the influence, the pedestrian would not have been hurt.
The term “proximate cause” refers to the closeness of the defendant’s acts to the injuries that were created by his or her activities. For example, if the defendant struck and wounded a pedestrian while driving, and the injured person subsequently contacted his grandmother to inform her about his broken leg, and the grandmother had a stroke, the defendant’s acts may not be considered the proximate cause of the accident. As the term “fairness” implies, this factor often questions whether it is reasonable to link the plaintiff’s harm to that of the defendant’s acts.
Damages: Just like in a breach of contract litigation, you must be able to demonstrate that you have suffered damages. In a personal injury lawsuit, for example, damages are often awarded for medical expenses as well as for pain and suffering resulting from the injuries sustained.
Settlement and mediation are two methods of resolving disputes.
Despite the fact that you may be able to establish all of the components of your case, it is still not necessary to go to court. In the United States legal system, far more cases and conflicts are resolved before or outside of court than are contested all the way to the end of the line. The greatest answer to an issue is sometimes as simple as sitting down with the other side and talking about it to see if a settlement can be found without resorting to legal action in the first place. Aside from that, mediation services have grown in popularity as well as availability, with free and low-cost mediation services often available in large cities. An excellent option to have a neutral, third-party listen in on a discussion and provide suggestions for how to resolve an issue is via mediation….
Be aware that you may be compelled to attempt mediation or arbitration before going to court in certain circumstances. Numerous contracts, for example, have arbitration provisions that require the parties to undertake mediation or arbitration before initiating legal action against one another. In a similar vein, many courts urge parties to a case to attempt to resolve their disagreements via mediation before scheduling a formal trial.
At the conclusion, a collection is made.
When considering whether or not to file a case, one of the most crucial issues you will need to answer is whether or not you will be able to recover a money judgement from the defendant. Keep in mind that if you win a case against someone who has no means of paying a monetary judgement to you in the event that you win, it will be of little or no use to you. Your good sentiments about winning and defending your viewpoint will not cover the cost of your court expenses.
Courts have only the authority to inform you that you are legally entitled to a monetary judgement; they have no authority to assist you in collecting it. The sheriff’s office will most likely be required to assist you in collecting a judgement if you are having difficulty doing so on your own. Wage garnishment, liens, and even direct collection of funds from a firm are examples of types of aid available.
Consider the individual against whom you want to file a lawsuit carefully. If you believe that a court ruling will be for a significant sum of money, you should choose a defendant who has “deep pockets,” or the means to pay. In personal injury claims, particularly vehicle accident cases, it is the insurance companies who will be responsible for paying any awarded damages.
Finally, before filing a lawsuit, you should analyse the various options for dealing with the problem of judgement collection. Using Case Example 1, which involves a kitchen makeover, we can explain a potential solution: if you acquire a judgement against a contractor and he refuses to pay the verdict, you have a variety of choices available to you. If the contractor is personally liable for the conduct of his business, you may be able to garnish his pay or lay liens on his real estate with the assistance of the sheriff in order to collect your debt. You may also be able to convince the state licencing board to suspend the contractor’s contractor’s licence until the judgement is paid (keep in mind, however, that if you get this licence revoked, he may have no way to make money in order to satisfy the judgment). A lawsuit may or may not be in your best interests, depending on your circumstances and the options available to you for collecting your debts.