FACTORS TO CONSIDER BEFORE FILING A CIVIL LAWSUIT
The American legal system is an adversarial one, meaning that the attorneys for parties with a dispute are advocates for their clients' positions. The advocates use the facts of the case and the law to present their parties' claims in the most favorable light. This article discusses the attorney's obligation to review the facts of a client's case and to help the client weigh each of the following considerations before deciding to file a lawsuit.
DETERMINE CLAIM AND RELIEF
It is the attorney's job to draw out the facts from the client and to determine the type of claim that would be justified by the facts. For example, if the circumstances show a breach of contract, the attorney would determine whether the basic elements of a breach of contract are shown by the facts. These elements are: the formation of a legally binding contract, performance (the client did what the contract required the client to do), breach of the contract (the other party failed to do what the contract required), and damages (the client suffered economic loss because of the other party's failure to perform). The attorney also has to assess the type of relief or damages that would be appropriate for the case.
EVALUATE EVIDENCE AND POTENTIAL WITNESSES
The attorney needs to evaluate the evidence available to prove the client's claim. The attorney also has to assess how easy or hard it will be to gather additional evidence. The client's credibility is an important consideration in evaluating the strength of the evidence. The attorney also needs to determine whether there are any witnesses who can help prove the client's case.
One of the attorney's important functions is to perform legal research in order to find legal precedent or authority in support of the client's position. The attorney will identify any laws that might apply to the client's situation and locate court cases that are similar to the legal dispute presented by the client.
EXAMINE ALTERNATIVES TO LITIGATION
An attorney should assess the possibility of a reasonable out-of-court settlement of the client's dispute. The client should also be informed that alternatives to a lawsuit exist. Two common alternatives to litigation are mediation and arbitration.
FINANCING A LAWSUIT
Litigation can be expensive. It is important for an attorney to discuss the projected costs of a lawsuit, including attorney's fees, investigation expenses, filing fees, and the costs of discovery (pretrial procedures that help a party learn more about the facts of the case and the other party's evidence). A client needs to understand that generally the client will be liable for all legal costs even if the client wins.
COLLECTING A JUDGMENT
The attorney should assess the likelihood that the client will be able to recover from the opponent any money the court awards to the client. This is an important consideration in deciding whether to file a lawsuit.