Wednesday, April 6, 2011

Civil Litigation - Do I have a case?

The first important question every lawyer is asked by a prospective client is the same: "Do I have a case?"
The answer, like everything in the law, is never straight forward, but rather calls into play several other questions (some of which are provided below):
1) Is the wrong that you describe a legally cognizable cause of action?
2) Can we tie some sort of damage claim to the wrong you describe?
3) Do(es) the defendant(s) that wronged you have any money or other assets to pursue, that will make this endeavor worthwhile?

The primary questions on the defense side (and I am on the defense side as often as I am on the plaintiff's side) are slightly different:
1) Do I have anything to lose (the corollary of question 3, above)?
2) Does the Plaintiff have a cognizable cause of action against me?
3) Can we show that someone else is responsible, or at least partially responsible, for the Plaintiff's damage? 
4) Was Plaintiff actually damaged?
5) What are the ramifications of allowing a judgment to be taken?

Most people who approach an attorney with a new claim are angry.  They feel that they have been injured by someone (or wrongfully sued), and they want that person/entity to pay.  I always try to subtract the anger and feeling from a new client's story before deciding whether a case is worth taking/defending.  Yes, that anger and feeling may have some value down the road, and is probably justified.  But right now, when we're trying to decide whether you want to spend thousands of dollars pursuing or defending a claim, we need to figure out if its going to be worth it.  At the end of the day, the decisions you make in the litigation context are business decisions.  My goal, if I am doing my job correctly, is to provide a realistic assessment of the answers to these questions to help you make the best business decisions possible.

So, when you are confronted with a wrong, or a lawsuit, the above questions, among others, should be a starting point with any attorney with whom you consult.

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