The basics of beginning litigation
When you have been wronged in some way, the urge to litigate can be overwhelming. You have damages, right? Someone wronged you! That means you should be able to sue someone!
Well, you might march down to the nearest law office and demand they take your case, only to be told that it isn’t financially feasible for them to do so. Why would they waste time on a case only to pay more in costs than their office receives from the settlement?
That doesn’t close the courtroom doors to you. If anything, your legal options remain the same — you just won’t have a lawyer handling everything.
So, how do you sue someone, anyway? What are the first steps? Before you do that, stop and ask yourself some questions first.
Do you really have a good legal case?
Just because the neighbor’s kid ran a dune buggy over your lawn and caused $17,500 in landscaping bills doesn’t mean a lawyer will be interested in pursuing justice on your behalf. This goes for business contracts, family disputes, vendor issues and contract negotiations. Even though it’s important to you, it might not be important to anyone else.
Take a step back and really, really look at your case. Be objective. You must establish a burden of proof when presenting your case in court, and depending on what the dispute is, the burden will be different (did somebody break the terms of a contract? Did a vendor hurt your business by not supplying promised widgets in a timely fashion? Was your car hit in a parking lot?).
There are many different types of law, and lawyers typically specialize in one or more. Some only make their living writing estate plans, while others are in court every day for a whirlwind of criminal cases. Even each of those crimes has a different burden of proof; establishing first-degree murder is much different than burglary.
The point is, it’s imperative to determine what type of case you have and what the legal elements are.
For example, a personal injury case usually requires plaintiffs to illustrate the concepts of negligence: that an injury occurred; that the defendant owed you, the plaintiff, a duty of care; that a breach of that care occurred; and this resulted in damages. The elements would be different for a breach of contract, which mean you must show that a contract was formed; that you performed as required under the contract, but a breach occurred when the defendant did not; and this breach resulted in damages.
If you get the elements wrong, the court might take pity on you as someone appearing pro se (without a lawyer) and let you refile, but some judges will toss your case out. At the very least, ask an attorney what type of case you have to make sure you are correct the first time.
Can you not sue this person or company?
Lawsuits are long, difficult slogs, especially for someone who doesn’t make a living handling them. How will you know of any pre-filing requirements? What are pre-filing requirements? Will you know how to prepare for hearings and depositions? How should you act in court? Do you need to bow to anyone?
Being a lawyer is hard; that’s why it takes so much time and money to become one. Lawyers typically do not represent plaintiffs at small claims court because the stakes, shall we say, are too low — but that makes those cases no less complex for a layperson.
If the dispute can be solved by any other means, even alternative dispute resolution like arbitration or mediation, do that instead. It’s easier for everyone involved, less stressful and likely cheaper, too. Sometimes all it takes is the right suggestion to reach a compromise.
Have you sent an informal final demand?
Many people actually forget to do this, but sometimes the impression of one last letter, hand-delivered or sent by certified mail, return receipt requested, can make an enormous impact.
The letter should be typed and official-looking, with your contact information clearly listed. In this letter you should state what happened, the previous attempts you’ve made for restitution, and what you are willing to accept. Make sure that there is no doubt of your intent. Should they not comply, you will file a lawsuit.
Often, a good threat works where other words fail.
Is the defendant able to pay?
Vengeance won’t taste as sweet when you realize that even though you got a $50,000 judgment, the defendant has already filed for bankruptcy. Don’t get caught paying for litigation that won’t reap any reward.
Are YOU able to pay?
Filing fees are expensive. So is paying for depositions, witness reports and the like. Personal injury attorneys usually work on contingency simply because it would not be financially possible for a plaintiff to bankroll a lawsuit; criminal attorneys like to charge by the hour. Far too much is required in fees on an up-front basis. For types of cases other than personal injury, ask for the attorney’s estimated fees and weigh whether it would be smarter to settle or pursue a claim pro se.
While this likely won’t occur in something like small claims court or collections court, you will still need to pay for everything, down to copies of the judge’s opinion.
The bottom line
Even if you think it’s a small case that wouldn’t warrant a lawyer’s involvement, talk to an attorney anyway. The first meeting is usually free, and he or she can inform you A.) what type of case you have, B.) whether you should pursue it alone, and C.) how long it might take. We have even written a list of materials that you should tailor to your situation and bring with you to that first meeting.
California Courts lists these as the steps for how to sue someone. Keep in mind the actual courts and processes may vary by state, but generally you will need to do these things if you’re pursuing a case by yourself:
- Figure Out How to Name the Defendant
- Ask for Payment
- Find the Right Court to File Your Claim
- Fill Out Your Court Forms
- File Your Claim
- Serve Your Claim
- Go to Court
Have you ever flown solo when taking a case to court? Let us know in the comments!