How to Know if You Have a Lawsuit

Three Parts:Analyzing Your CaseConsidering Your AlternativesConsulting an Attorney

You've been harmed or suffered some injury for which you believe someone else is responsible, but the law doesn't provide a remedy for every type of harm or injustice you might suffer. Before you decide to sue a person or business, you must learn whether you have a lawsuit. If it turns out that you do, you also should analyze the strength of your case and determine whether the person you want to sue will be able to pay you if you win. Even if you do have a strong case, you also might consider other ways to resolve the dispute to avoid the stress and expense of filing a lawsuit.[1][2]

Part 1
Analyzing Your Case

  1. Image titled Know if You Have a Lawsuit Step 1
    Learn the elements of your claim. The basic elements of your claim indicate what you must prove to win your case.
    • Claims – also called causes of action – are broken down into specific components. You must have proof of each of these components to put together a good case.[3]
    • For example, if you've hired a contractor to complete home repairs and he didn't complete the repairs according to the contract, you may want to sue him for breach of contract. To prove breach of contract, you must be able to prove that a valid contract existed, and that you held up your end of the bargain but the other party did not. You also must be able to prove the amount of damages you claim to have suffered as a result.[4]
    • Personal injury cases, such as car accidents, have different elements. Generally, you must prove that the person you're suing was negligent, his or her negligence caused your injury, and the injury resulted in compensable damages such as medical bills or lost wages.[5]
    • There are further elements involved in negligence itself. Specifically, you must prove that the person you're suing had some duty to act in a certain way, and he or she failed to perform that duty.[6][7] For example, if you were involved in a car accident because another driver ran a red light, you would have to prove that the light was red and the driver had the duty to stop at that red light, but failed to do so.
    • If you don't think you'll be able to prove even one of the elements of your claim, you probably don't want to file a lawsuit. If you can't prove all elements, you'll have a difficult time winning your case. For example, if you never had a written contract with your home improvement contractor, you would have a hard time proving that a valid contract existed. If you can't prove the existence of the contract, you can't prove anything else either – since the other elements depend on the existence of a contract.
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    Research the applicable law. In addition to the law itself, there may be regulations or court cases interpreting the elements of your claim.
    • Make sure you're looking at the laws for the place where you'd file a lawsuit. Typically this will be either the state and county where the incident took place that gave rise to your dispute, although you also may choose to sue the person where he or she lives.[8]
    • You also might want to find out the outcome of cases similar to yours in the court where you intend to file your case. For some types of cases judges have more discretion over their decisions and awards than in others. If your claim involves a significant amount of judicial discretion, understanding how the judges handle cases like yours is essential to evaluating the viability of your case.
    • You also must check to see what the statute of limitations is in your state for your claim. Each state has statutes of limitations that provide deadlines after which you can't file a lawsuit to recover damages.[9]
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    Understand the burden of proof. You must be able to prove each element of your claim is more likely than not to be true.
    • The burden of proof in civil cases is referred to as a "preponderance of the evidence." This is a much lower standard than the "beyond a reasonable doubt" standard you may be familiar with in criminal cases.[10] Essentially, you only have to prove that it's 50.1% likely that your version of the story is true.
    • In some cases, the person you're suing may have an affirmative defense, which typically means that the burden of proof shifts to him or her. In some situations, the burden may shift to the defendant to prove that the defense applies, then shift back to you to prove other conditions or facts related to the defense.[11]
    • Some laws have their own built-in presumptions of evidence, which also shift the burden of proof to the defendant. For example, if someone rear-ends your car, the law may presume that the accident was due to negligence on the part of the driver. In these cases, the burden shifts to the driver who hit you to prove that his actions weren't negligent, or that they were excused in some way.[12]
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    Evaluate your evidence. You will be more likely to prevail in a lawsuit if you have solid evidence for each of the elements of your claim.
    • Keep in mind that your evidence must include not only documents or information you have with you at the moment, but also evidence that you would be likely to acquire through the discovery process, when parties to a lawsuit share information related to the claim.
    • For example, if you slipped and fell in a restaurant and want to sue the restaurant owner, you must prove that the restaurant was somehow negligent in its duty to keep the floor clear of debris so patrons wouldn't hurt themselves. While you may not have that information yourself, if you sued the restaurant owner he or she would have to provide documentation of maintenance policies, including schedules of when the floor was cleaned by employees and how often that was done.[13]

Part 2
Considering Your Alternatives

  1. Image titled Know if You Have a Lawsuit Step 5
    Assess the defendant's ability to pay. You may have an ironclad claim, but it might not make sense to sue if you'll be unable to collect damages when you win.[14]
    • If you win your lawsuit, you still must collect your judgment – the court won't do that for you. To enforce your judgment, you may have to file additional forms with the court and use collection procedures such as garnishment, for which you also will incur costs.[15]
    • Even though you may not have all the information you need to make a decision on whether the defendant will be able to pay, you typically will be able to gain a rough understanding.[16] For example, if you were injured in an auto accident and the other driver is insured, his or her insurance company will more than likely cover the claim.
  2. Image titled Know if You Have a Lawsuit Step 6
    Send a demand letter. Before you decide to file a lawsuit, make an attempt to settle your claim with the person you intend to sue.
    • Keep in mind that in most cases, people would rather settle a dispute than be dragged to court. A lawsuit is time-consuming and costly for all parties. If the person understands his or her level of fault, you may be able to work something out.[17]
    • Be polite and formal in your demand letter, and type it using standard business format. Recount a brief history of the facts that led to the dispute and ask for a specific resolution.[18]
    • If you're asking for a specific amount of money, you should explain how you calculated that amount. You may want to attach bills or other documents that prove the amounts of expenses you incurred as a result of the dispute.[19]
    • Give the person to whom you're writing the letter a specific deadline by which to respond, and explain that if you aren't able to come to a resolution you will be filing a lawsuit.[20]
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    Use a mediator or binding arbitration. Alternative dispute resolution can provide a quicker and more cost-effective way to resolve your dispute than filing a lawsuit.
    • Arbitration is like a less formal trial, in which an arbitrator hears both sides of the story and makes a decision regarding who's right, just like a judge or jury would in the courtroom. However, the rules of evidence and procedure tend to be more relaxed, and the overall process is completed much more quickly than a formal trial.
    • With mediation, a neutral third party will facilitate a discussion between you and the other party to find common ground and resolve the dispute.[21]
    • If your claim involves breach of contract, you should review the contract to see if it has an arbitration clause. Many contracts require parties to submit their disputes to a neutral arbitrator before filing a formal lawsuit.[22]
    • Mediation is becoming increasingly common in American litigation, and some courts even require that you participate in mediation before you proceed with an actual trial. Suggesting mediation before you file your lawsuit could save you the court costs associated with filing a complaint in court.[23]
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    Negotiate a settlement. When deciding what you're willing to accept to settle your claim, keep in mind the costs of filing and litigating a lawsuit.
    • Keep in mind that most cases filed in U.S. courts are settled out of court rather than going to trial.[24]
    • Even if you have a strong case, you should consider filing a lawsuit a last resort after all attempts to settle have failed.[25]
    • Take a look at your additional demand and offer to reduce that amount by 20 percent or so. This reflects the cost to you – both in terms of time and money – in filing a lawsuit.[26]
    • You also should consider how strong your case is, and whether the person you intend to sue has a valid defense. Both of those things will affect your case's value.[27]
    • If you looked at similar cases filed in the court where you plan to sue, you also have an idea of how your case might be valued by a judge.
    • Go into negotiations with patience and confidence. Don't be afraid to ask for the amount of money to which you believe you are entitled, and avoid caving to low-ball offers.[28]

Part 3
Consulting an Attorney

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    Look for a specialist. If you're going to talk to an attorney, make sure you're talking to someone with experience and expertise in the type of claim you have.
    • You might try asking around to friends and family members who've had experience with similar claims, if you know anyone. They might have an attorney they used that they could recommend.[29]
    • Online attorney directories or the website of your local bar association also is a good place to find an attorney. Many of these directories allow you to search by particular practice area.
    • Once you've found a few candidates, make sure you do your due diligence in thoroughly researching that attorney's practice and experience before you call him or her up to schedule an interview.[30]
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    Prepare for your attorney interviews. Before you talk to attorneys, make sure you have copies of any documents or evidence to share with them so they can properly assess your claim.
    • Many attorneys will give at least one free consultation, but this may amount more to a sales pitch for the attorney than a legitimate assessment of your case.[31]
    • Write down a list of questions you want to ask each attorney. In addition to questions about your case, make sure you're asking questions regarding how the attorney interacts with clients and other conditions of his or her practice.[32]
    • What other questions you ask attorneys will depend on your own preferences. For example, if you want a hands-on attorney who communicates with you frequently, you should find out how often the attorney contacts clients and whether he or she relies on junior attorneys or paralegals to do most of the work on cases.[33]
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    Interview more than one attorney. Talking to more than one attorney allows you to compare and choose the representation that best fits you, your goals, and your budget.
    • Even if you go to one interview and are impressed with that attorney and want to hire him or her, keep your other appointments so you have some basis for comparison.[34]
    • You want to try to interview at least three attorneys, although this may not be possible depending on the kind of case you have, or if you live in a rural area.
  4. Image titled Know if You Have a Lawsuit Step 12
    Assess your ability to pay for legal services. Whether you decide to hire an attorney, and whether you choose full representation or unbundled services, depends on how much you're willing and able to spend.
    • While you may be able to recover your legal fees if you win, you still may have to pay certain expenses and costs out of pocket before the case ends.[35]
    • If you're hoping to represent yourself, you may be able to have an attorney look over your documents before you file them to make sure everything is correct, or help you prepare for trial.[36]

Sources and Citations

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Categories: Legal Matters | Injury and Accidents