By Suzanne Natbony

When is it appropriate to sue? Attorneys and others working in the legal industry are used to being asked this question, not just from clients, but from friends and even family members.

Individuals may want to sue for a variety of reasons. Maybe a company collected money from them and did not render the promised service, perhaps they ate contaminated food or sustained an injury on someone’s property, maybe they were lied to, or feel that they are the victim of medical malpractice. There are any number of reasons that people start asking this question ranging from very serious problems to outright laughable ones.

Most of the people asking these questions usually want to hear a resounding ‘YES’ from their attorney friends. They are looking for confirmation that they can go ahead and enforce their legal rights. Unfortunately, it is usually far more complicated than people assume. Attorneys with extensive years of practice and a good grasp of legal proceedings can help potential plaintiffs make the best decisions in these matters.

One might hear their lawyer call this type of legal analysis, “the 4 Cs of case evaluation.” In other words, a person needs to have the following four components before he or she can sue over a wrongdoing. These are:

  1. Claim(s)
  2. Compensability
  3. Corroboration
  4. Collectability

 

1. Claims

Are the case’s claim legally valid? Is it possible to win the claims if the case goes to court?

Claims can fall into many areas of law. Common claims include claims for breach of contract, defamation, nuisance, negligence leading to personal injury or professional malpractice, wrongful termination or employment discrimination.

Before an individual can sue for any of these claims, the specific components of each claim must be met. For example, in a negligence case, there are four criteria that must be fulfilled for the claim to be valid. These are duty, breach, causation, and damages. However, the presence of these elements does not guarantee the aggrieved party will win a lawsuit.

Before filing a lawsuit, the person pursuing a claim must also understand whether there would be any possible counterclaims and defenses available to the defendant. If the defendant’s claims or defenses are stronger than the plaintiffs, or if the defendant is able to counter the claims of the plaintiff, then it may not be worthwhile for the aggrieved party to pursue litigation.

Any potential plaintiff needs to ask themselves what the potential defendant’s counterclaims or defenses might be and whether these are strong enough to drop the idea of pursuing a lawsuit.

 

2. Compensability

Can the court award damages for the plaintiff’s claims? Be it monetary reparation or other non-monetary remedies - will the suing party receive any compensation if the case ended in their favor?

For example, imagine a dry cleaner failed to return an expensive suit when delivering clothes back to an individual. Let’s imagine in this scenario that the issue was flagged with the dry cleaner, and it turned out that the offending suit was not lost forever, in fact it was still in the delivery vehicle and was eventually returned to the aggrieved party. While this might have caused the customer some temporary frustration, is it prudent to sue over this little discomfort, even though it is true the company failed to meet the due date of the agreement? The customer did not lose any money, and the company returned the suit as soon as they found it in the van. It is true there was damage, the customer experienced frustration.

Before suing, a person must consider how much they have lost and whether the courts can award them damages at all. Litigating is a costly procedure and must be taken into consideration by any potential plaintiff. It can cost thousands of dollars to file a lawsuit and countless precious hours and energy to prepare paperwork whether you are filing in the civil courts or just small claims court.

Even if a claim is found to be valid, the court may find it difficult to measure damages that will adequately compensate the suing party’s claims. In the case of non-monetary reparations such as an injunction, the courts may not be able to deliver a restraining order for a variety of reasons. The potential plaintiff must therefore take many factors into account when deciding whether his or her damage is compensable.

 

3. Corroboration

Is there evidence to prove the claims? Is there compelling written or video evidence, experts or witnesses that can testify on behalf of the plaintiff in court? Evidence will vary based on the claim.

For example, in a breach of contract case, it is easier to prove the breach if there is a written contract, along with emails to support that the terms were not met.  An aggrieved party will find it more difficult to prove an oral contract and will need to find other avenues to prove that an oral contract existed and that a breach occurred. This could include bringing witnesses to testify in court.

In a products liability case, it is the responsibility of the individual to prove to the court that the damage was due to the product itself or defects in the product and not their failure to follow instructions or their mishandling of the item. In a medical malpractice case the potential plaintiff may need an expert to testify that the standard of care was not reached by the medical professional.

In any such case, the evidence of the potential plaintiff must be stronger than that of the potential defendant. The aggrieved party must take into consideration what sort of evidence, witnesses and testimony the potential defendant might introduce to the court to back up their side of the story.

 

4. Collectability

If the aggrieved person wins the case, is it possible to collect damages? Will the defendant agree to pay damages or appeal the case? Does the person have the financial wherewithal to compensate the suing party? If compensation might lead to the entity filing for bankruptcy, then the person who filed the lawsuit may have serious issues with collecting damages. The potential plaintiff must take into consideration all aspects of the defendant’s ability to pay upon receiving a judgement in court.

So what is the answer to the age old question of whether or not a potential plaintiff should sue?

It is important to pay critical attention to “the 4 Cs.” If an aggrieved person cannot provide satisfactory answers to these four critical elements, the lawsuit may end up being a waste of money, time, and resources.

Even if the four Cs are present, it is exceptionally rare to come across a cut and dry case in which it is all but guaranteed that the plaintiff will win. There are still a variety of factors that might mean the plaintiff could lose, such as alienating the jury so that the individual jury members dislike the plaintiff and don’t want to find in his or her favor.

It is therefore always best to seek the advice of a seasoned legal professional before embarking on a lawsuit.

 

Suzanne Natbony’s background is in business law.  She has worked in-house for several startups and for several law firms. Her focus is on helping potential clients get deals done and grow their business through preventive legal services designed to prevent lawsuits in the first place. As a fellow entrepreneur (as founder and CEO of the online legal services platform, LawTake), Ms. Natbony can relate to what you’re going through and offer unique legal advice and experience with business issues. Learn more about Suzanne Natbony here.