People occasionally get so caught up in their feelings about being wronged or owed money that they forget to think about some of the important factors to consider before suing someone.
Feelings aside, below are a few factors to consider before you litigate:
Can You Recover?
So, if you win your lawsuit (which isn’t always guaranteed, no matter how strong you think your case is) are you able to collect on that judgment? Do you really want to spend the money, time and resources to end up with a piece of paper that is worthless?
Ensuring the party you want to sue is solvent prior to litigation is a good idea. That way, once you obtain judgment, you can issue a Writ of Seizure and Sale of Lands and just play the waiting game to get paid out. You can also piggyback off another creditors’ judgment if they’re successful at enforcing theirs.
Doing some online searches, property searches and some sleuthing can give you an idea if you may have a chance at successfully enforcing any judgment you obtain.
The Costs of Litigation
Are you prepared to incur the costs to litigate your matter?
Some lawyers and paralegals offer flat fee services; however, the costs associated with litigation can climb quickly.
If you’re successful, the Rules of the Small Claims Court allow you claim your disbursements and up to 15% of the amount of your claim for your representation. The amount you get back depends on the Deputy Judge and how they’re feeling that particular day, so the 15% isn’t always what you get obtain.
Be Prepared to Settle For Less
If your claim is defended and you proceed to a Settlement Conference, Deputy Judges encourage the parties to settlement for less than what has been claimed. You don’t have to settle; however, the Court expects you to have good-faith, candid discussions about the potential for settling. Some Judges aren’t happy when you don’t settle (blogging from personal experience).
Deputy Judges will usually make a statement like: “a settlement is where neither party is happy – the Plaintiff settles for less, and the Defendant ends up paying something.”
Settling also can prevent incurring further costs and time if the settlement is right.
Do You Have the Time or Patience to Litigate?
Especially now with the Small Claims Court moving slower than molasses, matters aren’t being heard anywhere near what they used to be. We are still waiting for 2020 matters to be rescheduled.
Being on hold with the Court for over 2 hours before giving up doesn’t help either. It takes a lot of patience and time to litigate in a post-covid era.
The above is not an extensive list, but some of the more important factors to consider before you litigate. Failing to assess important factors may result in getting a piece of paper you can’t enforce and being out more money before you started.
You may be wronged or owed money, but you also don’t want to get burned a second time when you discover it was all for nothing.
Murray Brown, Licensed Paralegal