Litigation Should Be a Last Resort
Dealing With Disputes: It is not uncommon to find ourselves in disputes with others in this modern world. If you have a business, you might be in a dispute with a customer or another business. If you are involved in an accident, you may be in a dispute as to who caused it or the extent of the injuries. If you own a home, you may be in a dispute with a neighbor about noise or trees or who knows what. The potential for disputes is endless. The question becomes, if we can’t resolve the dispute, what happens next? Unfortunately, for many people the answer to that is to sue or be sued.
Have You Been Damaged?: Lawsuits can be long and expensive and they should not be taken lightly, by either the plaintiff or the defendant. The first thing to consider before filing a lawsuit is whether you have actually suffered damages. This might be in the form of money, injury to your property or injury to your body, for example. There are other types of damages, such as damage to your reputation or causing emotional distress. Damages must be specifically identified and evaluated. How have you been damaged and what is the value of those damages? Do you expect the other party to compensate you in the form of money or some other remedy, such as repairing what they damaged? If you have not been damaged, or if the damages are minimal, you probably should not be considering litigation. If you are the party being sued or threatened with a suit, you should evaluate whether the damages are small enough that you should settle the matter — assuming you are liable to some extent.
Did the Other Party Cause Your Damages? If you have been damaged, then you must ask if the other party was the cause. Sometimes this is very clear that they did, but you still must ask if you will be able to prove it. Other times, it will not be clear that they caused the damage or there may be shared liability with others or you may even be partially at fault. Before deciding whether to sue someone, or whether to fight when you have been sued, you need a clear understanding of who the parties are, what they did and did not do, and how all of this will be proven. Of course, you also need to know how long this will take and at what expense. Only then will you begin to know the risks and rewards involved in litigating vs. settlement vs. doing nothing.
Alternatives to Litigation: There are alternatives to litigation. First, you or your attorney may be able to resolve the dispute without anyone suing anyone. An attorney can usually help you assess the above factors, explain the risks of litigation, and present your case to the other side. If the matter cannot be resolved at that stage, the next option is mediation. This is the process where the parties agree to submit their dispute to a neutral third party, who is typically an attorney with experience in that area of law. This is non-binding and the parties do not have to accept the recommendation of the mediator. However, good mediators earn a reputation for being successful at resolving disputes. The next option would be arbitration, which is more formal than mediation and it can be voluntary or involuntary (e.g., if the courts order parties to arbitration). The result may be binding or non-binding depending on the circumstances.
Most Lawsuits Settle: An important fact to remember is that most litigation cases settle before trial. Therefore, if you do find yourself involved in a lawsuit, it behooves you to consider settling it as soon as possible before you’ve spent thousands of dollars and months or years fighting. We have seen even small disputes balloon into full-blown litigation, and even the winning party rarely feels victorious when the dust has settled. It is true that sometimes a party has little choice but to initiate a lawsuit or defend themselves in one. The caution still holds that a glorious “day in court” where you prevailed and got everything you wanted is rare indeed. Further, you may only end up with a judgment against the other party and you will likely encounter many hurdles trying to collect on your judgment.
Disputes might be a part of modern life, but getting good legal advice and making good decisions on how to resolve them can save you a lot of headaches.
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