Intro Clients, friends, family members, even random people at the gym who know I’m a lawyer, frequently ask me if they should sue someone or a company because of a claimed wrongful act. The wrongdoing could include taking money and failing to perform the terms of a contract, getting injured on a property, a botched medical procedure, food poisoning, or being misled. You name it, I have been asked about someone’s legal rights pertaining to everything from a dog bite to revenge porn!
While people may want a simple, “yes” or “no,” the analysis that goes into this legal consideration is based on years and years of practice and law school. Some lawyers refer to the legal analysis as the “4 Cs of case evaluation.” You must have the following 4 components of a case before even thinking of pursuing a claim, successfully: 1) Claims Do you have valid legal causes of action, such that you can actually sue and likely win if filed?
Frequent claims include, breach of contract, negligence (personal injury or professional malpractice), defamation, nuisance, and employment discrimination and wrongful termination.
Each claim must have the elements fulfilled. For example, if it’s personal injury which involves a claim for negligence, you have to have to have 4 elements – duty, breach, causation and damages. Even if you have all of those factors, your claims must be better than the other person’s and if your claims will not counter the other party’s possible claims or defenses, the litigation might not be worth it for you to initiate.
You have to ask – will there be counterclaims or defenses to make a lawsuit not worth it? 2) Compensability Can you even get compensation, which is provable money damages, or other meaningful remedies, given the harm caused?
Suppose a company made a mistake, but that mistake didn’t cost you any money, such as when an airline loses your bag for several hours, causing you no financial loss (just frustration). The airline might have been at fault and you might win on a negligence claim if they broke a $10 souvenir in your bag, but is it worth the time, money and energy to sue?
You need to ask yourself:
How much money have you lost?
Are the damages compensable?
Suing in civil court can cost thousands of dollars. Small claims court might cost only $100 to file and serve, but it can take hours and hours of time to fill out the paperwork, find a process server, figure out how to serve the person, file more paperwork, get ready for court, perhaps redo paperwork and sit there for hours.
The damages could be difficult to quantify and you may want what’s called, equitable relief, such as an injunction – an order to do or stop doing something.
For example, if someone threatens you, you may just want a temporary restraining order to keep him or her away. If someone has misappropriated your name or are using an image of yours without your permission, maybe you want an order for them to cease and desist instead. 3) Corroboration Do you have evidence, witnesses or experts to testify – to corroborate your story and help you prove your case?
You usually must have a written contract if you’re trying to show breach of contract. An oral agreement is much harder to prove.
If it’s products liability, you need to prove that it was this product that caused the damage and possibly have to conduct testing on that product.
If it’s medical malpractice, you’ll need an expert to testify that it falls beneath the standard of care – and you should expect the other side to bring its own expert. 4) Collectability Will you be able to collect if you win? Does the person you’re suing have sufficient, accessible assets and, even if so, how difficult will it be to collect from that person? If you have to take the matter to “collections” or if the person might file bankruptcy, you have an issue. Conclusion In conclusion, you need to think through all of the 4 Cs. If you don’t have positive answers for the four components, you should strongly consider not moving forward, and wasting your time, money and energy. Even if you have all positive answers, be aware that there are many other risks to consider. You could have all of the above and your case could be decided by a judge who is in a bad mood or you could get a jury that doesn’t like you and then you can lose anyway!