My answer to this question more often than not is the following: “Yes, but…”
The additional considerations involved in bringing (or aggressively defending) a lawsuit–and pretty much in the following order of importance are:
1. What is the cost ratio between the value of your case and the cost of litigation?
2. Does the defendant have the wherewithal (or the insurance coverage) to satisfy your claim?
3. How long will it take to collect on the judgment if you are successful?
Having been in practice for over 30 years (as well as having a life myself) I know very well the feeling that one has when it comes down to: “I’ve been wronged. I want justice.”
This initial response, however understandable, does not alter the fact that the above questions must be honestly answered before one makes the commitment to litigate.
I recently wrote an article regarding alternative dispute resolutions (ADR’s) such as mediations or arbitrations. ADR’s are important tools for dealing with the issues raised in the above questions. However, even when an ADR process is agreed upon a pending lawsuit provides one with a menacing weapon and a major bargaining tool.
This “menacing weapon” concept is an important factor to think and work with whether one is a “little guy,” a Fortune 500 company or the USA itself. Litigation routinely involves posturing and a financial dueling match with time and dollars. After this plays itself out, 98% of all matters resolve without a trial–be it through an ADR process, a court ordered mandatory settlement conference or an eve of trial telephone call between opposing attorneys.
One of my law school Dean’s witticisms was: “There’s not enough justice to go around.”
How true is this if one has to spend as much or more on a law suit than one is claiming as a loss? Add to this the really expensive question: How much money and progress will you lose in your personal and business life by devoting the necessary time and money to this lawsuit?–Friends, this latter question is THE major unknown for litigants. The answer must be as fully known as possible at all stages of a dispute.
Now, with all of the above being said–litigation is here to stay. It is and will be regularly utilized by others and therefore needs to be a part of your dispute resolution plans. It is somewhat analogous to a nation going to war–it does not have to be done every time differences arise, but readiness and willingness to participate in the process definitely adds to ones chances of a timely and favorable settlement when you have decided: “You’re not gong to take it any more.”
How is this all implemented? Buy an hour conference with an experienced attorney, tell him/her it is for the purpose of evaluating a dispute and answer the above three questions to your satisfaction. If that does not occur with the first attorney, get a second opinion–an idea that can be most helpful not only at the beginning stages of a dispute but at any stage thereafter.