Is it Time for You to File a Lawsuit?

Deciding whether to file a lawsuit is a significant decision that should never be made lightly. In addition to standard advice, consider the following, often overlooked issues, including: 

Can you work with this attorney on a huge business endeavor?

Large scale litigation can make or break a business. Just like with a successful business launch, then, you must have an effective business relationship to win. Even, and especially, in business cases, choosing a lawyer is a highly personal decision. Effective representation requires frequent communication and candid discussions about difficult strategic and factual issues. The litigation process can be intrusive and uncomfortable, particularly during discovery, and your attorney will need to guide you through it. For that reason, it is important to retain counsel who is responsive, communicates clearly, and is someone with whom you can speak openly and honestly.

Can you risk public disclosure?

Litigation is generally a public process. Unless a dispute is resolved through arbitration or another confidential proceeding, court filings, motions, and rulings are typically accessible to the public. Significant business disputes may attract attention from industry publications, local business journals, or competitors. Even in smaller industries, information often spreads quickly through professional networks. Before filing suit, consider whether you are prepared for the details of the dispute, and the opposing party’s allegations and arguments, to become part of the public record.

Do you have the stomach for litigation?

Too often, parties assume their attorneys will handle everything while they remain on the sidelines. In reality, successful litigation requires active client involvement. Important strategic decisions often depend on the client’s input, and there may be periods when frequent communication with counsel is necessary. Litigation can be stressful, time-consuming, and unpredictable. Before filing suit, consider whether you are prepared for the demands, uncertainty, and emotional strain that often accompany the process. 

Are there business considerations that make litigation risky?

Litigation is not always the best business solution. One common mistake is pursuing foreclosure, receivership, or other legal remedies when practical business solutions may preserve more value for all parties involved. A lawsuit should not be filed simply because negotiations have failed to produce the desired result. Before proceeding, carefully consider whether litigation is likely to improve your position or whether it may ultimately cause more harm than benefit. 

Do the numbers make sense?

Litigation requires a significant investment of time and money. Before filing suit, there should be a realistic prospect of obtaining a return that justifies the cost involved. That return may be financial, reputational, or tied to other important business objectives, but it should be carefully evaluated at the outset. Before proceeding, ensure that the potential benefits outweigh the anticipated costs and risks of the litigation.  

Can you actually win?

One of the most common mistakes we see is filing a lawsuit with expectation that it will settle before the merits of the cases are tested. Litigation should not be pursued unless there is a realistic path to success. Before committing to the cost, attorney fees, and public exposure that litigation entails, carefully evaluate the strength of your evidence, the credibility of your witnesses, and the defenses likely to be raised by the other side. Consider how key witnesses - including yourself- will perform under intense questioning. Strong cases are built on credible witnesses, solid documentary evidence, and a thorough understanding of the risks involved. A lawsuit should be filed because it can be won, not because it is expected to settle before those issues are ever examined.   

Looking for more information about launching a case? Email: sara@dmhlawyers.com