Have you, a family member or a friend ever been injured and wondered whether you (or they) could pursue a legal claim for damages? Or, if you are an attorney, have you ever been asked, “Can I bring a law suit for that?” If you’re an attorney, there have probably been times that you’ve given an answer similar to one that I’ve given: “Yes, you can file suit, it simply requires drafting a Complaint, paying a filing fee, filing the Complaint and one or more related forms, and having them served on the defendant.” That answer may meet with laughter or surprise from time to time, but it is rarely the answer that the client was seeking – they simply didn’t know what question to ask. The tougher question is: “Would it be worthwhile filing a suit about this?”
Even the most pro “tort reform”, anti-litigation individuals often make a striking about face when they or their loved ones have been injured. Years of complaining about a society that is too “litigious” rapidly changes when they feel that they have been harmed as a result of someone’s negligence. This applies to physicians who’ve complained about medical malpractice litigation, politicians who’ve challenged the tort system, insurance adjusters whose clients have been sued, etc. Many are often surprised when they receive the answer, “No, it would not be worthwhile to pursue a claim.”
What goes into answering the question of whether to bring a law suit? The critical factors include the nature and extent of the harm to the client, the strengths and weaknesses of the liability claim, the likelihood of recovery by settlement or judgment, potential limitations on the amount of recovery, the availability of insurance, potential collection problems, and the time, expense and impact of litigation. Deciding whether a claim is worthwhile requires assessing all of these issues and then weighing the pro’s and con’s of filing suit.
The strength of the liability claim is a very important factor, but there are other, related factors that are also important. There are limitations on the timing of suits, as well as on the amount of recovery. Is the limitations period too close to allow enough time to reasonably evaluate the suit? Has it already passed? Are there legal restrictions on the amount that can be recovered, such as restrictions applicable to governmental entities, charitable corporations, medical malpractice defendants and others? Are there liens (i.e., Medicare and Medicaid benefits, health and workers’ compensation insurance payments, etc.) that may limit or reduce the amount that the client will actually recover? Was the plaintiff’s own conduct a cause of the accident, and, if so, will it bar the suit, or reduce the amount of recovery?
The personality and credibility of the plaintiff has a substantial impact on the potential jury verdict or settlement value. Has he been in other accidents? Has the client pursued several legal actions or is this the only time he has been involved in litigation? Has he seen or retained other attorneys about this claim? If so, why is he seeking other counsel? Does he have realistic expectations about the claim? Will the attorney/client rapport be comfortable or strained?
The identity and nature of the defendant also has a substantial impact on the likelihood and amount of recovery in a case. Some defendants make a better jury impression than others, and this affects the outcome of a case. Is the potential defendant an individual or a corporation? Is the defendant located locally, out of state, or out of the country? If the defendant is an individual, what impression will she make on the jury? It may be difficult to prove, but many experienced practitioners will tell you that when it comes to defendants, jurors prefer health care practitioners over public transit systems, and many other categories of defendants fall across that spectrum.
There are also practical aspects that must be considered. How long will it take until the case is likely to settle or be adjudicated? How much time and expense will be associated with the litigation? What is the likely extent of expert witness expenses? Will the costs associated with the litigation exceed or approach the likely amount of recovery?
Whether you are a client or a lawyer, next time you wonder, “Can I bring a suit for that?” you should remember two things. First, yes, you can always bring a suit (although there can be sanctions for bringing frivolous ones). Second, when answering the tougher question – should I bring a suit – you need to consider not only whether there is a legal basis for a claim, but also the chances of succeeding, the likely amount of recovery, whether any recovery is actually collectible, and the extent to which expenses, limitations and liens will reduce the recovery. In summary, just because you “can” sue does not mean that you “should.”
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