Filing a lawsuit is not particularly difficult. A plaintiff files a document with the Court known as a complaint in which the plaintiff states a claim or claims against one or more defendants. If in proper form and accompanied by the appropriate filing fee, the Clerk of Courts accepts the complaint, opens a court case and matters proceed.
The simplicity of filing should not mask the myriad of matters that one should consider before filing a lawsuit. The first matter to consider is do you have a good claim? In other words, does Florida have a cause of action for the alleged wrong? For some wrongs, there is simply no remedy. For others, elements of proof may be difficult.
A second consideration should be does hoped for recovery justify the costs of suit? Financial damages in some cases may be small but attorney fees to get there is huge. Some of those cases should not be pursued unless the plaintiff needs something more than money. That does not mean suing for principle. Lawsuits for principle may look good when emotions run high, but as fees and costs escalate and emotions cool, they may not look so good.
Cases that might cost more than the plaintiff will recover could still be worth pursuit if the plaintiff needs to stop a nuisance or seeks protection, but those cases are based on damages that may not be compensable by money. In those cases, the plaintiff has to decide what the hoped for relief is worth, since the plaintiff will have to pay the plaintiff’s attorney and possible expenses to reach the end.
Attorney fees may be awarded to the winner in some cases. Fees are only awarded if provided by contract or a specific statute. That alone should not encourage litigation. There is no guarantee a plaintiff will win even a good case. In cases with attorney fees in play, a losing plaintiff can end up paying fees for both sides. To make matters worse, courts rarely award ALL of a party’s attorney fees and costs, even when the party wins.
Good attorneys always try to resolve disputes, but some feel filing a lawsuit is the best way to do that. That is also going to generate attorney fees. Rushing to court may resolve the dispute, but may also be the most expensive resolution.
Lawsuits are expensive. Trial attorneys in Southwest Florida bill at $500 per hour and more. Fees can quickly reach tens of thousands of dollars and it is not uncommon for fees and costs in a lawsuit to exceed $100,000. That adds importance to making a real effort to settle a dispute before it escalates. That means the parties should communicate. Poor communication is often the reason a dispute started. To help communication, alternative settlement options should be considered.
Because lawsuits are so expensive and results not guaranteed, the parties to a dispute should always exhaust settlement negotiations before proceeding to court. The parties could consider mediation. Mediation requires the parties (and their attorneys) meet with a neutral third person who is trained in dispute resolution. The mediator’s sole job is to try and get the parties to a settlement.
Using a mediator often helps insulate the parties from each other and mediation has a high degree of success. Judges refer most cases to mediation at some time during a lawsuit, so why not try before the lawsuit is even filed? Mediation involves the expense of the mediator and time for the attorneys on each side, but that is a lot less than fighting in court. If pre-suit mediation is unsuccessful, the parties may also be able to avoid expense of a second mediation ordered by the judge by explaining they already tried to settle through mediation.
Another factor to consider before filing a lawsuit is the time, stress and resources a lawsuit will require. Most people will calculate if they can pay attorney fees, but what about time from work and family? Lawsuits require meetings with one’s attorney, court hearings, depositions and trial. That can mean a lot of personal time. Stress is a factor often overlooked. Even someone who is a plaintiff suing someone they think is bad will think about the lawsuit frequently, wake up at night worrying and even get distracted during the day. That should be considered a “cost” before filing.
If you decide a lawsuit is important and worth all the costs, look down the road to the end result. If you win a money judgment will you be able to collect? The first step in guessing if you can collect is determining who you can sue for an alleged wrong. If dealing with a business, suit will likely be limited to the business and not the wealthy owner. Collecting the judgment will be limited to assets of the business. Just because the business has few assets does not mean you can go after the owner.
If your attorney agrees you have a claim against an individual, does that person have assets you can take if you win? Maybe there is an insurance policy if you are suing for personal injury, but even then, you need to find out how much insurance is available.
You might be able to go after an individual’s assets, but Florida is a debtor friendly state with lots of assets exempt from action to collect a judgment. Exempt assets include homestead, wages of head of a household, retirement accounts, cash value of life insurance and assets owned with a spouse. Even solely owned assets can prove to be valueless, like a car that is financed.
Cost of collecting a judgment should be considered before filing suit. A losing defendant does not have to pay a judgment automatically. The Constitution prohibits imprisonment for debt. A successful litigant must find assets owned by the loser that are worth the cost of taking and selling them. That can be hard.
If you still want to sue after considering all of these factors, consider the possibility the other party will file a counterclaim against you. If you are suing for breach of contract, the defendant might file a counterclaim against you for fraud or damages from defects in the item you sold. The defendant could also sue you in a counterclaim for a completely different dispute. Cost of defending a counterclaim can exceed the cost of pursuing the original complaint.
All too often a lawsuit is filed because the plaintiff is emotionally charged and wants to win by teaching the defendant an expensive lesson. As the lawsuit proceeds, many of those plaintiffs regret not attempting to settle the dispute without court action.
Good attorneys will discuss all of the ramifications of filing suit with their clients and work to resolve disputes without court involvement. Potential plaintiffs should do the same. When you are thinking about filing a lawsuit, consider the factors in this column first. It might save you a lot of money and headache and help solve your problem without an expensive lawsuit.
William G. Morris is the principal of William G. Morris, P.A. William G. Morris and his firm have represented clients in Collier County for over 30 years. His practice includes litigation and divorce, business law, estate planning, associations and real estate. The information in this column is general in nature and not intended as legal advice.