For some things, it’s better to start at the end rather than the beginning. Such is the case with lawsuits. In the end, not every lawsuit succeeds. If you keep this in mind, you’ll have a better chance of success. In order to have a good case with a civil lawsuit you must clearly identify how you have been injured and demand something to fix that injury. Whether the lawsuit is large, small, or even a class action lawsuit, it still needs to both identify the loss and request a way to fix it.
Here’s an example: Your neighbor has not kept up his sidewalk and it is uneven and cracked. Even in good weather, it is a hazard to you on your daily walk. If you file a lawsuit against your neighbor claiming that you might fall and hurt yourself, you are unlikely to win. You have not incurred any damage and you cannot sue someone for the risk of potential future injury or loss.
On the other hand, you do not have to break your leg on your neighbor’s sidewalk to show injury. A good trial lawyer is not only able to make a strong case when her client is injured, she can also find less obvious losses and injuries her client suffered. For example, you and your neighbor may have agreed to a covenant that includes, among other things, maintenance of sidewalks. You benefit from your neighbor’s promise, and his failure to live up to the covenant is a loss to you—before you trip on his cracked sidewalk.
A really good trial lawyer gets creative in identifying loss and injury. For example, if your neighbor’s sidewalk is the only pedestrian path to a private beach then you can sue him for preventing your access to the beach. A safe walkway to the beach may add a lot of value to your property. In addition for suing him to fix his sidewalk, you also can sue him for the value of your property he has deprived you of by limiting your access to the beach.
What can you sue for?
The nature of your loss or injury also affects how you fix it. A lawsuit is not a punishment. It is a way for you to fix your loss. If you trip on the sidewalk and break your wrist, for example, then you sue to recover your medical bills, rehabilitation, and your pain and suffering. If you sue your neighbor for failing to live up to your neighborhood covenant, you ask the court to make him live up to his promise. It is possible to ask the court for punitive damages, but only after demonstrating your injury and demanding your neighbor make you whole.
If you have been injured and know how to fix it, should you sue? You have a lot of factors to consider:
- Cause of action: The courts recognize specific ways in which plaintiffs are injured, and your case must conform to a recognized cause of action. By failing to maintain his sidewalk, your neighbor is being negligent and is possibly breaching a contract—both are universal causes of action. To the courts, a cause of action is the way to file a lawsuit. Make sure your case conforms to one.
- Proof of loss: You have to prove that you are injured and have sustained some sort of loss. A judge or a jury will listen to your case and decide if you have actually been injured. It is much easier to show that your wrist is broken than it is to show that your neighbor’s broken sidewalk decreased your property value. Before filing suit, make sure that you are confident that you can prove your loss.
- Timing: Most causes of action have a statute of limitations; you must file your lawsuit within so many months from when you were injured. That does not mean you should always sue immediately after your loss. You may need time to know the full extent of your injuries. You may want to wait until the person you are suing has enough money to get an adequate recovery.
- Recovery: When to sue is as much about if your neighbor can pay as it is about if you can win the lawsuit. If your neighbor is a scrappy law student that does not have liability insurance, an income or enough equity in the property to cover your losses, then you may want to wait. Let the statute of limitations run until he graduates, gets a job and has an income to garnish.
- Settlement: Filing a lawsuit is not the same as going to court. If you are injured then all that matters is that you are made whole. The courts are only a last resort for when two parties cannot come to an agreement. Filing a lawsuit is a way to help force a settlement—threaten to go to court to avoid having to go to court.
- Risk and reward: Lawsuits are expensive: lawyers, trials, gathering evidence and expert testimony all cost a lot of money. When you sue, you are asking for compensation for your injury. If you win, that compensation does not necessarily include the cost of the lawsuit itself. For most lawsuits, lawyers do not work on a contingency basis so that fee will be up-front and out-of-pocket. Make sure the amount of money you are asking for, your chance of winning, and your chance of recovering it are all worth your initial investment.
How to sue someone successfully is the culmination of strategy, organization and experience in the courtroom. It all starts with knowing how you have been injured, what you have lost, and what you can expect to get from the court. Understanding that is the start of the when, how, and if you should proceed with a lawsuit.
Considering whether or not to sue? Ask a lawyer for her advice through the LegalZoom personal legal plan. For a low, flat monthly fee, you can not only get legal advice on an unlimited number of legal matters, but you get access to over 150 downloadable legal forms.
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