Can I Sue For That?

Have you, a family member, or a friend ever been injured and wondered whether you or they could pursue a claim for damages? If you are an attorney, have you ever been asked, “Can I bring a law suit for that?” and given an answer similar to one that I’ve given: “Yes, you can file suit, it simply requires drafting a Complaint, paying a fee, filing the Complaint and related forms, and having them served on the defendant.” That is rarely the answer that the client was seeking – they simply didn’t know the right question to ask. The tough question to answer is not whether one can sue, but is: “Would it be worthwhile to sue?”

Even the most “anti-litigation” individuals often make an about-face when they or their loved ones have been injured. Years of complaining about a society that is too “litigious” changes when they have suffered harm. Many are surprised to hear, “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, the strengths and weaknesses of the claim, the likelihood of recovery by settlement or judgment, limitations on the amount of recovery, availability of insurance, collection problems, and the time, expense and impact of litigation.

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 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, etc.) that may 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. Have they been in other accidents and pursued other legal actions, or is this the only time they have been involved in litigation? Have they seen or retained other attorneys about this claim? If so, why are they seeking other counsel? Do they have realistic expectations? Will the attorney/client rapport be comfortable or strained?

The identity 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? What impression will they 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 might 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 and expenses exceed or approach the likely amount of recovery?

The next time you wonder, “Can I bring a suit for that?” remember two things. First, you can always bring a suit (although there are sanctions for bringing frivolous ones). Second, when answering the tougher question (should I bring a suit?) consider whether there is a basis for a claim, the chances of succeeding, the likely amount of recovery and whether it is 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.”

by Michael B. Bogdanow