Before you begin the litigation process, sit down and carefully evaluate what you or the company you represent is hoping to achieve. Identify precisely any injuries or damages and all available legal remedies, and any alternative avenues of dispute resolution, such as settlement or mediation.
Evaluate the Costs of Litigation
Do not underestimate the probable time and expense of resolving the dispute. Consider that all litigation is to some extent speculative because of factors outside the parties’ control.
Are Witnesses A Factor?
Are any relevant witnesses available, cooperative (or hostile); and subject to the court’s jurisdiction? Are any relevant documents in your possession? If not, where they are located; and how difficult will it be to obtain them? Consider the hidden costs of the time that you or any witnesses must spend preparing for depositions and other litigation obligations if there is not an early settlement. This cost is rarely recoverable even if you or your company prevails in a case.
Consider the Chances of Recovering Damages
Are the defendant’s whereabouts known? If not, how difficult and expensive would it be to locate the defendant? Is the defendant solvent? Does the defendant have assets in the jurisdiction? Will the damage recovery process require retaining local counsel in any jurisdiction(s)? Consider this added expense.Finally, how strong are your or your company’s potential claims and how strong are the defendant’s potential defenses?
Consider the Dangers of Bringing Suit
What counterclaims may the defendant bring against you (or your company) and with what likelihood of success? How exposed are you or your company if they should prevail on any counterclaims, and how much would it cost to defend against them?
Is it Too Late to Litigate?
Another consideration when determining whether litigation is an option is time. You must file a lawsuit within a reasonable amount of time, as determined by the State of Colorado. Although Colorado’s statutes of limitations generally range from one to three years after an incident has occurred, some claims have a six-year limit. The following table provides information on some of the most common lawsuits; however, it is important to speak to an attorney immediately as various limitations periods may apply to your case.
Considering Your Case From Every Angle
Once you determine that time (statutes of limitations) is on your side, you’ll need to roll up your sleeves and get to work. At this stage in the process, you may want to consult a lawyer—an experienced civil litigation attorney who will assess and evaluate the facts of your case to determine if it has merit. Together, you’ll engage in the following.
Fact-Finding and Verification
With the help of an attorney, you will need to substantiate the facts associated with the claim through investigations, interviews, and the gathering of documentation.
Decide Whether Claims and Defenses Have Merit
The process of determining if a case has merit and whether there are any viable defenses requires a review of relevant state statutes and laws and the applicable verdict form and jury instructions. After gathering this information, an attorney can explain all potentially applicable claims, all potential counterclaims, all defenses (and third-party claims), and estimate the costs of pursuing the applicable claims, counterclaims, and defenses.
Weigh Risk Against Reward
While the evaluation and strategy of a case is influenced primarily by legal facts, non-legal considerations are also important. For example, you might decide a settlement is in your best financial interest. An attorney can put together a cost-benefit analysis outlining different strategies and their costs. Emotional stress also should be considered. If you’re anxious about the emotional and physical strain of a lawsuit, you might want to take another approach to resolving the conflict.
Size Up the Competition
Before pursuing or responding to a lawsuit, it’s helpful to know what you are up against. When assessing the potential costs of any claim, an attorney can obtain all relevant information about the court, opposing counsel, opposing parties, and the prospective jury pool. Not only will this help you set realistic expectations about financial compensation, it will inform the attorney about your risk tolerance, goals, and the primary concerns of all who are affected by the litigation.
Evaluate the Impact and Influence of Witnesses and Documents
Witnesses and documents (those that favor or disfavor a client) are essential to a case. In addition to helping you identify the best witnesses and documents, an attorney can determine whether subject matter expertise is required, if expert consultants are necessary, and how many witnesses and documents may be needed.
Plan for Various Options and Outcomes
An attorney can create a framework to help you understand the various stages of the lifecycle of a case as well as the options available at each stage. This typically entails identifying the various constituencies, the favored outcomes, and combinations of those outcomes. The result is a plan aimed at achieving the greatest number of objectives with the least amount of harm. In turn, the attorney is able to assess the probability of achieving the desired outcome(s) and your willingness and ability to embrace alternatives.
Is Litigation Your Best Course of Action?
Although going to court to settle a civil dispute is certainly an option, it’s not the only option. The majority of civil disputes are resolved before trial and, in some cases before a lawsuit is even filed. Known as alternative dispute resolution (ADR), this process can occur outside of the court system through settlement, mediation, or arbitration. If the time and expense of going to court exceed your comfort level, ADR may be the answer. The most cost-effective way to resolve a dispute is through a settlement, which is handled directly by the affected parties at any time during litigation. Mediation typically involves a neutral third party who helps facilitate a settlement. Through arbitration, each party agrees to select and use an arbitrator to settle their dispute using binding arbitration, which they then cannot appeal.
Consult an Expert
Litigation is both complex and unpredictable. Because of the numerous variables involved, it is often difficult for someone who is not familiar with legal process to weigh the potential risks of litigation against the potential rewards. Through early case assessment and value proposition tools, however, an attorney can provide expert advice to clients to help them determine the best course of legal action for their particular circumstances. An attorney is obligated to evaluate their client’s claims to ensure reasonable evidence or a reasonable likelihood that evidence will be found to support each claim before filing a lawsuit.
If you are considering civil litigation but uncertain as to whether you have a viable case, a knowledgeable attorney from Robinson & Henry can assess your case and provide you counsel. Contact our office at (303-688-0944) to schedule a consultation.