How to Position your case Before Filing a Law Suit
Faced with a potential lawsuit, many people and companies don’t plan to position their case before filing a lawsuit. That approach fails to put you or your company in the position most likely to prevail if you need to file a lawsuit. In the words of the legendary football coach, Joe Gibbs, “a winning effort begins with preparation.” Below are some things you should consider before filing a lawsuit.
Engage an Attorney
Statutes of limitations, contracts or statutory notice provisions may give you time to prepare before filing a lawsuit. By engaging your attorney early in the process, you can consider potential advantages that may arise from when and where you file your claim, what evidence should be pursued, and whether to engage an expert in a relevant field.
An important consideration before starting any lawsuit is where your case can be heard, and by whom. Your attorney can help you select the best forum and procedure to address your dispute.
Trial in a state or federal court may be an option for your dispute, which has become increasingly cost effective as most courts have made sincere and effective efforts to limit the length of cases and improve the efficiency of the trial process.
Arbitration, Mediation and Negotiation
Arbitration may be required by your contract with the other party, may be required by court rules if your claim is for an amount of money below a certain threshold (below $50,000.00 in Oregon Circuit Courts for instance), or you can agree with the other party to arbitrate your dispute after the claim arises. Arbitration does provide a less formal process for your dispute, which could equate to less time and lower costs.
You could also choose to mediate your claim if that is not already required by your contract. Having an experienced mediator can facilitate an early resolution to your dispute at much lower costs than trial or arbitration. But even in instances where mediation does not result in a settlement of your dispute, you can learn a lot about the strengths and weaknesses of your case.
You might also consider negotiations before initiating trial, arbitration or mediation. Again, by involving your attorneys in the process early, they can assist you in making sure any negotiations or demand letters are geared towards the claims that could be brought in trial or arbitration. You can also consider whether communication or letters from an attorney, rather than yourself, might convey to the other party the gravity of the dispute and your willingness to pursue it through the legal process if not resolved.
When you believe you might have a claim, make a list of relevant documents that might be needed to tell your story, as well as a list of persons who might have relevant information about the dispute.
You or your attorney should speak with anyone who has firsthand knowledge about the transaction or events at issue. Do not limit that list to only those people who will help your case. If someone might have a different opinion or recollection of events, you will want to know what they remember so that you can evaluate your potential case based upon the good evidence you have together with facts that may weigh against you.
Make sure that you are preserving copies of any documents or items relevant to the dispute. Keep originally signed contracts in a safe place. If your dispute is about a certain item or thing, make sure that item or thing is not disrupted or tampered with. Consider handing over important documents or items to your attorney for safe keeping.
Preserving documents also means making sure any items on computers or your network are saved and measures are taken to ensure they are not lost or deleted. Consider searching for all relevant files and e-mails and saving them on an external hard drive. If you have a back-up policy or program that will eventually overwrite older files or e-mails from your computer or network, consider changing that overwriting policy until the end of the lawsuit.
If the dispute is ongoing, be sure that you document all communications well. Add all new relevant e-mails or letters to those being preserved for the potential lawsuit. If you have conversations about the dispute by telephone or in-person, take good notes during or immediately after the conversation. Put a time and date on those notes and preserve them with all other documents. Perhaps send a follow-up e-mail or letter to the other person to confirm the substance of your communication.
As a final point, if you see a potential lawsuit on the horizon, your attorney can be a valuable resource to position you and your case for success. Consider tapping into that resource before your dispute escalates.