You have been wronged in a business or commercial transaction and you want to sue the other party in court. Not so fast!  While the law provides a path to having justice served through the court system, the actual experience of being involved in a lawsuit is not so smooth and quick as it may appear on television or in the movies.   

First, many clients underestimate the time & costs involved in a lawsuit from beginning to end and the client’s involvement in the lawsuit throughout the process. A lawsuit often begins with the drafting and filing of the Complaint, which is a formal document describing the nature of the dispute and the reason you, as the plaintiff have a right to some legal remedy against the defendant.  While drafting the Complaint, a responsible attorney will need to investigate your claims and perform legal research prior to filing.  You will likely need to provide extensive documents, records, and other evidence to your attorney, much of which you will later (in discovery – see below) be required to produce to the other party.

Just as you have selected a lawyer to zealously protect your rights, the defendant will do the same.  Their lawyer’s job will be to defeat your lawsuit, which they can begin to attempt through preliminary motions to which your attorney must respond, and at costly hearings before they have even filed their formal Answer to the Complaint.  Some lawsuits are defeated early by defense motions, and if not, can delay the progress of the lawsuit, show early weaknesses in your case, and increase your costs.

Once the Defendant files an Answer (assuming the lawsuit survives an early motion to dismiss), a lengthy and often contentious process follows called “discovery.”  In discovery, the parties are both entitled to ask formal written questions and request documents, as well as take depositions, which involve formal questioning of witnesses and the parties themselves under oath with a court reporter present.  When your attorney takes a deposition, you must pay for the court reporter and transcript, and these professional fees paid to third parties add up quickly!

There are other costs to account for during a lawsuit.  Your attorney must attend all depositions, review discovery documents, and continue researching the law and drafting motions and other documents.  If experts are needed, they must be paid, often and at a higher hourly rate, including travel expenses for appearing at depositions or trial.  The court often issues a case management order, which governs the case, and typically includes court-ordered mediation, which requires further preparation by your attorney and payment of the mediator. 

Forcing mediation is the court’s way of ensuring that fewer cases actually go to trial by getting the parties to hopefully resolve the matter before trial.  Whereas some plaintiffs simply want to “have their day in court,” you are lucky if your case settles favorably at or before mediation because trial preparation and trial is an additional, time- and dollar-costly undertaking, which is unpredictable as to the outcome.  This unpredictability makes clear the gambling nature of litigation as a whole and explains why many cases settle just before trial, as the parties take stock of the weaknesses and strengths of their side of the case and decide to hedge their bets.

Given the unpredictable nature of trial, many clients would be best served by attempting to resolve their disputes informally through written demands and pre-litigation negotiations.  Once the case is filed as a lawsuit, the process is out of your and your attorney’s control, dictated by the court and court rules.  It is important when evaluating your case to be realistic about your own willingness to embark on a long contentious fight and set realistic goals for what you want to see as a resolution of the conflict.  This can be very challenging when emotions are high, often on both sides of the case.  

For these reasons, a trusted litigation attorney can be your best guide in the process of resolving your dispute with or without a lawsuit.  Your attorney will have the experience to aid in determining the strength of your case and the best way to approach initial negotiations with the opposing party or their lawyer.  And remember, before you sue, that nothing in the law works as smoothly or favorably as the movies may make it seem. 

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