3 Why Litigate?

Dennis could hardly discern what the minority shareholder of his company wanted in the litigation the shareholder had brought. The shareholder still had his interest in the company. Dennis hadn’t done anything different in the company’s management or direction. Sure, the shareholder had opinions about how to run the company better. But lots of people had those opinions, and Dennis had never really listened to any of them. Dennis was still ensuring that the company paid its employees and suppliers, and continued to sell its products. Dennis had even offered to buy out the shareholder who had refused his offers. Dennis understood the legal theories the shareholder had pleaded, alleging breaches of the duties of reasonable care, loyalty, and legal compliance. But Dennis still couldn’t discern what the shareholder really wanted.

Interests

Parties don’t generally entertain litigation just for the fun of it. Make no mistake: litigation can serve psychological needs for attention, validation, and manipulation. Malingerers, narcissists, and psychopaths all have their uses for litigation. But by and large, your decision to litigate depends on your having a substantial financial or legal interest to protect. Your interest may be in making the father of your child acknowledge paternity and pay support. Your interest may be in recovering a fee your client owes you for your services or your customer owes you for your goods. Your interest may be in ejecting a squatter from your land or recovering a personal item an acquaintance borrowed from you but now refuses to return. Or your interest may be in making your bank replace funds that it refuses to acknowledge that it mistakenly transferred out of your account. Whatever your interest is in litigating, be sure to identify it clearly, and be sure that it is a substantial enough interest to warrant a lawsuit. 

Goals

One way to ensure that you have a substantial enough interest to file a lawsuit over it is to articulate your litigation goals. Pursue litigation only when you know precisely what you want out of it. If you can’t see clearly what litigation might well accomplish, then by all means do not litigate. You may, for instance, have had a long-running feud with your neighbor. And then, something occurs that you believe to be the final straw. So, you sue your neighbor, pleading several legally recognized claims, perhaps for trespass, nuisance, defamation, and invasion of privacy. But what do you expect to get out of it? Your neighbor isn’t likely to move out. Your lawsuit may even make things worse. Unless your neighbor is engaging in a specific practice that the court can enjoin so that it does not continue to harm your substantial interests, like draining sewage into your backyard, threatening to shoot your children, or poisoning your dog, you’d likely be better off not suing. The goals you articulate for your lawsuit should be reasonable and achievable goals protecting substantial interests.

Demands

Parties generally don’t initiate litigation unless they must do so to achieve what they seek. If you can get what you want without litigation, then do so. If that effort means asking the party whom you are thinking of suing if they would accommodate your interest, then ask them before you sue. Sometimes, you just need to ask. In the course of your asking, you may need to demonstrate why you should receive what you ask. If so, then do so. Marshall your evidence and arguments in a reasoned communication, what attorneys often call a demand, like the example demand letter in the appendix at the end of this guide. See how the other side responds to your demand. Evaluate, adjust, and compromise if doing so makes sense. Don’t litigate unless you must. Litigate when the party from whom you seek to recover has refused all of your demands. Keep in mind that filing a lawsuit invokes government authority to force others to do as you wish. If you don’t need to invoke government authority, then don’t. Doing so can be risky and expensive. Litigate only if you truly need to do so and basically must. Litigate when you have no other lawful choice. 

Rights

Your rights play a role in your lawsuit. You must have a legal right supporting a recognized claim to justify your lawsuit. Having a keen interest in preserving and protecting your rights is fine, as far as it goes. But violations of your rights may not alone be enough to warrant bringing a lawsuit. The violation of your rights must generally also damage your substantial life, liberty, or property interests. You may, for instance, have purchased your home from a seller who lied on the disclosure form about a leak in the roof and crack in the foundation, violating a disclosure law. But if your home inspector documented the leak and crack, of which you were thus fully aware when you went ahead with the closing, the violation of your right may have caused you no loss that you could properly litigate. Likewise, your physician may have misdiagnosed your illness, and the pharmacist may have misfilled your prescription. But if you recovered just as quickly from the illness with no harm or loss from the errors, then you’d have lost no interest to recover in litigation. Know your rights. But when it comes to filing lawsuits, be sure that you can articulate the substantial interest you lost because of a rights violation.

Balance

A lot of things we can tolerate. Some things we cannot. When deciding whether to pursue litigation, balance all your interests. Don’t look just to your interest that your opposing party is affecting, when deciding whether to litigate. Into every life some rain must fall. If you’ve got a great life but with one small annoyance, beware litigating over that one small annoyance. You may find that the litigation you undertook, to resolve in your favor that one small annoyance, colors your life in a way that makes it not so great. Keep your life in balance. Don’t try to make everything perfect, especially through litigation. That’s not litigation’s role, to resolve every small issue in your favor. Litigation’s role is to invoke government powers to adjust substantial rights and interests toward resolutions that the parties will tolerate. Litigation won’t likely make your life perfect. Indeed, litigation will unavoidably complicate your life at least to some degree until it’s over. And then, its outcome isn’t likely to give you the perfect solution you envisioned. The outcome is more likely to make an intolerable situation tolerable. If your life is already tolerably balanced, then think twice about initiating litigation trying to make it even better.

Subjects

The subject of the litigation you contemplate can have a lot to do with whether you should litigate. Parents will readily litigate to maintain rights and interests surrounding their children. And good for both the parents and children that the parents care so much as to litigate to prove paternity, win or preserve child custody, gain or expand parenting time, or gain or increase child support. In litigation, just about nothing is as fierce and passionate as a good old-fashioned custody fight. Divorce is another contentious subject that separated spouses necessarily litigate. Betrayal around intimacy can be a terribly wounding and motivating thing. Wrongful death is another compelling subject over which to litigate. Lose a loved one to another’s wrong, and you’ll justly be ready to fight. Individuals also justly litigate over real property, personal property, business interests, and civil rights, and for money damages involving personal injury, reputational harm, and even mental and emotional distress. Some subjects are more important to you than other subjects. Litigate when the subject is worth the fight.

Priorities

If the reason to litigate has to do with preserving substantial rights and interests that are important enough to you to risk, fund, and endure the litigation, then you’ll need to know your priorities. You may have times suitable for litigation and other times not suitable for litigating. If you have a child on the way, young children in the house, other dependents with critical needs, or an illness or acute disability of your own, then litigation may not be a high-enough priority to pursue. If, on the other hand, litigation is necessary to preserve your ability to provide and care for dependents or to care and provide for yourself, then litigation may well be your priority. Again, if you are completing a challenging program of education preparing to enter a rewarding field, then litigation may not be your priority. But if instead litigation is necessary to complete your program of education to enter a rewarding field, then litigation may well be your priority. Put first things first. Don’t undertake litigation when doing so would undermine priority opportunities and obligations. Instead, pursue litigation when necessary to preserve priority opportunities and fulfill priority obligations. 

Outcomes

Consider the full range of potential outcomes, too, when deciding whether to litigate. Your litigation may have nothing to it other than upside. In other words, you may have everything to gain in your lawsuit and nothing to lose. An example would be if someone with whom you had no relationship and thus nothing to guard or preserve unlawfully took something from you, and you had an attorney willing to work on a contingency fee to pursue litigation to get it back. Your risks might then be zero, while your potential gain would be to recover your full loss. If, on the other hand, your litigation has substantial downside along with decent upside, you’d better consider the costs before proceeding. For example, if you must pay an attorney a substantial hourly fee to pursue a recovery against an uninsured party who might be unable to pay the judgment you might win, then you’d better have free money to burn, or you should think twice before pursuing the litigation. Don’t just look at the upside opportunity. Look also at the downside risk. Would, for instance, the defendant assert a counterclaim against you if you sued, with the counterclaim potentially costing you more than any amount you might win? Think twice about litigation risks including the full range of possible outcomes. 

Costs

As just indicated, litigation has costs. Those costs can include not only the attorney’s fees and court costs you may have to pay but also the potential for counterclaim liability, court sanctions you might have to pay, and an obligation to pay the other side’s attorney’s fees and other costs if you lose the case. Litigation can also take substantial time better put to other uses and substantial energy you might not have or that you might better devote to other, higher-priority things. Litigation can also carry reputational risks. Sue a customer or client for an unpaid invoice in a dispute over your goods or services, and word might get around among your other customers or clients that your goods or services have issues with them that you’re unwilling to address. You might even face a consumer complaint or license action in response. Count the potential costs, not just the gains. 

Differences

Those cautions all said, litigation can be a life saver, figuratively and literally. Litigation can make all the difference that you need to make to move on with life. Litigation over health insurance can gain you or your insured family members access to life-saving treatment. Litigation over your employment rights can gain you a job or save a job and career into which you’ve poured your life. Litigation over personal injuries can fund physical and occupational therapy, home modification, and education or retraining to get you or your loved one up out of a sick bed and back on your path. Litigation over personal interests can preserve your reputation and restore your peace of mind. Litigation over property interests can preserve the sanctity of your home or security of your business. Litigation over civil rights can restore your dignity and preserve your religious, personal, and political freedoms. Litigation can also defeat, discourage, and punish wrongdoers, preventing them from continuing their harms against you, your loved ones, and innocent others. Nothing vindicates like justice. And lawsuits are all about seeking justice. 

Reflection

What interests would your lawsuit serve to promote or protect? What specific goals do you believe your litigation would likely help you achieve? Can you accomplish those same goals without litigating? Would a clearly articulated and documented demand lead to an amicable resolution without litigating? What harm has the violation of your legal rights actually caused you, warranting litigation? How do you weigh the balance of advantages and disadvantages to pursuing a lawsuit? Is the subject that you are considering litigating worth fighting over? Do you have higher priorities that you should be pursuing than the things your litigation might accomplish for you? What are the best and worst possible outcomes to your litigation? What costs do you see your litigation having, in terms of time, energy, money, relationships, and reputation? How big of a difference could a litigation win mean to you in your life overall?

Key Points

• Consider all your interests when deciding whether to litigate.

• Litigate only when you have clear and achievable goals for litigation.

• If you can resolve your matter amicably without litigation, then do so.

• Litigate violation of your rights only when affecting your interests.

• Consider the balance of advantages and disadvantages to litigation.

• Certain subjects warrant litigation more than other subjects.

• Know priorities when deciding whether litigation serves a priority.

• Consider the full range of potential outcomes, positive and negative.

• Consider the costs of litigation, including time, energy, and resources.

• In the best case, litigation can make a big difference on essential issues.

Read Chapter 4.