4 What Are the Types of Lawsuits?

Gina was already confused after her first visit to her lawyer’s office. Gina had gone to the appointment thinking that they’d be filing a lawsuit down the street at the county courthouse that day or within a few days at the latest, for a judge to quickly decide, one way or the other. Gina just needed a clear decision at the soonest time and lowest possible cost. Of course, she’d like to win, but more than anything, Gina just needed an answer. But Gina had left the appointment unsure where, when, or even whether her attorney would be filing the lawsuit, or how she’d manage to pay for it. The attorney had talked about filing a federal case at the federal building hours away that might take months to litigate. Gina had no idea that law was so complex, with so many strategies and options. Right now, Gina just needed to figure out what made sense. She hadn’t anticipated making a federal case out of anything.

Types

Lawsuits come in different types or forms, depending on their subject and the relief that they seek. The type or form of lawsuit can determine which court has authority to decide it, whether a judge or jury will decide the lawsuit’s outcome, whether a certain attorney is qualified to pursue or interested in pursuing the lawsuit, and how the client will pay the attorney, among other important considerations. You may have only one claim against one party on one subject. If so, you may not have any choice of courts, remedies, decision maker, attorney, or attorney’s fees. But then again, you may have options as to the parties, remedies, courts, and even as to the attorney and fee arrangement, depending on your litigation goal. Consider the following different types of lawsuits and how they can affect your options. 

Damages

Many lawsuits simply seek money damages. The plaintiff wants the defendant to pay money to the plaintiff and nothing more. The money’s source may be from the defendant or the defendant’s insurer, with only the defendant, not the plaintiff, caring. The plaintiff just wants compensation, as much as the claim allows, while the defendant or defendant’s insurer wants to pay as little as possible, preferably nothing. Damages cases, especially those with insurance, can be good cases for compromise, with each side discounting the damages against the probability of winning or losing. Damages cases also often attract a plaintiff’s lawyer willing to work on a contingency fee, at no cost to the plaintiff unless the plaintiff wins, in which case the lawyer takes a percentage. Damages cases are also often in state court, particularly if they involve breach of contract or personal injuries. Damages cases also usually involve a right to a jury. And damages cases often go through a mediation or evaluation process as a settlement effort. Perhaps as many as 90% to 95% of damages cases settle without a trial. Get your attorney’s evaluation of your damages claim. It may well be worth pursuing, especially if the attorney works on a contingency fee.

Injunctions

Other lawsuits seek a court order or injunction requiring a party to do something or stop doing something. The injunction may be to turn over property belonging to the other party, stop using the other party’s name or image to sell goods or services, remove a structure built on the other party’s land, or take some similar action to respect and restore the other party’s rights. These equitable actions for an injunction may or may not involve simultaneous requests for damages. If they do, then the plaintiff pursuing the case may find an attorney willing to work on a contingency fee. Otherwise, injunction actions generally require paying an attorney, often hourly, and win or lose. Injunction actions thus carry costs and risks of coming out behind rather than ahead. Equitable actions for an injunction are often state-law cases for the state courts to decide but can involve federal rights over which the federal courts have power or jurisdiction. Get your attorney’s evaluation of the probability of prevailing on your request for an injunction and the likely cost in attorney’s fees and court costs whether you prevail or not. 

Employment

Employment cases are a special form of damages cases also often requesting injunctive relief. An employment case may involve an unlawful refusal to hire, refusal to promote, disparity in pay or benefits, or job termination. Employment claims can arise under anti-discrimination laws, wage-and-hours laws, employee-benefits laws, and whistleblower laws, among other laws. In an employment case, the employee may seek hiring, promotion, or reinstatement, while also claiming money damages for lost pay and benefits, and even for mental and emotional distress. Attorneys are thus often available on contingency fee to review and pursue employee claims. Employment cases, though, often do not have insurance coverage to pay for damages. Employers can thus be more reluctant to settle employee claims when they lack the ready cash to devote to the settlement. Employers can also be reluctant to settle a case unless the employee agrees to leave and keep the settlement confidential, to maintain morale and avoid additional similar claims. Consult your attorney over your options in pursuing your employment claim.

Family

Family law cases, referring to separation, divorce, paternity, child custody, and child visitation, are another special form of litigation combining forms of monetary and injunctive relief. See the guide Help with Your Divorce. Family law is state law, and so family law cases are in the state courts, not the federal courts. Because of the constant monitoring and frequent intervention that child-custody and child-support cases can require, state courts often offer special family courts that judges with no other docket than family law cases administer. State courts also often rely on adjunct agencies like a Friend of the Court office to investigate, recommend, and monitor family court orders including child support. States may also lend prosecutorial services for a child-support enforcement function. Parties involved in family law cases can face difficulty locating and affording attorneys to advocate on their behalf because of the protracted nature of many family law disputes and the parties’ inability to afford ongoing advocacy. Taxpayer supported legal representation may only be available in family law cases involving domestic violence. Family law attorneys tend to require retainers up front because of the prospects of otherwise not getting paid for their services. Be thoughtful and prudent about how you are going to pay for family court representation. Fee shifting to the wealthier party may occur but can take a significant showing of poverty. 

Probate

Probate court cases involving guardianships, conservatorships, and the administration of decedents’ estates are another special form of litigation. Probate courts care for individuals and families in loss, disability, and death. Probate cases thus typically do not have named opposing parties but instead only the named ward (minor or disabled person) or named decedent’s estate. But family members, creditors, and others can find themselves advocating and disputing in probate court in a contentious manner. State law governs probate issues, so that your probate matter will be in state court, not federal court. State courts typically constitute a special probate division with judges having no other docket than probate cases. Probate courts, like family law courts, can rely on adjunct services such as guardian ad litems or other special advocates appointed to investigate and advocate for the interests of minors or mentally incompetent adults. If you find yourself in probate court, you may deal with a court-appointed advocate for your minor or disabled family member. Probate practice tends to be even more specialized than family law practice, meaning your choice of attorneys may be more limited. You may find your probate lawsuit, though, to involve sufficient assets or funds to cover the legal expenses and expenses of administration. 

Commercial

Commercial litigation involves a broad class of business lawsuits. Businesses may have contract disputes to resolve with their customers, clients, landlords, commercial tenants, and suppliers. Business partners and owners may also have disputes among themselves. And businesses can have lawsuits against other businesses involving various forms of unfair competition including trademark, patent, and copyright violations. Business litigation makes up a large percentage of court litigation, along with family law cases and criminal cases. Much business litigation, particularly breach-of-contract claims, depends on state law and will thus be in state court. But some business litigation involves federal antitrust, unfair competition, or intellectual property laws and thus goes on in federal court. Businesses typically pay for their own attorneys as a cost of doing business. Insurance may be available only for limited special claims, not for run-of-the-mill breach-of-contract cases. Commercial litigation attorneys are some of the highest-compensated attorneys. Expect to budget for the cost of commercial litigation. 

Insurance

Insurance litigation is a related type of commercial lawsuit. Insurers cover the risk of accidental loss. When a loss such as a motor-vehicle accident or accidental building fire occurs, the companies insuring against the loss typically retain defense attorneys to contest the damages claims, whether by the insured party or someone whom the insured party has negligently harmed. So, some litigation involves insurers paying defense attorneys to fight in court whether and how much the insurer should pay the individual or entity claiming the loss. Insurers also occasionally sue one another to adjust their relative responsibilities to pay for loss. Insurance litigation typically involves breach-of-contract claims under state law in state courts. But some insurance litigation involves federal laws, such as insurance coverage obligations under federal employee benefits plans, and thus goes on in federal court. Insurers pay their own attorneys as a cost of the insurance business. Insureds or third parties making claims against insurers typically retain attorneys working on contingency fees paid out of the anticipated insurance recovery. Find a qualified attorney who knows insurance litigation to help with your insurance lawsuit. 

Administrative

Some disputes needing formal resolution involve administrative agencies. You may, for instance, have a professional license or certification that a state board is threatening to suspend or revoke, affecting your ability to earn a living. Alternatively, a state labor department may be accusing you of not paying your employees as state law requires or of not protecting your workers against workplace safety hazards. You may face regulatory shutdown orders or fines you need to fight. In that case, your action is likely to begin in a state administrative tribunal having court-like features, including an administrative law judge but no jury and relatively fewer court formalities and procedures. Administrative cases generally require that you retain a qualified attorney to advocate on your behalf at your cost. If you have already lost your administrative case, you may have a right to court appeal and review. Consult a skilled and experienced administrative attorney. 

Small

State courts also generally have lower-level courts to quickly and inexpensively adjudicate residential landlord-tenant eviction cases and other small claims. A small-claims court in your state, limited to matters of no more than a few hundred or few thousand dollars, may even prohibit attorney representation to keep the costs low and the procedure relatively simple and streamlined. A small-claims court may also have a non-lawyer magistrate ruling on cases rather than a judge with a law degree and legal experience. In small-claims court, the magistrate may simply ask each side to tell what happened and present any relevant documentation, rather than proceeding by direct and cross-examination after a formal opening statement and followed by a closing argument. If you choose a small-claims court, prepare a thorough script to follow, make copies of your exhibits to share with the magistrate and opposing party, and tell your side of the story as your own advocate. 

Reflection

Which of the above types of litigation does your matter involve? In which court, state or federal, do you expect to find your lawsuit? Are you seeking damages in your case, where you might be able to attract a contingency-fee lawyer? Are you seeking a court injunction beyond your damage claim? Do you need the court to make your opposing party do something to help you or stop doing something that is harming you? If your case is instead a family law case, are you able to afford paying for your own representation, including with a retainer fee up front? Or is your case in probate court, involving a guardianship or probate estate? If so, do you have a qualified probate attorney available to you? Or is your case involving your employment? If so, do you have a large and strong enough damages claim to attract a contingency-fee lawyer? Or is your case a business dispute, in which case have you budgeted to pay an attorney out of your business income? Or is your case an insurance dispute, in which your insurer may assign you an attorney and pay the attorney, or you may seek a recovery out of which you would pay a contingency-fee attorney? Or do you have a small claim that you can handle on your own without representation, presenting your case to a magistrate?

Key Points

• The type of lawsuit that you have can affect important factors.

• Damages cases are usually in state court with a contingency lawyer.

• Cases for injunctions seek a judge’s order to enforce rights.

• Family law cases are in state court without a jury, with agency help.

• Probate cases are in state court without a jury, with advocate help.

• Employment cases may be in state court with a contingency lawyer.

• Commercial cases involve contract and unfair competition disputes.

• Insurance cases involve insurance defense lawyers disputing claims.

• Administrative cases are in less-formal tribunals with court review.

• Small claims may be in a special magistrate court without attorneys.

Read Chapter 5.