6 How Can I Avoid a Lawsuit?

All day, and then the next day and the next, Chris could think of nothing other than that he was about to get sued. Chris couldn’t believe it. He had always thought of himself as a decent, law-abiding, respectful person. Chris thought that only lawless rebels and renegades, and selfish louts, got sued. But here he was, waiting for the lawsuit papers to arrive, while consumed by the fearful, confusing, and embarrassing thought. Finally, though, after a few days of continuous rumination about it, Chris decided to see what he could do to avoid a lawsuit. He certainly didn’t deserve it. Maybe he could head it off.

Avoidance

When you count the costs of a lawsuit, and nearly all lawsuits have costs, you rightly begin to think of how you might avoid one. The costs include not only the attorney’s fees and court costs but also the time you pour into it, the stress you get out of it, the relationships it ruptures, and the reputation it costs. So, how do you avoid a lawsuit? If you’re the plaintiff filing the lawsuit, then you can avoid a lawsuit simply by not doing so. The choice is yours. But the remedy or relief you need may be so compelling that you really have no choice, unless you can find another means to accomplish some, most, or all of what a lawsuit might accomplish. Those options are what this chapter explores. If you’re instead the target defendant anticipating a lawsuit, then you don’t entirely control whether you’ll face a lawsuit, but you may well be able to dissuade your opposing party from filing it. This chapter also explores how you might do so. In either case, whether you are the party preparing to file a lawsuit or the party anticipating having to answer one, you may have ways of avoiding one. Try them out.

Advocacy

Don’t miss the opportunity to advocate your cause or defense when you learn of the claim that may be about to become a lawsuit. You don’t have to sue the moment you learn that someone has done you wrong. And you don’t have to sit back and wait for the lawsuit to arrive when you hear that someone’s thinking of suing you. You may instead have substantial opportunities to advocate for your rights and interests, to convince your opposing party to do the right thing without the time, trouble, and delay of a lawsuit. If you’re on speaking terms with the opposing party, then organize your thoughts and evidence, and meet with them or call them up. If you’re not on speaking terms, then organize your evidence in a presentation that you can send to them. Retain an attorney to help you do so, to make a clearer and stronger presentation while avoiding errors and admissions that you’d be better off not making. Advocate your cause or defense before any lawsuit, and you might just find that you convinced your opposing party that you’re right and they’re wrong, heading off a lawsuit.

Recognition

In your pre-lawsuit advocacy with your opposing party, listen to what the opposing party has to say. You’ll probably learn a few things that you didn’t know about your situation, the one that is about to trigger a lawsuit. Lawsuits often arise because the two sides have different information. Of course, they also have different interests. But in many cases, it’s not the interests that clash. It’s the information that differs. One big function of a lawsuit is to fully disclose each side’s information in a reliable format, so that both sides are evaluating the same information. That’s why many lawsuits settle. Both sides finally see all the positive and negative information. And so, in pre-suit exchanges of information, you may learn that maybe your initial assessment was wrong. You may see the justice of the other side’s claim or defense. Your pre-suit advocacy may convince the other side to give up or at least to adjust, but the other side’s pre-suit advocacy may likewise convince you to give up or adjust. Listen, and learn. It can be far better to admit you’re wrong and quickly address the consequences on your own, by your own means, than to deny a wrong until the other side forces you to address the consequences on their terms.

Settlement

If it doesn’t cause one side or the other to abandon all opposition and simply give up, your exchange of pre-suit information may lead to a pre-suit settlement. Even big, complex situations, ones that could take a year of expensive litigation to resolve, can resolve before the lawsuit if both sides put in the effort to reach a voluntary resolution. Exchange pre-suit demands and offers, and you may just work things out. The workout may be distasteful to both of you. But that’s what judges and experienced litigators say about a good settlement: that it makes both sides equally unhappy. Make a good-faith effort to resolve your differences. Settlements generally happen only when both sides are equally committed to resolving the matter. You may want badly to settle, but if the other side isn’t truly interested, then you’ll likely not get a reasonable offer. To encourage the other side to get serious about negotiations, make your pre-suit communications clear, compelling, and well-documented. Indeed, have your attorney draft and share the complaint that you are ready to file. Your opposing party might then take your threat seriously, and you might then find that both sides can work things out without litigating.

Mediation

If both sides appear willing to consider settlement, but you’re unable to get everyone on the same page with the same information and taking a reasonable view of things, then consider mediation. Mediation involves bringing in a trained mediator who has the skill of getting parties to see things the same way or a similar way, to bridge the gap toward settlement. Mediation involves getting you, your opposing party, your attorneys, and an authorized representative of any insurer that may be holding the purse strings all in the same location. The mediator then typically puts each side in a different room, while shuttling back and forth between rooms, carrying demands, offers, and new information. A skilled mediator can poke holes in claims and defenses, revealing weaknesses that justify each party moving closer to the other party’s position. An effective mediation may take a half day, a full day, and even a second or third session after the parties adjourn to gather more information and reconsider their positions. Mediation can, in other words, be time-consuming. Paying a skilled mediator, usually splitting the cost between the two sides, can also be expensive. But the time and expense may be far less than a lawsuit requires. Consider mediation if both sides seem reasonably motivated to settle or at least willing to consider settling.

Self

Not every intolerable situation requires the other side to act, in order for you to obtain relief. You may not need a lawsuit to force the other side to do something, if you can do it yourself. Some situations you can resolve with your own action. Self-help may be possible and appropriate in your situation in which you are considering filing a lawsuit. You may, for instance, be perfectly able to retrieve personal property that you know to be your own, without trespassing or committing any other wrong. Or you may, for another example, be able to lawfully put a new lock on a premises or move money to a new account, resolving your issue. But in pursuing self-help, beware transgressing rights or self-adjudicating disputed interests. That kind of self-help can get you into more trouble than you’re already in. Don’t do anything that will bring a lawsuit down on your own head. You are generally better off, instead, to sue the other side for the interest that you claim than to use self-help to acquire it and face a suit from the other side. The law discourages self-help. Only use self-help where your attorney has assured you that doing so is lawful and something that you can readily and successfully defend in court if the other side were to sue.

Vengeance

Especially beware any thought of vengeance as a means of self-help. You may also have the power to exact an equal measure of revenge, to avenge the wrong that you believe the other side committed against you, rather than going through with a lawsuit. If, for instance, the other side has defamed your good reputation, causing you loss, you may be in a position to share something publicly, or with specific clients, customers, or acquaintances of the other side, that will equally harm the other side. Or, for another example, your business partner may have diverted substantial business property for personal use, giving you a clear opportunity to do the same for your own illicit benefit. Don’t do so. Taking the law into your own hands to wreak vengeance will likely just expose you to the same liability as the other side owes you. Any eye for an eye and a tooth for a tooth is not the way that the civil justice system works. If the other side has harmed you in some way, your legal remedy isn’t to harm the other side back, even though you may be perfectly capable of doing so. Instead, your legal remedy is compensation for the wrong, to make you whole again. Your retribution against the other side doesn’t make you whole. It instead may create a cause of action against you, as a figurative sword in the hand of your enemy. Avoid vengeance.

Ignorance

Ignoring your legal rights and interests may be another way to avoid a lawsuit. You don’t have to enforce every legal right and protect every legal interest. If, for instance, your neighbors extend a building, deck, driveway, fence, or other structure onto your property right at the boundary between the two properties, you could choose to ignore the trespass rather than demand that they remove the structure and then sue them if they refuse to do so. If, for another example, a reckless driver sideswipes your vehicle, sending you and your family members occupying the vehicle to the hospital with serious injuries, you could ignore the negligence and absorb its economic and non-economic losses, rather than sue for liability insurance coverage in compensation. The choice is yours, if it’s your right or interest that someone else has unlawfully invaded. Beware, though, relinquishing rights through apparent ignorance. You may find others taking ever greater advantage of your rights or the rights of others similarly situated. Don’t be a willing party to the greed or lawlessness of others, especially when holding them accountable may protect the greater interests of other more-vulnerable parties. And if you decide to just ignore invasions of your legal rights and interest, don’t complain and be bitter about it. You made the choice.

Forgiveness

Forgiving offenses against you, rather than suing to enforce your rights over those offenses, may be another option to avoid a lawsuit. If someone forces you to walk one mile with them, then you might just go ahead and walk two miles. If someone demands your coat, then you might just give them your shirt, too. Forgiveness differs from ignorance. Ignorance pretends you don’t notice the wrong. By contrast, forgiveness lets the other side know that you know about the wrong and have the ability to hold them accountable for it but choose not to do so for other reasons. Ignorance is naive. Forgiveness is shrewd. Consider one of the examples given in the prior paragraph. Forgiveness would involve letting the neighbor know that the neighbor built the structure on your property and that you could have it removed but won’t right now because you want to maintain good neighborly relations. Forgiving your neighbor in that way could indeed preserve good relations while also preserving your right to decide differently in the event of further developments. Letting others know that you recognize your rights but are willing for the present time not to enforce them can be a good way of promoting both peace and accountability, if you don’t need right at the moment to enforce your legal rights.

Sacrifice

The above discussion suggests something fundamental about avoiding lawsuits. Life in social relationships inevitably requires some degree of sacrifice, of giving up one’s own interests in small or large measure for the benefit of others. Legal rights are in large part a reflection of the need to recognize and give way to the interests of others, even when doing so invades or affects one’s own interests. Property rights, for interest, mean excluding others. Contract rights, for another example, mean holding others to do as they promised. Tort rights, for another example, mean demanding reasonable care from others in all circumstances. Every legal right and interest requires others to adjust and sacrifice. But you don’t have to enforce every one of those rights. If you give up a little more here and there, and maybe even give up a lot on one subject or another, you’re only doing what others do for you or for others all the time, out of the very nature of legal rights. Don’t sacrifice foolishly, naively, in ignorance of important legal rights and interests. But a little wise and knowing sacrifice can go a long way toward keeping the peace. The best sacrifices can also make the world a better place. Life isn’t all about enforcing every legal right and interest to the fullest extent.

Reflection

Why do you want to avoid a lawsuit? What would a lawsuit cost you in terms of time, trouble, reputation, relationships, and expense? Have you advocated yet with the other side to see if you can avoid a lawsuit? Have you shared your evidence and arguments in an organized manner? Have you had the assistance of an attorney to do so? Have you learned anything from the other side’s response that would change your position? Have you made a clear demand or offer? Have you received and carefully considered a response? Should you make a new demand or offer in light of the response? Would sharing more information or different information help move the parties toward a settlement? If the other party is willing to meet, have you considered retaining a mediator to help you reach a resolution? Are you in a position to do something lawful on your own that would relieve enough of your situation that you wouldn’t need to pursue a lawsuit? Would it make more sense to forgive the other side for now, while letting them know that you have a legal right that you could enforce if you wished but are not doing so for the time being? Can you afford to look the other way this time, for now, without expecting the other side to go on violating your rights or the rights of others? Or should you instead hold them accountable now through a lawsuit that you’d otherwise rather avoid?

Key Points

You may have ways to avoid the cost, time, and stress of a lawsuit.
Advocating effectively for your position may avoid a lawsuit.
Recognizing the other side’s rights and interests may avoid a lawsuit.
Compromising rights and interests in settlement may avoid a lawsuit.
Retaining the services of a skilled mediator may lead to a settlement.
Self-help may avoid a lawsuit, but beware of violating rights.
Avoid vengeful acts that give the other side a new cause of action.
Ignoring your rights may avoid a lawsuit but lead to more violations.
Forgiving transgressions for the time being may avoid a lawsuit.
Social relations require frequent sacrifices around legal rights.

Read Chapter 7.