Factors to Consider Before Recommending a Lawsuit

By John Allison

Lawyers file more than 9 million civil lawsuits in the United States each year. A lawsuit can be the right tool for achieving a client’s objectives. However, before recommending that a client file suit, some important factors ought to be considered.

First, consider whether filing a lawsuit is the best course of action for achieving the client’s objectives. Sometimes, a lawsuit is the only viable choice. Examples include class actions, situations requiring injunctive relief, lawsuits seeking relief from unlawful action by a regulatory agency, and challenges to the constitutionality of a statute.

Yet most cases involve private disputes that can often be settled through negotiation or mediation before a lawsuit is filed.  By avoiding a lawsuit the parties can save the considerable amount of money they would spend engaging in litigation, and they may also be able to preserve business and other relationships that can be destroyed by the adversarial nature of the litigation process.    

It is important to be aware that most clients have an intense dislike for litigation. It is expensive and unpredictable. The process disrupts the personal lives and business activities of the parties.  Pretrial discovery is often invasive, forcing parties to reveal information they would rather keep private. The parties are required to surrender control over their destiny to strangers – a judge and perhaps jurors – who will decide their fate in process that seems strange and unfamiliar.    

If you believe that filing a lawsuit is the best course of action for your client, it is worth taking the time to discuss other options the client might have and to explain how the litigation process is likely to unfold. It is also important to give the client at least some idea of how much the litigation is likely to cost. Clients hate surprises, and they will appreciate knowing in advance what they might expect as their case moves forward.

Also consider how the lawsuit can be framed to have the greatest impact in furthering your client’s objectives. Questions to consider include these:  What causes of action should be included?  Are there reasons to refrain from asserting a particular cause of action? What parties should be sued?  Where should the case be filed? Finally, consider the cost and benefits of associating with local counsel if the case will be filed in a jurisdiction where you do not often practice.   

John Allison is a professional career coach backed by years of experience as a successful lawyer. He is the founder of The Coach for Lawyers and author of The Art of Practicing Law: A Practical Guide for Lawyers.


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