Suing a Party

Planning and First Steps



Suing a Party

The list of possible lawsuits would be very long.  Here is a short example: mortgage foreclosures, debt collection, unpaid fees for services, real estate leases, negligence and personal injury, auto accidents, employment and/or labor law issues, neighbor disputes, trust and probate issues, discrimination cases, privacy suits, statutory rights, unfair trade for example false advertising, etc.

Cases under $7,000 in damages are typically brought in Small Claims court; over $7,000 District Court and $25,000 in Superior Court; affecting Federal Laws usually Federal Court (e.g. admiralty, antitrust, bankruptcy, copyright, patent, etc.). 

Upon deciding to sue a party, the plaintiff’s attorney will need time to investigate the claims, defenses and possible opposition countersuits.  Not to be over-dramatic, some people say that “litigation is war”.

Keep in mind that filing a lawsuit can be burdensome in terms of time and resources. Most simple civil cases typically exceed $20,000 in costs if they go to trial and may increase that amount significantly, the more complex the issues involved. Although there may be a possibility of an out-of-court settlement, it is best to be prepared for the costly alternative. 

In the case of a potentially high damages payout such as certain personal injury cases or for example certain cases with well-defined damages rewards such as Workman’s Compensation cases, a lawyer may be willing to take such a case agreeing to only be payed based on the contingency of winning the case.

Possible reasons for delay/cost of defending the case:

  • Filing/responding to counterclaims (other side often employs delaying tactics).
  • Gathering documents needed to prove relevant facts of the case
  • Filing motions and hearings
  • Locating witnesses (delays depositions and trial)
  • Depositions
  • Discovery delays/court motions to delay (same reasoning as above).
  • Investigating facts (adds to the time of a proceeding as well as the cost if something like an expert witness is needed)
  • Trial prep, party and witness coaching, examination (will take time to vet witness reliability and prep them so as to give the best presentation of your facts)
  • Trial attendance (some parties could be absent at first and subsequent scheduling)

Here are some more detailed examples of issues addressed in lawsuits to help the reader’s understanding.  This list is not exhaustive:

Breach of contract: 

A failure, without legal excuse, to perform any promise that forms the contract. A material breach of contract occurs when because of the party’s breach, the other party receives something different than what the contract specified. A breach is minor if, even though the breaching party failed to perform some aspect of the contract, the other party still receives the item or service specified in the contract.

Material breach: As a result of breach, the party did not receive her computer at all.

Minor breach: As a result of a breach, the party’s computer was substantially delayed.

What a lawyer will need: copy of the contract terms, any prior communications

altering contract terms, copy of payment terms.

Discrimination:

Discrimination is the unjust or preferential treatment of different categories of people based on their protected class of race, religion, gender, gender identity, and other federally protected classes. Discrimination has two subsets:

  1. Disparate treatment: treating one class of persons differently from the other based on an immutable trait (e.g. trait inherent to their race). Must show that similarly situated employees of another race or gender ARE NOT treated with alleged mistreatment.
  2. Disparate impact: employment policy that has a disparate effect on one group over the others (example: civics test)

Things a lawyer will need: policy regarding hiring practices, applications from prospective employees, race and ethnicity of workforce. For a disparate impact claim, documentation showing the policy in question has necessary relationship to the position applied for.

Other actionable grievances under the discrimination umbrella:

  1. Pregnancy Discrimination Act: federal statute that prohibits discrimination based on pregnancy, childbirth or medical conditions related to such. Under the act, employers are not allowed to refuse to hire a qualified candidate based upon pregnancy status. Must provide reasonable accommodations for pregnancy complications, including postpartum depression.
  2. Immigration Reform and Control Act: Cannot discriminate based on citizenship status, must accept whatever form of identification a worker may have if not counterfeit.
  3. GINA: Employer may not discriminate based on the genetic history of the applicant. For example, if Steve’s wife has cancer and employer does not want to hire because this will mean higher health insurance premiums, it would a prima facie case of discrimination under GINA.
  4. ADA-discrimination based on physical or mental disability; employer must provide reasonable accommodations unless unreasonably burdensome on employer to do so. NOTE: PRE-EMPLOYMENT TESTING (I.E. RANGE OF MOTION/DEXTERITY TESTS FOR SPECIFIC INDUSTRIES) ARE PERMISSIBLE AS LONG AS GIVEN TO EVERY CANDIDATE FOR THE POSITION.

Product Liability:

Defendant is liable for committing an action, regardless of what his/her intent or mental state was when committing the action. Can apply to manufacturing defects, lack of warning, or design defects.

 Example: C manufactures tires. Despite adhering to the correct protocol during the assembly process, something about the way the tires were put together made them not very durable on the road. C would be liable for strict liability even if he had not been negligent. If the defect was related to the design and C was the engineer responsible, C would also be liable.

Defendant defenses: Adequate warning, assumption of use, misuse by the plaintiff.

What your attorney would need: Instruction manual of product, insight as to how it was designed, how many people have had a similar unfortunate experience with the product and how these people were using said product.

Wrongful Termination:

Refers to when an employee is fired for reasons that are illegal or if the firing breaches a contract or public policy

Example: T reported to her boss (B) that her supervisor (S) was harassing her. S and B were close childhood friends, and B felt very protective of S. To prevent a tarnish to S’s reputation, S fired T.

Defendant defenses: Furnish a legitimate reason for the termination that is not pretext.

Things a lawyer would need: Documentation of employment policy, documentation of communications between the accusing employee and firing employee, disciplinary procedures and standards of conduct of the institution.

Fraud:

Person or business gains an unfair advantage over another through unjust means, (lying or omitting important details). Actual fraud requires intent to lie, constructive fraud may not.

Example: Jim the car salesmen does not mention to Stu that the brakes in the Mercedes he sold Stu do not work.

Things lawyer would need for bringing a cause of action: anything documenting the transaction, written explanation of the standards for the industry.

Conversion

Conversion is the same thing as stealing. To succeed in a claim, plaintiff must show unauthorized exercise of ownership over the goods in question, either to alter the construction of the property or alter the owner’s rights.

Example: Bill really likes Don’s MacBook. While Don is away from his desk, he steals the MacBook and puts his name on it so it looks like his old MacBook.

Things a lawyer would need: Some proof of your ownership in the property, photographs of property in the hands of the person who took it.

Unfair or Deceptive Trade Practices:

Business or person must have committed a deceptive act, the act in question must have affected commerce, and the act must have caused injury to plaintiff.

Example: Jim, the car salesmen, puts a BMV insignia on a KIA and sells it to Stu.

Things a lawyer would need: Documented interactions with other customers to denote this was a pattern rather than a mutual mistake, the amount of money lost on this transaction by plaintiff, examples of statements on behalf of defendant that were false or misleading.

Malpractice       

This is a claim that can brought by any party or third party alleging that a professional failed to act the way a professional in that industry should act. For third party claims, the harm to the third party must be something the profession in question could reasonably foresee.

Example: D hires accountant B to do her taxes. Mid-October she gets a call from the IRS saying her taxes have not been filed and she will be audited soon. D contacts B, who forgot to file D’s taxes. B can sue D for malpractice.

Things a lawyer would need: Information describing the expected way a contract would be handled in a certain industry, damage to the plaintiff from relying on the professional

Personal Injury

If you are hurt in an accident the first thing to do is to take whatever steps are needed to protect your health.  Collect whatever information possible about the circumstances that resulted in the injury e.g. write down what happened, seek witnesses, collect photographs if helpful, obtain a police report, etc.

Contact a lawyer as soon as possible remembering that certain lawsuits have a time limit to be started.  If the time limit is not met, the opportunity to collect an award could be forfeited.  In cases against the government, the time limit may particularly short.

Equitable claims 

Equitable claims ask the Court to order a party to take some action or stop some action.  The suit may or may not be joined with a claim for monetary damages.  Cases where a party is seeking a temporary restraining order or injunction to stop something (perhaps the destruction of property, the improper transfer of land, the solicitation of a business' customers, etc.) are examples.

Landlord/tenant issues 

Civil courts handle disputes arising between landlords and tenants such as for example  cases where a landlord is trying to evict a tenant from a rental property or a tenant has moved out and is suing a landlord for the return of a security deposit.

 

The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only.  

Image credit: Robert Bye Unsplash

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