Weilers LLP

If You Need To Sue

If You Need To Sue

April 2, 2024

By Jonathon Clark 

We recently wrote an article about what to do if you are sued.

But what about if you want to sue? Or more likely, need to sue. Very few people really want to sue.

But if you are owed a debt; suffer a personal injury; lost your job; or got into a mess over a renovation job, or for other reasons, you may have no choice but to sue.

Your first decision may be when to talk to a lawyer. We say this because though you can sue as a self-represented party (unless you represent a corporation), we always recommend speaking with a lawyer.

You might watch a YouTube video and try your own plumbing repairs, but would you attempt brain surgery? A lawsuit is not quite as tough as brain surgery, but it is complex, and a slight error can be fatal to your claim.

We always recommend talking to a lawyer early. Even if you decide to go to Small Caims Court yourself, some preliminary advice about limitation periods, procedure, and how to write a claim is always worthwhile.

We do not recommend bringing a self-represented claim in Superior Court. There, the old saying “The lawyer who represents themselves has a fool for a lawyer” is just as applicable to representing yourself if you are not a lawyer.

As we said in the article about being sued, lawyers are trained in both procedure and the art of advocacy. You could look up procedure in a book, but there are always “unwritten rules”. Advocacy is an art. You cannot learn it from a book. Lawyers learn it from watching and doing. You do not have that time, or that margin for error. You need to get it right the first time. This applies just as much to when you need to sue.

You can, and should, try to resolve the matter without suing first, and many clients are capable of doing that themselves. That does not mean you don’t talk to a lawyer. Many claims have short time limits to sue or give notice, or other procedural traps. Talking to a lawyer early helps avoid these hazards and does not commit you to suing or hiring the lawyer to sue for you.

There are of course times when a letter from your lawyer will assist in recovering without suing. Since lawyers are usually skilled negotiators, we can even help with that process.

Lawyers are not cheap. We cost money, just like plumbers and brain surgeons. So, when you come to see us, bring all your documentation. It helps if you organize it, otherwise you will pay the cost of our staff doing that job. It helps even more if you prepare a neat summary with the proper names of the parties, and the chronology of events. This may evolve as we talk about the story, but having the basics in writing is a big help.

In most cases, expect to be asked to pay a retainer. Lawyers like to be assured of payment.

You can expect a very rough budget or cost estimate, but litigation is unpredictable, and costs are never certain until the end. Some common tasks we can quote a fixed or flat fee for, but they are the exception.

Do not be shy about talking about fees and other costs. One question we often discuss up front is whether it is worth suing. Suing is seldom as essential as brain surgery or plumbing repairs. Most lawsuits are only about money.

Just as when you are sued, you need to find a lawyer with experience in your type of claim, at least initially. If you learn that a newer lawyer can handle the matter, this will save you cost, but you do not want a dabbler.

Most importantly, you want a lawyer that you can communicate with, and develop trust in. Litigation takes time and you want a good fit.

Speaking of time, if you think you need to sue, you need to realize that you will be investing time and energy in the action for quite a while- not to mention perhaps losing some sleep (though a good lawyer tries to lose the sleep for you).

At Weilers LLP we have lawyers with a broad range of litigation experience. We hope that we can find a lawyer on our team who will be the right fit for you and give you the advantage of access to other team members. That is why we like to say, “give us a call and see if we are the right lawyers for you.”