“To Sue or Not to Sue?” That is the Question

“To Sue or Not to Sue?” That is the Question

September 23, 2020

By Brian Babcock

“I was never ruined but twice: once when I lost a lawsuit, and once when I won.” So said the French writer Voltaire, commenting upon the cost of winning a law suit.

As litigation lawyers, we love taking on your law suits. For most of us, a day in court is better than ten days in the office. We do have an ethical obligation to encourage you to settle, or to mediate. We also have a human obligation to make sure that you go into the process with no illusions about the true cost of a law suit. But what we really love to do is strap on our robes and litigate.

Law suits are expensive, not just in terms of costs in money, but also your time and energy. I have written before about the fictional lawsuit at the heart of Dickens’ novel Bleak House, which consumed all the value of the estate in dispute in legal fees and court costs, leaving nothing for the beneficiaries. Much of the novel focuses on the human costs to the players whose lives become wrapped up in the ongoing saga.

The court system is vastly improved from the 19th century, but arguably is not really in the 21st century.

Another favourite quote about law suits is “Trials are not — nor are they meant to be — tea parties.”

No matter how badly you are wronged, before starting or defending a law suit, there are many things that you need to consider, including:

  • Even the winner almost never receives full indemnity for their legal and court costs. Your recovery will be reduced by the gap between the full cost and any costs you may collect.
  • Being awarded a judgment is a new beginning, not an ending. There is no automatic payment to you. You will have to try to collect on the judgment. That is not always fruitful. You may win and recover nothing.
  • Lawsuits are always unpredictable. You may not achieve the result you seek or expect, no matter how strong your cases appears. Justice is not always fair.
  • Once the law suit begins, you will no longer be in the driver’s seat. Opposing parties, the lawyers, judges, and court rules may not bend to your will.
  • Mediation or other out of court settlements are often a more cost-effective result. They also give you control over the result.
  • Law suits take time. Lots of time. Real life is not like television where you hire a lawyer and get a result the next day. Most law suits take years to resolve.
  • You will not be paid for your time participating in the law suit.
  • You may however have to pay employees or other witnesses for their time, either in a support role or to be available to testify. That is seldom recoverable.
  • You will have sleepless nights and days of lost productivity. You will also not be paid for that.
  • At the end of the road, you might wonder why you bothered.

Sometimes, however, a law suit is the only right answer to the questions such as:

  • “So what do I do next?”
  • “How do I recover my losses?”
  • “Can I hold them to their deal?”
  • “How can I stop them?”
  • “How do I get vindication?”

If those are the questions keeping you awake at night, then you should have a chat with us about whether the correct answer is “sue the bastards”.