Legal Brief for September, 2011

Should I Sue?

This is a question that lawyers are often asked by their clients.  The situations can be quite varied - from a problem with a new home, or a defective vehicle, or when someone owes a person money, and many other examples.

What a lawyer can provide to a client in a situation such as this is an expert assessment, based on the lawyer's training, experience and judgment, as to whether the client has a case that might be successful, and also what the costs of "going to court" may be in that situation.

Some cases are capable of a fairly precise analysis, such as in a situation where someone is owed money on a promissory note, and there has been a default in payments.  A case of that nature is usually, as the saying goes, "cut and dried", and it generally is a straight forward matter of gettting into court as soon as possible so that a judgment may be obtained for the balance owing.

Other situations can be very complicated, and it may be difficult to determine both what the relevant facts of the case are, and then to discern how to apply the appropriate legal principles to those facts.  Lawyers commonly refer to cases of this nature as falling into a "grey area" of the law.

If you have a case that is in such a grey area, that may be a factor against taking your claim forward in the form of a lawsuit.  Many cases hinge on developments that occur only in the midst of a trial, and it may be too uncertain for you to take a chance on a situation like that.

Costs of taking legal action are another consideration.  This includes the legal fees that your own lawyer would be charging you, as well as the risk that if you lose your case, the court will likely order that you pay a portion of the other side's legal costs as well.  This aspect of a case becomes a cost benefit analysis as to whether the possible outcome of the case in your favour is significant enough to outweigh the expected legal costs you will incur and the risk that your case may be rejected by the Court at trial.

Another thing to keep in mind is that even if you decide to go ahead and initiate a lawsuit, it does not preclude you from still having settlement discussions with the other party as the matter proceeds.  In fact, it is generally accepted that roughly 90% of all civil claims that are initiated eventually are settled in one form or another without actually going to trial.

In the Legal Briefs for October and November I will review the two levels of Court that are chosen for lawsuits in Alberta - Provincial Court and the Court of Queen's Bench, and the differences between the two.