Don’t File That Lawsuit!

I spend a considerable amount of time advising clients to refrain from pursuing a claim or lawsuit on a personal injury matter.  Sadly, many non-lawyers believe that attorneys live to file lawsuits, and think that attorneys believe that litigation is always in a client’s best interest.  This could not be further from the truth.

A plaintiff in a personal injury or wrongful death lawsuit has the burden to prove, by a preponderance of the evidence, all of the following:

  1. The defendant owed a duty of care to the plaintiff;
  2. The defendant breached his duty of care (“negligence”);
  3. The breach was both a proximate and actual cause of the plaintiff’s damages; and
  4. The extent of plaintiff’s damages (for example, pain and suffering (or “general damages”), past and future medical expenses, loss of earnings and impairment to future earning capacity).

Just as important, the defendant should either be insured by a policy of liability insurance that will cover any judgment or settlement that the plaintiff obtains in the lawsuit, or have the financial ability to pay a judgment rendered in favor of the plaintiff.

Occasionally, after evaluating a prospective client’s case, I am faced with the unenviable task of informing that person that the defendant is not at fault, or the defendant’s fault was not the cause of that person’s damages.  Or just as frustrating, the responsible person was not insured and will not be able to pay any judgment rendered against him.

Sometimes, litigation may not be in a client’s best interest.  The decision about whether a person should pursue a claim or lawsuit, of course, is highly fact-specific, and should be undertaken only after consultation with a competent attorney.

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