Can I Be Sued for…

Many times, I hear people ask whether they could sue someone or be sued by someone for something.  Usually, the answer is “yes,” you can sue and be sued for many things; however, people are asking the wrong question.  The correct question is whether you can successfully sue or be sued.  In order to have a successful suit, usually referred to by attorneys as a “cause of action,” the old three-legged stool analogy must be examined.  A three-legged stool must obviously have three legs in order to do its job and not fall over.  Likewise, a successful lawsuit must have three things in order to be successful (and by successful, I mean  winning in court and actually receiving an award of money, which you physically receive as yours, as opposed to just a piece of paper called a judgment, which is noncollectable.) The first leg of the stool is the facts of the lawsuit.  Are the facts sympathetic and can they produce a good result?  Secondly, the facts must fit into the framework (elements) of a specific law (either statutory law, which is legislatively created law or common law, which is court created law), so that the facts meet all requirements of a violation of the specific law.  Thirdly, the lawsuit must have damages that are collectible.  Many lawsuits run aground on this third requirement, in that the damages suffered by the plaintiff are either too small to justify the significant work of a lawsuit to collect them, or, even if there are significant damages, the defendant does not have the funds or insurance to pay the damages.  Many defendants are, what is sometimes called, “judgment-proof” because they only have limited assets/money and these assets are protected by legal exemptions that prevent a creditor with a judgment from taking and selling their assets.  Also, sometimes a large judgment will result in the defendant declaring bankruptcy and preventing collection.  So, the answer is as usual in the law, somewhat cloudy on whether you can successfully be sued or can sue.  Usually, you will need to consult a lawyer practicing in the particular field in which you are considering a lawsuit.  The lawyer should be able to advise you fairly quickly as to your chances and the possible expenses involved.  Another consideration will be whether the attorney will work on a contingent fee (meaning he only gets paid a percentage of the recovery, if he wins the lawsuit) or will he require a payment by you to him of a fee for his work.  One should also remember that if you bring a lawsuit and lose, you can be responsible to repay the defendant the amount of legal costs incurred.  This usually does not include the defendant’s attorney fees, but involves certain legal expenses, such as deposition costs and filing fees. These costs can be significant if the lawsuit involves a lot of discovery.