What To Do In A Lawsuit
You have some type of conflict or dispute with somebody, and it looks like it’s heading for a lawsuit or maybe it’s already been filed as a lawsuit. Whether you filed as a plaintiff, or you’ve been sued as a defendant; you have a dispute that’s going to court. What should you do? What are the first things you need to do when a lawsuit is pending or impending?
First of all, remember we’re not attorneys. We’re not giving you legal advice, but we are in the business of investigations. We’re a licensed private investigators, we’re a licensed mediators, we also have licenses in the commercial insurance industry. So we know a lot about how these conflicts work. Seen it from both sides.
If you’ve also been asked to testify as an expert witness. In many court cases, we have seen this litigation process happening from the inside and the outside. First thing you need to do if you have a conflict going to court or to trial is, consider getting qualified legal advice. Even if it’s a small claims case, it’s probably worth spending a few hundred dollars to do a consultation with an attorney. Have them just give you some basic overview. Even you don’t hire them for your case or you don’t pay them to represent you; you want to get some feedback. An example would be they say “watch out for doing this, or avoid doing that.
Here’s what could happen in handling communications with another party:
You might inadvertently say or do something that creates more liability for yourself. It might degrade some of the rights that you have. It might give the other side an automatic win. So you want to make sure you avoid doing things. It’s kind of like what you see on TV, you have the right to remain silent, you want to make sure that whatever you’re saying to the other person is not hurting you, and is helping you. An attorney can help you with that.
Number two is whether you’re in a case or not. Gather information as much as you can during or before that case. As licensed investigators, this is what we do quite a bit. We do pre-litigation investigations. Sometimes you want to search for assets of that person. Want to see if you’re suing somebody for $50K, do they actually have the assets to pay you back. If they don’t have any assets, you could win the lawsuit but have no money. You want to make sure they don’t have too many assets. If you’re suing somebody for $50K, and they have $10 million in the bank, they could spend $50K in legal fees just out of spite. You could get nothing and lose because you have to pay that much in legal fees. They could win the case, even if they don’t deserve it. When you do an asset search, you’re not just looking to see if they have enough assets; you’re wanting to make sure they don’t have too many assets that they could use to squash you.
Investigation is important to look at other activities of that person. Do they have a criminal record? Have they sued people before? Have they been in court before?
You can pull those court cases and find out what other activities they’ve been involved with. Is it similar to yours? Have they been accused of fraud? Have they been in the same type of disputes in the past and have they won or lost? Are they very litigation happy? Do they have a habit of suing people or getting sued? At the same time, you want to look to see what their existing activity pattern is, where do they work, what is their prior employment, have they switched jobs, are they going through divorce, or are they getting foreclosed on their house. There’s a number of things in a background check that you can research, and that’s part of what an investigation would do. To look for assets, for activities, and to look for prior troublesome events in their history.
Next thing you want to look at is: How to mitigate the resolution.
What that means is whether you call it settlement, mediation, arbitration, or negotiation; you want to see if there’s a way to resolve the dispute prior to going to court. Here’s the reason why: Even if you think you want your day in court, you want to fight it out, win. That’s great but it’s going to cost you something even in small claims. If you don’t have an attorney, it’s going to cost you your time, your day off from work. You have to go to court, pay court fees. If you can resolve this and settle it, it’ll eliminate all that. Even if it’s not exactly what you want. Many times, in hindsight, people who have won their case say, I wish I didn’t go through all this. I wish I just settled.
It’s hard to see that from the other side, but at least you want to see what your options are. A good way to do that is mediation. If you have a third party, if you try to negotiate directly with the other side; you both are going to have too much pride, and too much kind of draw a line in the sand to really be able to hear what the other side’s saying. They’re not going to hear what you’re saying either. An unbiased third party, like a mediator or arbitrator can help dissolve all of those bad feelings. In most cases, the dispute already has 90% of it already agreed on. There’s just a couple sticking points that are holding up the parties, and a third party can be unbiased, neutral, no emotions, to help see through all the stuff. A mediator can do that.
The other thing about mediation is, it’s completely private.
If you go to court, you start putting evidence in court, that’s all public record. Think about the things you might have to answer, say, or ask in court. That’s going to be in the public realm. Mediation is private, and you want to get a third party. Whether it’s your attorney, whether it’s a mediator, an arbitrator, or even just some random person to kind of get in between you guys. See what can be worked out.
I know it’s hard to do the good thing, mediation is you don’t have to abide by it. If you both go to mediation, and have proposed some settlement, or the mediator proposes a settlement. and you don’t like it; you can walk away. You don’t have to take it, but at least you know where you stand. At least you know where the other side stands. So if you do go to court, you’ll know what your options are. You can look at your least possible outcome, or your highest possible outcome before you step into that ring of court. If you do that now, you have a different scenario whatever the court says you have to abide by. It’s not voluntary anymore. It’s not optional anymore. If the court says you have to do this, or you win or lose, that’s the final answer. Mediation gives you at least some control of your own destiny. It’s the last chance you have.
The other thing that we recommend doing, is making sure that whatever activity resulted in this litigation, is mitigated.
If you’re doing something that the other side’s suing you for, or you’re suing them for; at least in the meantime putting that on pause until it’s settled. You don’t want to make it any worse. Don’t want to make it any better, but put it on pause until it’s settled. When you’re involved in a conflict, many times the logic and reality of that conflict gets thrown out the window. You’re just thinking about your side, and the law may seem like it favors you. however it might not. On the other hand, you might think you have a weak case and the other side’s a slam dunk case. You might find that they might make a mistake, or the law might really favor you. Do these things in advance. Get involved in a court case, and you’ll avoid huge outcomes that are negative. Have the highest possibility of having a win or a beneficial result in that litigation.
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