Ten things to think about before you decide to file a lawsuit (or start to defend against one)
So you find yourself as an individual or your small, successful family or closely held business faced with a potential lawsuit about a dispute in the workplace between employee or employer, or between business partners or between adult family members trying to decide the future of the family business, or the family’s holdings.
What do you do? You’ll probably reach out to someone you trust – either a family member or a close friend or good business colleague. Or to a trusted advisor – a lawyer, an accountant, a financial advisor or a business coach. Someone who knows you and knows your business, employment or family situation well.
That’s a good first step. Someone who knows you well and knows the circumstances that are the context for your dispute.
But what do you do after that? One of these folks will probably advise you to talk to a certain lawyer, hopefully one that has training and expertise in the area of law that your dispute falls within, and get some good legal counsel.
Now here’s the key point, coming up right here at the beginning, that most people – lawyers and clients – miss or gloss over. What is the right process for you to use for your specific situation to achieve the best result possible? If you don’t ask this question to a lawyer, to yourself and/or a trusted adviser, you will likely find yourself two or three years, thousands of dollars and a lot of spent energies later in a place you never wanted to be, having gone through a dispute resolution (“DR”) process that wasn’t a good fit for your situation.
So before you make decisions on a legal course of action, here are ten things to think about:
- Is this DR process capable of achieving an outcome that meets your interests and goals?
- What is the time frame within which you and your counterpart in the dispute need to get this matter resolved?
- Do you want to maintain control over the process and the ultimate outcome or hand those decisions over to someone else (judge or arbitrator) or something else (a jury)?
- Is preserving the health of the relationship with the person or entity you are in a dispute with important?
- What is your financial bandwidth to cover the costs of legal fees and other related costs?
- Is confidentiality and privacy important, both as to the process and the result?
- What is your level of risk aversion and that of the other side?
- Is it important to you to minimize the draining of your energies, resources and emotions on this process?
- Can you and the other person or entity in the dispute, communicate with each other, work together and collaborate toward achieving a good resolution?
- Is it important for you to control the scheduling of the DR process around your workday and other family commitments?
Going through these considerations first is critical to achieving a good outcome. If the lawyer you consult does not discuss these things with you before you initiate a DR process, it would be good to consult with another lawyer who does. If your lawyer tells you that you need to do this process assessment and informed consent first step and there is a fee for this, do it. It is probably the best money you will spend on the entire DR process, as it will get you on the course of action that is right for you and your case.
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