© 2018 E and E Law, LLC. 

  • William Ellison

I need to sue someone. What happens in a lawsuit?

LEGAL DISCLAIMER: This is not legal advice. This is a general description of how a lawsuit is initiated and proceeds. No lawyer can provide you advice without knowing the facts of your case. In order to decide the steps necessary in your specific case I would need to have a discussion with you and ask you detailed questions about your case. This information does not create an attorney-client relationship between us. We require a written fee agreement between us before we take on your case. Please contact us to discuss how we can help.


I think clients should be fully informed of what’s involved in a lawsuit before filing. Let’s look at your options when you think you need to sue someone.


First, from a legal standpoint, do you need to sue someone?


Wait, don’t lawyers always want to sue?


I always want to assist people in bringing lawsuits. That’s what I do. But I won’t assist people in bringing lawsuits they don’t need to, like those that lack a good chance of success or won’t accomplish their goals. That makes for an unhappy client and a bad situation.


Lawyers are often criticized in the media for being quick to recommend filing a lawsuit. This single-minded approach might bring to mind this saying: “When your only tool is a hammer, every problem looks like a nail.” There’s a good reason the common advice from lawyers is to file a lawsuit (get out the hammer). For the most part, lawyers are the only ones who get to use the hammer. You already have access to all of the other tools and can probably use them yourself. We don’t provide much benefit in checking if the table is level (helping you negotiate) or taking additional measurements (calculating your financial impact). Most clients can do those things themselves.


So when we look in our tool bag, the hammer stands out because it is the unique benefit lawyers can provide clients. Even when we write a demand letter prior to filing suit, the only reason it helps to have a lawyer’s letterhead on it is because standing behind that is the threat of a law suit (the hammer). When you come to a lawyer for help, the hammer is the tool we tell you about because it is the unique tool we have to offer. (Note that not all lawyers go to court. If you are being sued or want to explore filing suit, you’re looking for a litigation attorney. Litigation is the lawyer term for lawsuit. We’re the attorneys you see on TV who take cases to court. Unlike on TV, not all lawyers go to court or want to go to court.) So, no one should be surprised that lawyers recommend suing people, it’s what our profession is specially permitted to do and it’s why people come to us.


Sometimes a lawsuit is necessary. No matter how agreeable you are to negotiations, that does not mean the opposing party will negotiate with you. Some companies have a policy of not negotiating until a lawsuit is filed against them. I’ve had clients that want to negotiate and make offers to their opponent only to get no response at all. What are they to do, except sue or give up on their rights? Sometimes you have to sue for other non-confrontational reasons, particularly when property is involved and there’s a question as to your ownership. You cannot finance property you do not clearly own. Obtaining clear title may require bringing a lawsuit for the court to declare you the owner.


Lawyers will not always recommend filing suit. A lawyer can tell you when not to sue and when a lawsuit will not get you what you want. Lawyers offer a benefit in seeing down the road to know whether the hammer is the right tool to accomplish the job. Clients should be aware of the expenses and risks that lie ahead.


So do you need to sue someone?


First, will filing and winning a lawsuit accomplish what you want from a legal standpoint? (Do you need to use the hammer?)


So, will filing a lawsuit accomplish what you want? Do you have a legal claim (e.g. negligence, breach of contract, quiet title, fraud, etc.)? If you need to get paid under a contract, get paid for personal property or real estate, establish ownership of personal property or real estate, get paid for personal or financial injury, make someone or some entity do what it’s required to do under law or contract, then a lawsuit may be the right tool for the job. A lawyer specializing in civil litigation can tell you if a legal claim exists based upon your factual situation to accomplish what you want.


Second, financially, will filing and winning a lawsuit accomplish what you want?


Is it cost beneficial to pursue your claim? Are you going to get more than you spend? Or is winning a pyrrhic victory? Can you bankroll a lawsuit?


You need your lawyer to advise you of what you’re in for. Some people sue based on principle, but after 9 months of legal fees, attorneys fighting over document disclosures, and that day in court (trial) still 9 more months away, the principle may not seem so strong. Lawsuits are not cheap, mainly because lawyers are not cheap (that may be where the public disdain for litigious lawyers comes from).


For a successful litigation experience, you should be fully aware of the costs and time frame involved:


Costs of Filing


Just filing a lawsuit has costs. As of 2018, the filing fee itself in Colorado District Court is $224.00. A jury demand adds another $190.00 (requesting a jury is a “use it or lose it” procedure which is limited in time, so if you think you want a jury you have to do it at the outset of your case). The fees are different in County Court and Small Claims Court. I mention District Court because that is where you bring cases regarding more than $15,000.00 and usually where lawyers are involved.


Attorney Fees


Then there are attorney fees, which are almost always a filing fee per hour. Most any lawyer handling a civil suit will bill by the hour (usually at a minimum of tenths of an hour). Be sure you understand how you will be billed and by whom in the attorney’s office.


Timing of Expenses in Civil Suit – Initial Filing Work and Case Scheduling


The attorney costs of a typical lawsuit come in waves. Lots of costs in the first month involved in researching claims, understanding the facts and timeline, and drafting a Complaint. Then the attorney will work on scheduling the case with the court and the opposing party.


Timing of Expenses in Civil Suit – Discovery


After the initial scheduling and procedures of the case are determined, the case enters the discovery phase in about month two or three. Costs at the discovery stage vary greatly depending on the subject matter of your case. If there are not many documents involved in your case or the facts are well established, discovery may not be costly. The most common events in discovery are written discovery and depositions. Written discovery involves requests sent by one party to another for documents or information related to the case. This can take time to draft and respond to, again determined by how complicated and document intensive the subject matter. In any case headed to trial, attorneys will want to obtain depositions on each side of the case.


Depositions are the out-of-court questioning of a witness with a court reporter and the opposing attorney and party present that produces admissible evidence. It typically occurs at one of the attorney’s offices. The purpose of a deposition is to get witness testimony before trial. It helps establish the facts to know what the witness will say in court. If the witness tries to say something different in court, the deposition testimony can be used to impeach them. Depositions provide admissible evidence that attorneys can use in motions, particularly a summary judgment motion to dismiss or prove claims or their whole case without having to go to trial. Depositions can be taken of the parties and witnesses. Depositions typically last a half-day or full-day (but can be much longer).

Depositions are very important to most cases, but also expensive. The time for your attorney to study the facts and documents, prepare to depose a witness, and then actually depose the witness usually mounts thousands of dollars in attorney fees. The opposing party will also want to take a deposition of you. Preparing you to be deposed and defending you in your deposition brings more fees. Again, likely worth it if we’re talking about hundreds of thousands of dollars, but a closer question if you’re after much less than $100,000.00.


Timing of Expenses in Civil Suit – Mediation


At some point after filing suit, the opposing party may be willing to negotiate a settlement to avoid incurring the costs and risk of litigation. You may have seen the statistics about how rarely lawsuits reach trial. Most suits settle well ahead of trial, because both parties face the high costs and risks of trial. When facing a hardheaded opponent, sometimes they are not willing to negotiate whatsoever until a lawsuit is pending against them. Often one party will suggest the negotiations be conducted with the help of a mediator. Mediation is an organized negotiation between the two parties with the help of a neutral person, usually a retired judge or experienced attorney. The parties select a day and attend mediation with their attorney. Mediation is usually held at the mediator’s office or office of one of the attorneys. The mediator doesn’t make a decision about your case, he/she uses knowledge of the process and claims to urge the parties towards settlement by helping calculate costs vs. reward and pointing out weaknesses to each side. Again, the mediator has no authority to make any determinations about your case. If you reach an agreement, the attorneys or the mediator write up the terms of the settlement. The parties notify the court of likely settlement and once the terms of the settlement (usually payment) is complete the case can be dismissed. If you don’t reach agreement, the case continues with the court. The parties of course can continue to negotiate even if mediation fails, but mediation helps by setting a time and place to try to get a settlement agreed upon.


In Colorado District Courts mediation is typically required by the judge before a case can proceed to trial. Mediation can take place at anytime during or before a case is filed, but often occurs either after initial disclosures are exchanged or after a few months of discovery have occurred to allow attorneys to understand the evidence in the case.

Mediation carries costs in the form of hourly fees of the mediation, which you typically split with the opposing party. Mediators’ hourly fees are likely greater than your attorney’s hourly rate, somewhere between $250 and $500 per hour. You’ll also have to pay for your attorney to prepare for mediation by gathering documents and preparing a mediation statement to explain your case to the mediator.


Arbitration is a different dispute resolution process more similar to a lawsuit and agreed upon by contract. It has its own specific rules and does supersede any related civil action in the courts. You’ll need an attorney to decide if a mandatory arbitration provision in a contract requires that you bring your dispute through arbitration, rather than through the court system.


Timing of Expenses in Civil Suit – Motions


The expenses of motions can occur throughout your civil case. At the beginning of your case, your attorney might decide a motion to dismiss the opposing party’s counterclaims is worthwhile. For example, if the counterclaims are not drafted to even state a claim against you.


During discovery, motions may be necessary to either protect discovery of privileged information or to request a court order disclosure of documents from an unwilling party.


The most expensive motion in most cases is a motion for summary judgement, which usually comes after discovery provides the evidence needed to prove your claims or disprove your opponent’s claims. This motion can avoid the necessity for arguing claims at trial, which means you can win your case if you succeed. If your attorney thinks there’s a good chance of success with this motion, it’s usually worthwhile because of the expense it will save you arguing the issue at trial.


Timing of Expense in a Civil Suit – Trial


Now, finally we are to your day (or days, or weeks) in court, and also your greatest single expense of a case. The costs of trial preparation and trial often cost as much as you’ve spent up to that point in the case. Your attorney must spend days or weeks preparing for what information he/she will present and elicit in trial. As you know by this point, time = expense. Preparation for trial is a must because it is your last chance to succeed on your claims. Your attorney must prepare for all possibilities. Attorney time will amount from preparation and attendance at trial. Additional trial expenses may be the cost of preparing exhibits, paying witness attendance fees, and paying expert witnesses (who come with their own preparatory costs, deposition, and attendance fees). Did I mention that the expense of trial is often about what you spent getting to trial? This is why most cases settle before trial.


Will you win?


Remember, you can spend double what your opponent does and still loose. Decisions by judges and juries can be a toss up. When a case progresses deep into litigation, it’s usually because it is a close call as to who will win. You might also not just “not win,” but lose. If your opponent files counterclaims (claims asserted back against you), and you are found liable then your opponent may obtain a judgment against you. Then you get the pleasure of not only paying your attorney in a case where you collect nothing, but also having to pay damages to your opponent. There’s also the potential for having to pay your opponent’s costs or even their attorney fees in the case if you don’t win.

Risk adverse people do not usually pursue litigation. If you plan to file suit, be prepared to commit to litigation for the long haul, because you may be up against an opponent willing to fight. You may think you know your opponent, but you can’t be sure what you’re up against until that fish is on the hook. Once it’s on the hook, you’re stuck fighting unless you want to make concessions to get out of the case.


This is all just worst-case scenario, right? My case is open and shut.


Maybe. That’d be nice. I hope that is your situation. Maybe you file suit and then we get a call from the Defendant offering to send a check for the amount you’re seeking. I’ve seen this happen. Maybe you sue someone and they don’t even answer and you obtain default judgment. That could happen too, but good luck finding an asset to collect against. So are there quick and relatively cheap outcomes. Sure. But we can’t plan on it. That’s a bad litigation strategy. We have to plan from the start that we’ll eventually be standing in court arguing the case to a jury. If we don’t, we’ll be unprepared for trial against that hardheaded Defendant who won’t negotiate.


So, should you file a lawsuit?


You have to make that decision. A lawyer can tell you if you have claims he/she is willing to pursue, but you have to decide whether to pursue them. You should consider whether you have the stomach and liquid funds for the expense and risk involved. Attorneys can’t guarantee results. You need to be fully informed of the unique system you will be participating in. The court system is not a service like the type you are used to encountering. Lawsuits do not move quickly through the courts and the court is not operating at your convenience. Be prepared for an almost year-long process or more where you don’t know if you’re winning or losing until it’s over. Take the above risks into account so that when you do win, you don’t feel like you won the battle, but lost the war.