Are there risks involved in every civil lawsuit? Yes, there are risks involved in every civil lawsuit that extend to both sides of the aisle. If an attorney or anyone else tells you otherwise, they are either not telling the truth or do not have much experience litigating in either state or federal court.
Criminal Actions Versus Civil Lawsuits
Before we get into the risks involved, let’s talk a little bit about the difference between a criminal action and a civil lawsuit under Florida’s rules. Just to avoid confusion, a criminal action is when the State of Florida decides to prosecute an individual for an alleged crime. In this scenario, the State is alleging that a defendant committed a crime, and the State must prove it’s a case beyond a reasonable doubt.
A civil lawsuit is much different. First, a civil action is between two individuals or entities. For example, Bob Smith could sue Jim Jones in a civil action, or Billy Johnson could sue Ace Insurance Company or Dewey, Cheatem & Howe Debt Collectors.
Types of Civil Lawsuits
The person who initiates a civil lawsuit is called the plaintiff, and the person who is being sued is called the defendant. Usually, a plaintiff will file a lawsuit when they think something has been taken from them. For example, a plaintiff in a personal injury lawsuit is alleging that the defendant did something negligently and caused them damages, thereby taking away their health, ability to earn money, loss of enjoyment of life, and they may be asking for pain and suffering damages.
In a breach of contract action, the plaintiff is alleging that the defendant did not live up to the terms of the contractual agreement. Thereby, the defendant caused the plaintiff damages in the form of having to go outside the contract to fulfill the requirements of what was originally contracted for or that they did not receive the benefits of his bargain.
For example, Jim Jones went online and bought merchandise from ABC, Co. based on their description and photographs of the widget. When it arrived in the mail, the widget looked totally different and did not perform the way it was advertised. Jim should complain to ABC Co. to get his money back. If ABC company refuses, Jim would sue ABC for his damages.
Florida Civil Procedures & Defenses
In each of these instances, one party is saying that the other party owes them something. While this may seem cut and dry and simple, the reality is that lawsuits are never that clear. The reason they are not clear is twofold: First, each side has a story to tell, and that story will dictate how the litigation proceeds. Second, each party must follow the Florida rules of civil procedure, and within those rules are procedures that could make either side uncomfortable or lose confidence.
Before any attorney ever filed a lawsuit, they should contemplate and consider all of the potential defenses that the defendant will raise. If each and every one of those defenses can be overcome with the evidence in their possession, that will mitigate many of the risks involved in a lawsuit. Sometimes, this is easy. Other times, it is impossible to know exactly what defenses the defendant will set forth.
Attorney Fees in Civil Cases
When it comes to procedure, one of the first things that a plaintiff or defendant must be aware of is the ability of the other side to get their attorney fees paid by the loser. Many of the lawsuits that we bring are based upon an alleged violation of a Florida statute. These statutes contain an attorney fee-shifting provision. When we file the lawsuit, we are asking that the defendant not only pay our client for their damages, but also, that the defendant pay our attorney fees for having to bring the lawsuit.
In these types of cases, if you were a defendant, you must weigh not only your risk of losing, but also having to pay the opposing party’s reasonable attorney fees. As you can see, this could get kind of expensive.
Offer of Judgment/Proposal for Settlement
Next, there is a procedure that encourages both parties to settle a case early on and avoid paying the other party’s reasonable attorney’s fees. It is called the offer of judgment/proposal for settlement procedure. This procedure requires its own blog post because of the technicalities of what’s involved and how precise each party needs to be when dealing with this procedure. But just know that this procedure creates inherent risks for both parties if implemented.
Discovery Process Costs
Next, the discovery process can get quite expensive. Depositions, requests for production of documents, interrogatories, and requests for admissions all cost money to either propound or respond to.
Weighing Your Options Before Taking Action
As you contemplate bringing a lawsuit, these are the main things that you need to worry about. Before ever filing a lawsuit, you need to talk to your attorney about these scenarios. You will need to weigh the cost versus the potential outcome. You can minimize this risk and any potential negative consequences of filing a lawsuit by doing your homework and having your ducks in a row before filing the lawsuit. As an attorney, you do not want to file a lawsuit until you can pin down all of the major facts that you will need to prove in your case, know the law inside and out, and be able to handle any potential defenses that the other side may throw at you.
If you are thinking about filing a lawsuit, please take the time to consider hiring an accomplished attorney who can protect your best interests. At the Dellutri Law Group, we file many lawsuits on behalf of those that have been damaged, and we also defend consumers from debt collection lawsuits. Contact us online now to learn more.