Evaluating And Researching The Case
You should never file a lawsuit casually. Take the time now to research and answer the questions on this page to help you evaluate whether it’s in your best interest to sue. You’ll be glad you did!
Overview
Think carefully before you file a court case. The anger that prompted you to shout “I’ll sue you!” fades quickly when you find yourself lost in a lengthy, complicated, and frustrating court case.
Now is the time to weigh such things as your likelihood of winning, whether the money you are suing for is worth your time and frustration, and the possibility that you could win and still collect nothing.
The following questions should help with your evaluation. You may need to do some research at the law library before you can answer some of the questions. But any research you do now will benefit you in the long run if you sue because it will help you understand your case and what will be required of you.
If your answer to any of the questions is “no,” think long and hard before going to court.
Eleven Questions To Answer Before You Sue
1. Am I too late to file my case?
There is a time limit on how long you can wait to sue.
All civil cases are subject to a “statute of limitations.” A statute of limitations is a law that defines the maximum period of time, after certain events, that a case based on those events can be filed. After the time limit has expired, unless there is some legal exception, you no longer have a valid claim to enforce.
You can find most Nevada statutes of limitation in Chapter 11 of the Nevada Revised Statutes. If you are unsure which statute applies to your case, consult with an attorney. Click to visit Lawyers and Legal Help.
2. Are there special rules that apply to my case?
In some situations, you must take certain steps before you file a case. These steps might be contained in the Nevada statutes, in a lease agreement, or in a contract.
For example: You want to sue your landlord because the air conditioning in your rental unit broke, and you had to move into a hotel for a week. Nevada law may require you to send your landlord written notice and give him the opportunity to fix the problem before you sue.
Another example: You want to sue your doctor because you believe he committed malpractice. Nevada has established a system that requires potential malpractice claims to be reviewed by a screening panel before a case can be filed.
To research whether there are special rules that apply to your case, go to your local law library. Click to visit Law Libraries.
3. Do I know who and where my defendant is and where I’ll have to sue?
To file a case, you will need to know who is legally responsible for your injury. This may seem straightforward. But it can be a big issue in some cases.
You will also need to know where your defendant is. If you cannot find your defendant, it will be difficult to sue and even more difficult to collect money if you win.
Finally, figure out where you will need to sue. Just because you live in Nevada, does not necessarily mean you can sue in Nevada. Whether a Nevada court has jurisdiction over your defendant and your case requires some legal analysis.
To learn more, click to visit Deciding Who to Sue and Deciding Where to File. You can also go to your local law library. Click to visit Law Libraries.
4. Do I know the legal elements of my claim?
Almost every lawsuit (or “cause of action”) can be broken down into a series of elements that make up a legal claim or theory of recovery. As the plaintiff, you must know each element of your claim because it will be your job to prove each one of them.
FYI! Identifying whether you have a claim that the law recognizes is vital. If you file a frivolous case, or file a case simply to harass the other side, you could have to pay the other side’s attorney’s fees and costs, as well as any sanctions ordered by the court. (NRCP 11; JCRCP 11.)
Example: You hired a landscaper to plant five trees in your backyard. The landscaper took your money, planted one tree, and never came back. You decide to sue under the theory that the landscaper breached your contract. There are four elements to a breach of contract claim. You will be required to prove:
- That an enforceable agreement existed. If you have a written, signed contract, this is fairly straightforward. If the agreement was verbal, you may have a more difficult time.
- That you performed under the agreement. You will have to prove that you actually paid the money due under the contract.
- That the landscaper failed to perform without legal excuse. You must prove that the landscaper failed to do what the contract required.
- That the landscaper’s failure to perform caused you damage. You will have to prove your economic damages. For instance, you may need to hire another landscaper to complete the job.
If you do not know your legal claim or its elements, go to the law library and do some research. Try looking at the Nevada Jury Instructions. The jury instructions break down claims into their elements so they are fairly easy to understand. Click to visit Law Libraries and Researching the Law.
5. Do I have the evidence to prove each of the legal elements of my claim?
In a civil case, the plaintiff (you!) bears the burden of proof. That means you must provide ample evidence (documents or testimony) to support each element of your claim.
Consider again the example of the contract with the landscaper from Question 4. What evidence could you produce to prove each element of your claim?
- An enforceable agreement existed. Your evidence would probably be the signed agreement with the landscaper.
- You performed under the agreement. Your evidence might be the canceled check you wrote to pay the landscaper.
- The landscaper failed to perform without legal excuse. Your evidence might include photos of the half-finished work or the testimony of witnesses who saw the half-finished work.
- The landscaper’s failure to perform caused you damage. Your evidence would likely include bids from other contractors showing the cost to complete the job.
Take the time to collect all of your evidence to see whether you can meet your burden of proof.
6. Do I know where my witnesses and evidence are?
You might know of a great piece of evidence – the testimony of an eye witness, or a signed statement by the other party admitting fault – but if you cannot find it, you cannot admit it into evidence. It does nothing to support your case.
Locate the witnesses you will need to prove your case. Contact them to see if they will be willing to appear in court. (You might be able to force them to appear, but an angry witness is sometimes not a helpful witness.) A signed witness statement is likely not admissible as evidence. If your witnesses are willing to help you, make sure you can keep track of their whereabouts until trial.
7. Do I have the money for court costs, witness fees, and the like?
You must pay a filing fee to file a court case. If you are low income, you can apply to the court to have your filing fee waived. Click to visit Filing Fees and Waivers.
Even if you get the filing fee waived, there may be other costs you will need to pay such as copy charges, witness fees, juror fees, fees for court reporters and deposition transcripts.
There will likely be other more intangible costs to you as well, things like time lost from work, child-care expenses, parking, transportation, and the like.
Also, keep in mind that if you lose your case, you could have to pay the other side’s attorney’s fees and court costs in some courts.
8. What are the chances I’ll be countersued?
Sometimes the person you are suing will turn around and sue you. This is called a “counterclaim.” Look over your case and try to determine whether the person you are suing is likely to counterclaim against you. This is pretty likely if the other side has claimed that you owe them money.
Think of the landscaper example in Question 4 again. If the landscaper has argued to you that he did not finish the job because you owed him more money, or maybe even something like you flooded your yard and ruined all his equipment, chances are he will countersue.
If you think you might be countersued, make sure you are prepared to defend yourself and deal with the chance that the other side could win. Not only might you lose whatever you are suing for, but you could end up with a money judgment against you.
9. Will I be able to collect anything if I win?
If you win, the court does not collect the money for you. To collect, you will need to be able to locate the other side’s money, assets that can be seized or sold, or debts owing to them by someone else that can be garnished (like bank accounts or employment income).
Sometimes a person simply has no money to get. If they work but make under a certain amount, you cannot garnish their wages. If they receive governmental benefits like social security or disability, that income is likely protected under the law. If you get a judgment against a business, you can only collect if the business has money coming in or other assets that it owns free and clear.
It is also possible that other creditors are waiting to collect judgments against the business or person. If the debtor is in serious financial trouble, they might wipe out all of the judgments (including yours) through bankruptcy.
A Nevada judgment is good for six years, and every six years you can renew it. So you may be unable to collect now, but you might be able to collect in the future. But if you are suing because you need the money quickly, you might be disappointed.
For more information about collections, click to visit Collecting Your Judgment.
10. Do I have the time, energy, and ability to see my case through?
Civil lawsuits might not seem stressful, but they are. You must have the physical, emotional, and mental capacity to see the lawsuit through to the end, which could potentially take years. The money at issue is not worth your health (physical or mental).
Click to visit Representing Yourself In Court for some additional considerations.
11. Have I exhausted all other options?
Suing someone should be your last resort. Before taking that plunge, make sure you have tried to resolve your case through negotiation and mediation with the other side. And make certain you are not giving up prematurely.
Also think of other possible sources of compensation for your injury. Is there as insurance policy that might provide coverage? Is there a federal, state, or local fund or program that might have resources for your type of injury.
If you have not exhausted all possible options - or if you have answered “no” to any of the questions above - filing a court case may not be in your best interest.
