{5:20 minutes to read} Clients often ask whether or not they must go to court. As in many areas, there is a simple answer and a not-so-simple answer. The simple answer is: if you were named as a defendant in a case and were served with the complaint, you must go to court. If you don’t, and assuming you were served properly and the complaint sets forth a legal basis for relief, a default judgment may be entered against you.
It is a little more complicated if you are the party who believes that you have a claim. Must you go to court to sue? The choice is yours, and there are various considerations about whether you should do so; and when.
In most instances, the first, and most important considerations are the value of your claim, the likelihood that you will prevail, what the costs are likely to be, and even how likely you are to collect on a judgment, if you prevail. There are usually not clear cut answers to these considerations, but thinking about them, in advance, with the assistance of your attorney, will better enable you to make an informed decision of whether or not it makes sense for you – business sense – to pursue your claim in court.
The “value” of your claim can mean more than, or not even be about, damages. For example, a party with intellectual property such as a trademark risks losing the benefits of the protection that is afforded by registering the trademark if it does not actively try to protect it. In other instances, a party may be deemed to have “waived” an important right by not taking timely action to enforce it. In instances such as these, you have to give serious thought about proceeding, even if it is unlikely – or not even impossible – for it to recover damages as a result of its claim. Ignoring the problem won’t make it go away.
Timing is important; and can be critical. The very first thing you should ask an attorney is, “What is my deadline for bringing a claim?” You must comply with a statute of limitations under applicable law or the terms of a contract, which may prescribe an even shorter period to start an action. Failure to comply with a deadline will result in the loss of your ability to recover on the claim in court – forever.
Then, assuming time is on your side, the question becomes a strategic one. Litigation should be viewed as an extension of negotiation. What efforts have been, or should or can be made to resolve the dispute in advance of litigation? How have your demands been received or countered? Are you making progress? Will starting a lawsuit provide the impetus needed to settle the case? Do you have any other choice? What may happen after you start the action?
It also may be helpful to try to think of ways to avoid going to court even in advance of starting a lawsuit. For many, that would mean including mediation clauses in agreements. Mediation provides a forum to attempt to reach a mutually satisfactory resolution to a dispute with the help of a neutral third party. Mediation is becoming more and more popular in the world in which we live. Even if you have not thought of putting such a clause in a contract in advance of a dispute, or if you don’t have a written contract, you can still decide to go to mediation prior to going to court.
Ultimately, whether you proceed to court with the case will depend on:
- What the claim is worth;
- How important it is;
- The likelihood of success;
- Cost;
- Whether or not you’ve been able to successfully negotiate a resolution beforehand; and
- What the alternatives may be to arrive at a successful resolution after you start an action.
Our courts are there for a reason; they provide a forum for parties to resolve disputes, under applicable law and pursuant to established procedures. If you find yourself in a dispute, you should turn to court only after careful consideration of your unique circumstances.
