Disputes arise between parties every day and many turn to the legal system for resolution. Here are some things to consider before you file a lawsuit.
- Do you have a good case?
You must have a genuine legal claim supported by evidence to have a successful claim. Arizona law provides elements of different claims and you must prove all elements. For example, in Arizona you must prove four elements in a slip and fall case: ownership or control of the property; the owner’s duty of care to visitors and others permitted to be on the property; the owner’s failed duty of care created a hazardous condition on the property; and the owner’s failed duty of care and consequent hazardous condition led to your real injuries. If you can demonstrate all four elements, you will have a good personal injury case. In a breach of contract case, you must prove three elements: a valid contract existed; a material breach of the contract’s terms; and damages caused by the breach of contract. Without proving the essential elements, you will not obtain the appropriate relief.
- Can you collect a judgment against the person?
Even if you win your case, you may not collect the judgment. Look at the financial condition of the other party before you file a lawsuit. Do they have a house? Have they filed bankruptcy? Do they have a job? If they are self-employed it may be harder to collect because the person may hide assets. Check into the legal history of the person; it is important to discover delinquent judgments before you sue a person who cannot pay. A judgment means nothing if you cannot collect. In Maricopa County, a judgment is enforceable for five years from the date of judgment. However, you may renew the judgment prior to expiration for an additional five years. It is your responsibility to collect the judgment.
- Has the statute of limitations expired?
The Arizona Revised Statutes establish time limitations for filing a lawsuit. Time usually starts on the date of the actual incident and can range between one to six years. For example, wrongful termination, breach of an employment contract and libel/slander claims must be filed within one year. The statute of limitations for personal injury is typically two years from the date of the injury. If a person failed to pay you a debt based on a written contract, you have six years to file a claim. It is important to know the statute of limitation for the type of case you are filing. Failure to file within the statute of limitations will bar any relief.
- Small claims court vs. Civil court.
If you have a minor dispute, consider small claims court. Small claims court cases cannot exceed damages of $3,500.00. A judge or hearing officer presides over the case and makes a decision based on the parties’ arguments. The decision is final and binding on both parties. Because the process is relatively simple, attorneys are not allowed. Small claims court is a great option for people with smaller cases wanting a quicker result.
Civil court claims are civil actions when the amount involved is $10,000.00 or less. Either party may hire an attorney to represent them. A party may request a jury trial or request the judge review the case and make a final decision. In a civil case, the parties have the right to appeal the judgment. If you have a complex claim, a civil lawsuit is a better course of action.
- Can you get an attorney to take your case?
Most attorneys require a retainer prior to beginning a case. Average attorney retainers are about $5,000.00. However, attorneys take some cases on contingency. In these cases, there are no upfront costs; the attorney’s fee is a percentage of the judgment. You must decide if hiring an attorney is beneficial to your case. Consult with an attorney who provides an estimate of legal fees associated with your case.
Filing a lawsuit is an important decision. Having a good case and reasonable expectations will provide the foundation for a successful lawsuit.
- Lisa L. Monnette can be contacted at (480) 704-0777 or [email protected].