What considerations do lawyers use in deciding whether to accept a case and bring a lawsuit?
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UPDATED: Jul 16, 2021
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Lawyers typically consider these factors:
(1) The precise nature of the claim.
(2) The likely measure of damages or other relief.
(3) The plaintiff’s objective (e.g., money, respect, “show them”, revenge, political motives as in Paula Jones case against President Clinton etc.).
(4) The plaintiff’s reasonableness (compare “I want a fair settlement” with “I want my ex-spouse to be totally broke”).
(5) The available evidence to prove the claim, and what is still needed.
(6) The difficulty and likelihood of gathering additional important evidence.
(7) The cost of gathering evidence, preparing the case, and conducting a trial.
(8) Whether the plaintiff is likely to “stay the course” or change his mind and conclude the claim no longer is worth the time and effort to pursue – after the lawyer has invested her time and talents.
(9) How believable (and sometimes likeable) the plaintiff is.
(10) Who the adversary is.
(11) How believable and likeable the adversary is (for example, it would be very difficult to bring a case against Rev. Billy Graham).
(12) Whether the adversary – or its natural allies – might have any possible claims against the plaintiff. For example, if you sue to repair the car, the other drive might sue for a suddenly uncovered injury.
(13) The importance of the case as “precedent” or adverse publicity both for the plaintiff, others similarly situated, and the defendant.
(14) What the adversary typically does when sued. For example, the tobacco companies for years did a “scorched earth” defense costing them millions because they did not want to risk an adverse precedent. That meant plaintiffs had to spend huge sums that few of them, or their lawyers, were willing or able to advance.
(15) Whether, if the plaintiff is successful, the adversary (in contingency fee cases) is likely to be able to pay the judgment. For example, if you are injured by a penniless person who has no insurance, even if you might have a great theoretical claim against the person, unless there is someone else also responsible, who could you collect from?
(16) Whether there may be a “deep pocket” who has responsibility for some or all of the loss, as just because the active or prime wrongdoer may not have any money, there may be a claim against others for the same injury.
(17) Whether the client will be able to pay the fees and expenses of the litigation (in non-contingency cases).
(18) The possibility of informal settlement on reasonable terms.
(19) The court the claim could be heard in, how long it would take to go to trial, and the quality and attitude of its judges.
(20) Whether it makes sense to use alternative dispute resolution techniques (mediation or arbitration) to resolve the controversy.
A good lawyer will honestly review the facts of your case and help you weigh each of these (and possibly other) considerations and give you an idea of the strength of your case and your chances of success, based on his or her experience. Sometimes just one of these factors will cause a lawyer to decide not to even consider a case, such as when the damages are minor or the defendant has no money.