As a litigator in civil rights and special education, it is impossible to ignore the impact of the state’s budget woes on litigation.
Often, we’re asked “Should I sue”?
When choosing the litigation route i.e. bringing your case to a Judge and/or Jury to decide, there are so many factors beyond even the facts of your case to consider. This is because judges and juries are people too. They represent the people who may have been foreclosed upon, or the person who just doesn’t like your tie. These folks are potentially your neighbors or people just like you and your family. They have preconceived notions and ideas.
Yes, it is true that not all cases can avoid going through the court processes, but often times (and the caselaw and rules of court suggest this) the preference is to keep your case out of court – yes I’m an attorney who makes a living out of going to court – but I’m telling you the cost benefit with budget crisis in all aspects of our lives makes litigation a true last resort option
Here are just a few things to consider before you ask “Should I sue”?:
1. Have I tried all informal means of resolving my case by problem solving, considering alternative solutions to resolve my matter or involving a neutral person with experience in your matters such as an attorney or in special education cases, a mediation only option (no attorneys allowed).
2. Is there some other process available to me such as an internal complaint process, a state or federal complaint process or an internally offered mediation process?
3. Will my potential for “damages” I can obtain through a lawsuit be worth the the benefit? This includes your time (taking off of work to spend 5-10 or more days in court, paying experts etc.), cost (experts, discovery, copies) and attorney’s fees.
4. What are the risks of losing and your willingness to appeal your case. In civil rights cases we are seeing a huge sympathy for “broke” states and state entities and civil rights are being harder and harder to win making an appeal a much likelier chance.
5. If your suing simply to vindicate a right, make sure that you have the financial and emotional staying power to fight your case as long as necessary.
This is not an exhaustive list but it would be doing any person or groups of persons who intend to sue for civil rights litigation – of any kind – not to advise them of these facts.