US: What is the Difference Between Pre-suit Claims and Litigation?

Genna Wolinsky, Legal Analyst

Genna is a US Legal Analyst who came to McO with a background in plaintiff’s-side litigation and class-action lawsuits. At McO, she focuses on employment, higher education, and sexual abuse cases. She plans to qualify as a US lawyer in the future.

If you believe you have a legal claim, going to court isn’t your only option. Engaging in “pre-suit” negotiations – settlement efforts that occur before filing a formal lawsuit – offers an alternative that is often quicker, less invasive, and more flexible than court litigation.

What Are Pre-suit Claims?

Pre-suit negotiations are efforts to resolve a legal dispute without court involvement. Typically, the claimant’s (the party bringing the claim) attorney sends a pre-action letter (PAL) to the respondent (the party the claim is against), outlining the legal basis for the claim and proposing terms for a potential settlement.

The parties then exchange communications, often including questions and clarifications meant to encourage resolution. If an agreement is reached, they sign a mutually accepted settlement agreement. This agreement not only resolves the dispute without court involvement but often includes a clause preventing the claimant from pursuing the matter in court later.

If negotiations fail, the alternative is to file a lawsuit, formally known as litigation. Each approach has its own distinct advantages and trade-offs.

Benefits of Pre-suit Claims

• Speed: Pre-suit claims typically move faster than court cases. Since they involve only the parties (and occasionally a mediator), the timeline is flexible. Courts, by contrast, are often backlogged, and litigation can take years to conclude.
• Confidentiality: Pre-suit negotiations are usually private, with the details known only to those involved. Court cases, however, are generally public – anyone can access who is being sued and why. This privacy can be important for both claimants, especially in sensitive or traumatic cases, and respondents who may want to avoid public scrutiny.
• Cost: Litigation is expensive. Between court fees, attorney’s fees, expert witnesses, and document review, costs can escalate quickly. Pre-suit negotiations tend to be significantly less expensive, as they avoid many of these burdens.
• Invasiveness: Pre-suit claims are generally less demanding on participants. Unlike litigation, there is no formal discovery process requiring parties to disclose extensive evidence. Instead, each side chooses what to share, providing more control and less pressure.
• Control: In the pre-suit phase, parties retain far more control over the process. There is no judge or strict procedural rules. Even if a mediator is involved, participation is voluntary. In contrast, litigation requires compliance with court orders and procedures, and failure to follow them can lead to sanctions.

Benefits of Litigation

• Public Accountability: While many claimants prefer privacy, others want their stories heard and wrongdoing acknowledged publicly. Because court filings are public records, litigation can create pressure for respondents to settle or be held accountable in the public eye.
• Comprehensive Information Sharing: Litigation includes formal discovery, where parties are required to share relevant evidence. This process ensures a fuller picture of the facts, which may be critical for both sides in understanding and proving their cases.
• Clear Legal Rulings: Settlements reached during pre-suit negotiations are often confidential and do not establish legal fault. Litigation, however, can result in a court order determining liability – a public, authoritative resolution that carries legal weight.
• Ongoing Opportunity to Settle: Filing a lawsuit doesn’t eliminate the option of settling. In fact, many cases settle during litigation. Importantly, filing a claim also protects it from expiring due to statutes of limitation, keeping both litigation and settlement pathways open.

Which Path Is Right for You?

Choosing between pre-suit negotiations and litigation depends on your goals. Do you want to raise public awareness? Would you prefer a private, faster, and less invasive resolution? Are you prepared for a potentially lengthy legal process?

Understanding the distinct benefits of each path is essential in deciding how to pursue your claim.