US: What to Do Before Filing a Lawsuit

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.

Deciding whether to pursue legal action is a highly personal choice. As you consider whether this is a path you want to explore, here are some considerations to guide your decision-making.

Do You Have the Evidence and Support Needed for Your Lawsuit?

It’s important to think about how much support you have to bolster your legal claims, as this will determine how likely a lawyer is to take on your case as well as how likely it is to succeed.

Consider:

• Have you preserved and collected all relevant information? Depending on the nature of your claims, it is important to collect and maintain relevant documents, emails, text messages, medical records, contracts, and other communications.
• Do you have witnesses that could speak to your experiences? Although it is not necessary to have witnesses, it often strengthens a claim when other parties can corroborate your account. Think about who may be able to serve as a witness and whether they would be willing to do so.
• Have you checked whether any of your claims have statutes of limitations? Many claims have statutes of limitations in place that determine how long you can bring a valid claim in court. Though a lawyer is best-positioned to evaluate the time frame for a statute of limitations, it can be helpful to do some research into what claims you believe you have prior to seeking representation and whether you may still be in time for bringing them.
• What type of lawyer are you looking for? Some areas of law are more generalized, such as personal injury law, whereas others are far more specialized. Consider whether you may prefer to have representation that specializes in areas such as unpaid wages (wage and hour claims), whistleblowing cases, or ADA claims for disability discrimination.
• Are there other steps outside of direct legal action you need to take? Certain claims may require you to file a grievance or other form of internal complaint prior to initiating legal action in court. Many discrimination claims require you to report to the Equal Employment Opportunity Commission (EEOC) or analogous state organization prior to suing, and whistleblowing claims may require you to report to the Occupational Safety and Health Administration (OSHA) as well.

What Are the Commitments Involved in a Lawsuit?

• Financial Commitment: Taking legal action can be very expensive, and legal bills add up quickly. Pro bono or contingency-based representation may be an option, but your ability to finance the duration of a legal claim is something to seriously consider before embarking on a lawsuit.
• Time Commitment: The legal route can be a long one. Cases can take years to work their way through the courts. Delays are frequent in courts and packed court calendars can prolong decisions for months. Take the time to think through whether you are ready to commit to a potential lawsuit for years ahead.
• Impact on Relationships and Privacy: It’s important to remember that lawsuits are frequently public filings. With some exceptions, your name will be associated with the lawsuit and its outcome, which could have an impact on your relationships or future employment prospects. Even if you choose not to proceed to litigation and to limit your legal action to private negotiations, this can irreversibly change the nature of your relationship with the potential defendants. Take the time to consider whether this is something you are comfortable with.

What Do You Want to Achieve by Filing a Lawsuit?

It is important to approach any conversation about potential legal claims with a clear idea of what your goals are. Think about what you are hoping to get out of the suit: Are you looking for financial compensation? Do you want public accountability for the wrongdoing? Are you hoping for institutional change? Would you prefer discrete negotiations rather than a formal lawsuit?

Having a concrete idea of this will help you and your lawyers determine what the best path forward is.

While the decision to pursue legal action should not be made lightly, every case is different. Discussing your options with a lawyer can provide additional helpful insight into what your specific circumstances are and how to best position yourself for success.