In the last few posts we talked about options available to both plaintiff and defendant in terms of kinds of courts and locations.
Now it’s time to change gears a little bit and put ourselves back in the plaintiff’s shoes. We have to do some careful planning before we proceed.
Why now? Why not later?
While in our book, Be Your Own Lawyer we draw comparisons between litigation and playing a game of football, there are some important distinctions. In football you can change the strategy and even your whole plan from play to play. That doesn’t work in litigation. In litigation you will often find that once you embark on a course of action, you are stuck with it.
We’ll discuss some examples below, but the important thing is to lay out your whole strategy ahead of time so that by seeing the whole picture who don’t commit yourself to a position that you later regret.
In this context often one of the more important things you need to decide on early in the game is who to sue.
That sounds deceptively simple, and in some cases it is. In other cases not so much.
Remember in our earlier post when we talked about bringing a lawsuit at all, we listed as one of the considerations, whether or not we could recover if we won. Well here is the point where you might be able to influence that.
To show you what we mean, let’s take a very simple example.
Let’s say you signed a contract with ABC Roofing Company to install a roof. ABC Roofing is a corporation. It’s Owner is John Jones, with whom you dealt. You paid money for a new roof. It was never installed. All of the papers that you have though, the contract, the warranty for the non-existent roof, the receipt say ABC Roofing, Inc. and John Jones signs as president of ABC Roofing.
OK, at first blush it’s clear. You had a contract with ABC Roofing and you paid ABC Roofing. You need to sue ABC Roofing to get your money back.
A little bit of checking shows you that there is absolutely no point in bringing a lawsuit against ABC Roofing.
It owns NOTHING! Not a truck, no inventory, no buildings. Nothing. Nada! A judgment against ABC Roofing would be worthless.
Here is where you do your homework, do your legal research and be creative. It’s obvious what’s going on here. ABC Roofing is John Jones’ company. He has set things it up so that the company insulates him from liability so that his own assets and property remains safe. Mr Jones is loaded. Mr Jones is who you need to go after.
Of course you’re thinking in terms of suing for breach of contract and you don’t have a contract with Mr Jones.
A little bit of research will show you that breach of contract is only one of about half a dozen different things that you can sue for. You may be able to sue Mr Jones – not his corporation – for fraud, for negligent misrepresentation, for unjust enrichment, for money had and received, for deceptive and unfair business practices, just to name a few.
Understanding each of the theories of recovery right now is not important. What is important is that you research these things and so that you know that they are available. That you devise your plan and make decisions BEFORE you ever file that lawsuit.
While there is often some leeway and overlap, some things are mutually exclusive if not properly dealt with. In other words, if you say “A”, and set it out as your position in the complaint in a lawsuit, you will have a great deal of difficulty, and may not be able at all, to say “B” later, especially if the two are inconsistent.
If you are going to get help with a lawsuit. NOW is the time to do it. Once you’ve filed the lawsuit and the time, period (if there even is one in your jurisdiction) to amend your complaint has passed, it is too late to discover that you left out four potential causes of action against one or two other defendants.
This is the kind of planning that you need to do long before a lawsuit is filed. It goes hand in glove with picking the right court and other considerations. Even if finding additional defendants is not an issue. What about causes of action?
Forget ABC Roofing’s ability to pay a judgment.
What would you rather have? A lawsuit that just raised the issue of a breach of contract, or one that asserted numerous causes of action that would let you recover under different fact scenarios.
Far too many people go charging off to the courthouse before thinking these issues through. They are in a hurry to file their lawsuit. They overlook possible defendants. They overlook potential claims and causes of action. It is important that you not do that. Get organized. Take your time. Devise a complete plan of action before you get anywhere near a courthouse.
This is especially true in light of the way that Be Your Own Lawyer operates and what it offers.
If you’ve got a lawsuit that you’re thinking of bringing, send it to us to look at. We’ll look at what you’re alleging and who you’re thinking of suing. If there is a better way to do it, or options that you had not considered, we’ll let you know. And it won’t cost you a dime!