Preparing for Litigation, Before Litigation

Q:  When is the best time to prepare for trial? 

A:  As long before the lawsuit is filed as you can.

Lawsuits can quickly become complicated and they classically take a long time.  However, the more preparation that is done before the lawsuit is filed the better the overall experience may be.  A lot of that preparation can even be done before your attorney is too involved in the case, thereby having the added benefit of keeping costs down—the less work your attorney has to do, the less expensive it will be. 

This blog post is designed to help you think about what you can do to prepare your case for litigation before the lawsuit is file.  This is not intended to be an all-inclusive list of things to do or consider, and not all items may be applicable in every case.  There are also instances where it is beneficial to file the lawsuit as quickly as possible and then gather the bulk of the needed information. 

Have a Solid Contract:

This is one step that must be done well in advance of filing the lawsuit, and well before the problem even occurs.  If you wait until after the other side has breached the contract to make sure it is air-tight, you have waited too long and are stuck with the contract you have.  That’s not to say you don’t have a case, but you could potentially run into difficulties in trying to prove the exact terms of the agreement.

It is beneficial to work with an attorney when signing any contract, regardless of which side prepared the document.  A skilled attorney can look at the contract and anticipate potential legal battles years down the road.  Once the contract is in place, it is extremely difficult to try to change it.  So, it is best to consider the possible worst-case-scenarios before it is ever signed.

Talk to an Attorney Early:

Even though you are able to do a lot of the remaining preparation items on your own, it is important to involve an attorney early on, when you think you may have a potential lawsuit.  An attorney can help to direct your preparation efforts, so that you are gathering and preserving the right information.  They can help you evaluate whether you even have a case before spending time and effort preparing for one.

Perhaps most importantly, an attorney will help make sure you don’t pass the statute of limitations or other deadlines.  Lawsuits can only be brought within a certain time period from when the issue occurred.  That time-frame can vary based on where it took place (which state) and what type of case it is (contract dispute, personal injury, etc.).  The time period to bring the lawsuit can even be shortened (with extra hoops added to jump through) if you are trying to bring a lawsuit against a city-owned utility company, the city itself, the state, or any government owned entity.  Getting an attorney involved early on will help to make sure that you get the right things done in the right time to preserve your case.

Gather and Preserving Documents and Evidence:

One of the most time consuming parts of litigation is gathering the appropriate evidence or documents.  It is easiest to gather those documents or evidence the first time you come across it, which can often be long before you even consider a lawsuit.  For example, when you first sign the contract with someone, make sure you have a copy of the contract and make sure you keep that copy somewhere that you can find it later. 

You don’t always know what you might need until you need it.  You don’t have to be a hoarder and store every scrap of paper.  But, it is good to get into the habit of considering, all along the way, whether a particular document or piece of evidence might be needed later.

Watch What You Say:

It is always good advice to think before you speak.  This goes for both personal and business conversations.  Being conscious of what you are saying can prevent potential lawsuits or can prevent you from damaging your own case. 

For example, if you get into a car accident and then immediately tell the other driver, the police, and all the witnesses there “I’m so sorry, I wasn’t watching.  It is all my fault.” that will likely impact whether you could then successfully sue the other driver.  Your own words will come back to haunt you.

The same concept applies in a contract dispute.  If the other side is constantly late on payments and you tell them “that’s ok,” it may make it harder for you to then argue that they are in default due to those late payments.  You may have established that late payments are actually alright under your contract.

Conclusion:

There are many things to consider when deciding whether to bring a lawsuit.  By considering the above preparations and others as long before the lawsuit as possible, you can put yourself into the best position to be successful. 

If you think you have a case, call one of the experienced trial attorneys at Goosmann Law Firm, PLC, in our Omaha law firm, Sioux City law firm, or Sioux Falls law firm today.  We can help you know what you can do to prepare and achieve the best outcome possible.