Post by litigator on Mar 13, 2007 4:57:54 GMT -5
A dispute can be resolved in several ways. First, try resolving the dispute by sending a complaint letter or demand letter to the offending party.
Consider mediation if you feel that all parties would be willing to meet before a neutral third party. The neutral third party is called a mediator, and his or her role is to facilitate discussion between the disputing parties. The benefit of going to mediation rather than to court is that the parties can more readily preserve their relationship, retain their privacy, and settle the issues much faster than the court system permits. However, a cost is associated with mediation. If you wish to consider mediation, look for a mediator in your Yellow Pages.
If neither a demand letter nor mediation is appropriate, consider whether small claims court is the right way to resolve the dispute. You will need to think about many things before starting even the simplest lawsuit. A lawsuit takes time, costs money, demands effort, and affects personal and business relationships. It should, therefore, be the last method used to solve a problem. Think carefully about the next series of questions before deciding,
(a) Have you done everything possible to stay out of court? Have you tried to resolve the dispute in other ways? Have you asked the defendant to pay you? Have you sent the defendant a demand letter? Have you considered mediation? Is suing the only way to regain what you lost as a result of the dispute?
Court should be the last resort for resolving a dispute.
(b)Why do you want to sue? Are you trying to recover losses or are you trying to get revenge? If you are thinking of suing as a way of getting revenge or venting your anger, think twice. The old cliche, "Don't bite off your nose to spite your face," couldn't apply more.
(c)What solution are you seeking? What do you want at the end of the day? Do you want money, an apology, return of goods, or the performance of a service? Is the solution available by law? If you want money, how much do you hope to win if the action is successful?
(d)Does your claim have a legal basis? Does the law support your case? In other words, is your reason for suing one that the courts
recognize?
(e)What is the amount of your claim? Is the value of your claim within limits set by the small claims court?
(f)Can you prove your case? Do you have evidence to prove your story? Can you prove that the defendant did you wrong or ought to pay up? Are you sure it was not the act of another individual? Review the facts carefully before deciding to sue.
(g)Have you contributed to your damages? Have you mitigated (minimized) your damages? Are you coming to court with clean hands; that is, have you come to court without having done something immoral, unethical, or illegal? If you have engaged in any bad faith dealings concerning this claim, don't expect the court to be sympathetic toward your situation, even if you are fully entitled to demand payment from the defendant.
(h)How might the defence react? Do you expect that the defendant will file a defence? Can you imagine what that defence might be? Will the defendant have compassionate reasons for having behaved in a certain way? Will the defendant reveal to the court any bad faith dealings on your part? How might the defence affect your chances of winning?
(i) Are you within the limitation period? Time limits apply within which a suit must be filed. If you miss a time limit, you can lose your right to sue. If you bring your action within the appropriate
limitation period, will you be able to locate evidence and witnesses
to prove your case?
(j) If you wish to sue the government, have you acted within the notice period? Special requirements for suing the government may apply in addition to adhering to the limitation period. For instance, you must generally give notice that you intend to sue.
(k)Do you have the time and money to sue? The court process is lengthy. Documents must be prepared, appearances made, and errands run, almost all during business hours. Can you spare the time? Documents must be prepared, photocopied, filed with the court, and delivered to those involved in the lawsuit. Each step involves spending money and the cost increases with each defendant. You may even be required to take time off work on more than one occasion, thus incurring a loss of income.
(I) How will a legal action affect you personally or in your business?
Are you willing to allow your confidential records to become part of the public record, as would be the case with medical records in a personal injury lawsuit? Would a lawsuit threaten your privacy? Do you wish to maintain a positive relationship with the person you want to sue or his or her friends or relatives? How will going to court affect your relationships with the parties?
These questions are especially critical in small communities.
(m) Can you collect ifyou win your lawsuit? Winning does not necessarily
mean that you will collect your award. If you win your case, will the defendant have the means to pay you or is the defendant
judgment-proof (i.e., they cannot afford to pay if judgment
is given against them)? Will the defendant want to pay you? Will you have the time, energy, and money to keep track of the defendant should they make efforts to avoid paying on the judgement.
Below are some examples of what you may sue in small claims for;
The defendant owes money to the plaintiff
The defendant published or publicly said something to damage the plaintiff's reputation
The defendant was negligent and did something or failed to do something that caused damage to the plaintiff [/b]or the plaintiff's land or property
The defendant intentionally did something to cause damages to the plaintiff or the plaintiff's land or property
Consider mediation if you feel that all parties would be willing to meet before a neutral third party. The neutral third party is called a mediator, and his or her role is to facilitate discussion between the disputing parties. The benefit of going to mediation rather than to court is that the parties can more readily preserve their relationship, retain their privacy, and settle the issues much faster than the court system permits. However, a cost is associated with mediation. If you wish to consider mediation, look for a mediator in your Yellow Pages.
If neither a demand letter nor mediation is appropriate, consider whether small claims court is the right way to resolve the dispute. You will need to think about many things before starting even the simplest lawsuit. A lawsuit takes time, costs money, demands effort, and affects personal and business relationships. It should, therefore, be the last method used to solve a problem. Think carefully about the next series of questions before deciding,
(a) Have you done everything possible to stay out of court? Have you tried to resolve the dispute in other ways? Have you asked the defendant to pay you? Have you sent the defendant a demand letter? Have you considered mediation? Is suing the only way to regain what you lost as a result of the dispute?
Court should be the last resort for resolving a dispute.
(b)Why do you want to sue? Are you trying to recover losses or are you trying to get revenge? If you are thinking of suing as a way of getting revenge or venting your anger, think twice. The old cliche, "Don't bite off your nose to spite your face," couldn't apply more.
(c)What solution are you seeking? What do you want at the end of the day? Do you want money, an apology, return of goods, or the performance of a service? Is the solution available by law? If you want money, how much do you hope to win if the action is successful?
(d)Does your claim have a legal basis? Does the law support your case? In other words, is your reason for suing one that the courts
recognize?
(e)What is the amount of your claim? Is the value of your claim within limits set by the small claims court?
(f)Can you prove your case? Do you have evidence to prove your story? Can you prove that the defendant did you wrong or ought to pay up? Are you sure it was not the act of another individual? Review the facts carefully before deciding to sue.
(g)Have you contributed to your damages? Have you mitigated (minimized) your damages? Are you coming to court with clean hands; that is, have you come to court without having done something immoral, unethical, or illegal? If you have engaged in any bad faith dealings concerning this claim, don't expect the court to be sympathetic toward your situation, even if you are fully entitled to demand payment from the defendant.
(h)How might the defence react? Do you expect that the defendant will file a defence? Can you imagine what that defence might be? Will the defendant have compassionate reasons for having behaved in a certain way? Will the defendant reveal to the court any bad faith dealings on your part? How might the defence affect your chances of winning?
(i) Are you within the limitation period? Time limits apply within which a suit must be filed. If you miss a time limit, you can lose your right to sue. If you bring your action within the appropriate
limitation period, will you be able to locate evidence and witnesses
to prove your case?
(j) If you wish to sue the government, have you acted within the notice period? Special requirements for suing the government may apply in addition to adhering to the limitation period. For instance, you must generally give notice that you intend to sue.
(k)Do you have the time and money to sue? The court process is lengthy. Documents must be prepared, appearances made, and errands run, almost all during business hours. Can you spare the time? Documents must be prepared, photocopied, filed with the court, and delivered to those involved in the lawsuit. Each step involves spending money and the cost increases with each defendant. You may even be required to take time off work on more than one occasion, thus incurring a loss of income.
(I) How will a legal action affect you personally or in your business?
Are you willing to allow your confidential records to become part of the public record, as would be the case with medical records in a personal injury lawsuit? Would a lawsuit threaten your privacy? Do you wish to maintain a positive relationship with the person you want to sue or his or her friends or relatives? How will going to court affect your relationships with the parties?
These questions are especially critical in small communities.
(m) Can you collect ifyou win your lawsuit? Winning does not necessarily
mean that you will collect your award. If you win your case, will the defendant have the means to pay you or is the defendant
judgment-proof (i.e., they cannot afford to pay if judgment
is given against them)? Will the defendant want to pay you? Will you have the time, energy, and money to keep track of the defendant should they make efforts to avoid paying on the judgement.
Below are some examples of what you may sue in small claims for;
The defendant owes money to the plaintiff
The defendant published or publicly said something to damage the plaintiff's reputation
The defendant was negligent and did something or failed to do something that caused damage to the plaintiff [/b]or the plaintiff's land or property
The defendant intentionally did something to cause damages to the plaintiff or the plaintiff's land or property