A person who has suffered loss because another has unjustifiably infringed on his or her civil rights may generally bring an action in court to seek redress. Indeed, every person has the right to sue and demand his day in court. There are, however, some practical considerations that one should take into account when deciding whether to sue. Here are a few of them:

1. Ascertain the relevant limitation period

The limitation period is that within which you may bring an action. The length of the period may vary depending on the type of action you wish to bring. So, for example, if your car was hit by someone else’s and you wish to sue for negligence, you will have six years from the date of the collision to do so. Also, if you believe someone defamed you in a publication, you will have two years from the date of that publication to bring an action for defamation.

The length of the relevant limitation period will determine how much time you have to decide whether to sue. When you do have time, it would be a counsel of prudence to wait for emotions to settle before committing to initiating a lawsuit, which in the ordinary course of things you will then have to prosecute all the way to judgment. You will be saddled with the cost of a lawsuit you discontinue because you changed your mind about bringing it after your outrage dissipated.

2. Gather your evidence

Evidence is best recorded contemporaneously while the memory is fresh. If your limitation period is not due to expire soon and you have not yet decided whether you will sue, you should still gather your evidence so that, should you decide to sue, you will have your case in order. In that regard, you should:

(a) make a chronology of the relevant events,

(b) obtain any professional reports, such as medical reports, that you will need to rely on

(c) scan and safely secure all receipts and relevant documents

(d) identify your witnesses, obtain their contact information, and ascertain whether they are willing to give evidence on your behalf.

You may also want to take signed statements from the witnesses so that, if they cannot attend a trial in the future, you have the option to seek to have their statements admitted as hearsay statements. If they can attend the trial, the statements will still help to refresh their memory on what they said happened at the relevant time.

3. Do a cost-benefit analysis

Before deciding to sue you should conduct a cost-benefit analysis to assess whether initiating a lawsuit makes sense financially.

As part of that process you should request from your attorney an estimate of the value of the claim and the likely cost of the litigation. You generally want the amount you stand to gain to significantly exceed the amount that you are likely to spend.

Another key element of the cost-benefit analysis is assessing whether the defendant will be able to pay you in the event that you succeed in obtaining a judgment. If the defendant has no assets, is unemployed, and has no other means of satisfying the judgment debt, then it may not be worth incurring the cost to bring an action and obtain a judgment that you will not be able to enforce.

4. Explore mediation and other forms of alternative dispute resolution.

Until August 2023, in civil matters in the Supreme Court (usually having a value in excess of $1 million), it was mandatory for the parties to attempt mediation before a trial date would be set.

Although mediation is no longer mandatory, many litigants successfully resolve their disputes via mediation and avoid the delay and expense of protracted litigation. At mediation the parties have the freedom to air their grievances freely, in a structured process, before an independent mediator, while being assured that nothing they say at mediation can be used against them in court.

Nothing precludes parties from attempting mediation before a claim is filed. With mediation currently costing each party $25,000 for the first three hours at Dispute Resolution Foundation, there may be merit in pursuing mediation before litigation.

Litigation should always be a last resort, and the decision to sue should not be taken lightly. In many cases, you will have time to weigh the relevant factors and give the decision the careful thought it deserves before initiating a lawsuit. As shown above, however, there are practical steps you can take to preserve your ability to prosecute a potential lawsuit, even if you have not yet decided to initiate it.

Jacob Phillips is an associate in Myers, Fletcher & Gordon’s Litigation Department. He may be contacted via jacob.phillips@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.