Notes before initiating a lawsuit

Five notes before initiating a lawsuit: Probability of winning, ability to collect damage awarded, counterclaims, loss or profit and the lawyer advice.

Post date: 24-08-2013

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Some notes before initiating a lawsuit is very important. Initiating a civil lawsuit is the right of involved parties where there are disputes to request competent court to settle in accordance with the law. A lawsuit often take much of time and money for involved parties, but it somtimes do not get a desired result. Therefore, in relation to civil matters, the involved persons should consider carefully some issues in order to make the right decision.
The dispute resolved by taking lawsuit is not the popolar method, so in business relations, the parties often try to resolve disputes and disagreements through negotiation and agreement, even ignoring small violations to avoid bad relationship. Sometimes, the parties cannot setle dispute through amicable negotiation, so the lawsuit taken is unavoidable. However, it is a mistake to bring all disputes to the judicial bodies for settlement. The initiation of a legal action should be considered as the final measure when there are no more possible solutions. Otherwise, the plaintiff may suffer the double losses for its decision of “filing a lawsuit” when no benefit has been collected from the legal proceedings.

Some notes before initiating a lawsuit to assist the involved persons in limiting potential risks associated with the litigation, it is necessary for those to consider the following key points before deciding whether to sue or not and how to take the legal proceedings.

                                                                                                               The first note: probability of winning

                                                                                                                                              The first note: Probability of winning

 1. the fisrt note before initiating a lawsuit: Assessing the probability of winning a lawsuit

  Assessing probability of winning a lawsuit includes: 1. consider the burden of proofs: ability to prove claims; 2. Determine your witness creditbility & documentation; There’s a lot of considerations that go into filing a lawsuit and one of those considerations certainly is whether or not you can win. Within that consideration the most important item to discuss is what’s called the burden of proof and that is can you prove your claims and in civil lawsuits the burden of proof means that you just need to prove a little bit more than the other side that something happened. Be it fraud, be it an unfair business practice. It’s not like a criminal case where there has to be a beyond a reasonable doubt.

  This is just what’s called a preponderance which means just slightly more than the other side. Also that what’s very important is an assessing whether or not you can win your lawsuit is your witnesses and the documentation that you have to support the testimony of witnesses. So within that domain you need to consider the credibility of your witnesses. Whether or not they’re willing to testify on your behalf and with regard to the documents what do they say. Were they signed by the other party? Can someone tell you whether or not those are accurate copies of those documents.

 2. The second note before initiating a lawsuit: Assess your ability to collect damage awarded

  An additional consideration is going to be whether or not you can collect the damage award if you get one.
The ultimate desire of any lawsuit is mainly to demand a sum of money or property compensation from the defendant. So, the party intending to conduct the proceedings needs to consider whether the defendant has the ability to enforce the judgment or not. If not, the petitioner’s goal is not reached, but it takes time and money to sue. This is not always possible to perform, but it is the action should not be ignored when one party wants to initiate a lawsuit demanding money or properties of the other party.
 In many cases the plaintiff wins, the commercial court or arbitrator forces the defendant to pay the plaintiff, and the sentence or the decision is quickly valid because the defendant does not appeal and protest (for the sentence) or has any other obstruction act, but the defendant has no property to enforce the sentence.
 There are also many cases where the losing party has assets but at the same time it also have many other judgments to be enforced, the secured bank debts are due but such party loses the ability to pay. The winning party eventually wins but they can achieve nothing, just keeping the judgments and waiting.
I f the losing party is a foreign individual or legal entity, the winning party shall have the risk of facing with many difficulties stemming from the enforcement of judgments in foreign countries. Meanwhile, the winning party must retain legal services overseas, but the costs for this are not trivial at all.
Although the above problems are "postlitigation" issues, the party intending to initiate the legal proceedings needs to consider carefully, in order not to lament in grievousness: "If I had known about this, I would not have conducted the proceedings!"

 3. The third notes before starting litigation: Possibility of counterclaim

  Counterclaim is a fact in which the defendants conducts the proceedings against the plaintiffs. The counterclaim of the defendants, if being accepted, would result in the clearing of obligations to the plaintiffs or excluding all or part of the plaintiffs’ requests.
Counterclaim is the right of the defendants so they often utilize it, hence this might cause lots of difficulties to the plaintiffs.
Before taking the lawsuit, the party deciding to conduct the proceedings needs to consider carefully the contents of the contract, the performance of the contract, review the information, talk to the other party to assess whether it is capable of counterclaim or not, if any, what the specific issues are, whether or not the counterclaim will cause the plaintiff not be able to request any part of the material benefit, or assuming that there are some benefits that can be requested, whether or not they are worthy of what the plaintiff has spent.

 4. The fourth note before initiating a lawsuit: Comparison of the sum collected in case of winning with the expenses spent may be loss or profit.

  It is necessary to note the expenses will be incurred when participating in the proceedings, in addition to legal costs or arbitration costs. Once decided to initiate a lawsuit, the plaintiff has accepted the costs related to litigation, but accepted at which rate is another story.
It is known that a lawsuit is often prolonged, costly, especially with sums of money if counted separately they are trivial, but in combination they are not trivial at all. For example, travel and accommodation costs of the representatives of the petitioner, the more severe is the overseas trips if the dispute settlement bodies is a foreign arbitration centre; costs of translation, legalization and notarization for relating documents; costs of collecting evidence; assessment and valuation costs; costs of petition for the application of preliminary injunctive relief; costs for interpreter; costs for lawyer; communication costs, etc. If the costs for the legal proceedings are not estimated, the money collected when winning in the proceedings are not sufficient for offsetting the paid costs.

 5. The fifth note before initiating a lawsuit: The advice of lawyers in the case

 The advise of lawyer in the case can support concerned persons to solve many matters to understand the content of their disputes, know what they want, what regulations applied, the practical trials of similar disputes for reference. Lawyer consultant will provide an significant information for making decision whether or not to initiate the legal proceedings, to request litigation lawyer or they can do themselves.
It is necessary for the involved parties to clarify its demand and financial capabilities to determine whether their cases require the litigation lawyers or not. In case of weak financial capacities, they can do themselves, lawyer may support their case with lowest cost and best effectiveness.

  If you need advices before taking lawsuit, we shall give free consultation, please send us your inquiry by click HERE

                                                                                                                                                                                                                                                           Lawyervn.net

   Posted text:   Drafting a lawsuit petition, Click here

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