Grounds for Legal Action
The litigation landscape is littered with cases where a potential plaintiff failed to identify the legal ground for their claim before blindly attempting to engage the services of a lawyer. This can be a costly and time-consuming mistake. For instance, a breach of contract lawsuit will entice a litigator to take on your matter by quickly assessing the probability of recovery for the claimed damages. On the other hand, nobody wants to go 12 rounds with a big company over whether your neighbor’s tree was planted 6 inches too close to your property line. Instead, you might need a real estate litigator to gather the evidence to sue your neighbor directly .
On top of determining who you should be suing (and why), you need to think about whether or not your opponent will have the funds available to make any recovery worthwhile. Are you claiming that you’ve lost $50,000 because Company X was late in returning a deposit for a custom product? Company X might have received a negative review on Yelp, but they’re doing just fine financially and might have been just waiting for you to ask for your money back. If your damages are insubstantial, it makes more sense from a cost perspective to file a complaint in Small Claims court rather than hiring a lawyer and suing in District court. Asking for the money back may be sufficient to encourage your opponent to settle rather than facing a lawsuit.
Collecting Evidence and Records
The first step in building your case against a big company is the collection of evidence that supports your claims against them. Large corporations are required to maintain a record of all transactions they have with consumers. Even if they don’t have good customer service, they will have proof that you made a purchase with them. That’s why keeping all your receipts is a good idea.
This isn’t just limited to money, but also involves a record of every transaction and every attempt to speak with a customer representative about your problem or concern, and that means that emails are just as important as receipts. If a customer service representative tried to call you about your complaint, that’s another type of evidence that you want to keep track of.
Every email or text message you’ve exchanged with your bank or cable company makes up a part of your case against the company. Scrutinize those messages for anything that you can use as evidence in your case.
If you have any sort of contract that deals with the company, make sure you’ve got a good copy of that contract on hand. If you’re dealing with a bank, for example, your contract with them will include strict provisions about what happens if you miss a payment on your credit card, or how much money you’ll owe them if you ever decide to close your account.
All of these things combined are considered a paper trail and will follow the company throughout the entirety of your legal case. It’s the evidence you need on your side for the duration of the case.
Selecting the Appropriate Lawyer
Finding a lawyer who specializes in suing large corporations is important, as these lawyers are most familiar with the tactics and strategies that tend to be unique to the defense of an inter-corporate dispute. Consider lawyers at large firms with a strong litigation employment or business team. Since large corporations have significant leverage in negotiating settlement terms, the threat of a large law firm behind you can potentially goad them into more productive settlement negotiations. As the adage goes, "a dog behind a fence barks louder than a dog in the open". Consider a lawyer with experience in the specific area of law involved in the dispute. Even if this area of law is not one that seems particularly relevant to your case, familiarity with the law’s nuances will help resolve your case sooner and more economically. Many focus on the lawyer’s fees, and while fees should definitely be of prime consideration, seeking someone who has a good grasp of litigation and discovery can be beneficial. A lawyer with good discovery skills will assist with the collection of documents. While this may seem less pressing than fighting with the other side, the lack of initial investigation can potentially result in a case that later falls apart as better documents come to light.
Commencing the Lawsuit
Once you have obtained the services of an attorney or have made your decision to proceed without an attorney, a lawsuit needs to be filed against the Corporation and its Registered Agent. Filing a lawsuit is a straightforward process. The paperwork you need to file with the Clerk of Court should be either a complaint or an information sheet depending on the amount of your lawsuit.
If your lawsuit is in Small Claims Court or the amount of your lawsuit is under $10,000, you can simply file an information sheet with the Clerk of Court where you live (county) and pay to file a Small Claims Complaint. In these Courts, you do not need to serve the Corporation yourself because as mentioned above, a company is required to appoint a Registered Agent. A complaint for Small Claims Court is fairly simple and does not need the particularity present in other lawsuits like Medical Malpractice or Personal Injury claims. You can read more about the requirements and what to expect in Small Claims Court here.
If your lawsuit is more than $10,000, you will be required to file a complaint which requires more particularity and detail than a Small Claims Complaint. Whether you decide to have an attorney draft this complaint for you or have it drafted by yourself is up to you. Once you draft the complaint, however, you must provide specific detail in order to be empowered to collect damages awarded to you by the Judge or Jury. I recommend you search case law and past lawsuits that are similar to your lawsuit to gain insight about the required elements for your complaint and the damages a Judge or Jury typically awards. This detention will help paint your picture in the Judge and Jury’s mind for why they should award you your damages when they read your complaint. Also, once your complaint is complete and filed, you will be notified by the Clerk of Court of the amount owed for filing the lawsuit. The technology is in place to allow you to pay your filing fees online and file the complaint directly from your home computer. The filing fee usually ranges from $220 to $380 dollars.
Once the complaint is filed, a hearing will be scheduled to deal with the merits of the lawsuit and a lawsuit packet must be served on the Defendant. I really enjoy serving the lawsuit on the Registered Agent for companies because it makes me feel powerful. But as far as the law is concerned, serving a complaint involves delivering a lawsuit packet made up of a complaint and summons to the defendant in person or via certified mail. The summons has the contact information of the Clerk of Court for the Court with the lawsuit and will tell the Defendant that the copy of the lawsuit they received is their official copy of the suit filed against them and they have 30 days to respond to the lawsuit. The lawsuit packet must then be served within 5 days of filing the complaint or the lawsuit is voided. Most Court systems will allow you to provide proof that the registered agent received the complaint and summons online as well.
Pre-Trial Steps in Legal Proceedings
If the case does not settle in the first few months after filing, there will likely be a period of discovery – an informal process of exchanging information and evidence between the parties. Both sides will engage in written discovery by formally requesting information from each other. There will also typically be depositions where witnesses and/or parties are questioned under oath. The discovery period can last several months or longer, and a great deal of preparation goes into both sides depositions.
It is always important to detail the relevant facts as clearly as possible in the complaint. But even more important than that , is doing everything possible to locate and secure the witnesses and evidence necessary to prove your case. The better prepared you are during this period, the greater the likelihood that you will be successful at the deposition. Even in a case where you know you are almost certainly going to win at trial, depositions can be critical, because they often result in the party who receives the unfavorable testimony being much more persuaded to settle the case.
Trial Overview
In the litigation process, once you have answered all of the defendant’s discovery questions, you will then go through a deposition process which prepares you and your attorney for trial. A deposition is when the attorney for the company will sit down with you and with a court reporter and they will go in for a few hours and basically take down your testimony as to what happened during your employment and why you sued the company. This information will end up being used during the trial process. The trial process can work several different ways.
First of all, in Florida there is the right to a jury trial. A jury can be called if you ask prior to the first court date being scheduled. That’s considered the "demand for jury trial". The jury itself would sit in the courtroom, listen to the evidence from the lawyers, listen to the evidence of the witnesses, and then render a verdict. Once the verdict is rendered, then the judge would decide the damages.
Oftentimes, however, a client will choose to have the case heard by the judge alone, without a jury. This procedure is known as having a "non-jury trial" or a "bench trial". If you choose to have a non-jury trial, the ultimate decision on the verdict and damages is up to the judge alone.
Whether you decide to have a jury trial or a non-jury trial, you must know that your testimony before the judge or jury can make or break your case. You are required to relay the specific facts of what happened to you at the company or why the company fired you with supporting documentation. When the opposing counsel for the company asks you questions about your claims, your testimony must remain truthful. Any perceived lie will be used against you. What you say at the trial will be provided to the jury by means of a "transcript", whereby the court reporter records word-for-word what each person says in the courtroom. It’s very important that you be honest and up-front with the judge, jury and your lawyer for the best possible outcome.
Negotiating a Settlement
On the one hand, the vast majority of cases settle before trial, and on the other, roughly 4% actually go to an appellate court after trial. The reason so many cases settle is that once you reach a trial setting, you are looking at possibly months or years of attorneys putting on evidence, having the jury deliberate, and then appeal. If you can agree without going through the trial process, you save time, money and stress.
And if the company you are suing has publicly traded stock, a settlement takes away all uncertainty. If you win at the end of trial you could get a big award, but the stock could fall and cause your award to lose value. Then again, if you lose at the end of a trial, you will get nothing at all, and won’t necessarily be able to sue again. So if you can settle for a fixed amount before trial, you are guaranteed not to leave empty-handed. Most of the time that means you’ll leave with more money in your pocket than if you lost at trial. But sometimes a settlement before trial does not secure any money for you if the mediation ends with the insurance company agreeing to repair the car or to pay for hospital bills, and gives you no money for the time lost from work and other intangibles.
Once you understand that, you also have to evaluate the settlement offer in the context of both a victory at trial and a loss at trial. A win at trial is the best option, but keep in mind that a settlement may be worth more to you than winning a trial if the award is more than the offer and your attorney’s fees are too high as a percentage of the award for you to keep most of that. And you are going to have to pay your attorney even if you lose at trial or reach a settlement pretrial. So if you knew that a settlement of $5,000 would only net you $100 due to legal fees, but winning at trial would net you $2,000 due to legal fees, would you want to settle? In that case, settlement before trial would not be worth it because a small award would not be worth the legal fees.
If there was no pretrial settlement offer, and the jury renders a verdict, you can either take the money (if you win) or a blank piece of paper (if you lose). If you can’t settle before trial and do win, it may be because the company took a stubborn position at a mediation session that ended with no offers. But taking a stubborn position may very well be a terrible financial mistake on the company’s part. The company may have been betting on how a jury would react to their defense. In that case, the jury was on your side and the company’s stubbornness cost them money. If the company were to settle, divide the profits between the company and attorneys, pay you the damages, and put the accident behind them, they would save money in the long run.
The key to keeping settlement viable is to make sure that your attorney considers the settlement offer seriously. In Massachusetts, your attorney owes you a fiduciary duty, and that means that any settlement offer should be presented to you and explained to you. If the attorney then recommends that you take the settlement offer, you are free to reject it. But if you reject the recommendation, you open yourself to the risk the case will go to trial and that the company’s offer is the best you are ever going to get.
Contesting a Court Ruling
If the court rules against you, there may be some room to manoeuvre if the judgment is wrong. Often these cases are the David versus Goliath where Goliath has a highly paid legal team acting for them. However, David too can appeal and recover if the case is strong. Some of the grounds for appeal include but are not limited to the following; the judge got it wrong on the law, the judge made an error of fact, the judge failed to hear all of the evidence, new evidence has come into light that should have been heard and the length of the sentence was too harsh or manifestly excessive – like three years in prison for stealing a kid’s nose-picking tissue (exaggerated example – but it happens) .
Your lawyers should know by now whether or not you should appeal and hopefully you have not wasted a lot of money trying to pursue a case against a big company that has no legal basis or no chance of success. That said, before this is even considered you need to understand who is inside your corner. You then need to be prepared to take on Goliath if required on appeal.