Taking Someone to Court? 8 Questions to Ask Before You Litigate

Between 36 and 53 percent of small businesses are involved in some kind of litigation each year. Most small business owners worry about someone filing a lawsuit against them.

But what happens when you’re the one taking someone to court? 

Whether it’s a contract dispute or an unpaid bill, there are certain questions it pays to ask before you litigate. 

1. Do I Have a Worthwhile Case?

You’ll have a lot of questions before litigation, but whether you have a winnable case is the most important. Ask your attorney what they think your chances are and if they think it’s worth the time and money. 

2. Have You Handled Cases Like This?

Your attorney shouldn’t have to learn to how litigate a case like yours on your dime. The person you’re suing will lawyer up too. What if their attorney is more experienced than yours?

Civil lawsuits have a lower standard for the burden of proof. The judgment is based on “preponderance of evidence,” not beyond a reasonable doubt. That’s a fancy way to say it comes down to who the judge or jury believes more.

No matter how justified you are for taking someone to court, lawsuits are about facts, not principle. Can this attorney present the facts convincingly? Do they know how to litigate a case like this? 

If not, the judgment might not go in your favor.

3. What Results Have You Gotten in Similar Cases?

They probably won’t be able to give you specific details — attorney-client privilege and all. But they can give you an idea of how they’ve faired in the past.

You can also ask references. Make sure your attorney gives you references who had cases like yours. They’ll be able to give you details the lawyer can’t, including how they liked working with them.

An experienced attorney shouldn’t balk at a request like this. But that doesn’t mean they can just hand you a list. They may have to ask former clients for permission first. 

4. Who Else Will Be Working on My Case?

Most lawyers have some kind of additional support. There could be paralegals, junior attorneys or even non-attorney consultants, such as accountants. 

They’re valuable team players. But you also need to know the attorney you’re hiring is handling the case. If a junior attorney with no experience with cases like yours does all the work… Well, you know how that could work out. 

5. What Are the Alternatives to Trial? 

Settling cases out of court is usually cheaper than taking someone to court. It also happens to be very effective in business-related disputes. Ask your attorney about different arbitration options to save yourself the headache of a trial. 

6. Do You Have Experience Taking Someone to Court?

If arbitration doesn’t work out, you want an attorney who’s navigated the courtroom successfully before. Ask how many trials they’ve litigated and what types. What’s their batting average?

If your lawyer can’t seem to win cases in the courtroom, it’s time to make a trade for someone who can.

7. How Much Will This Cost?

Attorneys aren’t psychic. They probably won’t be able to give you a firm number. But they should be able to ballpark it for you so you know how much to budget. If you can’t afford it, ask about litigation funding. 

8. Do You Have Any Conflicts?

Make sure your attorney doesn’t work for any of your competitors or former business partners. If so, you might feel uncomfortable being completely honest with your attorney. And that could negatively impact your case.

You want an attorney who can help you with other legal aspects of your business as well. You need to know they’re 100 percent on your side.

Now Relax

Yeah, right.

Taking someone to court with an attorney you trust will take a load off your mind, not off your desk. But we can help. For more small business tips, check out our business advice section.