Justice Ain’t Cheap: Does it Make Sense for You to Sue?
You are ready to file a lawsuit.
You have identified who (or what) to sue.
If you are representing yourself without an attorney (pro se or pro per) you have researched your state’s law and determined what causes of action to include in your complaint.
You are ready to pull the trigger—prepare a complaint, file it in court, serve your opponent with it, and start your pursuit of justice.
There is just one step left . . . and it is an extremely important one! You have to determine whether it makes financial sense for you to proceed with a lawsuit. You must balance your expected recovery (what you hope to get out of the lawsuit) against your litigation costs AND your opponent’s ability to pay off a potential judgment.
You could have the best lawsuit ever—but if it is going to burn a hole in your wallet—it is probably not worth your time and money!
Common litigation costs you may encounter
Depending on your state, county, city, etc., court fees and litigation costs may differ. Here are some common expenses you may need to pay:
- Initial pleadings: If you are a plaintiff, filing your initial complaint could cost anywhere from a few dollars to a few hundred dollars. If you are a defendant, the same applies to the cost of filing an answer or other responsive pleading. This applies whether you have an attorney or are representing yourself pro se / pro per.
- Service: “Service” is a fancy-schmancy legal term that means “officially delivering legal documents.” Some pleadings (e.g., complaints, subpoenas, and more) need to be served personally—meaning someone (other than you) has to personally hand them to the recipient. If personal service is required, you may need to pay a process server, sheriff, or marshal to serve those documents.
- Postage: Most (if not all) jurisdictions allow litigation documents to be delivered by mail. E-mail is usually not an allowable substitute. One or two letters might not break the bank, but if your case involves a lot of documents, postage fees could add up.
- Photocopying fees: Photocopying documents—even at a good rate of a few cents per page—can result in a very expensive bill.
- Depositions: A deposition is a question-and-answer session where a party can ask her opponent questions. Depositions are transcribed by a court reporter (AKA stenographer). Depositions can be expensive, especially if videotaped. Deposition transcripts cost anywhere from $2-5 per page. A single transcript could cost hundreds of dollars. A video copy will cost extra.
- Parking and travel costs: Court parking might not break the bank, but a few visits at $5, $10, or even $20 a pop could make a dent in your finances.
- Trial exhibits: If your case goes to trial, you may want to prepare exhibits for trial (e.g., documents, blowups, posters, samples, etc.). These all cost money.
- Expert witnesses: If your case requires an expert witness, that could cost hundreds of dollars per hour. You will need to pay the expert for her time reviewing any materials, writing a report, and preparing for and testifying at depositions and trial. Some experts also require payment for travel costs, parking, mileage, and hotel accommodations, if necessary.
Check to see if you qualify for a fee waiver that would allow you to proceed without paying any (or some) court fees. Every jurisdiction is different, but this usually involves filing an application or motion to waive fees, which a judge then reviews and makes a ruling. You will likely need to produce evidence showing that you cannot afford to pay court fees (e.g., affidavit, declaration, bills, bank statements, etc.).
As you can see, lawsuits can be very expensive, even if you save money on attorney’s fees by representing yourself pro se / pro per. Do not let this list overwhelm you—I prefer to be overinclusive so you know upfront what costs you might incur. Sometimes surprises suck!
What if you can recover litigation costs?
At this point, you might be thinking to yourself: “I don’t care about litigation costs because in my state, the losing party has to pay the winner’s litigation costs, so I’ll just win and get those expenses back!”
If your state allows you to recover litigation costs, that is great! But remember: you still have to win to recover! That means you will likely have to go to trial, prove your case, and obtain a judgment in your favor.
If you lose, you are out of pocket for all your litigation costs AND you have to pay your opponent’s costs! Or, if you settle (as do 90-95% of cases), most settlements involve each party “eating” (absorbing) its own costs.
Even if you win and get your litigation costs back in the end, you still have to come up with the money to finance your lawsuit until the end. If you run out of money midway through your lawsuit, you may end up having to dismiss it.
Watch your wallet!
Determine whether your opponent can afford to pay you
Here is a rhetorical question: How happy would you be if you won a judgment—only to find out that your opponent is broke, unemployed, in serious debt, and cannot pay you a penny? Even worse, if the defendant files for bankruptcy, your right to collect the judgment will probably be terminated.
To avoid this disaster scenario, you should find out early on whether your opponent has the financial wherewithal to pay you if you win. Do some basic online research (e.g., Google, Bing, etc.) and social media (Facebook, Instagram, etc.). Is he employed? Does he drive a nice car? Does he appear to have disposable income (vacations, restaurants, property, possessions)?
You can also try searching public records in your state/county/city to determine whether he owns property, such as homes, cars, boats, etc. The more you know about your opponent’s assets—or lack thereof—the better position you will be in to determine whether you are likely to get paid.
Researching a business’s financial situation is a bit trickier than a person, but there are still things you can do. Drive past the business. If it is a retail establishment, restaurant, or store, are there people going in and out? Does it appear to be relatively successful? Does it own any equipment, vehicles, or merchandise? Does it have a legitimate website and social media presence? Read any reviews or articles you find relating to that business.
You can also search public records to determine whether the business or individual has outstanding judgments or liens (e.g., taxes, child support, alimony, criminal penalties, etc.).
There are also online services you could use to check whether your opponent has any prior or pending bankruptcies, lawsuits, judgments, liens by creditors, court orders for garnishment of wages, child support, or alimony. These services may even be able to tell you whether your opponent has property, personal possessions, and a job.
If you discover unpaid judgments and liens, that is a red flag. It means that other parties have had a hard time collecting from your opponent. You may very well run into the same problem…
One last word on this topic: Just because a person or business is broke does not necessarily mean pursuing a judgment is pointless. The future is uncertain. A person can eventually inherit money, start a successful business, or sell off property. Depending on the state, judgments may be valid for 10-20 years, and can often be renewed. The big question is: How long are you willing to wait to recover your money… if ever?
Before filing a lawsuit, be sure it makes financial sense. If you rack up expenses beyond what you recover, you are in a worse position than you would be without the lawsuit. Likewise, if you sue a person or business that is broke or contemplating bankruptcy, you will probably have a hard time enforcing your judgment.
Like many things in life, justice ain’t cheap.
Are you a new attorney or pro se / pro per party looking for help? Check out Justice Navigator!