There are many times in our life that we are confronted with the litigation scenario of: should I sue or not. The most common lawsuits that we are exposed to arise out of personal injury, breach of contracts or real estate disputes. A personal injury matter generally has a two year statute of limitation and a breach of contract normally has a six year statute of limitation. Real estate statute of limitation disputes are candidly more complicated and must be reviewed on a case by case basis. Statute of limitations, in its most basic form, is the time limitation that you have to bring a suit or your cause of action would be barred. In addition, there are certain litigation formal shopping for dispute resolution such as arbitration, state court, or federal court which require their own individual analysis. This article will focus on New Jersey State Court litigation options.
The State of New Jersey Court system provides a free dispute resolution forum after a nominal filing fee is paid. The arbitration or mediation path, on the other hand, does require an hourly payment to that hearing officer. There are different jurisdictional levels within the New Jersey public system. Small Claims Court includes matters in dispute less than $3,000 ($5,000 related to landlord/tenant matters), Special Civil Part for matters in dispute less than $15,000, and Superior Court Civil Division is for disputes over $15,000.
Attorneys generally do not like Small Claims matters, because that avenue is somewhat of a free-for-all. The rules of court are very relaxed and literally you show up at the hearing, you present your position, the other side presents their position, and the Court renders a decision.
This process is very quick and a viable approach if you cannot afford an attorney. The Special Civil Part has limited discovery and is also a venue that attorneys are somewhat uncomfortable with, as the rules of court are also somewhat lenient. For example, last minute discovery and undisclosed witnesses sometimes find their way to the trial judge.
The Superior Court is the majority of where litigation matters are resolved involving disputes over $15,000. The Superior Court does require full compliance with the rules of court. In addition, the Superior Court provides for motion practices, which limit or may dismiss unworthy cases.
When analyzing whether to sue or not, a Plaintiff should reflect on the following:
Is the Defendant they are seeking to recover monetary damages against, solvent or insolvent? The corporate shield is very much alive in New Jersey and if your agreement is with a corporation which has no assets, you may be spending good money after bad.
If the Defendant is an individual who is gainfully employed, and you believe to own their own home or other assets, these events are positive in pursuing an action.
A Superior Court litigation matter normally has a litigation timeline of one to two years for resolution, but it may run longer based upon the complexity of the matter.
The attorney will normally take a Superior Court matter on an hourly billing basis, but contingencies are available based upon the subject matter, such as personal injuries and tax appeals. Breach of contract matters are normally handled on an hourly basis. There are some instances however, where an attorney will take a larger retainer upfront and then accept the balance of their fee on a lower percentage contingency. The parties are free to negotiate fee arrangements, subject to professional rules of conduct.
“But It Is the Principal of the Matter!”
It is very common that an initial reaction to a damage claim will be that the SOB should not get away with what he has done. This is a common and understandable feeling. The reality is unfortunately that most clients after three years of litigation and spending thousands of dollars on attorney fees, expert fees, deposition fees, disbursements, and the like, become humbled to settle based upon practical business analysis versus the principal of righteousness. Thereby, it is best at all levels of litigation to review case status regularly to confirm that the ultimate goal of the Plaintiff is being reached. It may or may not, be worth spending $25,000 in order to obtain a judgment of $30,000. On the other hand, to spend $25,000 on a matter which you recover $10,000 is questionable.
Historically, ninety (90%) percent or more of all cases settle prior to trial. Part of that reason is the difficulty in having witnesses and experts attend trial. The phrase: “half the battle is just getting to court” rings true. Moreover, the expert fees are also a reality in settling prior to trial. Obviously, if a doctor or licensed expert needs to take eight hours off from his regularly scheduled week day to attend a trial, that expert is entitled to his/her pay whether or not you win or lose the case. Most experts also require to be paid in advance of trial.
Time to Sue
As a litigation attorney for over twenty years, it is my experience that most litigation matters that are filed are resolved in a timely manner. What I mean, is that it is our nature to want to have matter concluded and life pressures resolved. If someone does not sue, they may second guess themselves, as to what would have been the possible outcome. When a party does bring a litigation matter, whether he or she wins or loses, they do have peace of mind that the matter is resolved and their position has been known to all. Thereby, my advice is within reason and common sense, sue the SOB, but recognize it may not be cheap.