Should You Sue? Are You Eligible to Sue?
Chances of Winning A Lawsuit
Common Types of Lawsuits
HOW TO SUE: Steps in Suing Someone
What to Prove in Order to Win Your Lawsuit

Should You Sue? Can You Sue?

There are a few things to consider when suing or planning to sue someone. These are:

1. Are you eligible to sue? – You must be at least 18 years old in order to sue someone. If you are under 18, a legal guardian, or litigation guardian (someone appointed by the Court), may be able to sue on your behalf.
2. Do they have income or assets to pay? – Even though you can sue someone, it doesn’t mean you should. It would be unwise to sue someone if they have no money, income, or assets. Even if you were to win, you would not be able to collect any amount from them.

Likelihood of Winning a Lawsuit:

What are your chances of winning your lawsuit? Consult a good lawyer and listen to their advice. Not every wrong is “actionable,” meaning not every wrong is one you can sue over. Ask the lawyer the likelihood of success given the facts of your case and the law in your province or state. Ask the lawyer what the potential weaknesses of your case are and how these might be overcome or lessened.

If you do not get legal advice on these matters, you could spend hundreds or thousands of dollars suing over something you shouldn’t have. Worse, the person you are suing could counter sue you (they can sue you right back!).

If the Court decides you didn’t prove your case or worse, that you were wrong, you might end up having to pay thousands of dollars of court fees and damages to the other person.

Common Types of Lawsuits:

1. Personal Injury (medical malpractice, car accidents, assault)
2. Breach of Contract (for goods or services)
3. Slander or Libel (saying or writing something untrue about another person)

How to Sue – 8 Steps When Suing Someone:

1. 1. Obtain a legal opinion – Contact a lawyer for assistance. Some attorneys will offer free 30 minute consultations. (Legal aid does not usually cover civil lawsuits).

 

1. 1. Start the Claim – Write the Claim or Statement of Claim, get it stamped and dated by the Court, and then have it “served” on the opposing party or parties. The Court keeps a copy of the Claim.

 

1. 1. Defend Against the Claim – The opposing party or parties have a short time to respond to your claim by writing their Defense or Statement of Defense and serving it on you and any other parties. The Court keeps a copy of each Defense.

 

1. 1. Documentary Disclosure and Production – Parties must disclose and exchange all relevant documents, pictures, audio and video recordings and the like within a certain amount of time. In Small Claims Court, parties usually attach important documents to their claim or defense. In higher Courts, parties usually compile all documents, pictures, and audio and video evidence, and exchange it some time after the claim and defense.

 

1. 1. Oral Questioning Before Trial – In most Small Claims Courts, the parties do not have oral questioning before trial. This is to speed up the process of getting to trial and to save the parties’ from the increased cost. In higher Courts, parties and their lawyers will meet at an office (outside of court) for a process of oral questioning called “depositions” or “examinations for discovery.” Each party is questioned under oath by the opposing parties or their lawyers and the questioning is recorded, then later transcribed (typed up). The purpose of this process is to force each party to commit to a version of facts, on the record, before trial. This helps narrow and refine the actual issues in dispute, and the facts and evidence that may later be presented to the Court. The parties can better asses their positions and often make offers to settle after this stage.

 

1. 1. Pre-trial Motions – Parties deal with shorter issues by way of motions, usually involving short court attendances. For example, parties may bring a motion to request another party produce certain documents or other evidence, to clarify who will be parties at trial, to have certain evidence excluded from the trial, or to specify how trial will proceed.

 

1. 1. Pre-trial Conference or Hearing – This is usually the last court date before trial, where the parties are encouraged to settle and where the procedures for trial are decided upon (like the number of witnesses, the estimated length of time each side will require, the availability of lawyers and parties for trial schedule, and the like).

 

1. 1. Trial – By this stage, the parties must be ready to present their witnesses, their documents and other evidence, and their legal arguments. Each side will have an opportunity to present their version of the case, and to be questioned by opposing sides. The judge (or jury) will consider the facts and the law and will decide in favour of one side or the other, in part or in whole.

 

What to Prove In Order to Win Your Case:

1. You have to prove that the person you are suing had some obligation not to cause your injury or loss.

In a contract case, this may be called a contractual obligation. In a tort case (like a personal injury case, medical malpractice, or car accident case) this might be called a “duty of care”.

For example, if you are alleging a vendor had a contractual obligation to you to deliver an item in good condition, this could be proven by the fact of them having signed a contract by which they sold you the item.

For example, if you are alleging your doctor owed you a duty of care, this could be proven by the fact of them being your doctor and you being their patient.

2. You have to prove that the person you are suing violated a measure of how they are supposed to behave as viewed by a reasonable person.

In the contract case above, this could be proven by showing that the vendor advertised the item was new or in good condition but that the item you received was not new or not in good condition. Most states and provinces have some form of “Sale of Goods” laws, which state that when selling an item, the seller is supposed to make sure the item is in the condition advertised and fit for use. It is only reasonable to expect that the item you purchase is in good condition, if it was advertised as such.

In the doctor/patient case above, this is also called “standard of care.” For example, when you are alleging your doctor failed his or her “standard of care”, you are saying that they did not act like a competent doctor should act. For example, perhaps in performing a wrist surgery, a surgeon cut and damaged an important tendon. A competent surgeon would have known, and would have taken proper steps, to avoid cutting and damaging the tendon.

3. You must prove that the person you are suing, with their failure to perform some obligation or failure to take proper care, actually caused you injury or loss.

The loss can’t have been caused by someone else, or some other intervening event.

In the contract case above, if you received a new item from the vendor then immediately dropped and broke it, you caused the loss, not the vendor.

In the doctor/patient case above, if it turned out the surgeon did not cause the cut to your tendon, but rather, an earthquake hit and shook the hospital the exact moment he was operating, the surgeon may not have caused your injury. The intervening event of the earthquake, may have caused it.

4. You must prove that you actually suffered an injury or loss.

In the contract case above, if you had paid for a new item but received an old or broken one, your loss would be the purchase price of the item.

In the doctor/patient case above, if the cut tendon caused you physical pain, loss of use of your fingers, an inability to perform your usual job, or emotional pain and suffering, you would have to prove this by way of medical reports, physiotherapy assessments, psychological reports and the like.

See also: Do I Need a Lawyer, How to Find a Lawyer, Costs of Hiring a Lawyer