When and Where to Litigate

Nearly all people at some time in their life are confronted with a dispute or claim that may result in litigation.

The party, when confronted with a decision of how to resolve that claim or dispute, usually should act quickly and decisively in order to have a favorable resolution.

The first step to a successful outcome is to obtain representation by counsel. This should be done promptly so that you can be in the driver’s seat if the decision to litigate first is made by you and your attorney.

The biggest advantage of suing first is the plaintiff generally picks the forum for litigation. The choices may include which state, and/or which county in the state and whether it is initiated in the state or federal court. Under some circumstances, the defendant may have the absolute right to remove a state court action to federal court.

In addition to your attorney having the familiarity of the home court when you pick the forum to litigate, there is substantial financial savings both in your legal fees and the cost to you as the client. Each court appearance may include substantial travel time which is both expensive in legal fees for travel time, costs of the travel, the client’s time away from his business or profession and the cost of the client’s travel time. In addition, if your witnesses are local you will have the same expenses regarding their travel. Further, it is more difficult to schedule witnesses at a distant or remote location.

Many attorneys recommend exploring settlement possibility prior to the service of a summons and complaint. I do not agree with that practice except in unusual circumstances. I believe an action should be commenced first, then settlement opportunities can be explored thereafter.

My reasons for commencing litigation by service of a summons and complaint are as follows: first, you obtain all the benefits of forum selection, i.e. court of your choosing and second by serving a well drafted complaint you set forth your serious intention to proceed and you carefully define your damages or other relief and why you believe you are entitled to the relief requested in the complaint.

Remember that prompt action and good planning generally generates favorable resolution of disputes.

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