Skip to main content

The Questions to Ask an Attorney or Law Firm in Deciding whether to File a Lawsuit

There are striking similarities to the worlds of Litigation and Medicine.  Although the standard of care for hospitals has risen over the years, doctors rarely recommend surgery unless all other options have been exhausted.  The same should apply to litigation and the propensity of law firms and attorneys to file lawsuits.  Unfortunately, that is not the case.

At Moster Law Litigation we pride ourselves as being aggressive, smart, and creative.  That said, we understand that litigation should never be suggested as an option for clients until the strength of the potential case is evaluated, the cost/benefit determined, and the client understands the road ahead and what to expect.  Here are the key issues to be explored in more detail.

  1. How Strong or Weak is your Lawsuit or Defense in Texas Courts, Austin, Dallas, Houston, Midland, Odessa, Lubbock, Amarillo, and Abilene?

When clients first speak to a lawyer about filing a potential lawsuit the emotions are typically overpowering and raw.  They are understandably upset because of some injustice that has been committed against them or their business and they want to fire back.  In our world of litigation, these emotions are dangerous as emotion should never be a consideration in determining whether to initiate litigation and file a lawsuit.

Of course, that is easier said than done, and not all law firms do a good job discussing the pros and cons of filing suit.  At Moster Law Legal that is our starting point before the first shot is fired.  It has to be as clients must understand whether they have a winning case, to begin with.  Whether the client is dealing with a contract dispute, breach, partnership conflict, misappropriation of intellectual property, shareholder dispute, theft, or any other claim, the pluses and minuses of filing a lawsuit must be carefully evaluated before any action is authorized.

Critically, what a potential client perceives as a valid legal claim is not always what it appears.  The ability to review the facts and make a legal recommendation is what the practice of litigation law is all about.  An attorney’s ability to make a recommendation to go forward in litigation or not is a byproduct of his or her legal training and quality of the law school attended and critically, years and years of experience and lessons learned as seasoned litigators.

At Moster Law Litigation, our attorneys have graduated from some of the finest law schools in Texas and across the nation.  Additionally, many of our attorneys and paralegals have practiced in their respective litigation areas for decades.  All of that education and experience is leveraged for the benefit of our clients whether they are sitting across their adversary as a Plaintiff or Defendant.  Our clients become aware at the inception that attorneys of Moster Law Litigation are driven to win whether we are on the offense or defense.

All of this allows us to answer the clients’ question:  Just how strong or weak is my legal claim in Texas, Austin, Dallas, Houston, Midland, Odessa, Lubbock, Amarillo, and Abilene?  It is quite common that a client will fail to appreciate or understand that all of that personal fire and fury doesn’t add up to much.  The client may believe that he, she, or it has been wronged and violated in a business deal gone wrong.  The client is convinced and fuming that property rights have been violated, contracts breached, money stolen, opportunities lost, and partnership interests betrayed.  Quite often, the facts just don’t add up to a valid or winnable lawsuit in Texas, Austin, Dallas, Houston, Midland, Odessa, Lubbock, Amarillo, and Abilene.

An experienced law firm does not have to invent the wheel and charge the potential client thousands of dollars to answer the question of whether a case is strong or weak and what action should be taken.  Chances are and should well be that an experienced law firm has seen the fact pattern before and can recommend on the spot whether a lawsuit is worth pursuing.

Assuming a lawsuit is worth pursuing, the next critical factor is the cost–benefit calculus.  Here’s the question:  What are the dollar and cents costs versus benefits of filing a lawsuit in my case?

An experienced litigation lawyer in Texas, Austin, Dallas, Houston, Midland, Odessa, Lubbock, Amarillo, and Abilene should be able to answer that question on the spot.  This should not be a case of first impression whether the client is dealing with litigation involving breach of contract, civil litigation, IP litigation, intellectual property litigation, commercial litigation, employment litigation, corporate litigation, or other areas in Texas, Austin, Dallas, Houston, Midland, Odessa, Lubbock, Amarillo, and Abilene.

At Moster Law Litigation we will provide a potential client with a dollars and cents estimate of what the legal costs will likely be and the ability to recover attorneys fees if approved by the Court.  The client must understand what the potential costs of filing and prosecuting a lawsuit will likely be.  The answer to this question is critical in the potential clients’ decision to retain our law firm or any attorneys.

Of course, when our clients are on the defense and a lawsuit has already been filed, all bets are off and a law firm is needed ASAP.  In Texas, once a client has been served with a lawsuit and is now designated as a Defendant in a Texas State or Federal Court, immediate action needs to be taken whether we simply file an answer to avoid a default judgment or other court paper seeking to throw out the lawsuit at the very beginning of the case.  For example, if the Plaintiffs’ claims have no basis in law or fact, we will attempt to throw out the entire lawsuit by filing what is known as a Motion to Dismiss or Motion for Summary Judgment.  These are powerful tools available to both Plaintiffs and Defendants and we use them aggressively and frequently when warranted.

Assuming the Clients receive an affirmative response to the above questions number one and two, the conversation becomes more comprehensive and refined.  An experienced litigator in Texas, Austin, Dallas, Houston, Midland, Odessa, Lubbock, Amarillo, and Abilene should be able to answer the following question in short order:  What is the recommended legal strategy to win my case whether I am the Plaintiff or Defendant?

Always ask this question!  If the lawyer looks down, befuddled, or even upset – say a fast goodbye through the nearest exit door.  An experienced attorney and law firm should be able to articulate a successful litigation strategy whether you are on the offense or defense.  And it should be in excruciating detail.  Here are some questions to ask in evaluating whether your attorney knows what he, she, or it is talking about:

For Plaintiffs –

  • Please specify the legal claim that I have. Examples include breach of contract, breach of fiduciary duty, theft, fraud, misappropriation, conversion, interference with contract, defamation, libel, etc.
  • What are the likely defenses the defendant will come up with? Examples include failure to state a claim, no proof of damages, failure to have all of the elements of a recoverable legal claim, affirmative defenses available under state law, etc.
  • If I file a lawsuit, will the defendant file a counterclaim against me in my own action? This is critical as clients almost always fail to understand that once you open the litigation Pandora’s Door, the defendant can file a lawsuit against you in your own case which is called a counterclaim.
  • What is the discovery strategy? This relates to the information gathering necessary for your attorney to prove up the case and includes requiring the adversary to produce documents, answer written questions, and be subject to examination at a deposition.
  • How long will the lawsuit go on before it is resolved? This is the big one and watch your potential attorney’s reaction.  Are we talking about a few months or a year?  How about multiple years?  Ask the question and make sure the answer is loud and clear.

For Defendants- If you are the party being sued in Texas, Austin, Dallas, Houston, Midland, Odessa, Lubbock, Amarillo, and Abilene, you need accurate and rapid answers ASAP from your attorney and law firm.  Here are a few:

  • How strong is my defense to their legal claims? This is the big one.  Your lawyer and law firm must know the answer without a lot of time and research based on legal training and experience.  Whether the claim against you or your business relates to business, intellectual property, partnership agreements, shareholder agreements, vendor agreements, disputes with customers, etc., you need a yes or no answer to the question as to the strength of your defense.  In plain English simply ask your lawyer or law firm whether you are likely to win or lose.  Again, watch the reaction of your potential attorney and firm and hit the exit door running if she, he, or it falters or looks down.
  • Should I be pursuing a settlement of the claims against me through mediation? You must ask this question at the very beginning and the answer relates to how your lawyers come out on the first question above.  If your defense is weak and you are likely to lose, it is usually a good idea to consider settlement before dollars are needlessly wasted.  Bringing the parties before a neutral mediator is often a good course of action if your defense is weak or non-existent.

Choosing a litigation attorney or law firm is the most important decision you will make whether on the Plaintiff or Defendant side of the courtroom in Texas, Austin, Dallas, Houston, Midland, Odessa, Lubbock, Amarillo, and Abilene.  We at Moster Law Litigation recommend that you confront your potential attorney or law firm with the above questions.  Listen carefully to the answers to our suggested questions before you decide to hire or pass on potential counsel in Texas.  Your financial security and critically, peace of mind, will depend on it.