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Springfield Business Journal Articles
Sarah Delano Pavlik and Tom Pavlik write a monthly column on legal and business issues for the Springfield Business Journal.


Their columns will be added here each month after publication.
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You’ve been wronged, and you want to file a lawsuit to make it right. Before doing so, you need to analyze the costs and benefits of going to court. What are your damages? What are the estimated legal fees and costs? What is the likelihood of success? Clients will often call us to discuss claims for small amounts such as $1,000. Even if the case is an almost guaranteed winner (nothing is court is a sure thing), it may not be worth it to pursue the claim, at least using an attorney. You can easily incur $1,000 of attorney fees, meaning you went through the aggravation of a lawsuit for nothing.

In America, the general rule is that each party pays its own legal fees regardless of the outcome. Our rule is different than the English rule where the loser pays the winner’s attorneys’ fees. Although the English rule has its appeal, it can seriously limit access to the judicial system for low-income clients. Such clients may be able to find an attorney to represent then pro bono, for a reduced fee or on a contingency basis. They may have a valid claim but cannot risk being liable for the defendant’s legal fees.

There are exceptions to the American rule. Certain statutes, such as those regarding discrimination claims, provide that the losing defendant must pay the plaintiff’s attorneys’ fees. Attorneys’ fees can also be addressed by agreement. It is common provision in contracts that if the matter goes to court, the loser will pay the winner’s attorneys’ fees. Notwithstanding such a provision, the court has discretion in ordering the payment of attorneys’ fees. And it may not be clear who the winner was in the litigation if the plaintiff prevails on some but not all of his claims.

In evaluating the cost/benefit of a claim, one factor to consider is in which court the claim will be filed. If you are seeking damages of less than $10,000, you can file your claim in small claims court. The process is simpler and generally faster than filing in the circuit courts. You can also represent yourself. Individuals can represent themselves in any Illinois court, but corporations generally cannot be represented by an owner or employee – a lawyer is required. However, a corporation can represent itself in small claims court. Although county employees cannot give legal advice, the Circuit Clerk’s office does offer fill-in-the-blank forms you can use for various matters, including small claims. You will still need to present evidence to the court, which can be tricky. Discovery in small claims (the legal process where the parties gather information by means of written questions, depositions, etc.) is very limited, which also can reduce the costs but possibly harm your case. You will also need to serve the defendant with process. This can be done by the Sheriff’s office. For more information regarding small claims cases, go to http://www.ag.state.il.us/consumers/smlclaims.html.

Claims less than $50,000 can be filed as a law magistrate case. As with small claims cases, the discovery process is limited and you may be able to handle the case yourself. Of course, the more you have at stake in the lawsuit, the more beneficial and cost effective a lawyer can be.

Claims over $50,000 filed in state court must be filed in the Circuit Court. In Circuit Court, full discovery is available, and the rules of civil procedure are enforced. In Circuit Court it is best to be represented by counsel.

One additional possibility is to file in federal court. Federal courts are courts of limited jurisdiction. They can only hear claims that the Constitution or statutes allow them to hear. Federal courts can hear two types of claims – questions of federal law and diversity cases. Questions of federal law involve constitutional questions, federal statutes, suits against the federal government or disputes between states. Diversity jurisdiction involves parties from two different states or between a United States person and a foreign citizen. In such cases, a party is allowed to file a case (or remove a case to federal court from state court) in order to avoid a “home field advantage” for one party over the other. Federal diversity cases must have an amount in dispute of at least $75,000. Federal courts have their own rules of civil procedure and are generally the most strict regarding the rules, including deadlines.

In addition to the dollar thresholds for various courts discussed above, any court in which you file must have personal jurisdiction over the defendant. For example, if you are on vacation in Florida and are in a car accident, you cannot sue the other driver in an Illinois court unless that party also lives in Illinois or spends time in Illinois.

Before you decide to file a lawsuit, and especially before you decide to represent yourself, you need to consider your options regarding which court is available to you and what amount of discovery you will need. Only then can you decide if the lawsuit has merit and if you need representation.

by Sarah Delano Pavlik
Posted in: November, 2009
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