“Can I Sue?”

“Can I sue?”

This tops the list of questions most frequently asked of attorneys.

But it’s the wrong question.  The real test is whether a feasible, viable claim strong enough to warrant recovery exists.  Hypothetically if the papers are able to be filled out and the technical requirements met then in the meaning of the word, one ‘can’ sue.

But without basis for the suit and solid grounding in a legally recognized cause of action any case stands a high likelihood of being kicked out by a judge or jury.

Must Have All Elements of a Case

In every case where negligence is claimed, four elements must be established:

1)      Duty

2)      Breach of that duty

3)      Causation of harm, and

4)      Damages.

Even where duty and breach of duty are relatively clear, for example a motor vehicle operator runs a red light and strikes a car, without significant damages caused by that accident, there’s no case.  You must have all four elements.  In a case where an individual falls in a store or other commercial establishment and sustains even a serious injury, if there’s no explanation for how the store breached a duty, there is no feasible valid claim.

Without All Elements, Case Will Fail

In the above two examples, one “can” sue.  But, at the same time, the cases face a high likelihood of failure at some point for lack of a solid legal foundation.

Legal purists might point out that I’ve simplified the analysis.  However, this accurately summarizes the requirement of having all elements of a recognized cause of action in order to have a sustainable legal claim.

Duty of Good Faith

Finally, all documents filed in a court of law must be in good faith.  Sanctions can be imposed for frivolous suits or cases filed for an improper purpose.  This obligation is imposed by Rule 11 of the Federal Rules of Civil Procedure, and nearly all state courts have their own similar mandates.

How do cases get dismissed after they’ve been filed?  Click here.

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