Clients often ask me what they can do to avoid the burden and expense of litigation. They hope that, if they follow my advice, they can avoid a lawsuit. Unfortunately, litigation is unpredictable, and I cannot say for sure whether someone will be sued. But I can give some advice about the likelihood of a lawsuit.

Why should you read this post about predicting the likelihood of litigation?

  • You want to know why your lawyer won’t give you a straight answer to the simple question, “Am I going to get sued?”

  • You prefer to be informed, even if there is some uncertainty.

  • You are waiting for your food to heat up in the microwave and need to occupy yourself for a small period of time.

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People Can File Lawsuits Even If They Are Likely To Lose

While lawyers can advise clients about the strength and weakness of claims against them, that analysis really concerns how a judge or a jury may view the claim. But a judge or a jury does not need to approve of a claim before a plaintiff files it. Instead, plaintiffs can file nearly any claim they want to start a lawsuit.

There are numerous examples of completely nonsensical claims that plaintiffs have submitted to court, and each of them technically started a lawsuit. A mentally ill person sued numerous defendants, alleging she was a cyborg with information about a slavery conspiracy. A former president sued a laundry list of people, alleging a conspiracy to make up connections with Russia. A beer drinker sued a brewer, alleging its beer did not help him attract women.

Because people can file lawsuits with no good reason, I can never tell someone that they definitely will not get sued.

Sometimes courts dismiss these cases on their own, as one did with the cyborg case. But often, defendants need to respond to frivolous lawsuits and explain why they are meritless to avoid the risk that the court enters a default judgment. This costs money and takes time.

Rational Plaintiffs May Only Sue If They Are Likely to Recover More Than They Will Spend

Although I cannot predict what many plaintiffs will do, I can advise people on what a rational plaintiff would do. And rational plaintiffs would not spend more money on a lawsuit than they are likely to recover. With that principle in mind, I can advise clients about which lawsuits are likely to be filed and which ones are not.

A rational plaintiff will likely not sue someone with no money or limited resources and who is not insured by an insurance policy. This is because that person is unlikely to have enough money to pay the plaintiff more than the cost of a lawsuit if the plaintiff wins. And so, even if the plaintiff has a good case against a poor defendant, a lawsuit may be unlikely because it is unlikely to be profitable. This analysis changes, however, if there is an insurance policy that may cover the dispute, which would provide money for a successful plaintiff.

A rational plaintiff is also unlikely to sue for less than the cost of a lawsuit. If someone stole $10,000 from a company, and the company knows that a lawsuit against the person may cost more than $10,000, it may not make rational sense for the company to spend more than $10,000 for a chance to maybe recover $10,000. This analysis changes, however, if there is a contract or law that governs the dispute that says that the loser pays the winner’s attorney’s fees and court costs. Laws like these typically arise in employment and civil rights cases. In those situations, it may make sense to sue for a relatively small amount of money since the other side may pay for the lawsuit.

A rational plaintiff is also less likely to litigate in an inconvenient forum, especially since that adds to the cost of a lawsuit. If a plaintiff can only sue a defendant in a distant state or foreign country, the odds of a lawsuit diminish.

Some Plaintiffs Have Different Goals

Not every plaintiff has the sole goal to recover more money than they spend on legal fees. This may inspire them to file lawsuits with different objectives.

Some file lawsuits to vindicate a particular right or make a statement. For example, Taylor Swift sued a man that assaulted her, but only sought a small amount of damages. The amount she spent on legal fees likely exceeded the amount of her recovery, but the suit was rational because it was worth the money to her to establish the defendant acted wrongly and to shame him and hold him accountable for his misconduct.

And sometimes, lawsuits are meant to provoke a settlement more than they are meant to succeed on the merits. There is one company that has a business practice of suing people who download its pornography and then settling with defendants. This company files numerous lawsuits, but virtually never takes a case to trial. Its goal is to get settlements. The economics of cases like these are different: it does not seek to make a hefty profit on any one case, it seeks to aggregate cases and make lots of small profits. And since the claims are largely similar in each case it brings, the marginal cost of each additional case is low since it can re-use the work it performed drafting pleadings and doing legal research for previous cases. This is true, even if the plaintiff is not confident that it would actually succeed at trial.