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Preliminary Considerations and Procedures

Cause of Action

Time Limitations

Determining the Existence of a Cause of Action

Cause of action—legal right to recover damages

Elements of a cause of action

The defendant must have a duty of due care toward the victim.

That duty must have been breached.

The defendant’s careless act must be the actual cause of the damages.

The defendant’s careless act must be the proximate cause of the damages.

Damages must have been sustained.

Feasibility of the Lawsuit

Even if cause of action exists, a lawsuit may not be practical.

Determine the cost of litigation

Review the damages suffered by plaintiff

Research the defendant’s ability to pay a judgment

Turning Down a Case

If an attorney turns down case, this must be communicated clearly to client.

In writing

Careful about stating opinion

Advise client of statute of limitations

Time Limitations

Statute of limitations—time limit for filing a complaint

Unless a case is filed within the appropriate statute of limitations, it will be dismissed, regardless of its merits.

Calculating statute of limitations

Tolling the statute of limitations

Time Limitations (cont’d)

Claim statutes

Laches—an equitable principle that prevents lawsuits from being filed when, in fairness to the defendant, too much time has elapsed, even though the statute of limitations may not have expired

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