Litigation is hard. It can consume so much of your time and energy. Even before you actually get to trial, there is usually months and months of work. So before you start this process, take some time to figure out if you actually have a case. Just because you have suffered a harm, does not mean someone else is legally obligated to compensate you for it. Taking a few preliminary steps can help you avoid wasted time, energy, filing fees and other* expenses. At a minimum, you will want to make sure you have a cause of action, the (proveable) facts to support it and an available remedy that makes sense for you.

A note on limitation periods - if you are coming up on a deadline, file a lawsuit as quickly as you can, as best you can. Know that you can amend what you file once you have a better grasp of the facts and law. And if you do so prior to serving (you have some leeway in serving the defendant after filing a lawsuit), you can do so without needing permission.

But otherwise, take some time to consider the following before you file: it will save you time, energy, and money.

Cause of Action

What people tend to think of as their "case," is called the cause of action. It is your claim for a legal remedy against a person or persons, due to their actions, or their failure to act, or perform a duty or obligation they owe to you. Your right to this claim has to be rooted in the law and must have the factual underpinnings to support it.

If the cause of action is not clear, you will have to do some research. Be prepared to learn more than you end up needing, in order to find the parts of the law that are relevant to you. Start broad with general legal information. As you learn more, you will be able to narrow down to your specific issue(s) and cause(s) of action. This website is a free online source of broad legal information that can help you start to find your cause(s) of action.

In addition to your cause of action, you will want to identify the individual elements of of what you will have to prove.

For example, to make out a claim of defamation, you would have to prove:

1. somebody communicated something
2. that something was about you
3. that something would tend to lower your reputation
4. that something was heard or read by somebody else
   

You will also want to research the defences to your cause of action to anticipate your opponent's case. You should be able to find at least the cause of action, its basic elements and possible defences with this early broad research, but you will likely need to drill down further into case law to understand the nuances in the law and to find sufficient support for your case. However, once you have identified the cause(s) of action, basic elements and defences, you can move on to the next step.

Factual Basis

Next look at the individual elements of your cause(s) of action and list all the (proveable) facts that fall under each element.

For example, for defamation a communication is required, so under that element you could write "voice message from person A to person B on date X." Generally, you will want at least one fact per element, but the more the better. If you are not confident you can prove a given fact for a given element, it is good to have more than one. You can try to do this for the defence as well, although at this stage there may be facts of which you are not yet aware.

If one element cannot be made out, you might not have a case, but it could also be a sign that you need to do more research. Are there any exceptions to the general rules of this cause of action? Could there be a similar but slightly different cause of action that could entitle you to a different remedy?

Remedy

And finally, you will want to make sure that your case has a remedy. A remedy is simply a solution or course of action that is available to a person who has been wronged or suffered harm. Identifying which remedies might be available to you is another part of your preliminary legal research. If there is a range of remedies, you will want to get into the case law where you can see what remedy other people in similar circumstances to you have been awarded.

And even if you are theoretically entitled to a certain remedy upon winning your case, you have to ask yourself if it is worth it for the amount of time and effort you will have to put in. And you should be frank with yourself about your chances of recovering said remedy even if you are successful: you can't get blood from a stone. Just because you have won your case, does not mean you have the money in your hands. You have an order for money, and you might have to start a second proceeding to enforce that order.

So take some time to think: given this particular defendant, the amount and type of remedy available, and your chances of success, is litigation worth it? You are the only one who can make this decision (although you can seek out advice to help).

Final Thoughts

If you find that you do not have a case, or a remedy is not available or you decide that it is not worth the trouble, consider whether there are other avenues for some kind of remedy. Is there a government agency or program meant to compensate people like you for the kind of harm you have suffered? For example, perhaps you do not have a wrongful dismissal case against your employer, but you might be entitled to employment insurance benefits to compensate you for your loss.

Finally, if it looks like you have a case, but you think you have actually blown the limitation period completely, again, file your lawsuit as quickly as possible, as best you can, and then perhaps consult a lawyer. There are some arguments that can be made and circumstances that can affect the limitation period; but time is of the essence, so spending a bit on a lawyer on this one issue could make a huge difference.

* If you file a lawsuit and the defendant(s) are able to have it dismissed or have the claim against them dismissed, you could become liable to pay their legal costs.