By Phillip Addis —
Congratulations, you have decided lawyers are not all bad.
You have hired your own Paladin to help you. Now you are ready to do battle in a court of law … or are you?
Before you decide to wage battle, you first need to answer: To sue, or not to sue—that is the question.
In Act III of Shakespeare’s “Hamlet,” the title character fills a well-known soliloquy weighing the merits and faults of suicide. He laments the injustices of life while acknowledging the permanent and drastic nature of the alternative.
Though he was thinking about his father’s murder and the questionable loyalty of his beloved Ophelia—not lawsuits—Hamlet was on the right track. Just like life, court cases can seem unfair.
There are many times we may feel someone wronged us, and we contemplate a lawsuit to balance the scales or exact vengeance. Before we make that decision, there are many factors to consider.
Lawsuits in real life are not like TV shows. The cases are not decided in 60 minutes (or less time with commercials). Evidence does not appear to save the day. Witnesses seldom break down on the stand. Major cases often take years to reach a resolution.
Let’s look at a typical case. The plaintiff (that’s you) loans the defendant money, and the defendant never pays you back. You get tired of asking for the money and decide to sue them. This seems like an open-and-shut case: You loaned the defendant money, he or she did not pay you back, and you want your money.
Wait a minute. Instead of agreeing they owe you money, the defendant claims you never loaned him or her any money. Perhaps the defendant admits you gave them money but insists it was a gift. The burden is on you, the plaintiff, to prove you loaned—and did not gift—the defendant money.
Did you have the defendant sign a note or document of any kind, promising to pay you back? No.
How about an email from the defendant promising to pay you back? Negative, again.
How about witnesses who saw you give the defendant the money and heard the two of you agree it was a loan? Strike three.
You most likely just lost your case.
Even though you may be right and did loan the defendant money, your word is not good enough. When you bring a lawsuit, the burden is on you to prove every part of your case. If you cannot prove it, then do not go to court.
As unfair as it may seem, that is our court system, and it does work. Though I have no doubt all L.I.N.K. Magazine readers are very honest people, there are dishonest people in our world. By making the plaintiff prove the case, it helps balance the scales of justice.
Prince Hamlet was correct. Sometimes life is unfair.
Phil Addis is an attorney practicing in La Crosse, Wisconsin, and is also affiliated with the DeWitt Ross Law Firm, with offices in Madison, Milwaukee and Minneapolis. He admits to watching Perry Mason every day after school growing up, but he still cannot figure out how to end a case in 60 minutes, less time for commercials.
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La Crosse, WI 54601