If an amicable agreement cannot be reached, a person must
then make the important decision as to how to proceed with resolving their
legal conflict. The first thing one should consider is whether or not they have
standing to bring about a cause of action. To have standing, one must have a
“stake” in the matter at hand. If, for example, a person is hit by a car and
the other party is not willing to take responsibility for their negligent
actions, the injured party would have standing to bring a cause of action in
court. However, if the injured person’s friend who was not involved in the
accident wishes to sue on their behalf, they would have no “legal stake” in the
action and therefore no legal standing.
Once standing on a given matter is established, one should
consider whether they are going to represent themselves or hire an attorney. In
certain circumstances, one can apply for a public defender at no charge if they
financially qualify. However, assigned counsel typically applies only for
criminal and family court matters. If you choose to represent yourself in a
legal matter, you are considered pro se.
Next, the proper venue needs to be established in order to
go forward. A party needs to determine
whether their matter falls in the realm of small claims or perhaps county
court. In New York, the maximum amount allowed to litigate in Small Claims
court is $5,000. If your legal issue involves a monetary amount that is higher
than $5,000, the proper venue to bring a cause of action is County Court. Also,
the initiating party must consider that they must bring the action in the
county in which the defendant resides or does business.
If one feels as though they have a personal injury claim,
they again should be sure that they in fact have standing to sue and that a
valid claim actually exists. In today's society we are riddled with all sorts
of frivolous law suits. Said law suits often waste valuable time and money and
ultimately cause more harm in the long run. Personal injury law is a very
specific and specialized area of law. If one feels as though they have a lawful
claim against another party, it is recommended that they consult with an
attorney that is well versed in this area of law.
Another area of law that is a "hot bed" for
litigation is family law. This is a very emotional area of law since it
involves children, custody, and other domestic issues. Here, when a dispute
arises between rival parents or family members, people often "fly off the
handle" and are quick to march down to their local Family Court and file a
petition. With Family Court, it is relatively easy for a person not familiar with
legal procedure to file a petition for a cause of action because the forms are
readily available at the court clerk counter and are "fill in the
blank" format. Here, once a petition is filed, it is processed and the
case is put on the court calendar. A Law Guardian, also known as Attorney for
the Child(ren) is then automatically assigned to the case by the presiding
family court judge. The Law Guardian, by law, must personally meet with the
children prior to the case to assess the situation and ultimately look out for
their best interests. Since a family court action is not taken lightly in the
eyes of the law and because it is multi faceted to say the least, it is highly
advised that litigants work their problems out amicably prior to filing said
cause of action. Mediation is also an avenue people can go down if they cannot
work things out themselves. This process is a bit less strenuous on the
children and the parties in general.
People also need to consider whether or not the issue to be
litigated is actually worth the time and effort. For example, if someone owes
you $100 and you go out and spend $500 on legal representation, it does not
make much sense to pursue the issue in this fashion. Perhaps a better forum
would be to attempt to work out the problem outside of court or maybe “let it
go” all together.
Martin A. Carbone, Esq.
Carbone & Carbone LLP
