Tuesday, November 13, 2012

Preparation Prior to Prosecution

Filing a law suit should never be done without first carefully considering several factors. First and foremost, one must be certain that their issue indeed requires legal action. More often than not, issues between parties can be resolved without taking official legal action. Only when parties cannot work things out amicably should a law suit be considered.

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

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