When Does it Make Sense to Sue?

18 05 2015

Many, many of you have called me and emailed me about unfortunate experiences you have had in the horse world. For some of you with excellent factual scenarios and supportive law, I offer encouragement, you engage our firm and we together dive into the facts and circumstances and work towards getting you out of the situation in a better position than when you started – either through settlement or litigation – or both. What you may not realize is that those clear cut situations are by far the exception, not the norm. The vast majority of the time the calls I receive involve situations where it is simply not cost effective to hire a lawyer to pursue someone in a lawsuit. We might be able to negotiate some sort of settlement with the other party involved, but making the choice to pursue litigation is a very important one and you should know the factors which should go into your decision about whether or not to sue someone.

First, look at the amount of money at issue or the monetary value of your “damage” from the situation. If someone misrepresented a $1,500 horse to you and you bought it, even if you did everything you should reasonably have done to protect yourself, it is likely not going to be cost effective for you to hire a lawyer to try to get your money back from the seller of that horse. When you ‘re talking about a $50,000 or $150,000 horse, it is a slightly different analysis, but at least when you are looking at dollar amounts of that magnitude there is the potential that with that amount of money at stake, if your case is good, it may be worth pursuing in court.

Second, look in the mirror. Did you do everything a reasonable person would or should do in your situation? If not, you could be found by a judge or jury to have contributed to the bad situation; in fact, if your contribution reaches a certain level of unreasonableness you may be found to be “contributorily negligent,” meaning your own negligent behavior contributed to (or made worse) your own damages. In North Carolina contributory negligence is a complete bar to recovery for the Plaintiff (the person suing for damages), so it is a big deal if you have done something which contributed to the situation. Even if someone misrepresented a $50,000 horse to you, it may not make sense to pursue the seller if you did not do the appropriate amount of investigation (or “due diligence”) to determine the appropriateness of the horse before purchasing. For example, a judge or jury may consider whether you had your trainer go with you to assess the horse before purchasing, whether you had a veterinarian perform an examination on the horse (including in some situations radiographs and blood tests for drugs) before purchasing, whether you researched the show history of the horse (if applicable) before purchasing, whether you had the owner or his trainer ride the horse for you so that you could see the horse’s movement and behavior before purchasing, whether you and/or your trainer rode the horse before purchasing and perhaps other steps that would be advisable in your particular circumstances. Of course not all equine disputes involve a purchase and sale transaction. Even if your conflict does not involve a purchase transaction, there are still things that a judge or jury will look to you to have done which are simple common sense, reasonable, responsible behaviors. For example, if your stable fed coastal hay to your horse which caused him to colic and die because he was allergic to coastal hay, but you did not make sure the boarding agreement noted the allergy and specified “No Coastal Hay” when this issue was such an important requirement for his health, you will likely have a problem if you try to pursue the stable as being negligent for feeding coastal hay and attempt to hold it responsible for the horse’s death. Failure to note the allergy in your horse’s boarding agreement (or lease agreement or purchase contract, etc.) could well be seen as contributory negligence on your part.

Third, assuming you win your case and get everything you want in terms of a money award (a rarity in most cases), can you collect it from the defendant(s)? Remember the old saying that you cannot get blood out of a turnip? Spending a fortune on lawyers and winning a case is great, but if you cannot enforce the judgment because the defendant(s) has/have no money, it is quite a hollow victory. Not to mention you are in a potentially worse position than when you started because you have spent a great deal of money to get a judgment that is, as a practical matter, worthless to you. So think about the collectability of a judgment if you win.

While there may be many other factors to consider in your particular situation, for purposes of this article the last thing I will mention is that you need to think long and hard about the tremendous financial and psychological toll any litigation will take on you and your family. Not to mention the inordinate about of time it will consume – time you could spend doing other more pleasant (and arguably more productive) things. Many of you have heard me analogize litigation to organizing our attic or basement or garage. It seems like a great idea at first, but once we have all the junk pulled out and strewn all over the place, we look at it, are exhausted and think to ourselves “Why did I think this was a good idea? Now I have to organize and put most of it back in there and I really do not feel like doing that because I am exhausted.” That is how most people feel after they get deep into litigation. It is miserable, even with the nicest lawyer in the world who tries to make it palatable for you. It is expensive, from both a financial and emotional perspective, and, more times than not, that money and mental energy could be instead used for something which is much more rewarding to you personally (and perhaps financially too).

So, while it may seem like the thing to do when you are feeling wronged by someone in the horse world, consult an equine attorney early on and think very carefully about whether a lawsuit is the best alternative for you and your family. You might be surprised how many times it is not. Am I talking myself out of work? Maybe, but I would rather my clients know what they are in for on the front end than to plow forward and regret it when it is too late to get out without paying a large financial and emotional price, regardless of whether they actually win in court.

If you get into a bind and need assistance or just want to ask some questions to avoid getting in a bind, feel free to email me at dburch@rl-law.com. I often will answer a short and simple question for free if you are in North Carolina and I have time and know the answer off the top of my head! Or often know good equine lawyers in other states if you need a referral. If you don’t hear back from me quickly, it’s not because I don’t love you or think you have a great question or because I don’t know the answer (usually), I’m probably just really busy and haven’t had a chance to email back. And you can always buy the first hour of my time for $250 (my usual hourly rate for 2014 is $350). Lots of folks will save up all their equine (and some corporate or real estate) legal questions and short documents and sit with me for an hour and we will do as much as we can during that hour and it’s only $250. You can check out my Twitter feed @nchorselawyer as well as our firm’s Equine Law Group web page at http://www.rl-law.com/equine if you’re interested, and yes, in addition to providing what I hope are interesting and informative stories, this blog and the Twitter feed referenced above are also (in one way or another, I guess) an advertisement for legal services.

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