Suing a relative might seem like the ultimate faux pas, but there may be times when it is the right thing to do. When a family member’s negligence or careless behavior causes serious injuries or death, suing may be the only recourse. If there is considerable disagreement about how an estate should be handled, it might be time to call an attorney. Filing a personal injury claim or wrongful death lawsuit against family members comes with complications not experienced when you sue a stranger. The same is true of initiating legal action during estate settlements. No matter the reason for the impending lawsuit, here are some things to consider before you hire an attorney to litigate the matter.
Just because you can sue a family member does not mean legal recourse is the correct action to take in all situations. Hurt feelings and longstanding disagreements can fester over time, leading to strong emotional responses from those involved. Unless accompanied by some sort of injury or property damage, these disputes typically cannot be litigated. Consulting with an attorney about the situation can help determine if legal action is appropriate. Lawyers can investigate the matter to verify whether there is enough evidence to support a legal claim.
Litigation takes time, effort, and money to pursue. Legal counsel representing both sides of the case charge attorney fees to cover their professional services. Expenses associated with investigating the case and filing official documents with the courts also can add up quickly. Even when an attorney represents you for a contingency fee, their share of any award can eat into your takeaway money if you win your case. A common contingency fee for these types of arrangements is 40 percent.
When filing a lawsuit, it is wise to consider whether the family member you are suing can pay if damages are awarded. Damages are monetary awards paid to claimants as compensation for loss or injury. A judge or jury determines the total damages if a case is decided in the claimant’s favor. Even when claimants succeed in their lawsuits, it is not a guarantee they will collect. If the family member they have sued does not have the money to pay, it can launch a long and painful process to collect what is owed.
Court judgments give creditors (the person who is suing) the right to request execution from the court. When granted, a court execution allows an enforcement officer like a county sheriff or city police marshal to seize the person’s assets. Liens on property and garnishing of wages are other methods the courts use to ensure a creditor is paid damages in full. The downside to this is it may take a while to receive the full amount awarded, if ever.
An important consideration is whether pursuing civil litigation against a family member will cause greater conflict. If the relationship you have with the family member you intend to sue has deteriorated to the point you no longer care if it can be salvaged, then proceeding with legal action is appropriate. You also must consider the impact litigation will have on other members of the family. If suing your family member will cause others in your immediate family to treat you differently or refuse to continue a relationship with you, it might be worth pursuing options outside of legal recourse to settle the dispute.
Suing a family member should be a last resort. For cases involving small sums of money, small claims court may be a better approach. Other possibilities include taking the dispute to a mediation attorney. Hiring a mediation lawyer is one of the most effective ways to settle a disagreement without dragging it into the courtroom. Mediators listen to both sides of an argument and help parties come to a resolution that both sides consider fair. Finding a solution outside the civil litigation process benefits both parties.
Knowing what to do can be difficult, which is why consulting with an experienced attorney can help. Ron Archibeque is licensed to practice in Arizona and New Mexico. He can review your case during a free initial consultation and advise the best course of action. Give him a call today at 505-750-2363 or contact him online to schedule an appointment.