What can I discuss with lawyer in deciding whether I should negotiate first or commence a lawsuit?
Updated: Apr 1
Written by: Danna Shan (law student) and Alfonso Chen
This article sets out a few considerations that you can go over when discussing your civil dispute in B.C. with your lawyer. Due to the uniqueness of each case, some of these considerations may not be important or relevant to your case. You must go over each of the considerations mentioned in this article with your lawyer before you know how relevant it is to your case.
Without limitation, set out below are a few considerations for you to go over with your lawyer in deciding whether you should negotiate first or commence a lawsuit without negotiating for your civil dispute file where you are claiming that the opposing party is liable to you. To note, there may be other options besides negotiating with the opposing party and commencing a lawsuit against the opposing party, which you should seek advice on from your lawyer.
1. Expiration of the Limitation Period
A limitation period, which you should discuss with your lawyer, may apply in your case to limit the time you have the right to sue. If your right to sue is about to expire, and if you would lose the right to sue after the expiration, then you may not have enough time to negotiate, which involves back-and-forth communications that might take months to complete. As a result, your lawyer may recommend you to commence a lawsuit immediately if the limitation period is set to expire soon.
2. Willingness to Negotiate
Whether a negotiation is successful or not often depends on how much the parties involved are willing to negotiate. If the opposing party has already asserted positions of not being liable for what you are claiming they are liable for and of their unwillingness to negotiate with you, then, in certain cases, it may only waste your time to send an offer to the opposing party.
3. Permanent Move Away from Canada
If the opposing party is about to permanently leave the country, then you may want to commence your lawsuit and effect service on the opposing party before the opposing party leaves. Otherwise, it may be difficult to find the opposing party; other consequences may also result.
4. Legal Expenses
The legal expenses for successfully negotiating with the opposing party is often less than that for legal representation from commencement of the action through to the completion of the trial. As a result, if there is a good chance that you can successfully negotiate a deal without even commencing a lawsuit, then it may make more sense to attempt to negotiate with the opposing party first.
Each case is unique and deserves a one-on-one discussion between the client and the lawyer. It is possible that in your case, you should neither negotiate nor commence a lawsuit, since you might not have a claim at all. However, in some cases, it may be clear to your lawyer after considering factors, including the aforementioned, which is the better option. Our lawyers often assist clients in identifying the strengths and weaknesses of choosing certain options in civil dispute files and would be happy to assist you and to protect your best interests.
If you have scheduled an appointment to visit our firm, we warmly welcome you and look forward to assisting you to resolve your dispute.
Alfonso Chen is a litigation associate of Henderson & Lee. His practice mainly involves civil litigation and criminal defence matters.
Danna Shan holds a Master of Law degree from the University of Cambridge and is presently a law student at the University of British Columbia.