Part 4: Who Is the Potential Defendant?

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Who do you want to sue? This person or group will be the defendant. Who this is matters in deciding whether to sue. In this post, we’ll explore why this matters. Some people are immune from suit, and a lawsuit is not a viable option. Sometimes the person you want to sue has no money, or is about to file for bankruptcy, and you have no chance of collecting any judgment you may get. Or the defendant may have a reputation for fighting lawsuits tooth and nail, or their lawyers may have a bad reputation. Factors like this can make a big difference.

Government

In some civil rights cases, the person on the other side is likely to be the government, or more likely, a government representative. Lawsuits against government officials have their own unique challenges. First is immunity, which means that the person or entity cannot be sued. At least two different kinds of immunity come up when trying to sue “the government.”

The first is called “sovereign immunity.” States cannot be sued without their consent, and they don’t always consent. This includes state agencies, such as the Department of Human Services, or the Department of Education. This starting point makes it difficult (and sometimes impossible) to bring lawsuits against “The State of Colorado” or “The Colorado Department of Human Services.”

Second, government workers, who can be sued, often have “qualified immunity” for the work they do for the government. Qualified immunity does not always prevent a lawsuit, but makes it harder to sue government workers for run-of-the mill mistakes, even when those mistakes cause harm to people. To get past qualified immunity takes a great deal of time and complicated legal writing.

If you can get past immunity—and often you can—another issue with suing the government is that it basically has unlimited resources to defend itself. It usually has its own “in-house” lawyers who will defend its actions, no matter the cost, or it can pay for outside counsel. Government can access nearly unlimited resources from the taxpaying public.

Suing the government, however, is not all negative. Benefits included the fact that there are more claims (because of the constitution) against the government. And suing the government can bring about public policy changes in a way that suing a private party will not. Often, attorneys who are willing to go to the effort to sue the government are passionate about creating important changes. Another benefit is that the government’s records are supposed to be public, making it easier to get at least some information about your case.

Judgement-Proof

Consider another scenario. Maybe you have a great claim against a contractor who did a shoddy job with your kitchen remodel; but you know, that the guy’s business is about to go under. Though you may win your claim, you will have invested time and money with no prospect of ever getting paid. This may make you think twice.

On the other hand, where an insurance company is involved and will cover a loss, you may not have to worry about getting paid if you can prove your claim.

Reputation (or the Lawyer Representing Them)

Does the company, individual (or lawyer representing them) have a reputation for making litigation miserable? Sometimes, the particular defendant or attorney can make a difference as to whether litigation is a tolerable experience. You may not know the answers to these questions prior to filing a lawsuit, but if you can find sources of information, or your lawyer has dealt with them, that can help. Evaluating your opponent is a strategic part of deciding whether to litigate.