There Are Two Parts To Every Case

Over the years in meeting with thousands of clients and prospective clients I have learned that many people fail to understand the two distinct yet equally important parts of almost every lawsuit. From the moment a lawsuit is filed, your lawyer will begin preparing the case for trial, which involves gathering information to prove liability and damages. Proving liability means that you must show that the opposing party is at fault or legally responsible for what happened to you. Proving damages means that you must be able to demonstrate that you were damaged in a compensable way by the person who is liable.

Importantly - and this is a concept many people find hard to understand - if one of these elements is missing or deficient you may not have much of a case, even where the other element can be easily proven. For example, in the employment law context, if you are wrongfully terminated in violation of a clear State or federal law and there is substantial evidence to show the termination was unlawful, the liability element may be easily satisfied. But if after that wrongful termination you are hired a week later by another company at a higher salary, you're going to have a hard time proving damages.

Simimlarly, I can't count the number of people who protest that they have been significantly harmed and that should be enough. Perhaps unfortunately, the existence of harm or damages is not enough. If, for example, you are fired and that causes you to lose your savings, your car, your house and even your family, that does not mean you have a claim against the employer who fired you unless you can prove that termination was somehow illegal.

In summary, in most cases neither liability nor damages alone is enough to present a meritorious case. You've got to have both and you've got to be able to prove both. Developing that proof is part of what happens in the discovery phase of most lawsuits, where both sides seek information from the other side in an official manner and indepently develop and disclose the evidence that will support their claims.

It is important to develop the evidentiary and legal basis for your claims as soon as possible. Although many cases settle before trial your settlement position will be much stronger if your case is trial ready. This means that both lawyers and litigants should be thinking about liability and damages from the very beginning to ensure that the claim has legal merit and makes sense to bring.