Considering a Lawsuit? Here are Common Mistakes to Avoid

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  Michael McCluskey
  Lawyer

This article was written by journalist Lauran Sabourin for Guelph Today and can be found here.

Lawyer Mike McCluskey breaks down the missteps that can weaken your case and your chance at success 

Many people consider legal action, only to discover that avoidable common mistakes can quietly undermine even the strongest claims. Mike McCluskey, a litigator at McKenzie Lake Lawyers in Guelph says, “The process is more complex than it may appear and overlooking key details and issues can have lasting consequences.”  

Don’t Let Emotions Drive Decisions 

Litigation is often driven by frustration, anger, or the need to make things right after someone else’s actions has caused a loss or harm. Those emotions are human in the moment but as Mike McCluskey points out, “Emotions as the primary driver to commence litigation is never a good idea because emotions fade and perspective can shift over time. Taking a breather, and revisiting the issue in a month is a good starting point.”  

A lawsuit involves both an emotional and a business perspective and if you can tilt the scales toward the business decision, it could put you in better position for resolution. McCluskey adds, “Litigation does not need to be option A, because there are other ways to resolve a dispute to reach a compromise.” 

Don’t Overlook Early Resolution 

There’s nothing wrong with resolving a dispute before starting a lawsuit. Resolution depends on cooperation from the other side. When the other party won’t engage, negotiate or offer a meaningful compromise there is little you can do other than commence a lawsuit. As McCluskey points out, “If early resolution is not possible, give a lawyer a call because you may have reached the point of diminishing returns in your attempts to be reasonable. And in those cases, litigation is a good option for you.” McCluskey stresses, “Once you see smoke, that’s a good time to give me a call. Don’t wait until we’re into flames and a full forest fire. Even if you’re only smelling the smoke, give us a call because we can act as your fire extinguisher before it becomes a problem.” 

Negotiate Freely “Without Prejudice”  

If you want to explore resolution, send the other side an email or text with a note that says “without prejudice.” Those words allow the parties to make offers or concessions without fear the communications will be used against them if the case proceeds to trial. McCluskey says, “It allows you to be open and candid and prevents the other side from using the resolution proposal as some sort of admission of liability.” 

The courts and lawyers want people to try to resolve disputes. In fact, a very Canadian law called the “Apology Act” stipulates that if you say “I’m sorry,” the other side cannot rely on that as an admission of liability or guilt. 

Think Before You Hit Send  

It’s easy to fire off emails or texts in the heat of the moment, but those words may come back to haunt you. What you put in writing may be scrutinized by the court to determine who has more credibility. Mike McCluskey’s advice, “Take down the temperature when putting something in writing and assume it will be read by a judge. Everybody should give themselves 30 seconds to review what they’ve written and ask themselves, do I want a judge reading this email.” 

No Contract, No Protection 

Early conversations in a business relationship are where clarity is established. At the outset, Mike McCluskey says, “People are hesitant about having everything documented properly because they fear they will create the impression that they are “high maintenance” and get what I call the ‘high maintenance surcharge.’ They will do handshake deals and believe if they’re easy to work with, it will translate into discounts.” 

However, negotiating price, defining the scope of work, and agreeing on timelines protects both sides and keeps expectations aligned. Professionals don’t penalize clients for being thorough, they rely on it. McCluskey adds, “Not wanting to appear “high maintenance” at the beginning can turn into a nightmare when mutual expectations are unclear. And of course, everyone is ‘high maintenance’ once a dispute develops. In a ‘breach of contract’ dispute, the contract trumps any credibility arguments.” 

Get Legal Clarity Early  

Many people think they should only call a lawyer when it’s time to sue. But if you’ve negotiated a resolution on your own, a lawyer can review it, confirm it’s fair, and flag if you’re leaving money on the table. 

 They can also draft a release and documentation so the agreement is binding and complete.  

Collection Could Be a Problem 

Before investing in litigation, ensure the defendant is solvent. A judgement is only as good as the ability to enforce it.   McCluskey says, “If you’re dealing with someone with no assets, no money, and doesn’t have a job, then you may be throwing good money after bad. It’s something to consider before pulling the trigger on a lawsuit. A lawyer cannot guarantee payment following a court order, but there are certainly red flags we can identify early in the process.”  

A Long Road to Trial  

Once a lawsuit begins, there are a series of steps, with the final being the trial. And trial dates are difficult to get in Ontario. McCluskey says, “It often takes years before you’ll get in front of a judge. That’s just the way it is. Understanding that, your expectations will be aligned with reality.”  

Having the right legal perspective can make all the difference. Mike McCluskey brings extensive experience and practical insight that can help people assess their next move. He can evaluate if litigation is in a person’s best interest and flag potential risks while working to achieve the best results for his clients.  

Conclusion

Contact Mike McCluskey at (519) 826-4333, email: Mike.Mccluskey@mckenzielake.com.