California Litigation: Should I Sue Them Before They Sue Me?


Sometimes, as a dispute builds between two parties, they realize the fight is likely headed toward litigation—and, if the dispute is litigated—both sides will file claims against each other (counterclaims or cross complaints). People then ask: Should I file my lawsuit first?

First, some terminology: Assuming the lawsuits would be filed in the same court system, the initial pleading filed by the first party to file in court is called the “complaint.” The party who files the complaint is the “plaintiff.”

When the plaintiff’s opponent files their own claim, usually they will be forced to file it as a “counterclaim” (in federal court) or a “cross complaint” (in California state court). The opponent will be called the “defendant and counter/cross claimant.”

When a dispute appears headed toward litigation, some potential litigants become fixated on the idea that filing first, becoming the plaintiff, is critical. Some believe it is a necessary “show of strength”; that filing first is a psychological upper hand. Others simply can’t stand the thought of their opponent beating them to the courthouse and becoming the “plaintiff” in the lawsuit.

But is it actually desirable to file first; to become the plaintiff? The short answer is “yes’ in most cases, but certainly not all.

A few legitimate reasons to file first: it is commonly believed that the plaintiff in any lawsuit is often perceived by the judge and jury to be the more aggrieved party. Indeed, this can be true. It’s reasonable to assume that both judge and jury (probably more for a jury) may have a conscious or subconscious tendency to view the plaintiff as more motivated and, thus, more aggrieved. Conversely, there can be a perception that any counterclaim or cross complaint was filed merely for retaliatory or strategic reasons. Worse, the word “defendant” has negative connotations even when the defendant is truly blameless.

But, it is a mistake to assume that filing first is always best. Before we cover examples of when filing second might be advantageous, we should mention an important caveat: the timing of filing one’s lawsuit isn’t always guided by strategy. For example, if the statute of limitations on your claim is close to expiring, the statute of limitations should dictate the filing date—not strategy.

Assuming statute(s) of limitation is not a pressing concern, and assuming choice of venue is not critical, we arrive back at the question of this article: Is filing second ever the better choice? Yes, there are times when it can be advantageous to file second—to be the counter- or cross claimant. Consider, at least, the following:

  • Likely Case Themes. For example, can your opponent be shown to be a belligerent litigant who abuses the court system? This sometimes called a “vexatious litigant.” A successful case theme can be build around portraying the defendant as a victim of an overzealous, over-litigious plaintiff. Why? Because so often it’s absolutely true!
  • Costs. Court costs are often greater for the plaintiff;
  • Insurance Considerations. Sometimes insurance carriers only defend and indemnify their insureds for the defense against a lawsuit. There are even times when an offensive counter-claim can be covered by insurance as a part of the defense strategy;
  • Attorneys Fees. In both state and federal courts in California, the plaintiff is often asked to coordinate, draft and/or take the lead in preparing various “joint” filings where participation by attorneys on both sides is required. These additional responsibilities delegated to the plaintiff’s counsel can make litigation more expensive for a plaintiff.

These are merely a few of the potential considerations when deciding whether a person should try to file a lawsuit first or wait to see if his/her opponent files first. Also, keep in mind that by filing a lawsuit, you would be ensuring a 100% chance of litigation. Even when someone feels certain that their opponent will file a lawsuit if they don’t first, the chances of their opponent actually filing a lawsuit are certainly less than 100%. Therefore, anyone seriously interested in avoiding litigation should consider not filing first—otherwise they foreclose any chance of avoiding court.

Brodie Smith and Anthony Lanza are litigation and trial attorneys licensed in California. They can be contacted at (949) 221-0490. The information in this blog post does not constitute legal advice, nor create and attorney-client relationship. Laws constantly change, and this information may become outdated; moreover, the information here is only a general overview and may omit some aspects of the law. It is provided for discussion purposes only; not to be relied upon by the reader in making any real-world decisions.

©2022 Lanza & Smith PLC. All rights reserved.

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