Pre-suit Matters vs. Litigation: What Does it All Mean?

On Behalf of | April 28, 2023 | Working for Justice Blog

This blog was co-authored by Sarah Chu and Serena Bernal.

When choosing a law firm to take on your case, you may see that firms differentiate between the terms “pre-suit matters” and “litigation.” While every matter is different, and every firm is different, it’s helpful to understand the distinctions between the two—pre-suit matters and litigation—when evaluating who should represent you.

What Happens During the Pre-Litigation Phase of My Case?

Pre-suit (also known as “pre-litigation”) matters refer to any process that occurs before a lawsuit is filed. This can include:

  • Settlement negotiations
  • Filing an administrative charge
  • Mediation

In these procedures, your attorney’s purpose is to negotiate a settlement with the individual or company you are pursuing your claims against using your facts and narrative.

While the process can vary per matter, in general, your firm will send a formal demand letter to the opposing party that details your claims and facts. This informs the company that you are represented. Your attorney will also present an opening demand that reflects a thoughtful damages analysis to the opposing party. The two parties will then engage in settlement conversations to agree on a reasonable and fair resolution based on the details of your case. Ideally, the initial negotiation discussions would lead to a settlement or an agreement to engage in mediation and resolve the matter.

If these negotiation discussions, including mediations, fail, and the parties are at an impasse, your attorney may consider filing an administrative charge with the Equal Employment Opportunity Commission (“EEOC”) and/or state and local agencies before instituting litigation in order to exhaust all administrative remedies.

What Happens During the Litigation Phase of My Case?

Should pre-suit negotiations fail, litigation may occur. Litigation refers to when a lawsuit has been filed. This means that you have formally engaged with the courts, and are allowing a third party into your case, such as a judge and a jury. Individuals who engage in litigation are required to disclose much more information to the opposing party to evaluate the claim. Once litigation begins, you must abide by the mandatory rules and requirements of the court. For this reason, litigation can be time consuming, expensive, and challenging.

While there is always the possibility of litigation, pursuing a case pre-suit promotes flexibility and reasonableness in negotiating a settlement for your employment claims because it takes into consideration just how expensive an exercise in litigation may be, in the event the dispute is not resolved.

Choosing a law firm that aligns with your needs is important. To discuss your options, contact an experienced attorney at Sanford Heisler Sharp, which has offices in New York City, as well as San Francisco, Palo Alto, Baltimore, Nashville, San Diego, and Washington D.C.