Lawsuits are for winning, not losing, by Francisco Moya

Before filing a lawsuit, regardless of the legal grounds supporting it, you should weigh up whether bringing it is worthwhile.

It is utterly absurd to put together one or more expert reports – which cost a fortune – in order to sue a developer as seller (being “certain” you are right is not enough) unless you present to the judge, clearly and exhaustively, the developer’s fault, accompanied and backed by the learned opinion of one or more experts showing that the damage is evident, obvious, attributable to fault and serious enough to consider that the developer has breached its purchase contract, and that the homes, or the building or part of it, are currently unfit for the purpose intended by the buyers because of those defects attributable to the developer (article 1101 of the Civil Code). I am referring to cases where the construction defects (under the LOE) are already time-barred.

It is important that the damage is beyond doubt and proven from the outset, and that it is not the result of neglect by the owners in the association, vandalism or misuse. If there is any vagueness, the developer will undoubtedly blame a lack of maintenance… and it will be a long road.

With lawsuits, before bringing them, you should weigh up, regardless of the legal grounds supporting them, whether bringing them is worthwhile. In other words, if you are risking a cost of €1,000 (and are almost sure to win) and have reasonable expectations of obtaining €20,000, then it is sensible.

What you should never do (stupidity and ignorance together are very bold) is risk €1,000 to obtain €3,000; and it is sheer madness to expose that same €1,000 to obtain, at best, €3,000 while also risking another €3,000 if the case is lost with an order to pay legal costs (lawyers’, court representatives’ and experts’ fees).

As for legal costs awarded in your favour, it is best not to count on them; but you should discuss with the client the amount of the other side’s legal costs in case you lose.

Forgive the example, and perhaps the rough proportions, but this is how we put it informally, as our best and honest opinion.

That is why many lawyers, ourselves included, require and reserve for ourselves the option of settling or reaching some kind of court or out-of-court agreement when, in our view, it is advisable to weigh up and balance all the circumstances (and experience) to the best of our knowledge and belief, all for one purpose: not to head straight for disaster. Because however determined the client may sometimes be, driven by the impulses of the heart or by anger at feeling cheated rather than by practical reasons, objectivity must prevail.

Francisco Moya. Lawyer, member of the Bar since 1975. Founding partner of DPcon S.L.

www.dpcon.es