Pre-Suit

A verdict that did not hold

Lilly Ledbetter worked at Goodyear’s plant in Gadsden, Alabama, from 1979 until she retired in 1998, most of those years as an area manager. Toward the end, she was paid less than any of the men in that job. The dissent’s account of the record puts it in numbers: $3,727 a month at the end of 1997, against $4,286 for the lowest-paid of her 15 male counterparts. She sued under Title VII, and a jury found that Goodyear had paid her less because of her sex. The Supreme Court still ruled against her, 5–4, in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007) (opens in a new tab).

She lost on timing. Title VII does not let an employee go straight to court: she must first file a charge with the Equal Employment Opportunity Commission, and Ledbetter had 180 days from the discriminatory act to do it. Her first filing reached the agency in March 1998. The decisions that set her pay had come before that window opened. The Court held that her later paychecks only carried their effects forward and did not restart the clock. So a claim the jury believed was decided by a deadline that ran out before any complaint existed. Most cases never meet a deadline that hard, but every case passes through four questions at intake, and a wrong answer to any of them can lose it. Is there a claim? Is there still time? Has every required step been taken? Do the facts hold up? The activity has you ask them of three prospective clients.

Is there a claim?

A client does not walk in with a cause of action. A client walks in with a story, usually told in the order it hurt. The firm’s first job is to find a cause of action the story fits, a claim that Florida or federal law recognizes. The second is to test the story against each of the claim’s elements. A claim missing one element loses, however sympathetic the rest of it is.

Take a shopper who slips on spilled yogurt in a New Smyrna Beach grocery store and breaks a wrist. The claim is negligence, and its elements are duty, breach, causation, and damages. The store owes its customers care, the wrist is a real injury, and the fall caused it. Breach is the hard element here, because Florida has a statute for exactly this fall. Under section 768.0755, Florida Statutes (opens in a new tab), a person who slips on a “transitory foreign substance” in a business must prove the business knew or should have known about it and should have fixed it. Proof that it should have known can come from how long the spill sat there, or from spills that happen there regularly.

So the intake question that matters is less “Did you fall?” than “How long had the yogurt been there, and how would anyone know?” A shopper who noticed cart tracks through the puddle has the start of an answer. That is why a client intake interview is built around the elements, with each question hunting for a fact one element needs. Florida Bar Opinion 88-6 (opens in a new tab) prefers that a lawyer conduct that interview, but it does not forbid a paralegal from doing it. The paralegal must say up front that they are not a lawyer, collect only facts, and give no legal advice. Whether the claim is worth taking is the lawyer’s call.

Where do the elements come from? For a Florida claim, the standard jury instructions (opens in a new tab) list, claim by claim, what a jury is told it must find. That makes them a good check on any list of elements, including one an AI writes.

Is there still time?

A good claim filed a day late is usually a lost one. The statute of limitations sets the deadline, and most of Florida’s deadlines are in section 95.11, Florida Statutes (opens in a new tab). A negligence claim like the grocery-store fall has two years. A claim on a written contract has five, and one on an oral contract has four.

The clock starts when the claim accrues, which under section 95.031 is when its last element occurs. For the shopper, that is the day of the fall, when the injury completed the claim. A few claims start later. A medical malpractice claim runs from when the incident was or should have been discovered, but generally no more than four years after it happened.

The two years for negligence are recent. Until 2023, Florida gave negligence claims four years, and chapter 2023-15, Laws of Florida, cut the period to two for claims that accrued after March 24, 2023. Anyone working from memory, or from an AI trained on older text, can be wrong by two full years. The Legislature’s own site shows the version in force.

Federal claims carry their own clocks, and Title VII’s runs before the lawsuit. The charge deadline Ledbetter missed is 180 days, stretched to 300 where a state or local agency enforces a similar law. Florida has one, the Florida Commission on Human Relations, so a Florida employee generally has 300 days. The EEOC’s page on time limits (opens in a new tab) explains both numbers. Congress also answered Ledbetter in 2009. The Lilly Ledbetter Fair Pay Act amended Title VII (opens in a new tab) so that each paycheck affected by a discriminatory pay decision counts as a new violation. The rule that beat her no longer governs pay claims, but the charge deadline itself remains.

Where a case is filed does not move its clock. Subject-matter jurisdiction decides which courts may hear a claim, and the court chosen brings its own procedural rules. The limitations period comes with the claim. The shopper’s negligence claim has two years in state court. If the store were an out-of-state company and the damages topped $75,000, the claim could go to federal court, and it would carry the same two years there.

What has to happen first

Some claims cannot be filed at all until a step is taken, and those steps are conditions precedent. Title VII’s is the charge. The employee may sue only after the EEOC issues a notice of right to sue, and then has 90 days to file.

Florida asks more of a medical malpractice claimant. Before suing a doctor or hospital for medical negligence, a claimant must investigate the claim. Then the claimant serves each prospective defendant with a notice of intent to sue, along with a verified written opinion from a medical expert that there are reasonable grounds for the claim. No suit may be filed for 90 days after the notice is delivered. During that time the defendant’s side investigates and must answer by rejecting the claim, offering to settle, or offering to arbitrate damages. The limitations period is tolled while it does.

Skipping a condition precedent gives the defense a reason to ask for dismissal. If the deadline has passed by the time the court rules, the claim may be gone for good. That is why a firm checks the required steps and the clock together, at intake, before either can run out.

Before anyone signs

A complaint is a set of promises about facts. When a lawyer signs one in federal court, Rule 11 (opens in a new tab) makes the signature a certification, formed after “an inquiry reasonable under the circumstances.” The factual claims must have evidentiary support, or be specifically identified as likely to have it after investigation or discovery. The legal claims must rest on existing law or a nonfrivolous argument for changing it.

Florida reaches the same place through fees. Under section 57.105, a court must award attorney’s fees against a losing side that knew or should have known its claim lacked the material facts to support it. The losing party and its lawyer pay in equal shares. A client whose story went unchecked can lose the case and then pay for the other side’s lawyer.

That is the work of factual investigation, and a paralegal does much of it. For the shopper, it means the store’s incident report, the surveillance video before it is overwritten, the photos, and the name of the employee who mopped up afterward. Each is a fact the complaint can stand on, found before anyone promises a court that it exists.

The letter before the lawsuit

The last pre-suit step is often a letter. A demand letter tells the other side the claim, the facts and law behind it, what the client wants, and by when. It can end the dispute right there. If it does not, it shows a court later that the other side had a chance to settle.

For some claims the letter is required. Under section 68.065, Florida Statutes (opens in a new tab), the holder of a bounced check can sue for triple the amount owed only after mailing a written demand. The check writer must then have failed to pay within 30 days. A demand is also the first thing the other side reads about the case. A citation in it that turns out to be invented tells opposing counsel that nobody checked.

When the Fact-Pattern Simulator hands you three stories in the activity, ask each the four questions in order: claim, time, required steps, facts. The order saves work, because a story that fails an early question never needs the later ones. Then give your strongest story to the Claim and Element Mapper. For a Florida claim, lay its elements beside the jury instructions, and where the two part ways, find out why before you trust either.