Don't Bet the Business

Recently, I was asked a question about having the right to bring a lawsuit.

Lawyers frequently meet with prospective clients who feel they have been wronged and want to sue someone. Would-be clients call or come into my office looking for representation to help them tell their side of a story, to gain recognition that they were, indeed, harmed in some way and to obtain damages or some other type of relief from a court.  It’s a large part of what litigating lawyers do and a common set-up for new lawsuits.

Less frequently, but no less significantly, lawyers sometimes are confronted with situations where the person seeking help, and who stands ready and willing to sue, tells a story where something is missing.

Sometimes, a complaining party, one who truly feels damaged, but for reasons that can be difficult to understand is not allowed to bring a lawsuit. When this situation arises, I must tell prospective clients that I cannot help them because they lack “standing” to sue. What does this mean?

In its most simple and general understanding, the term standing refers to the right of a plaintiff to invoke the power of a court to hear and decide a dispute. Standing has nothing to do with the merits of a claim.

Rather, standing is a term used to identify whether a party has a sufficient interest to ensure sincere and vigorous advocacy of a lawsuit. This is different from having the financial ability to hire a lawyer. Standing is not concerned with a party’s personal or emotional incentive to prosecute a case.  

Standing requires a showing that a party possesses interest in a dispute that will be affected in a way that is different from others generally. Only those who have a “substantial interest” in a lawsuit are allowed to prosecute it in a court. Put simply, standing tests whether a person is a proper party to stand before a court asking for a decision or judgment.

Often, standing is not challenged because it plainly exists from the facts pled in a complaint. For example, if I am slandered, no one will question whether I have standing to bring a claim, regardless of whether the claim is one day proven to have merit. If, however, my mother was slandered, while I may feel damaged by the incident, my standing typically will be lacking because my mother should be the one bringing the claim.

When challenged, the plaintiff, as the party invoking the court's authority, has the burden to establish standing exists. This typically begins by the plaintiff identifying an injury or damage, sometimes referred to as “an invasion of a legally protected interest.” The claimed injury must be “concrete and particularized,” as well as “actual or imminent” as opposed to conjectural or hypothetical.  

The plaintiff also must show a causal connection between the claimed injury and the complained of conduct. In other words, the claimed injury must be fairly traceable to the defendant’s actions or lack thereof.

Lastly, to establish standing the plaintiff must be able to show that it is likely, and not speculative, that the injury claimed can be “redressed by a favorable decision” from the court.

When a standing challenge is anticipated, the facts needed to establish the plaintiff’s standing will be included as part of the complaint. Doing so may help to avoid a costly delay if the plaintiff’s standing must later be sorted out through motion practice or an evidentiary hearing. 

As a shortcut, standing may sometimes be shown to exist merely by invoking rules governing court proceedings. For example, whenever a litigant meets the requirements of MCR 2.605, that will be sufficient to establish standing to seek a declaratory judgment. 

Similarly, the Michigan Legislature may pass laws that expressly confer standing on certain persons or groups in certain cases. For example, by the passage of MCL 600.2932 the Legislature conferred standing on any person claiming an interest in land to bring an action in the circuit courts against any other person who claims, or might claim, a completing interest in the same land.

Even when the Legislature does not expressly confer standing, a statutory scheme may imply an intention to confer standing.

Where court rules or statutes, or perhaps even the Constitution do not confer standing, it falls to the court to decide, in its discretion, whether a party has standing.