What Every Businessperson Needs to Know About Civil Litigation

March 5, 2014

I am a lawyer who has litigated in the fields in which I practice (corporate, real estate and estate planning). In fact, quite a few Axley lawyers can say the same thing. Before I joined Axley, I managed the litigation of a number of my corporate clients. Some had large litigation cases that required a lot of manpower and needed larger law firms to handle the cases that I could not. I was in a smaller firm at the time, but I knew what effective and ineffective litigation strategies were. I actually told the lawyers from the bigger firms what they could and could not do. Why? Because the lawyers trying the cases were not businesspeople. They made decisions not in the best and most cost-effective way to bring the litigation to conclusion, but strictly by what they thought was the litigation book. This is dangerous and not a good use of time and money.

Litigation is a process of problem resolution. As such, it is not justice. It is as close to what we as civilized people can come to as far as justice goes, but it is not justice in the true sense as lay people perceive it. Our system of justice is the best in the world, but it is not perfect.

The first question your lawyer should ask you when you come in and tell him or her you have been wronged and want to sue is: “What are you trying to accomplish?” It is critical for you to know this up front. You need to know what the system can do for you before you start. Too many people go into litigation with expectations for what the system can do that are not realistic. If someone breaches a contract with you, you may have the best case in the world, but if the defendant has no money, it is a waste of time to sue them. Also, remember it is a justice system, not justice. The civil system awards a piece of paper called a judgment. That judgment is only worth something if the defendant has assets and a means to pay. Collecting on a judgment is the next step when litigation is completed. But the system is really all about money. The court can, in rare circumstances, order a party to do or not do something. This is called injunctive relief. But that is only when money does not make the plaintiff whole. In other words, if the defendant’s action costs you money, then that does not entitle you to stop the defendant from doing or not doing something.

A good litigator should be able to give you a budget of the approximate dollar amounts to do certain tasks. A good trial lawyer will never be able to know exactly how much it is going to cost but will be able to give ranges. If they cannot, beware. Litigation is not an exact science, so any lawyer that gives absolutes does not have enough experience in litigation to be hired. On the other hand, good litigation counsel will know what the ranges are for each proposed course of action.

Litigation is begun with a summons and complaint. The summons is filed by the plaintiff and tells the defendant what they must do and how. It tells them when to file their answer, to which court, and what happens if they do not. The complaint tells the defendant what the plaintiff wants out of him or her. The defendant must answer within a certain period of time, or judgment is taken against the defendant for what the plaintiff wants. The defendant can just answer or answer and counterclaim against the defendant. This is called “joining issue.” Once issue is joined, the court sets up a scheduling conference which sets up the rules and deadlines, within the scope of the court’s authority, for the litigation to proceed.

Once the lawsuit is filed, the parties will engage in discovery. Inquiry is made by way of questions (interrogatories), request for proof in documentary form (request for production of documents), or by deposition (questioning of a witness under oath and with a court reporter). If you are involved with litigation, it is important to ask the lawyer what they are going to do as far as discovery and what they are trying to discover. Discovery should not be a fishing expedition with your money. It needs to be controlled and precise to bring the key issues you are facing out in the open.

Courts routinely order mediation in almost all cases. Mediation is where the parties sit down and try to settle the matter on their own with a third party. The third party is usually a retired judge or a seasoned litigator. This is your best chance to settle your case without the cost of trial. Most cases settle at mediation.

If the case is not settled, it goes to trial. You need to know that trial is not like a conversation with a friend. The rules of trial are stylized and meant to ensure the evidence presented to the court or jury has a solid basis. There are rules of evidence and rules of law that govern how the case is tried. You must talk to your lawyer throughout your case about what is and is not admissible so you know how your case can be presented. The choice about a trial to the court (to a judge) or to a jury is made by both parties. If either party wants a jury, then it is a jury trial. If both sides agree, then it is a trial to the court.

The court will set aside the number of days the parties believe the trial will take. Once a jury is impaneled, the case will be tried to conclusion. Upon conclusion of the trial, the parties may bring motions after verdict and argue about things that went on in the case.

This primer is hardly an exhaustive treatise on litigation. But every businessperson should know at least the basics of litigation before they jump in and begin the process. Litigation is costly and time consuming. There is a psychological cost to rehashing an argument over and over. And there is never a guarantee, no matter how good your case is, that you will accomplish what you set out to accomplish. So, before you make a decision to sue over a matter, get good, competent advice from a lawyer or law firm that knows what they are doing. Good counsel in litigation may mean a case is never filed or is settled before being filed.

To subscribe to email alerts from Axley Law Firm, click here.

For more information about "What Every Businessperson Needs to Know About Civil Litigation," contact Donald J. Murn at dmurn@axley.com or 262.409.2277.