What Happens Before a Lawsuit is Filed?
Rarely are businesses blindsided by a lawsuit. Usually, there has been some communications about the dispute prior to the filing of a lawsuit. Sometimes a business litigation attorney can avoid having to file a lawsuit. This requires convincing the other side that the likely outcome of any lawsuit would be more expensive than just settling the issue quickly.
The two sides may trade demand letters and settlement offers. Litigators often use the period prior to filing a lawsuit to investigate the case thoroughly and to begin collecting evidence and preparing for an eventual legal filing.
After a Lawsuit is Filed, But Before Going to Court
Once a lawsuit is filed in state or federal court, the two sides have many more tools at their disposal. After the lawsuit is filed the two sides engage in discovery. This is a legal process where the two sides demand evidence from each other with the authority of the court. A business cannot ignore a discovery request without risking being held in contempt, or in extraordinary circumstances, even having a default judgment entered against them.
The discovery phase may include things like:
- Demands for business documents related to the dispute
- Depositions of key personnel from each business
- Demands for written answers to questions about the dispute, known as interrogatories
The purpose of discovery is for the two sides to be able to collect the evidence they need to prove their case. The discovery process is often lengthy and onerous. Sometimes the discovery process will make it easier for the two sides to reach a settlement.
After a lawsuit has been filed, but before the two sides start the trial, there will usually be several attempts by the court to get the two sides to resolve the case. These could take the form of mediation or a settlement conference.
The vast majority of cases are settled before ever going all the way to trial. In most cases commercial litigation settlement negotiations continue all throughout the process, even up to the morning of the trial.
There will usually be several hearings with the judge assigned to the case before the trial is held. Some of these hearings are just status hearings where the lawyers report how discovery and settlement talks are proceeding. Some of these hearings may be to settle legal issues ahead of the trial. Hearings may be held ahead of time to decide if certain evidence will be admissible in court. A hearing may held to determine if the case should even go forward, or if the case should be dismissed due to lack of evidence.
During and After a Trial
If a settlement cannot be reached, the two sides will go to trial. There are two different types of trials: jury trials and bench trials. In jury trials a jury of between 6 and 12 people, depending on the court and the type of case, will be impaneled. The jury will be the ones that ultimately decide the case and the amount of damages that should be awarded. However, a judge will still preside over the trial, ruling on objections and making sure the trial is conducted in an orderly manner.
A bench trial means that the judge is the one who enters a verdict and decides on damages. Sometimes both sides will choose to have a bench trial because they are faster and less expensive than jury trials.
Trials in business litigation cases often go on for weeks. It can take an entire week just to pick a jury. During a trial each side will have a chance to make an opening statement, to call witnesses, to cross-examine the witnesses of the other side, to submit documentary evidence, and to make closing arguments.
Unlike on TV, the verdict in a business litigation trial will not come back quickly. The judge or the jury will need time to review the evidence and to make a decision. The verdict may take days or weeks.
Even after a verdict has been reached, the litigation may not be over. The losing side, and sometimes even the winning side, will want to file an appeal. It is common for cases to settle after a trial, but before the appeals process has finished.