Business Litigation & Debt Collection

This is a simplified version of the breakdown of a civil case.  A civil case is broken up into four stages, Pleadings, Discovery, Motions, and finally the Trial.  Remember that often Litigation is an enhanced form of negotiation, and that 95% of cases are resolved before ever going to trial.

Pleadings

During the Pleadings Stage, the parties define the dispute and the defenses.  The Plaintiff files a Complaint which describes their Claims against the Defendant.  The Defense can then either Answer the Complaint or Move to Dismiss it.  A Motion to Dismiss is typically a challenge to the technical sufficiency of the Complaint.  Victory in a Motion to Dismiss normally leads to the Plaintiff simply filing a new Complaint and correcting whatever technical deficiency the Defense argued.  Once all Motions to Dismiss and amendments have been exhausted, the Defense files an Answer, which admits or denies each individual statement in the Complaint and Affirmative Defenses, which provide excuses for the Defenses actions that lead to the Claims of the Plaintiff.

The Defense may also files their own Claims, although they have different names.  If their Claim is against the Plaintiff, it’s called a Counter Claim, if it’s against a Co-Defendant it’s called a Cross Claim, if it’s against a Third Party, it’s called a Third Party Claim.  Who ever the Defendant’s Claims are against, also have the right to move to dismiss and will mostly likely eventually have to answer.

Once, all Claims have been Answered the case is said to be at issue.  This stage of the case can take several months.  While it is not as costly as some other stages, there is significant briefing of the legal issues that will impact the remainder of the case.

Discovery

Once the Parties know what the claims and Defenses are, they can conduct discovery.  This consists of three things, asking for documents, asking written questions and taking depositions.  Questions and document requests can be sent to parities and nonparties.  Once the parties have obtained written discovery, they use those documents to form the basis for the questions they ask in depositions.  This is typically the most expensive and time consuming part of the case as there are often arguments on what should or should not be turned over.

Motions

Although there are many motions filed in a lawsuit, the case typically builds to one or more Motion for Summary Judgment.  This is a motion where the court can decide the case, or a portion of the case without submitting the case to the jury. We use the information we obtained in discovery to obtain summary judgment. Typically, one party attached depositions and documents to demonstrate to the court that some facts are not disputed.  If enough facts are agreed to, then the court can make a legal ruling as to who wins.  If the parties disagree as to the facts, then only the jury can decide.

Trial

The trial is the final stage where a jury decides the facts and declares one party the winner.  Here the jury makes determinations of fact and credibility.  The judge meanwhile decides what law the jury should apply.  This is a fairly short stage.  It typically takes about two weeks including preparation time.  However, during that time client and counsel are usually working together 10-12 hours per day.  As such, the costs are very high and concentrated. It is for this reason that so many cases resolve shortly before this stage.

Deposition Preparedness

Here is some advice to prepare you for any upcoming depositions that may arise from your litigation.

  • Share all concerns and pertinent details with your attorney ahead of time
  • Review all important documents. These will include anything drafted and signed, petitions and answers, and deposition transcripts.
  • Know the Ground Rules
  1. Tell the truth
  2. Listen to and consider each question carefully
  3. Do not volunteer information
  4. Do not let attorneys put words in your mouth
  5. Review all documents before discussing them
  6. Do not be afraid to say that you do not know or do not understand something
  7. Do not feel pressure to keep talking
  8. Ask for breaks
  9. Leave your cell phone in the car
  10. Do not pass any notes to your attorney in the middle of a discussion
  11. Do not speak to your attorney in the middle of a discussion
  • Know where to go, what time to go, and how to get there
  • Know what to bring

Collections

Ok – so once we get the Judgment (either from Default, Consent, Summary, or Trial), most importantly, if we are the Plaintiff, how do we (the Plaintiff) get paid? This is obviously the most important part for a Plaintiff, and the worst aspect for a Defendant.  Please understand that collections is its own process with the main uncertainty being that the Defendant(s) is “uncollectable.”  There are various tools, including demanding a financial disclosure, continuing with post judgment discovery to attempt to locate assets, doing private bank account searches, hiring private investigators, and even asking the Court or the Sheriff for assistance.  This process can also be long and arduous.  Fortunately, there are some mechanisms to request attorney’s fees.  Most importantly, please understand that sometimes the Judgment is just the first step…