×
Call Now
Talk to a Lawyer

Three Keys To Dealing With Litigation

By Jeffrey J. Fanger

As a small business attorney, I often have clients who face litigation for the first time. Sometimes they choose to go to court and sometimes it is an unpleasant surprise. Either way, it is often a frustrating and tense time for a business owner unfamiliar with the process. Armed with a little information, however, a lot of stress can be eliminated.

The Law May Aspire To Be Fair And Just, But It Doesn’t Even Try To Be Fast

Recognizing the limits of the litigation process will go a long way to alleviating stress and preventing misunderstandings. Filing a Complaint, obtaining service of process (delivery of your Complaint to the other party, a.k.a., the “defendant”) and receiving an Answer from the defendant may take two months and much more if problems with service of process arise.

Once service is obtained, the other side has 28 days to respond to the Complaint you filed. Don’t get your hopes up. Extensions to this deadline are frequently requested and provided. You can reasonably expect to wait two or three months from the Complaint-filing date to obtain service and receive the defendant’s Answer. Don’t fret; there is more waiting ahead, and you will get used to it.

The Answer is Anything But

You should understand that an Answer is a very specific type of legal document. It generally contains denials of virtually every paragraph in your Complaint and a laundry list of defenses that must be asserted so they will not be waived. This is just how Answers are prepared; it’s nothing personal. When you answer a Complaint, you will do it the same way. If you know that an Answer will be a flat-out denial of what you know is true, it may be easier to accept.

CMC, Discovery, Pre-trials, Hearings, Oh My!

Shortly after the Answer is filed, the court generally holds a case management conference (CMC). This is a quick meeting (sometimes by phone) to select dates for the rest of the case. Your attorney will likely provide you with some or all of those dates, which will include dates for trial and discovery cut-off.

You should know that these are “best-case scenario” dates that likely will change depending on circumstances. For example, if the trial is scheduled for ten months from now, you can expect that it will be held a minimum of ten months from now and maybe significantly later. While you should calendar these dates, always contact your attorney before going to court to confirm that nothing has changed.

The “discovery” process (during which both sides learn information about the case) can take anywhere from a few months to years depending on the complexity of the case. Discovery however, is the heart of the case and you, as a business owner, must give prompt attention to discovery requests from your attorney and from the opposing side. Cases are often won or lost based on discovery.

It is essential to provide your attorney with blemishes as well as trophies. Clients often believe that keeping a negative item from their attorney will benefit their case. Often, however, what you view as bad may not be that harmful to the case (and sometimes is not even relevant), and can easily be addressed if your attorney knows about it in advance.

Relatively small problems, however, can derail the entire case if your attorney was unaware of them and built the case on a foundation that was not firm. If the opposing party learns about the issue, it inevitably gets exposed at the most inopportune moment. Knowing of problems ahead of time, your attorney can present the strongest possible arguments and prepare for the other side’s counter-arguments. Additionally, a business owner who lies during testimony or becomes evasive about a small, simply embarrassing matter can damage the business’s credibility and change the outcome of the case in a way that is disproportionate to the embarrassing item’s actual importance.

Be Patient, Be Responsive, Be Upfront

When approaching litigation, remember to: be patient, because the legal system moves at its own pace; be responsive, because dragging your feet on discovery requests and inquiries from your attorney needlessly delays your case and can work against you; and be upfront in your communications with your attorney about both the strengths and the weaknesses in your case. By understanding these principles and cooperating with your attorney, you will greatly reduce the stress and frustration that can come from litigation.