Understanding Civil Litigation
Business litigation can be the modern equivalent of
warfare. It can be painful, wasteful, and often unpleasant.
You will be forced to reveal everything that may possibly lead to
relevant evidence. Your email and documents will be scoured for
material that can be twisted to the opponents advantage.
On the other hand, if you have made proper
preparation by anticipating the risks, writing the appropriate
contracts, and practicing good preventative legal techniques, the
pain can be minimal.
Planning to Start Litigation.
The first step in litigation is the
most important and most often overlooked: proper analysis and
planning. Too often, people want to "get going" because they are
angry. This can be disastrous. Prudent litigation involves putting
the case together thoroughly before filing the lawsuit. All
applicable law should be reviewed. All known evidence should be
reviewed. Witnesses should be interviewed. Proper litigation
planning saves money over the long run and prevents most surprises.
You should know the weaknesses in your case and the opponents likely
counter attack before you file. If planning is done properly, you
can evaluate the case and have a good idea what it is worth before
filing. More -
Legal theories for litigation.
The plaintiff has the burden of
proof and must keep the case moving. The Plaintiff is in the
position of the person playing the white chess pieces: The plaintiff
must press the case forward. This means that the plaintiff must be
willing to spend money to obtain discovery and file necessary
The defendant often has the luxury
of waiting for the plaintiff to take action. Cases are sometimes won
because the plaintiff did not do proper discovery and is not ready
at trial to prove the case. However if the risks are great enough or
the facts unclear, the defendant cannot wait. The defendant is
forced to take aggressive steps to protect himself. Knowing when to
wait and when to take action requires experienced counsel.
Costs of Business Litigation.
Usually the amount of money at risk
has little relationship to costs. It often takes the same amount of
money to litigate a $100,000 case as a $1,000,000 case. The most
important variables are the number of documents and the number of
factual and legal issues. Since it usually takes over a year
to get to trial, there can be monthly expense that mount up over
time. The simplest case can cost over $5,000. It usually takes at
least $2,500 to prepare and file simple business cases. It is not
unusual for business cases to cost $25,000 and above. Less than 5%
go to trial so most of the expense is preparing the evidence to
convince the opponent that he has significant risk. These discovery
expenses include depositions, gathering email and electronic files,
cataloging and reviewing hundreds or thousands of pages, and
preparing trial exhibits.
Consider Small Claims Courts
Small claims courts have advantages in small cases. While damages are
limited to $5,000, no attorneys or appeals are allowed.
Mediation can be very effective if
both sides of a case are focusing on logic rather than emotion. It
often like "shuttle diplomacy." The mediator goes back and forth
between the rooms where the plaintiff, defendant, and their lawyers are seated and
attempt to convince each side that their case has weaknesses. The
mediator is paid by the hour at rates similar to those of your