17 Nov What to Expect When You’re Expecting…a Lawsuit
Posted at 11:18h in Articles
What to Expect When You’re Expecting… a Lawsuit
Matthew M. BuschiCounsel
In the world of business, lawsuits are a very real possibility, and may even be a probability, with the question being not if, but when. It is simply in the nature of dealing with one another, things sometimes go wrong, people don’t perform to the other’s expectation, goods don’t make it to destinations, employees want to leave and work for a competitor, people fail to pay for services rendered. These things just happen, and happen fairly regularly. For many small businesses, the prospect of lawsuit (especially being the one sued), can be a daunting one. There are horror stories of the expense, the scrutinous examination, and attempting to navigate an entire court system and its processes built on conflict. While lawsuits are almost never considered pleasant, knowing what to expect when a lawsuit appears on the horizon may make that Kraken more a squid than a monster.
The first official stage of a lawsuit is the petition. This is the complaint document that generally sets forth the factual allegations and the legal theories for which the plaintiff asserts it can recover. Texas state courts follow a “notice pleading”, which means that so long as the petition gives enough information from which the other side can deduce the claims against them, the petition is sufficient. Because of this, the petition is usually written in general terms, and it is in the discovery phase of the case that the details are fleshed out.
In some instances, the petition will also seek immediate injunctive relief in the form of a Temporary Restraining Order. These are reserved for certain cases in which something is occurring that the plaintiff can show will cause imminent harm of the sort that cannot be compensated for with money. These are fairly rare circumstances and typically aren’t included in a petition. However, if the case involves use of trade secrets or solicitation of employees or allegations of violation of a non-competition agreement, the plaintiff will often seek an injunction. Because a temporary restraining order hearing happens nearly simultaneously with the plaintiff filing the lawsuit, if your dispute involves the topics referenced above, it would be prudent to inform your attorney, if you have one, of the dispute, which will give the attorney more time to prepare arguments to defend against a temporary restraining order. However, even if a temporary restraining order is issued, all is not lost, as temporary restraining orders are, as their name suggests, temporary. Typically they only last 14 days unless extended by agreement, and usually they simply prevent the defendant from doing something (for example, they may prevent the employee form working for the competitor temporarily). Upon issuing a temporary restraining order, the Court will set a hearing for a temporary injunction. A temporary injunction is essentially an order that extends the temporary restraining order’s restrictions to stay in place for the remainder of the time the lawsuit exists. Because a temporary injunction lasts for the duration of the case, the hearing on an injunction is often intense and highly adversarial. As such, it can also account for a substantial early expense in a case, which makes it prudent for a business to review the conduct it seeks to restrain and discuss with your lawyer the possibility of agreeing to some or all or a lesser version of the restrain to reduce cost or avoid a broadly worded injunction.
Once served with a petition, absent an injunction situation, the defendant generally has until the Monday following twenty days of service to file an answer. For state court, where most businesses find themselves in litigation, the answer, like the petition, is typically general in nature, simply denying the allegations and asserting certain kinds of defenses that have to be stated specifically. At this stage there are certain challenges the must come before filing an answer, such as asserting a special appearance to challenge that the court does not have jurisdiction over the defendant, however your lawyer will discuss those somewhat rare instances with you. In a typical case, the defendant will file its denial and assert some particular defenses, and the case will move to the discovery phase.
Lawsuits can notoriously last a long time, and the bulk of the time is in this phase. The discovery phase is so titled because it is the time in which the lawyers on each side investigate the case and discover the particular facts in a formalized procedure that also allows them to ensure the evidence is in a form admissible at trial. The standard tools of discovery are Requests for Admissions (questions posed to the other side in which they have to admit or deny particular assertions), Requests for Production (requests for various kinds of documents, electronic files, etc. that are responsive to particular topics), and Interrogatories (written questions that call for more narrative answers that must be sworn to by the opposing party). Discovery may also include property inspections, and will typically include depositions of key persons with factual knowledge in the case. Because in this phase each party has a duty to disclose or provide relevant and responsive information, it is best to have already provided your attorney with everything. To avoid claims that you destroyed or lost potential evidence, you should gather all your information when you know there is a dispute on the horizon, and at least upon receiving the petition. This means isolating emails regarding the facts and issue in the case, gathering up the computer files, photographs, and any other pertinent information that you may have to provide to the other side. Giving your attorney time to review this information ahead of time allows them to be more prepared in responding to discovery requests, including making objections and attempting to exclude certain information if called for under the discovery rules.
Depositions can be one of the scarier parts of a lawsuit for the client. At deposition, the client, or the designated representative of the client, will be sworn in and answer questions from the other side’s attorney under oath. Thankfully, depositions rarely happen early in a case (except in instances of injunctions) as your attorney and the other side’s attorney will want to have had time to obtain documents and information in discovery first. Your attorney will prepare you for what to expect, and typically many clients find that once the deposition is over, it wasn’t as bad as they’d feared. Preparation, as is often the case for many things in life, will be the best way to move through these without too much heartburn.
Most lawsuits settle. And by most, the statistics hover around 95% of cases are resolved without a trial. Mediation is a time and place that provides the best opportunity to reach a resolution. In mediation, the parties typically gather at the office of the mediator, have a group session to begin, and then are separated out into their own rooms, with the mediator acting as the go-between for negotiations. In essence, it is an intense and dedicated negotiation session with a designated neutral third party that advocates for a resolution. Often, the mediator will assess the potential strengths and weaknesses of your case and try to provide the parties with a third-person perspective that will be more akin to the perspective of the judge or jury since most parties, and most people in general, tend to see their case form their own perspective and the perspective of their attorney advocating for their side of the case. Mediation provides an opportunity for clients and their attorneys to step back from the legal positions they have taken and evaluate both the likelihood of success as well as the practical issues surrounding the litigation.
While statistically unlikely to occur, all lawsuits have as their natural endpoint (at the trial court level) a trial, whether it be a trial to a judge or a trial to a jury. While trials to a judge will be generally less time-intensive than a trial to a jury, trials are without question, vigorous. A trial is the point at which each side puts on their evidence, calls and questions witnesses, and argues for why the facts meet their legal theories in the case. Trial preparation and conducting trial will almost certainly be the largest expense incurred by the client. Because of the nature of trial, that you lay your case out and rely on the decision-making of another person or other people, trial carries inherent risks. The risks and expense of trial often serve as a deterrent, no doubt bolstering the 95% settlement rate of lawsuits. Nonetheless, from day one, your attorney should be working to prepare and build a successful case for trial. It is imperative that the client work with their attorney to aid in this process. Be sure to provide all the information you can, as early in the case as possible, so that curveballs can be anticipated, and so that potential home run opportunities can be identified. No case is perfect, but trial is the opportunity for both sides to present their story of the case and argue their positions to persons who will decide the outcome. Preparation is key, and the flow of information between attorney and client is as important to that preparation as any component.
Trials can be won, settlements can be made. A lawsuit, while complex and taxing at times, is something that can be worked through efficiently and effectively with the right attorneys acting on your behalf. While few would confuse the joy of pregnancy with the anticipation of a lawsuit, knowing what to expect in both can ease your concerns and make you more comfortable with the process.
ABOUT THE AUTHOR: Matthew M. Buschi is Counsel at Rapp & Krock, PC in the Litigation group.
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