Civil 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.
Table of Contents
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.
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 motions. It makes little sense to file a case and hope the defendant will settle. If the threat of the case does not move the defendant, filing the case is unlikely to change the defendant’s reaction.
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 $25,000. It usually takes at least $2,500 to prepare and file simple business cases. Most cost at least $5,000 to file. It is not unusual for business cases to cost $100,000 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. Because of our low overhead, lower hourly rates, and no minimum billing requirement for attorneys we often find that our fees are substantially lower than other firms that handle complex litigation.
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 lawyer.
Tollefsen Law offers mediation services through its sister company International Mediation Center