People often ask me about the commercial litigation process in South Florida especially since most of my cases take place in that area. There are a lot of ideas floating around about what happens in such cases.
Litigation usually begins by someone feeling that they have been wronged in some way – money owed wasn’t paid, or a partner has started doing competing business on the side, for example. This may be the person who comes in to discuss the matter, or it may be the person on the other side of the issue. Sometimes, it’s a person who is thinking about taking some action and wants to make sure they aren’t going to have a problem with it because of an agreement they already have, or they are thinking of signing an agreement and want to know what kind of problems that agreement might create.
Let’s take for example, a person who works for a company that makes signs. (This isn’t a real client; attorneys have to keep those details confidential.) The sign maker has acquired experience and special skills in sign making, so his employer has gotten him to enter into an agreement not to make signs for other companies. Now the sign maker has left the company. If the sign maker comes in to consult with me, he will want to know what his agreement will let him do without having litigation trouble. If the employer is the one who comes to see me, on the other hand, they will want to find out what they can make the employee do or not do under the agreement.
Suppose the sign maker leaves the company with secret lists of customers and prices and sign materials belonging to the employer, and he starts calling the customers to tell them not to buy signs from the employer anymore and to buy them from him instead. The agreement between the company and the sign maker will dictate what rights the company has, but the agreement should prohibit this type of activity. What is the process?
Attempts to resolve outside court.
While it’s not required, it is often a good idea to try to resolve the matter out of court, before filing a lawsuit. This is because lawsuits can take a lot of time, money and stress. So, in the sign maker example, we might send a letter telling him to stop what he is doing. If he’s taken business away from the employer, we might demand payment to the employer too. Sometimes, you can take this step without an attorney. However, I find that the attempt is often not taken seriously until it comes from an attorney.
2. File a Complaint (sometimes called a Petition) in court. This is what we call filing a lawsuit.
The person who sues is called “plaintiff” and the person being sued is called “defendant”. You don’t have to have a lawyer to file a lawsuit, though there are a few exceptions. It is of course more difficult for a non-lawyer to prevail, especially in a lawsuit where the other side has an attorney, as the court system is not simple. Some cases, though, can be navigated successfully with the client representing himself or herself while having an attorney available to answer questions about procedure and law.
3. The defendant files an Answer.
Sometimes there are motions filed first. Motions are a request to the Court to take some action. At this stage, the most common motion would be one asking the Court to find that the Complaint is deficient in some way and thus dismiss the lawsuit. Eventually, most cases get to the stage where the defendant files an Answer to the Complaint. After that, the plaintiff can file a Reply to the Answer. A defendant will sometimes counter-sue the plaintiff, claiming he is the one who has been wronged.
Each party gets to conduct discovery of the other. This means asking questions of the other, which have to be answered under oath, either in writing or in person, with a court reporter taking down everything that is said. The parties can also ask for documents that are related to the case.
This stage can last a long time.
Most judges make the parties have mediation before the trial, which is a meeting between the parties, their lawyers, and a mediator, at which the mediator tries to get the parties to settle the case.
The case is set for trial. Sometimes, along the way, a party will file a motion to try to get a judgment without having to go through a trial. This is successful at times but it’s not the norm.
7. Judgment and collection.
If a party wins a judgment for money, he gets to try to collect it from the losing party. In the sign maker example above, the employer would also be trying to get an injunction, which is a ruling that tells the sign maker to stop violating his contract. The prevailing party in the lawsuit (i.e. the winner) gets to ask questions under oath about the loser’s money and assets and, eventually, can have his judgment satisfied with those assets. Some assets are not allowed to be taken, by law, so this stage can be as lengthy and complicated as the part leading up to trial.