The litigation process varies for each dispute, and no two cases follow the same trajectory.
Navigating disputes is an unfortunate – but inevitable – part of running a business. Suppliers breach contracts; business partners fall out; competitors infringe copyright; directors neglect their fiduciary duties; employees misappropriate trade secrets – the list goes on. While commercial disputes are highly stressful for business owners, they are the daily bread of experienced litigation attorneys, who dedicate their careers to representing clients in complex legal actions. By gaining a deeper appreciation of the crucial role that litigation attorneys play in commercial litigation, you’ll have a better sense of the circumstances in which you’re likely to need their services, and why it is so important that you hire a reputable legal team to represent you in complex disputes.
An Overview Of The Litigation Process
The litigation process varies for each dispute, and no two cases follow the same trajectory. Much depends on the approach of the parties to the dispute, the court’s management of the proceedings, the factual intricacies of the case, and the complexity of the issues of law that the matter presents. However, in general, civil litigation comprises the following stages:
- Pre-litigation: In this stage, the parties consult their attorneys for advice; air their dispute through correspondence; and may attempt to resolve the dispute amicably.
- Litigation: In this phase of the dispute, the role of litigation attorneys takes center stage. The parties exchange pleadings and motions; gather and disclose evidence through the discovery process; attend pre-trial conferences; and have their cases heard in court. There are myriad other pre-trial procedures that may take place before a matter goes to trial. Many of these steps will also be applicable in circumstances where a matter goes to arbitration instead of court.
- Post-litigation: once judgment has been given, the focus turns to collecting the judgment debt or appealing the court’s decision.
This is a very simple summary of the various stages of litigation, and in practice, legal proceedings are often much more complex and can take years to resolve. Regardless of whether your dispute is straightforward or complicated, you’ll want to ensure that your legal representatives have an impressive track record of successful case outcomes.
The Role Of A Litigation Attorney In Dispute Resolution
The precise role your lawyer will play depends very much on the nature of your case. Generally, however, the responsibilities below are central to the work of a litigation attorney.
Providing strategic advice
Across all facets of dispute resolution, there is one task that is constantly required of your attorney: to provide you with strategic advice. This will be particularly pivotal at the outset of your commercial dispute, as your attorney will advise you on the prospects of your case and the attendant risks of initiating proceedings. If a dispute is looming on the horizon but has not yet crystallized, a skilled attorney will provide strategic guidance on how the litigation could potentially be avoided. If litigation becomes unavoidable, your attorney will be responsible for providing their strategic input at every step of the proceedings, and particularly when you are required to make significant decisions about the direction of the litigation going forward.
Engaging opponents through correspondence
In the pre-litigation stage, attorneys must use their drafting and communication skills to tactically engage the other party to the dispute. Often, ventilating the dispute through correspondence following the delivery of a letter of demand can give you crucial insight into your opponent’s view of the dispute and what their likely strategy will be. This stage also allows your attorney to probe the potential for mediation or your opponent’s appetite for settlement.
Facilitating mediation, negotiation, and settlement
Although the public’s perception of a good litigation attorney is one who wins their cases, in practice, the best attorneys are those who can facilitate the amicable resolution of their client’s disputes before they go to trial. Resolving a dispute in this way not only saves clients from exorbitant legal fees but also avoids years-long legal battles that hamper and distract from the client’s core aim: to run a successful enterprise. Resolving a dispute through mutual agreement, whether this is facilitated by mediation run by a neutral third-party mediator, or through negotiations led by the parties’ representatives, also gives the business relationship at the heart of the dispute an opportunity to be repaired and preserved.
It’s important to note that negotiation can take place at any stage in commercial litigation proceedings prior to judgment being given. One important aspect of your commercial litigation attorney’s role is to assess when the opportunity may be ripe for initiating negotiations. Often, this is once the parties have gathered and exchanged their primary evidence through the discovery process. At this stage, your lawyer will be well-positioned to reassess the prospects of your case and estimate what a reasonable settlement that properly compensates you would be.
Trial representation
If your matter proceeds to trial, your legal team will need to undertake extensive preparation. They will be responsible for gaining a comprehensive grasp of the facts through detailed client consultations, drafting all pleadings and motions that need to be filed, tactically using the discovery process to request the disclosure of key documentation, filing interrogatories, taking witness depositions, and commissioning expert reports (these are especially important when the quantum of the damages you are seeking needs to be proved). The discovery portion of trial preparation can itself take months, if not years, depending on the nature and extent of the evidence to be gathered.
Once discovery is complete, a hearing date will be set and the matter will be argued before a judge. This is where meticulous trial preparation pays off and your litigation attorney’s oratorical skills come to the fore. They will need to expertly present all the evidence that proves your claim, cross-examine witnesses, and set out relevant case authority to construct a powerful legal argument. They will also need to be prepared to answer the judges’ questions and be ready to bring motions to strike out your opponents’ evidence where appropriate.
Post-litigation
After the trial has concluded and judgment has been given by the court, your litigation attorney will assist you with enforcing the judgment and recovering your costs (depending on the costs order granted by the court). In the event your case is unsuccessful, your attorney will advise you on your prospects of success on appeal and may launch appeal proceedings.
How To Choose The Right Litigation Attorney For Complex Commercial Disputes
The importance of hiring the right attorney for the needs of your case cannot be understated: it could mean the difference between obtaining the relief you seek expeditiously and being doomed to a long-running legal battle that is ultimately unsuccessful. When selecting an attorney, it’s important to consider the following factors:
- Experience: when your business is about to become locked in a complex, multi-faceted legal dispute, you want to be sure that you are hiring a seasoned commercial litigation attorney with many years’ trial experience and a track record of success.
- Specialist expertise: Ideally, you should seek to hire an attorney who has specialist knowledge in the area of law that is most relevant to your dispute. Many areas of commercial litigation – such as intellectual property litigation or business tort litigation – are niche, and hiring someone who has suitable expertise for your matter will greatly enhance their capacity to provide you with strategic, effective representation.
- Reputation: It’s always a good idea to research the lawyers you are considering hiring and look for reviews of their service online. You should also speak to colleagues, business associates, and friends to request recommendations of attorneys they’ve had good experiences with. Be certain that your attorney has an excellent professional reputation and has never been formally accused or found guilty of ethical breaches.
- Client approach: As a client, you’ll want to hire attorneys who are communicative, honest, approachable, and responsive. It goes without saying that they should take their obligations to clients, including their obligation to maintain confidentiality, seriously. Arranging an initial consultation to discuss your matter is a useful way to sense whether they’re a good fit for your business.
Ultimately, your attorney’s professional conduct should be beyond reproach, they should be a respected member of the legal community in which they practice, and their integrity, dedication, and determination should be evident to all.
Hire Experienced Litigation Attorneys To Protect Your Business Interests
When navigating the complex legal landscape, it is crucial to hire experienced commercial litigation attorneys to protect your business interests. These skilled professionals can provide strategic guidance and representation in a variety of disputes, ensuring that your company’s rights are safeguarded. Whether dealing with breach of contract, employment disputes, or other business-related issues, working with seasoned commercial litigation attorneys can make a significant difference in achieving favorable outcomes. Their expertise in handling intricate cases and negotiating settlements can help mitigate risks and preserve your business’s reputation and profitability.
Join the conversation!