When disputes arise that cannot be resolved through negotiation or other alternative dispute resolution, filing a lawsuit may be the next necessary step. Doing so requires careful consideration as litigation can be costly, lengthy, and stressful. In this blog, we’ll walk you through the general timeline of a lawsuit, focusing specifically on some of the nuances related to business and commercial litigation.
Preliminary Action
To build a strong claim, you will need to gather and keep all relevant evidence and documentation. This may include contracts, emails, photographs, medical records, financial statements, and any other records that support your claims or defenses.
Consult with an Attorney
Because commercial and business disputes are often complex and can significantly impact a business’ day-to-day operations and success, seeking the advice of a qualified attorney who specializes in the relevant area of law is crucial. An attorney can assess the merits of your case, explain potential legal remedies, advise you on the best course of action, and organize and evaluate evidence to strengthen your case’s chances of success. An attorney will also advise as to the applicable statutes of limitations, which are time limits within which you must file your lawsuit to preserve your rights.
Attempt to Settle Out of Court
An attorney will be able to advise on an appropriate course of legal action, whether that be exploring mediation, arbitration or some other dispute resolution avenue outside of court. Particularly, many business disputes will require parties to adhere to any contracts such as Operating Agreements that may have specific guidelines for parties to follow should a dispute arise.
Though not every case may be resolved this way, often, these types of settlements are advisable if possible because they save time, money, and stress.
An attorney can also engage in more informal negotiations with an opposing party to reach a satisfactory resolution.
Initiating the Lawsuit and Drafting a Complaint
If settlement negotiations are unsuccessful, an attorney may advise initiating a lawsuit. The first step in litigation as the Plaintiff is drafting a Complaint, which is the formal legal document that outlines relevant facts of the case, the legal claims you are making, and the remedy you seek. In a typical district court matter, a party has the right to demand a jury trial or a bench trial (trial to a judge without a jury). An attorney will be able to advise which might be better suited to the facts of the case. The attorney will then file the Complaint with the court and formally serve it and all accompanying documents on the Defendant or Defendants.
Defendant’s Response and Next Steps
Defendant has a specific amount of time to respond to the Complaint, usually 21 days if served in-state or 35 days if out-of-state, though these deadlines may be affected by different circumstances.
The formal response, or Answer, may include admissions or denials of allegations and raise affirmative defenses. Defendant may also file a cross claim or a counterclaim. Failing to respond within the specified time frame may result in a default judgment.
After all parties have answered, the case is considered at issue and will proceed with deadlines, court conferences, and move into the discovery phase of a case (discussed more in the next section). Many districts in Colorado mandate that parties attend mediation or alternative dispute resolution before setting a matter for trial.
Discovery
During the discovery phase, parties exchange information relevant to the claims made in the case. This includes disclosing all relevant evidence and names of witnesses with knowledge of the asserted claims. Parties may serve Interrogatories (written questions answered under oath), Requests for Documents, and Requests for Admission. Parties may also depose witnesses or experts on the record related to their knowledge of the asserted claims.
Discovery is a critical phase of litigation that precedes trial and informs parties of strengths and weaknesses of their cases to facilitate settlement negotiations and success at trial.
Pre-Trial Motions
Parties may file pre-trial motions to resolve or draw attention to specific legal issues or disputes. For example, these types of motion may seek to dismiss the case, exclude certain evidence or testimony, or request summary judgment (a judgment without going to trial). Depending on the judge and the district, these motions may be ruled on in advance of the trial or during the trial.
Trial
Many cases resolve sometime before the scheduled trial, but if the parties are unable to reach a settlement agreement, they will proceed to trial. The trial process involves each party presenting their arguments through evidence and witness testimony. A general trial timeline includes opening statements, examination and cross-examination of witnesses, presentation of evidence, and closing arguments. After all parties have presented their case, the judge or jury will deliberate and render a verdict.
Post-Trial Proceedings
A prevailing party may have the chance to pursue legal fees including costs and attorneys’ fees from the opposing party, while a losing party may have the option to appeal the decision to a higher court. Should a party file an Appeal, a new case will open in the Appellate Court and will include additional briefing, citations to the original trial, and potentially Oral Argument.
Conclusion
Filing a lawsuit requires a great deal of thought, legal expertise, and commitment. It’s crucial to find an experienced attorney who can guide you through each arduous step with confidence to seek a fair resolution to the dispute. While the litigation process can be complex, hiring the right attorney and understanding the process will empower you to make informed decisions and protect your rights. The attorneys at MLMW regularly handle complex commercial, business, and real estate disputes, mediations, arbitrations and suits and have the experience to guide you through the litigation process.
Mallon Lonnquist Morris & Watrous, PLLC is a business, transactional, real estate, and litigation law firm in Denver, Colorado. The attorneys at MLMW regularly represent businesses and individuals in business and contract disputes and related litigation including corporate, employment, partnership, construction, and service agreement disputes.