Procedure Leading Up to Business Litigation

Business attorney

Preparation for Business Litigation

The first step of the business litigation process actually exists outside of the process—it involves speaking with an experienced business litigation attorney.

The business owner certainly knows the facts of the situation, and has an opinion as to whether her actions were “right or wrong”. Yet these facts may or may not correspond to legal doctrine, and the opinion is likely colored by emotion.

An experienced business litigation attorney can help by clarifying the facts to narrow the issues of the dispute, and by providing level-headed, rational advice as to whether the actions of either party create a cause of action.

Typical Business Litigation Process

The following illustrates the typical process leading up to business litigation.


The first legal step in the process of going to trial (litigating) occurs when the plaintiff files a complaint. Basically, the complaint sets out the facts of the situation, along with the relief sought (often monetary damages) and a statement of jurisdiction. The plaintiff must allege enough facts so that if the facts were proven, the plaintiff would win. A claim that the defendant insulted the plaintiff’s tie, for example, would not work. If the defendant feels that the complaint does not meet this requirement, the defendant can file a motion to dismiss; if granted, this would end proceedings.


Assuming the plaintiff filed an acceptable complaint, the defendant must then provide an answer within a specified period of time, admitting or denying the facts brought up in the complaint. Also, the answer must include any affirmative defenses, which the defendant can prove at trial to avoid liability. Any counter-claims against the plaintiff should occur at this phase, as well.


Discovery acts as the fact-finding phase, allowing the parties to obtain information from each other. Within certain relevance, proportionality, and privilege restraints, one side can demand information from the other. This includes asking for physical documents, requests for admission, and oral questions at depositions. Clearly, discovery can cost a lot of money. It’s during this phase that parties learn more about the strength of their case, however, and settlements often occur.

Summary Judgment

At the end of the discovery phase, a party may attempt to end the case before trial by making a motion for summary judgment. The judge will grant this motion if there are no genuine issues of material fact, or when the party is entitled to judgment as a matter of law. In the first instance, the facts needed to prove the claim are so unlikely that no reasonable jury would come to that conclusion. In the second instance, the facts argued even if true would not be enough to satisfy the requirements of the law. Summary judgment has great importance within the litigation process, and parties gear their efforts towards success at this stage. Short of a last minute settlement, failure to dismiss the case on summary judgment leads to a trial.

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