Business Litigation: What to Expect—The Process
Channel: Roy Oppenheim
Date: 2024-03-06

In litigation with a business partner, anticipate a lengthy and costly process involving complaint preparation, responses, discovery, depositions, and potential mediation before a trial, with uncertainties about attorney fees.

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Full Transcript:

Roy Oppenheim here "From The Trenches." One of the questions we get sometimes is, "I'm now in litigation with my business partner. What can I expect?" And the answer is, you can expect something that's going to be long, long, drawn out, and expensive. But in terms of steps, by steps, what's going to happen is if, for example, you are the party that's suing, you're going to prepare a complaint that's going to be served on your partner.

And that complaint will have to be served to them personally. So, the first is they have to serve them personally, whether at home or in the office. And once that happens, they have 20 days to respond to the complaint. That response could be a motion to dismiss, it may be just an answer, or it could, in fact, be a counterclaim. So, that's the first thing. If it's a counterclaim, now they're suing you back. And about half the time when you sue someone, they're going to sue you back. That's not always the case, but that happens a lot.

So, now that you're both suing each other, what happens? Well, then you both have to answer the complaint, and you have to either deny or not deny the allegations. And then from there, you begin what's called discovery, where, in fact, you start peppering each other with questions and requests for documents, and ultimately depositions where you have to sit before a stenographer and you make a sworn statement, and you have to respond to all kinds of questions that the other attorney is going to ask.

It's a little nerve-wracking, and some people who've never done it before, you know, get very stressed out, but some people who've done it before become naturals at it. But either way, that is the process. And once that process is concluded, and only once that process is concluded, and I don't want to make light of that process because that process could take 8 months, 12 months, even 16 months, once that's done, then the court will be prepared to set trial.

Before the court sets trial, the court will force and require, in all likelihood, mandatory mediation to try and resolve the matter. Maybe over 50, 70 percent of the time the cases do resolve in mediation. And again, in terms of attorney fees, as I said, it's going to be expensive. It's unclear who's going to pay your fees, whether you're going to have to pay them upfront, whether or not you're going to get reimbursed, and if you lose, whether or not you have to pay the other guy's fees.

So, these are all the things that are involved. It's kind of like three-dimensional chess, and there's a lot going on, and you have to be very strategic. So, if we can be of any help, Roy Oppenheim "From The Trenches." Thank you.