The person who files a lawsuit is usually called a plaintiff. Sometimes the person is called a petitioner or claimant. The person who the lawsuit is against and whose conduct is being complained of is called the defendant. Sometimes this person is called the respondent. Most lawsuits ask for money damages because that is all that is available, although sometimes court orders to do or not do a specific thing are available. Orders to do or not do something are called specific relief. One kind of orders for specific relief are called injunctions. These are sometimes available when money damages or other relief is not considered adequate. In the business litigation area injunctions are sometimes available to protect trade secrets, trademarks, servicemarks, copyrights or patents and to enforce non-competition agreements. Other types of specific relief available are things like eviction of a tenant under a lease or partition (division or forced sale) of real estate owned by more than one person.

After a complaint is filed the defendant (or each defendant if there are more than one) has a certain period of time to respond. The defendant can respond in a variety of ways. One is to answer the complaint by admitting or denying its allegations. The defendant can also counter-sue the plaintiff (to which the plaintiff must respond) or file a claim against some third party on the grounds that the third party is responsible for the matters set forth in the complaint. Each third party can also bring in other parties.

A defendant can also move to dismiss the complaint. This type of motion assumes, solely for purposes of the motion, that the allegations of the complaint are true but that they do not state a legally recognized wrong.

If a motion to dismiss is decided for the plaintiff the defendant can then go no further, suffer judgment and appeal, or the defendant can file an answer or another motion to dismiss. If the defendant wins the motion the plaintiff can refuse to go further and appeal or file an amended complaint or just quit.

Another type of motion a defendant can make in response to a complaint is that the court where it was filed has no jurisdiction (authority) to decide the matter or has no jurisdiction (power) over the defendant. Motions like this must be the first response of a defendant or they are waived.

Eventually in many suits motions to dismiss and other like motions are disposed of and the complaint or amended complaint is answered by the defendant. The parties then usually proceed to discovery, although often they start this process while motions are still pending. Discovery is the process of finding out facts relevant to the case. A party has a right to ask another party relevant written questions. A party also has a right to ask other parties for all relevant documents which are not covered by some privileged (such as attorney-client privilege), or kept confidential by some statute. Parties also have a right to examine other parties under oath before a court reporter. This is called a deposition. Parties can also get documents and depositions from non-parties by subpoena.

People who do not want to turn over documents or answer questions can object to doing so and courts hear the objections.

Both in the discovery process and at trial it is often the case that known witnesses or documents cannot be obtained, either because they are outside the court's jurisdiction or cannot be found or, in the case of people, because they are avoiding service of a subpoena.

After discovery is complete one or more of the parties often makes a motion for summary judgment. This type of motion is based on the facts which are not contested and says that based on those facts the moving party should win - either in general or on some of the issues. These motions are usually made after discovery so all the facts and who is contesting what can be developed.

If summary judgment is granted against a party the party can either appeal or quit (or ask for a reconsideration - any party adversely affected can always ask a court to reconsider its ruling but such a request is not usually granted).

After any summary judgment motions are disposed of the case usually proceeds to trial. Often there are motions before trial on various points of evidence or other matters that are expected to arise. If there will be a jury the parties usually offer their suggested jury instructions to the judge at this time.

At trial, if there will be a jury the parties begin by selecting the jury which can take some time - often a week. It usually takes a lot less time, often only half a day.

The plaintiff's lawyer then gives an opening statement about what the plaintiff expects to prove and then the defendant's lawyer does the same. Then the plaintiff starts calling witnesses and questioning them. After the plaintiff's lawyer has finished with a witness the defendant's lawyer can cross-examine the witness. During this process documents and other things can be introduced into evidence. This happens when a witness identifies them and explains what they are. Documents (with some exceptions like government certificates) do not introduce themselves.

What a witness can and cannot testify to and what documents and other things can be admitted into evidence are governed by the rules of evidence. They should be called the rules of non-evidence since they are rules for what cannot be admitted. Hearsay, for instance. A witness can testify to what the witness saw someone do. But generally the witness cannot testify to what someone said if the point is to prove that what that someone said is true. There are a host of exceptions, such as business records and admissions.

At the end of all the plaintiff's witnesses the defendant can call witnesses which the plaintiff can cross- examine. At the end of all the defendant's witnesses the plaintiff can call more witnesses to rebut the defendant's witnesses. Then the defendant can do likewise.

During all this lawyers make objections to try to exclude the other side's offered evidence.

At the end of all the witnesses the lawyers make their closing arguments. The plaintiff goes first, then defendant, then the plaintiff again. Then, if there is a jury, it is read the applicable law (jury instructions) by the judge.

The judge or jury then decides the case and the losing party has a limited time to appeal. If plaintiff wins and gets a money judgment the plaintiff can ask the court to require defendant to post a bond while defendant appeals.

If a plaintiff sues and wins and gets a judgment for the defendant to pay money, that does not mean the defendant pays. The defendant may not have any money or may not voluntarily pay. The plaintiff then has to resort to a variety of supplemental judicial proceedings to collect. These include a judicial examination of the defendant to see what assets the defendant has, turn over orders directed to the defendant, process directed to third parties to see what assets of the defendant they are holding and turn over orders directed to these third parties. If any assets of the defendant can be found a court can order that they be sold.

The foregoing is a very simplified version of what happens in litigation. It should be kept in mind that plaintiffs usually have the burden of proof and movants on any motion usually have the persuasion burden. It is never possible to tell in advance who the winner will be. If it was there would be no litigation.

Settlement negotiations usually precede litigation and continue while litigation is pending. Most cases are settled somewhere along the line. This is not easy because both parties usually have to settle for a lot less than they think they are entitled to. In other words, in a settlement a plaintiff gets a lot less than the plaintiff thinks is right and the defendant pays more than the defendant thinks is right.

One of the most common types of business litigation involves suits to collect from a customer, i.e. a collection suit. This is the small business term. In other circles this is called business or commercial litigation. The plaintiff is a business and the defendant can be a business or individual.

Common defenses are:

1. The goods or services were defective.

2. They were delivered late or not at all.

3. The wrong goods were delivered.

4. The buyer was not told something he should have been told.

5. Consumer Fraud (it applies to purchases by businesses and all elements of common law fraud need not be proved and attorneys fees are available).

6. Violation of the Truth In Lending Act.

7. Violation of the Fair Debt Collection Act.

Other common business litigation involves breaches of contract, patent, trademark or copyright infringement, competition by ex-employees who have signed non-competition agreements. disputes about insurance coverage, disputes with lenders, and disputes with regulatory agencies such as the EPA or FTC.

Donald M. Thompson * Chicago Litigation - 55 W. Monroe #3950; Chicago, IL 60603
Ph: 312-782-0844 * Fax: 312-201-1436 * Email: donthompsonlaw@sbcglobal.net