You own a business and you have a disagreement with a customer, vendor or business partner. You’ve tried unsuccessfully to resolve the dispute through amicable negotiations, and your only course of action to get the outcome you seek is through commercial litigation, but you’ve never had to file suit before. What can you expect?
Step One: Filing the Lawsuit
The first issue that will need to be addressed is where you choose to file the lawsuit. Obviously, you’d prefer that all matters be handled in a court that’s conveniently located close to your business operations. That should be easy to do, if the defendant is also located in New Jersey. But what if it’s an out-of-state entity? You can still have “jurisdiction” in the New Jersey courts if the defendant was licensed to conduct business in the state or was actually doing business in New Jersey. You also would have jurisdiction in New Jersey, if there is a forum selection clause in the contract that gave rise to the dispute.
Step Two: The Discovery Phase
Once you’ve filed a complaint and the defendant has answered the complaint, typically discovery is exchanged between the parties. “Discovery” is essentially the term that attorneys use for gathering evidence. In the American legal system, the concept of “open discovery” prevails—this means that all parties have equal access to all evidence and information related to the case.
Discovery can take a variety of forms, from depositions of witnesses to the production of documents to interrogatories, a form of written questions and answers. The discovery phase of commercial litigation typically lasts months, and may be longer, depending on the complexity of the case.
Pre-Trial Motions and Other Matters
It’s not unusual for either or both sides to file motions before trial, seeking what is known as “summary judgment.” A summary judgment motion argues that there are no genuine legal issues or issues of fact that need to be resolved, and asks the court to render judgment before trial. In addition, you can expect to be required to produce a list of all witnesses who may be called at trial, and the court will likely determine in advance what exhibits and evidence will be admissible, so that those determinations don’t have to be made at trial.
At trial, the plaintiffs (party bringing the lawsuit) present evidence first, typically with direct examination of witnesses, as well as physical evidence. Defense counsel has the right to cross-examine all witnesses. Either side can object to any line of questioning. Once the plaintiffs have presented all their evidence, the defendants have the same opportunity.
In a civil suit, the plaintiffs have the burden of proof to show, usually by a “mere preponderance of the evidence” that their version of the facts is more likely than the defendant’s version.
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