Your Business Has Been Served with a Summons and Complaint. Now What?

As soon as possible, you’ll want to hire a business litigation attorney. Here is some of what he’ll say and do. First, you’ll be required to preserve all of your business records

related to the transaction at issue, such as emails, invoices, contracts, etc. Even if your normal records destruction policy calls for disposing of some of these records, once you know litigation is likely or it has begun, parties to litigation must maintain these records until the litigation is completed.

Ochrach business litigation - depositionYour first order of business, after spending some time telling your lawyer the entire story – including the facts you know are not so favorable to your side – is to file an Answer to the Complaint and, perhaps, a cross-complaint (asserting your own affirmative claim against the plaintiff or someone else).

Next, you’ll want to provide your lawyer with all of the records you believe are relevant to the transaction at issue. Also, give him a list of records you believe he should request from your opponent. Of course, your attorney will be able to draft such a request for documents without your help, but because you know everything about your business and the transaction, I find my clients often have good ideas I may not have considered.

The first several months of litigation are spent conducting written discovery, such as exchanging business records and communications, propounding written questions (called Interrogatories), and informally interviewing witnesses. Then, depositions begin.

The Most Important Part of Preparing for Trial: Deposition

Depositions are usually the most important part of preparing for trial. Parties and other witnesses are examined under oath – just like at trial – on all aspects of the dispute and about all relevant documents. Depositions are used to learn information and, perhaps more importantly, to set up witnesses to be impeached during cross-examination at trial. Deposition transcripts are almost always the most important tool at trial. In every trial I have conducted, I have used deposition testimony of my adversary and his/her witnesses to prove that the witnesses were either mistaken about important testimony or, better yet, that they have lied to the judge and/or jury.

Because deposition testimony is by far the most important evidence I use at trial to win my cases, I know how important it is for your lawyer to be not only good, but truly excellent at taking depositions. Few lawyers really are excellent – and their lack of expertise translates to losing their cases. Likewise, an excellent lawyer will spend a lot of time preparing his client to give clear, unassailable testimony at his deposition. Too often, it’s obvious to me that my opponent did not adequately prepare. I think to myself, “thank you!”

Once the depositions are completed, the parties should have all the information they need to make a very well informed decision about settlement. If the case does not settle, you’ll go to trial. Trials are very difficult, expensive and never a sure bet. Even if you are positive you will win, you may lose. For example, in one case I tried, my client and I realized that we had a very difficult case that we were likely to lose. On the first day of trial, the judge tried to help the parties settle. My client offered to pay $250,000 to the plaintiff who was suing for over $1 million, even though we had filed a cross-complaint seeking about $400,000 against the plaintiff. The plaintiff rejected our offer and did not counter. After three weeks of trial, the jury found in our favor on all counts, awarding my client $400,000 in damages plus $2.7 million in punitive damages – and the court also awarded my client all of his attorneys’ fees.

In sum, the most important thing to do if you’re served with a lawsuit is hire the most effective lawyer you can find. He or she will guide you through the rest.