Preparing for Business Litigation

The COVID-19 pandemic has been devastating to businesses in a variety of ways. Shutdowns, supply chain disruptions, and shifting consumer demands have wreaked havoc on the way businesses operate. Many have not survived, while others are facing monumental change.

Business litigation is on a steep upward trajectory in the areas of bankruptcy, contracts, and commercial insurance. Legal questions such as the applicability of force majeure — a common clause in contracts that essentially frees both parties from liability or obligation when an extraordinary event or circumstance (like a pandemic) beyond the control of either party occurs — and other insurance claims will inevitably become case law in the coming months and years.

It is a difficult time to be in business, especially if you are facing impending litigation. No matter which side you are on, petitioner or respondent, preparation will be key to how your business fares in the court of law.

The Law Offices of David H. Schwartz, INC. has been setting legal precedents in business litigation for more than 45 years. With a focus on commercial litigation involving contract disputes, trade secret law, shareholder disputes, securities fraud, business torts, civil RICO, and other complex disputes, the Law Offices of David H. Schwartz, INC. has prepared thousands of clients in San Francisco, California and throughout the Bay Area for business litigation — collectively saving them millions of dollars.

What Does the Litigation Process Entail?

Knowing the four key steps involved in the commercial litigation process will help you better understand why you need to be prepared long before you ever enter a courtroom. These four steps include the following:

  1. Consultation and Strategy - Consultation with an experienced and aggressive business litigation attorney should be your first move. Whether you are making a claim against another party or have had a claim made against you, your attorney will review facts, gather evidence, and work with you to build a sound legal strategy.
  2. Initial Pleading Filing or Response - If you are bringing a claim against another party, your attorney will file the initial pleading or “complaint” in the proper court of law. If another party has filed a complaint against your business, your attorney will prepare and file a response to the initial pleading. Then, the discovery process will begin, during which both sides must disclose certain evidence and information to the other. Your business litigation attorney will serve the other party with discovery requests and will help you respond to their requests. Discovery includes answering written questions, the production of documents, and depositions under oath.
  3. Trial - Once the discovery process is complete, the case will be set for trial. The party that filed the complaint will present its case first, followed by the respondent. Both parties will have opportunities to present and refute evidence, however, the burden of proof lies with the party that brought the civil action. Upon completion of final arguments, the judge or jury will render a verdict.
  4. Post-Trial Phase - Once the verdict is rendered, parties will have the opportunity to file motions for appeal and actions to collect any judgment awarded.

What Steps Should I Take to Prepare for Litigation?

Before the litigation process begins, there are five key steps you should take to ensure you are prepared for the road ahead. Those steps include:

  1. Work with An Experienced Attorney - Hiring an experienced and aggressive business litigation attorney, preferably one with a proven record of success at both bringing client cases to trial and responding to complaints, is absolutely critical.
  2. Cease All Communication with The Opposing Party - Although you may be tempted to continue trying to “work things out,” continued oral and written communication may work against you in court. Any and all communication should go through your attorney. If the opposing party has retained legal counsel, all communication will occur between the attorneys, speaking on behalf of their respective clients.
  3. Gather and Preserve Evidence - Collecting any and all pertinent evidence to your claim or response to the other party’s claim is an essential step. This includes evidence that supports your claim or response as well as evidence that may harm it. You have a legal obligation to not destroy evidence which the opposing side may ask you to produce during discovery. Furthermore, preserving evidence against them is vital to your case, should they fail to produce evidence during discovery.
  4. Avoid Creating Evidence That Can Be Used Against You - This may seem obvious, but it’s important to not create any evidence that can be used against you. Put nothing in writing or relay information verbally (noted in Step 2). Furthermore, cease communication with anyone regarding the case, even your own employees, family, and friends. Understand that although privilege exists between you and your attorney, it does not exist between you and other people. Choosing to reveal information to anyone other than your attorney, even with your attorney present, means you have waived confidentiality afforded by the attorney-client privilege. Written communications between you and your attorney are subject to privilege, however, if you share that communication with anyone else, the opposing party is entitled to it as well.
  5. Maintain Business as Usual - Other than interactions with the opposing party, it’s important to conduct business as usual. Do not allow the specter of litigation to affect your relationship with your other customers and clients.

Let the Law Offices of David H. Schwartz, INC Help

Commercial litigation can oftentimes be an extremely complicated process. Issues with communication and compliance with the rules of evidence can be sensitive situations that have a significant impact on the outcome of your case. If you retain the right business litigation attorney from the start, you will be able to navigate those situations with much more confidence. This may be your first time in litigation, but it certainly will not be for the Law Offices of David H. Schwartz, INC.

Business clients from San Francisco, California, and throughout the Bay Area, including San Jose, Santa Clara, San Mateo, Oakland, and Alameda County have counted on the Law Offices of David H. Schwartz, INC. for more than four decades. From the initial consultation through litigating the case in court, the legal team at the Law Offices of David H. Schwartz, INC. will bring their knowledge, experience, and tenacity to help you pursue the best possible outcome for your case. If you are facing impending litigation, work with an exceptional business litigation attorney. Reach out to the legal team at the Law Offices of David H. Schwartz, INC. today to get started on your legal strategy.


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