What Are The Stages Of Business Litigation In Manhattan, NYC?
First, your Manhattan, NYC Business Litigation Lawyer will interview you in detail about the circumstances of your case. Your attorney will also request relevant documents from you.
I ask for documents evidencing the actual injuries or losses suffered by the client. I ask for documents showing the client’s lost profits. I request a list of all questionable actions on the part of the prospective defendant. I seek all corroborating e-mails, witness statements, and memoranda. If the client has the time and the sophistication to draft it, I ask for a narrative of the events establishing the client’s claims.
Once I’ve reviewed those documents, I prepare a complaint. A complaint is a detailed, paragraph-by-paragraph statement of the facts and circumstances that give rise to the claim.
For example, if the claim is for breach of contract, the complaint will discuss the formation of a contract between my client and the defendant, performance by my client, the defendant’s failure to perform, and the resulting damage.
To give another example, if the cause of action is for fraud, the complaint will set forth a misrepresentation or a material omission of fact which was false and known to be false by the defendant, made for the purpose of inducing my client to rely upon it. The complaint for fraud will also discuss the justifiable reliance of my client on the misrepresentation or material omission, and injury.
Once I prepare the complaint, I give it to the client for review.
Once we have a final document, I file it in court, along with the filing fee that commences the case.
Through a process server, my law firm must also personally serve on the defendant the complaint, as well as a summons.
Within a relatively short length of time, the defendant entity or individual will serve an answer to the complaint. The adversary’s answer is a detailed written pleading that addresses, paragraph-by-paragraph, the allegations of the complaint. As to each allegation of the complaint, the defendant’s answer either admits the allegation, denies it, or denies having knowledge and information sufficient to form a belief as to the truth or falsity of the allegation. The defendant’s answer may also include counterclaims, which are causes of action brought by the adversary against my client.
In federal district court, the clerk’s office will immediately assign, to the lawsuit, a U.S. District Judge and a U.S. Magistrate Judge. In Manhattan state court, once my client or the defendant files a Request for Judicial Intervention (an “RJI”), the court system will assign, to the case, a judge.
There will be a preliminary conference at which a schedule for written discovery is set. When I represent the plaintiff, I serve written document requests on the defendant entity or individual, demanding that it, he, or she turn over categories of documents relevant to the claim. I may ask written questions, called interrogatories, which will be answered in writing by the adversary.
I may serve, on the defendant entity or individual, what is called a notice to admit, which is a pleading that seeks to force the adversary to admit certain undisputed facts. The penalty, if the defendant does not admit those facts, is that the defendant will pay the cost of me proving those facts at trial.
The defendant company or individual will also serve written requests for documents and interrogatories. With my client’s help, I will respond or object to the adversary’s document requests, and I will answer or object to the defendant’s interrogatories.
The parties, through their respective lawyers, will schedule and take depositions. A deposition is testimony of a party or a non-party, under oath, given in a conference room before a court reporter. A deposition is usually held at the offices of the litigant’s attorney who is taking the deposition. When I’m deposing the defendant individual, a designated representative of the defendant company, or a non-party witness, I orally ask questions to the deponent. With specified exceptions, the person being deposed is required to orally answer, under penalty of perjury, my questions.
At the deposition of my client, the adversary’s attorney will ask my client questions. My client must answer truthfully. When my client is being deposed, I am there, as his counsel, to object to irrelevant or privileged questions.
At the end of the discovery period, the defendant entity or individual will likely move for summary judgment. A motion for summary judgment is an application, in writing, to the Court contending that based on the undisputed material facts that, through discovery, have emerged, the moving party is entitled to judgment as a matter of law. In other words, in a summary judgment motion, the moving party maintains that no trial is warranted, but that, instead, the movant is entitled, as a matter of law, to a decision in its, his, or her favor.
The defendant’s motion for summary judgment is buttressed by affidavits and by excerpts from the transcripts of depositions of the parties and of non-parties. So, too, the defendant’s summary judgment motion is supported by selected documents that the parties produced in discovery.
On behalf of my client (the plaintiff), I prepare affidavits and a memorandum of law opposing the defendant’s summary judgment motion. I oppose the adversary’s motion for summary disposition not only with papers I’ve drafted, but also with documents and with excerpts from deposition transcripts. In my client’s papers opposing the defendant’s application, I explain that there are material issues of fact that preclude summary judgment and that require a trial. When the facts allow it, I also cross-move for summary judgment, either entirely or in part.
The judge considers the summary judgment papers. If the judge grants the adversary’s motion for summary judgment, then my client loses his case. Conversely, if the Court denies the adversary’s motion for summary judgment, the case goes to trial.
My client has the right to a trial before a jury of his peers. However, my client can waive that right and request a bench trial, which is a trial in which the judge sits as the finder of fact.
When my client’s case goes to trial, I, the client’s lawyer, bear the burden of proving the client’s case. In order to meet that burden, I call and examine witnesses, and I introduce documentary evidence.
On behalf of our respective clients, the opposing party’s lawyer and I each make, to the jury, (oral) opening statements. After all witnesses have testified, opposing counsel and I each deliver, to the jurors, (written) closing statements.
The jury finds the defendant entity or individual either liable or not liable. If the jury finds the defendant liable, the jury proceeds to determine what money damages my client (the plaintiff) has suffered. The jury awards, to my client, monetary damages in that amount.
That said, and both in federal court and in Manhattan state court, most lawsuits that survive dispositive motions do not go to trial. In most cases in which summary judgment is denied, the parties settle the case rather than go to trial.
If your company wants to bring, or needs a lawyer to defend it in, business litigation and you are located in the Manhattan, NYC area, call Manhattan Business Litigation Attorney David S. Rich at (347) 970-5550.
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