Considering the significant outlay of resources in commercial and civil litigation, answering the question “How is my case?” is critical. Early Commercial and Civil Litigation Case Evaluation is difficult and giving an answer to the client is possibly the most challenging aspect of commercial and civil litigation. Giving an answer early on in the case is often nearly impossible. Some cases are easy to assess. A case involving failure to pay on a written promissory note may be simple – file a lawsuit on the note and wait for judgment. More often, it is not so simple. The defendant may be on the verge of bankruptcy and unable to pay a note. A personal guarantee may be involved, allowing a suit against the guarantors.
If they are approaching litigation, even simple cases usually present with complications. The defendant may have a cross-claim based on another transaction, or may allege fraud or bad faith in the loan. Of course, most commercial property litigation cases are more complex than a single loan transaction. In construction cases, dozens or hundreds of single transactions or events may be at issue. Liability might run from the architect or engineer to the owner, or from the material supplier to the subcontractor to the general contractor. In real estate disputes, the buyer’s records and the seller’s records, and the records of the broker or agent, escrow officer and title company must be reviewed. Often, answering the question “How is my case?” will require a review of contract documents, correspondence, email, photographs, videos, official reports, diaries and notes. Other cases may require detailed electronic data discovery to be fully evaluated.
It is rare (although it does occur) for one party to be so clearly correct in the litigation that the outcome is easy to predict. Even the strongest cases are subject to the personal judgment of a judge, jury or arbitrator. It is important to evaluate a case early on, and the first weeks after a case turns toward litigation can be the most important time to capture the facts and events. Employees often have multiple projects, and their memory of one project may fade in a short period of time. Identifying who is involved and where documents are stored is easier early on in the process. Locating, storing and organizing email, contract documents, plans, schedules, change orders, change order requests and payment applications in a construction case will make the difference between a reliable early assessment and one that is based only on guess work.
The problem is, in most cases, the hope early on is that the parties will be able to resolve their differences. Spending money on early litigation preparation may be unnecessary if the case can be resolved in-house or between individuals. Involving a skilled and experienced commercial litigation early on in the dispute process can help the client decide on priorities. An attorney can be a counselor and sounding board for settlement discussions, and can also give perspective on whether the settlement discussions are delaying an inevitable arbitration or lawsuit. If you are involved in a dispute that may involve construction, real estate, business or contract disputes, fraud or breach of fiduciary duty, and want guidance from the outset of the dispute, taking the time to contact an attorney can help with the important and sometimes critical decisions that will determine if you can reach an early, economical settlement and, if not, if you are making preparations to be efficient and well-prepared.
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice, please feel free to contact Joel E. Sannes at 480.461.5307, log on to udallshumway.com, or contact an attorney in your area.