Anatomy of a Business Lawsuit - Part 3

  To review, the pleadings phase is basically where the parties put their cards on the table so to speak and define what their issues are about. The discovery phase is where the parties exchange and obtain information and take depositions to verify their claims and tell the other what their claims are based upon.Most commonly the third or conclusion phase is thought of as the trial, but before that can occur the parties must mediate and that can lead to a settlement.    How do lawsuits commonly end Some of the ways that a lawsuit can end are direct settlement, settlement through mediation, or by procedural methods like summary judgment. Those can occur during the first two phases of the lawsuit but only a trial either in front of a judge or a jury occurs primarily in this third phase.There are the unique situations where a case can be split in half or bifurcated and part of it tried earlier before additional discovery might be conducted. There are also variations on trials like summary trials but generally the trial occurs in the third and final phase. Settlement Nothing prevents a party in a lawsuit from settling their dispute directly with the other side or from suggesting a settlement to the other side at any time. Settlements can also be achieved through mediation with a qualified and trained mediator.Business lawsuits are fundamentally business disputes and are thus capable of being resolved by business people in a business-like fashion. Whether or when to suggest a settlement or mediation is a tactical decision that should be made in concert with your attorney. Also in any settlement agreement certain provisions should be addressed and accommodated which is where having an experienced attorney representing you becomes a tremendous benefit. Mediation Mediation is a private meeting between the parties either by their agreement or by court order with a mediator they choose.  Florida was the pioneer in this area of alternative dispute resolution in the early 1990's and now has some very accomplished and skilled mediators. Mediation can occur as many times as the parties desire by their agreement but it usually must occur at least one time before a judge will allow a case to proceed to trial.  You and your lawyer should perform due diligence on any mediator that will assist you in solving the dispute to be sure you choose the right person for the job. To read more on this please read my article specifically addressing mediation.  Binding vs. Non-Binding Arbitration Arbitration can exist as an independent option where parties agree in a contract to resolve certain disputes in arbitration instead of in court. But it can also be used within a lawsuit and can be binding or non-binding and can be by agreement or ordered by the Judge. A judge however may only order non-binding arbitration. Binding arbitration is exactly as it sounds. A decision entered in that kind of arbitration is final and binding on the parties subject to it. There are no appeals of arbitration awards like the appeal of a judgment from a trial court to an appellate court but they are subject to review by a trial court if the arbitration awardee seeks to have the court conform the award into a final judgment. In that process, the court can determine if the arbitrator was biased or the losing party was deprived due process.Generally the allegation that the arbitrator misapplied the law or made a bad decision is not grounds for attacking or challenging an arbitration award. So while there is no independent appellate body that oversees arbitrators there is a limited review of the process to ensure fairness.In contrast, non-binding arbitration is also just as it sounds; the ruling or award is not binding on the parties and the losing party is free to reject it. Thus non-binding arbitration as a process for resolving business disputes rests somewhere between the informality of mediation and the formality of a trial because a party can reject the decision and take their case to trial. Logic leads one to the inquiry of what benefit non-binding arbitration provides if the case can still go to trial. Although the losing party can reject the arbitration award, the arbitration itself can act as a useful dress rehearsal for trial and can show one party that they may not have a chance of winning at trial. That can cascade the dispute into a settlement between the non-binding arbitration and the trial or embolden the winner to proceed to trial knowing that their presentation of evidence has carried the day with an arbitrator. To understand more about arbitration and see if it is right for you please read my separate article on arbitration. Is arbitration better than going to court Arbitration is not better or worse than going to court. It is just a different venue for resolving a business dispute. Depending on the circumstances of the dispute whether arbitration is useful or beneficial is a decision for you to make with you lawyer. That decision should also be made before you sign a contract that contains a mandatory arbitration provision unless you absolutely know that you want to arbitrate any dispute that it the subject of that provision.Hiring an attorney who has a depth of experience and knowledge with arbitrations in and outside of lawsuits like Board Certified business lawyer David Steinfeld is highly beneficial. The capacity to fully and properly analyze the situation from an experienced perspective is a great benefit that such a person brings to your team. Strict rules apply at trial Trials are governed by certain rules.  As James Bond infamously said to Auric Goldfinger in the 1964 classic that bore his name, “strict rules of (golf) evidence and procedure, Goldfinger.” It is the function and obligation of your lawyer to know those Rules inside and out and to understand how to properly employ them in the trial.  Florida Bar Board Certified business lawyers like David Steinfeld have demonstrated that they have sufficient experience in both jury and non-jury trials of business disputes, have passed a very comprehensive exam, and received approval from judges and fellow lawyers to be called experts in business trials.  Jury selection Parties to the lawsuit can choose a judge or jury unless that choice is waived by a contract. They make this choice in the pleadings phase of the lawsuit. Determining whether the case is appropriate for a judge or a jury is where actual trial experience is of incalculable value to you or your business. Selecting the jurors, a process called voir dire, is also a critically important skill. That process can make or break the outcome of the trial. A trial is similar to a play that runs one time for a very select audience. Knowing how to organize, manage, and produce that show is the hallmark of an experienced and accomplished attorney and one that you want to represent and stand by you or your business in trial. Board Certified lawyers are proven trial experts Board Certified business lawyers in Florida are experts in conducting business dispute trials. Their experience permeates the entirety of the dispute and guides and structures all pre-trial phases. To draw a parallel, an educated doctor who has experience with certain operations is better than a doctor who has never performed an operation or has little experience in them but knows a lot about the body. Unlike doctors, however, not all lawyers are board certified nor are they required to be in order to practice law. Only those lawyers who have the experience and are deemed worthy by judges and other lawyers can even sit for the exam and not all who do so pass the exam. Click for Part 1 of this article on the Pleadings Phase Click for Part 2 of this article on the Discovery Phase