Preparation for Business Litigation: 7 Tips and Tricks

Last Updated: 

March 30, 2023

Every business has the possibility to fail. Sometimes, you'll have to take legal actions against someone who has wronged you. Approximately forty-five percent of small businesses are currently entangled in some type of legal dispute. At some point in the future, about ninety percent of all businesses will be the target of legal action.

Business litigation is a complex law area that involves many different factors and can be challenging to understand. Knowing how to prepare for a business litigation is essential in case this happens to you. If you're well prepared

Key Takeaways: Preparation for Business Litigation

  1. Business litigation is a complex area of law involving legal actions taken by one business against another for non-criminal matters.
  2. Approximately 45% of small businesses are involved in legal disputes, and 90% will face legal action at some point.
  3. To prepare for business litigation, gather all relevant evidence, including contracts, communication records, and documentation of damages.
  4. Hiring an experienced commercial litigation attorney is crucial for understanding the complexities of your case and providing guidance.
  5. Regularly review business contracts and ensure employees understand their terms to avoid confusion and potential issues in court.
  6. Keep written communications to a minimum and document all conversations related to the dispute to maintain a strong case.
  7. Do not create new documents as evidence once litigation begins, as it may limit your legal options and damage credibility.
  8. Limit verbal communications within the organisation and with potential rivals to prevent misunderstandings and conflicting memories.
  9. Report potential insurance claims to your insurer, as the details of your policy could impact the outcome of the case.
  10. Proper preparation, planning, and hiring an experienced attorney are key to increasing the likelihood of winning a business litigation case.
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7 Tips And Tricks to Prepare for Business Litigation

A business lawsuit can be a nerve-racking experience. It's not just the threat of losing the business that will keep you sweating, but also the thought of what you will do if you lose the case.

However, if you know what to expect and how to prepare when you are hit with a lawsuit, dealing with the situation can be much easier. Here are some tips and tricks when preparing for a business lawsuit.

1. Gather Evidence

Before taking legal action against another company, you should gather all the evidence you can about the case at hand to present it to a judge or jury if necessary. This includes written contracts, emails, and other communication records between yourself and those involved in the lawsuit. 

You can also include evidence of physical damage caused by the other party's actions — photos showing cracked pavement due to poorly maintained parking lots, for example, or video footage of an employee fighting with a customer at their store location.

2. Get a Lawyer

If your business is threatened by legal action, you must get the help of a competent commercial litigation attorney. You should always tell your attorney the truth, whether it's favorable for you or not.

A commercial litigation lawyer with experience handling similar cases can better understand your case's current status. They can provide insight into what the judges and jury may think of your case. Their guidance on how to proceed with your case is also helpful.

A good attorney will help you understand the complexities involved in helping you resolve your legal issues, including drafting contracts, reviewing contracts, and negotiating settlements.

3. Don't Ignore Business Contracts

Legal documents like contracts, agreements, and leases should be reviewed from time to time by your legal team to ensure they are up-to-date and enforceable. A contract that hasn't been reviewed in years could have missing or outdated information that could cause problems if you need to use it as evidence in court. 

Ensure your employees know what the terms mean, so they don't get confused during an interview with the opposing counsel or an expert witness who may try to exploit their confusion by using their statements against them during the trial.

4. Keep Written Communications to a Minimum

If you give them more information, their case will be stronger. Keep your correspondence professional but brief — and don't let yourself be baited by their tactics.

Document any communications with them and keep copies of everything that you have sent or received. It's also essential to make notes about phone conversations related to the issue you are facing. This will help you remember details that might come up later in court, as well as provide evidence if they try to deny ever having communicated with you or claim that they never sent certain documents or emails that went missing in transit.

5. Do Not Generate Evidence

Do not create any new documents as evidence. Emails and internal reporting could be turned over as discovery in litigation. It is better if you turn over as few documents as possible. When litigation begins, creating documents may restrict your options. 

Once litigation has begun, it's possible that producing documents will limit your legal options. 

A file that contains self-serving, favourable documents runs the risk of credibility questions. When a lawsuit is imminent, the parties make this mistake.

Expecting that these will help their trial case, they start drafting documents that benefit themselves. This always results in the opposite. If you are drafting new documents regarding the dispute, consult a lawyer.

6. Limit Verbal Communications

The parties can discover the contents of verbal communications just as they can with written documents. Consequently, you should limit verbal communication with your potential rival and within your organisation. Witnesses, including these employees, may be deposed as part of the process. Avoid verbal interactions with workers who are not in your control group (not officers or owners). The details of meetings may be remembered differently by workers. In a dispute, oral communication can create misunderstandings and escalate emotions. 

Thus, consider limiting oral communications until you have reviewed any written communications involved in the dispute or until you have spoken to an attorney. Reducing the amount of time spent discussing the disagreement would be beneficial to prevent potentially conflicting memories.

7. Report Potential Insurance Claims

Contact your insurer and report any claims that may be relevant to your predicament. Sometimes, your ability to win a case may hinge on the details of the insurance policy you've purchased.

Business liability insurance protects the company's financial interests in the event of formal legal action or any other type of claim brought by a third party. These policies cover potential legal fees and direct financial losses from lawsuits.

Wrapping Up

In a business litigation case, it is vital to have the proper preparation and plan in place. Many things must be done before you file a lawsuit and win successfully. You need to ensure that you are prepared to handle the case and make sure that you have all your bases covered. 

Also, hiring an experienced commercial litigation attorney can help you prepare for the case. If you are not prepared, there is a chance that you will lose the case. To make sure that you have a high chance to win the case, preparation is the key.

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