What is Civil Litigation? Technically, everything that isn’t Criminal Litigation is Civil Litigation but Civil Litigation usually involves a broken agreement, a Breach of Contract that may also be pled as a tort, a civil wrong. An example of this is a sub-contractor that isn’t paid by a General Contractor. This matter could contain several Causes of Action (legal ground to bring and maintain suit) such as Breach of Contract and Failure to Pay on Account Stated, both causes of action lying in Contract Law and; Fraud in the Inducement, a tortious Cause of Action.
All Civil Matters follow the same basic procedure. The Federal Courts are governed by the Federal Rules of Civil Procedure. In New York, Procedure is governed by the Civil Practice Law and Rules (CPLR). New York State has many sets of laws and rules for almost everything. There are General Obligation Laws, General Business Laws, Real Property Actions and Proceedings Laws, Domestic Relations Laws, etc. These, and many more are all areas of Practice like Matrimonial Law, Trust and Estate Law, Foreclosure Defense, Personal Injury, etc., but they are special areas of practice that are not what is generally considered General Civil Litigation. General Civil Litigation is, generally a civil dispute between parties involving a breach in payment or an allegation of a material misrepresentation.
Most civil litigation starts and takes place in the Supreme Court of the County the Defendant resides in. At times a Defendant may decide to remove their matter to Bankruptcy Court in order to get a better disposition. Sometimes this is a successful strategy but at other times this isn’t possible as there may exist other assets that you do not want to expose to the Bankruptcy Court. As such, it is crucial to have a frank discussion regarding possibilities and options and expected fees between attorney and client in an honest forthwith way at the time of retention so the client has a clear understanding of their expected legal fee and other expenses such as process servers, Court Fees, filing fees, copying or downloading fees, deposition fees and what you think your client can expect to recover if successful and their chance of success, or alternatively, if your client is the defendant, their exposure to liability along with the above.
These disputes usually involve a sale of something that doesn’t work out as anticipated. Sometimes it involves an allegation of a service performed incorrectly. Most people and small business’s try to resolve problems with other parties without resorting to a lawsuit. The matters that do end up in civil litigation usually are the result of the Plaintiff suffering a real and tangible loss, not just frustration and aggravation.
I have handled quite a lot of civil litigation. I have dealt with people being sued by nursing homes after signing their relatives in and signing documents they did not read while under duress. I have handled matters involving companies being sued by past employees as well representing people claiming money due from a past employer. I have handled matters involving fraudulent transfers of monies. I have dealt with intra-family transfers of land without payment being tendered or an instrument not executed correctly having to be re-executed by a County Sheriff. The one thing all these matters had in common was either a payment not received or an obligation not carried out properly and the need for proper redress in court.
Civil litigation is expensive and the outcome is usually unsure so its important that your matter is reviewed expeditiously as there are time limits, also known as Statute of Limitations which set time limits on how long a Plaintiff has to bring a matter to court. Many time’s there is a Breach of Contract Cause of Action which has a longer Statute of Limitations than the Statute of Limitations on the Tortious Cause of Action for the Intentional Tort of Fraud which can be pled with the Breach of Contract Cause of Action. That’s why you should consult with your lawyer once you feel that either a breach or material misrepresentation has been made.
Many time’s a litigant will bring a matter to an attorney and that attorney has a choice of which venue they want to bring the matter in or, which set of rules that attorney wants to litigate a matter under. An example of this would be a Contractor who could sue a client for Breach of Contract under several theories such as Breach, Account Stated, Quantum Meruit, etc. Or, file a Mechanic’s Lien on the property and sue in equity for foreclosure to sell the property and get paid from the proceeds of the sale.
Many cases revolve around the Sale of the Assets of a Small Business and a Promissory Note so the buyer can finance the sale along with a Security Agreement that secures those assets against default in payment. Usually the Goodwill of the Corporation is one of those assets and has a value assigned to it in the Contract of Sale. Such a matter is controlled by the Uniform Commercial Code (UCC) in New York Supreme Court. This allows the seller to repossess the assets in case of default. The Seller has to be careful so as not to diminish the value of the goodwill but this allows the seller to go after the accounts receivable of the new owner. The new owner may decide to remove this matter to the Bankruptcy Court under Chapter 11 and bring an Adversary Proceeding (lawsuit in the Bankruptcy Court) to recover the value the seller diminished the Goodwill by. Many time’s this is a tangible number as the Goodwill may consist of a client list and an accounts receivable list from which it can be ascertained how much money has been lost.
TRIAL & SETTLEMENT
Civil litigation is usually costly. Defending and prosecuting civil cases involves sometimes lengthy Discovery such as Demands for Bills of Particulars, Demands for Discovery and Inspection, Interrogatories, Depositions and Admissions. A good private investigator can be a great help as well.
Prosecuting civil cases requires getting your witnesses ready to testify at trial. The faster an Attorney can get their witnesses ready to testify at a trial, the better the odds that litigant has of winning. This also forces settlements that are usually favorable to the Plaintiff. Most cases involve a non-payment. The party that is best able to tell their story to the Jury or Judge, or at least proves that they’re ready, usually wins or forces the best settlement. Settlements are important because the whole reason a party enters into civil litigation is usually to recover money. Anyone entering into civil litigation for other reasons, usually discovers very quickly that civil litigation is expensive and usually prolonged. Once a party obtains and enters a Judgment, they must execute that Judgment. Defendants try to make themselves Judgment Free by not having anything in their name. Often, a Defendant may go bankrupt and discharge the Judgment. That Defendant could have other assets they do not want to expose to the Bankruptcy Court. Your client most likely wants at least some of their money back. This usually forces parties to settle and honor those settlements.
Most good settlements are offered right before trial. Most civil litigation occurs with small businesses. If you’re a Plaintiff and have a solid case, your attorney should complete discovery expeditiously but thoroughly and file your Note of Issue and Certificate of Readiness pursuant to the Pretrial Conference Trial Order and try your case. People and their attorneys get consumed with discovery issues and tend to take longer than necessary. Discovery is expensive but usually necessary. Clients don’t always tell their attorneys everything and finding out something detrimental to your client’s case during trial is never a good time. A good attorney should want to get a preview of what to expect from the opposing party prior to their testimony at trial.
Many times, attorneys will attempt to have the matter decided without a trial by filing a Motion of Summary Judgment which means there are no issues of fact to be tried by a Jury or Judge and the Judge should apply the law and decide the case. Usually for Breach of Contract and Fraud cases which make up most civil litigation, there is a measure of intent required in a party’s action which precludes summary judgment many times but not always.
Generally, an attorney practices for some time under other attorneys to gain experience to know how to handle civil matters. The combination of your attorney’s experience along with that attorneys’ knowledge of the facts and circumstances surrounding that litigants’ matter is all that a litigant has to guide them. I have been handling civil matters for many years. Don’t end up letting someone learn on your case. Call me, Paul Silk Cooper and I will give you a free consultation and review your case.