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What is Commercial Litigation?

Commercial litigation refers to any civil (non-criminal) lawsuit where one or more parties is a business entity. These lawsuits are usually an attempt by the suing party (the Plaintiff) to enforce or defend a legal right. Commercial litigation suits often seek financial damages from the party being sued (the Defendant).

There are several things that make commercial litigation different from other types of civil litigation. These include:

  • High degree of complexity and specialization: Since commercial litigation involves businesses rather than just individual parties, it tends to be highly specialized. Commercial litigation cases often involve with very specific, complex issues in both subject matter and applicable case law.
  • Usually heard in federal court: Most companies do business in multiple states or even multiple countries. As such, commercial litigation is often filed in federal courts rather than state courts. A commercial lawsuit may also be filed as a class action suit, or a multi-district suit, each of which come with their own sets of rules and regulations.
  • Cases may be longer and more expensive. Commercial litigation cases tend to be longer than most other types of civil litigation. There are many different avenues available in commercial litigation that can draw a case out for months or even years. This also makes commercial litigation more expensive, alongside the high costs of litigation discovery and expert witnesses.

What are Some Examples of Commercial Litigation?

Commercial litigation includes many different types of cases. Some of the most common types of commercial litigation cases include:

  • Antitrust (anti-monopoly) Cases
  • Breach of Contract and Breach of Fiduciary Duty
  • Business Torts and Tortious Interference
  • Business Tax Disputes
  • Class Action Lawsuits
  • Commercial Fraud
  • Copyright, Intellectual Property, Trademark, and Patent Infringement Cases
  • Debtor and Creditor Actions
  • Employment and Labor Conflicts
  • Insurance Coverage Cases
  • LLC Disputes
  • Partnership Conflicts
  • Privacy, Cybersecurity, and Data Breaches
  • Real Estate and Land Use Litigation
  • Restrictive Covenants
  • Securities Litigation
  • Shareholder Disputes and Derivative Actions
  • Trade Secret/Non-Disclosure/Non-Compete Conflicts and Unfair Competition

What do Commercial Litigation Cases Look Like?

The actual process of commercial litigation varies depending on the case. However, there is common pattern that many commercial litigation cases follow.

1. Finding and Retaining an Attorney: If it is clear that a business conflict will result in a lawsuit, you should immediately contact a qualified commercial litigation attorney. The sooner you contact an attorney, the better they will be able to represent you.

2. Investigating, Researching, and Case-Building: Once you have started working with an attorney, they can start investigating, researching, and building your case. They will usually interview you thoroughly about your business dispute, and request all relevant contracts, paperwork, and documentation. They will also conduct their own research, gathering evidence to bolster your case.

3. Filing Complaints, Answers, and a Lawsuit: Assuming all other attempts at negotiation have been exhausted, the Plaintiff will prepare a Complaint. This is a detailed account of the claim made by the Plaintiff, as well as the surrounding facts and circumstances. Once ready, the Complaint is filed in court, which officially begins the lawsuit. In Federal Court, a US District Judge and a US Magistrate Judge are then assigned to the case.

Complaints are delivered to the Defendant along with a summons. The Defendant then has a right to file an Answer. This is a detailed response to the points, claims, and allegations made in the Complaint, which goes point by point and either admits, denies, or denies having enough knowledge to speak to each claim and allegation. Answers may also include counterclaims against the Plaintiff.

4. Discovery: Discovery is a phase during which both sides of a lawsuit demand relevant information from one another. This can include forms of evidence such as documents, “interrogatories” (specific questions), and Notices to Admit (which try to force the other side to admit certain facts).

Discovery also includes depositions, which are testimonies given under oath before a court reporter. With a few specific exceptions, people being deposed are legally compelled to answer any relevant questions they are asked, under threat of perjury. The person being deposed usually has their attorney present to object to irrelevant, privileged, or otherwise exempted questions.

5. Motion for Summary Judgement: At the end of Discovery, the Defendant often files a Motion for Summary Judgement. This argues that no lawsuit is warranted due to facts that came out during Discovery. It asks the court to issue a “Summary Judgement” (or a decision without trial) in the Defendant’s favor.

The Plaintiff then presents affidavits, documents, and other counterevidence in opposition to the points made in the Defendant’s Motion. They can either argue that the facts call for a trial, or argue that there should be a Summary Judgement without trial, but in the Plaintiff’s favor. The Judge considers and issues a decision. If they grant either side a Summary Judgement, then that side wins the case.

It should be noted that if neither side is granted a Summary Judgement, most parties decide to settle out of court at this point, rather than pursuing to trial. This is due in large part to the enormous stress and financial burden of trial. However, in some cases, the parties do proceed.

6. Trial: If a case moves to trial, the parties can choose between a jury trial and a bench trial (a trial decided exclusively by a Judge). Commercial litigation trials have similar structures to standard civil trials, including opening statements, witness presentation and examination, documentary evidence, and closing statements.

At the end of the case, the parties are found either liable or not liable. If they are found liable, the jury or Judge then determine the damages suffered, and awards financial damages accordingly.

In any business litigation matter, the best and most important thing you can do to help your case is to find an experienced, knowledgeable commercial litigation attorney. If you are in the Ann Arbor, Michigan area, Business Litigation Attorney Russel Brown is ready to help. Reach out to R.D. Brown PLC Attorneys & Counselors at Law at (734) 315-4497 to schedule an appointment today.

Russell D. Brown

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