Posted in Commercial Litigation by

By Joseph G. Ballstaedt
801-365-1021
[email protected]

Litigation is costly and can be time-consuming and stressful. Before you commit to litigation, you should consider the potential costs in actual dollars to pursue or defend a lawsuit. Attorney fees and litigation costs are generally not cheap, and they are difficult to measure at the outset of a case, and other costs associated with litigation can be even harder to measure, such as opportunity costs. There are many income-producing activities that individuals and businesses can spend their time on that may be more profitable than litigation. Other costs are almost impossible to quantify. For example, the stress and strain of litigation and a full-blown trial are costly in non-dollar amounts. Litigation is not generally considered an effective path to happiness.

When litigation is necessary, a skilled attorney will manage the complexities of litigation while keeping the costs down and seeking a good resolution as quickly as possible—which is almost always well before an actual trial. This post discusses four potential avenues in Utah that allow parties to reach a resolution to litigation.

1. Settlement. Settlement is the most common method of resolving a legal dispute. If both parties can reach an agreeable resolution, there is no need for further court involvement. Parties aren’t usually thrilled when they reach such a resolution, but the compromise—and the certainty of the settlement—is often much better than the unknowns that come with litigation. Even before a lawsuit is filed, some disputes settle, and some disputes settle on the eve of—or even after—a full trial. There are estimates showing that 95% of pending lawsuits end in pre-trial settlements. Certainly, going to trial is not the norm. Both trial preparation and actual trial are expensive, so an early settlement, where possible, is usually very desirable.

2. Motion to Dismiss. When successful, this route to ending a case often occurs early in the case. After a party files the complaint, the initial document in a case, the responding party (or defendant) can file a motion that asks the court to dismiss either part of the complaint or the entire complaint. Grounds for dismissal include lack of subject matter jurisdiction (the court doesn’t have the authority to address this type of case), lack of personal jurisdiction (the court doesn’t have the right to exercise power over a particular party or person), improper venue (the case was filed in the wrong place), the expiration of the statute of limitations (the case was filed too late), failure to state a claim (even if the allegations in the complaint are true, they don’t support the party’s overall claim), or insufficient service of process (the defendant wasn’t properly notified of the case). Sometimes, even if a motion to dismiss is successful and the court throws out the case, it can be refiled. Other times, it cannot.

3. Motion for Summary Judgment. Courts decide all legal issues (or questions of law), such as the correct interpretation of a Utah statute. Juries (or a court acting as the jury in a bench trial) consider all the evidence in the case and decide all factual issues (or questions of fact), such as whether a party agreed to a certain contractual term, made a certain statement, committed a specific act, etc. If all the factual issues are agreed upon by both parties to the dispute, the court can decide the legal issues without a trial—or through a summary judgment. Also, summary judgment is proper to resolve a case if the suing party’s best and unquestioned evidence would not change the court’s legal decision. Stated another way, summary judgment is proper when no version of the facts could change the legal result. Obtaining summary judgment is much less expensive and much quicker than obtaining a judgment through a trial. Summary judgment, obviously, is not right for every case. If there is any dispute between the parties regarding a key fact, a court will not grant a party’s request for summary judgment. Although summary judgment may be proper early on in a case, it is sometimes difficult to know whether summary judgment is proper until after the conclusion of the discovery process, where parties exchange and obtain information and evidence about the dispute.

4. Trial. Without a settlement or a successful motion that ends a case, most cases end through a trial. Evidence is presented to the factfinder, whether a jury or a judge, who applies these facts to the law and decides how much money each party should receive or whether any other requested relief is appropriate. When a judge decides all issues, both legal and factual, it is called a bench trial. When a jury decides the factual issues, it is called a jury trial. Trials can last for days and even months, and it is difficult to predict how a jury or judge will decide the case. This uncertainty often leads parties with strong cases to agree to settle, even though a jury or judge might likely give them a much better judgment.

Whether you are considering litigation, have been sued, or are in the middle of a lawsuit, I can provide advice that will help you or your company reach the best end result possible. I offer free consultations. Give me a call. My direct dial is 801-365-1021, or you can e-mail me at [email protected].

joseph-g-ballstaedt

Joseph G. Ballstaedt
801.365.1021
[email protected]

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