Business Litigation

The District Courts in Colorado strive to civil litigation cases within one year of filing. The length of litigation is frequently longer than that due to several factors, including how many parties are involved, when parties are joined, extensions that may be granted, and complex issues requiring extensive discovery. Generally, and particularly after COVID, there are multiple cases set for the same trial dates. If a more senior case set on your trial date is not resolved prior to trial and the parties are prepared for trial, junior cases will be continued to a later date.

Generally, civil litigation involves disputes over money. Civil litigation encompasses every kind of dispute that is not criminal in nature. The more common types of claims you see in civil litigation involve contracts or torts (negligence, fraud, personal injury, etc.) seeking money, equitable relief, or a determination of legal rights.

The first thing to do when facing civil litigation is to find yourself an attorney with experience in your type of claim. Many attorneys, including Sullenberger Roskamp PLLC, offer free telephone consultations. You should take advantage of multiple consultations with different attorneys to find the lawyer who is right for you.

Fairly soon after all parties have filed their pleadings, you will have to participate in initial disclosures and discovery. That is the point in time where everyone must hand over all of their evidence, and witnesses, and calculate their damages to provide to the other side. This is often the most costly and time-consuming aspect of litigation because litigants are not prepared. When you are entering civil litigation, you should be prepared to hand your attorney a list of every party involved, any witnesses with information, and their contact information. You should also organize and provide any documentation related to the dispute, which may include communications with all parties and witnesses; any contracts, estimates, or invoices related to the dispute or repairing someone else’s poor work; bank and credit card statements; medical bills and treatment records; construction plans; documents relating to the organization and operation of your business, and the like. Being prepared and organized with this information is by far the best method of minimizing attorney fees in this costly part of litigation.

While we never recommend it outside of small claims matters, you may be able to represent yourself in civil litigation. If your business is facing civil litigation, and the dispute is significant enough, you will not be able to represent your company in litigation without a lawyer. For individuals and small-dollar business disputes, even though you may be able to represent yourself, you will be held to the same standards as a lawyer. That is often a disadvantage, even if all of the facts and evidence are on your side, particularly if facing opposition from a represented party. You will be expected to provide your evidence in accordance with the rules of civil procedure and evidence, which may seem unfair to you, but which a seasoned litigator should be able to navigate for you.

The American Rule is that each party pays its own attorney fees. The only exceptions in Colorado are by application of a statute that causes fee shifting or by a well-written attorney fees provision in a contract. It is important to note that an exceedingly high number of cases settle prior to trial, and, frequently, parties agree to pay their own fees as a means to arrive at a settlement. Even if you have attorney fees available to you by statute or contract, you should be prepared to pay your fees unless you litigate through and prevail at trial.

You should ask your attorney about his or her experience in the field of your dispute. In a basic contractual dispute, you want an attorney who understands the context and is willing to spend the time to understand the basis of your dispute and the contract itself. You also want to ask how often the attorney actually litigates those cases. If you are litigating over a commercial transaction with another company or person, then you may want to know their familiarity with the applicable statutes that govern that specific dispute. Likewise, In a construction dispute or partnership dispute, more specific statutes, procedures, and remedies apply, so you want to know how familiar your attorney is with those statutes and procedures. In certain types of business litigation, you generally want to find someone who is well-versed in the niche that applies to your case, rather than a “jack-of-all-trades.”

Business litigation almost always boils down to the question of who owes who how much money. The primary risk is an issue of business, not so much law: Am I going to spend more than I’m going to get out of this? That is an exceptionally subjective question, but you want an attorney who is going to give you an honest assessment of your chances of winning and losing the strengths and weaknesses of your case and the likelihood of actually recovering money even if you win a judgment. Those are all evaluations that a business owner needs to make, and the risk of overspending is minimized with an attorney who is upfront and honest with you at every stage of the case, from intake to jury verdict. You should be apprised of your best and worst outcomes from the very beginning, and be informed of those issues over the course of litigation that may change that calculus to weaken or strengthen your position.

Businesses of different sizes are impacted in different ways. Larger businesses involved in a high volume of contracts must view business litigation as a cost of doing business. Smaller companies may feel the strain of litigation from a financial standpoint or as a distraction from management and operations. For businesses of any size, the more organized and prepared you can be when entering litigation, the less strain you should feel over the course of a case. Honest case evaluations and re-evaluations should be communicated regularly so you can ensure the impact is not more than your business can bear when compared to the potential outcome.