Counterpunches in Litigation
Thomas W. Hartmann
The Hartmann Law Firm LLC
TheHartmannLawFirm.com; [email protected]; 908 769 6888
Litigate with Care. Litigation should seldom be started until you have made a strong effort to solve the dispute outside of court. Why?
Before your litigation even gets a tail wind, the other side can take serious actions against you to try to turn the tables early. So think it through and be ready for the counter punches.
Conversely, if you are sued, do not think it is the end of the world. You have options from the outset designed to let you strike back fast.
Still, before the substantive issues are even engaged, both sides may have to endure the time and expense of potential legal maneuvering. This might be the only answer – but make sure you know the risks before you take the step toward involving the court system.
Counterclaims. Aside from the risks that a judge or jury may not agree with you, even if the facts all appear to be in your favor, do not expect the other side to sit by idly. A defendant may file a counterclaim. That is, the person you sued, can sue you back and seek more or different relief from even what you sought. This an attempt to even the stakes at the outset and to signal the plaintiff that the defendant is not rolling over.
Add a Third Party. The defendant can also file a third party complaint to bring in a new party and expand the litigation further. Sometimes, if the plaintiff is a small LLC or corporation, the defendant might not only counterclaim against the plaintiff, but try to sue the corporate owner or key employees to raise the stakes. These people would be brought into the litigation as third party defendants. Such third party defendants can be anyone the defendant thinks is liable for any damage it suffered.
Cross-claims. If there are multiple defendants, they can sue each other through cross-claims. For example, Defendant A might say he is not liable and add that he is suing Defendant B for any liability that is imposed on Defendant A. This is a cross-claim for contribution.
Immediate Motion to Dismiss. A defendant can try to cut off the litigation right away by seeking to simply dismiss the lawsuit as a matter of law. Thus, instead of answering the complaint or filing a counterclaim, the defendant tries to terminate the litigation immediately by claiming that the law says there is no cause of action. The plaintiff must respond to this and show why the claim is valid or at least valid enough to move forward and expose the facts.
Big Hammer; Big Sparks. Counterclaims, cross-claims, third party claims and motions to dismiss are tools and procedures that can click into place before any real progress is made toward resolution in the court system. Always remember that litigation is a big hammer, but it can also shoot sparks. Be aware of them, protect yourself from them, and prepare thoroughly.
The Hartmann Law Firm LLC can assist in these matters to insure your business and your assets are protected. Beyond this, we can help guide businesses through issues ahead of litigation or aggressively advocate in litigation and business disputes should the need arise.