BUSINESS law faqs

A. Cohen – Legal Advice

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By avi cohen

The exact definition of what commercial litigation entails is oftentimes unclear. This type of litigation is broad and covers a large area of law. Commercial litigation resolves any type of disputes within the business setting and in commercial or professional relationships. Countless types of civil matters can be resolved through this litigation on both the state and federal level.
Any business dispute can be resolved through commercial litigation. Some of the common matters that our firm has taken on include: business torts, breach of contracts, unfair practices, trade regulation, creditor / debtor issues, professional liability and many others. If you are unsure whether or not your current situation can be resolved through commercial litigation, ask a skilled New York City commercial litigation lawyer at our firm.
A breach of contract occurs if a party fails to perform actions within a contract, without having a legal excuse to do so. It is a breach of someone’s duty that is specified in written contract form. If you suffer from a breach of contract you may be able to receive compensation. A skilled attorney can fight to recover compensatory damages, punitive damages, rescission, incidental damages as well as your attorney fees and costs.
Whatever your gripe against your business partners may be, the first question is always: What does the agreement say? You have to check whether you have an agreement with your business partners and what it says with respect to your problem. If the business is run as a corporation, check your shareholder agreement; if it is an LLC, check the operating agreement. If you do not have anything in writing (unfortunately, like many small businesses), you have to look to the default rules of the respective New York laws dealing with your specific entity. For LLCs, it is the New York Limited Liability Company Law; and for corporations, it is the New York Business Corporation Law. These laws also apply if your agreement is silent with respect to your issues.
Parties may have to resort to commercial litigation if they have already exhausted other methods of dispute resolution. Mediation and negotiations often occur before the parties pursue litigation. In order for the process to begin, the plaintiff will generally team up with an attorney and draft a complaint. The complaint will state the allegations against the defendant and facts of the situation. The plaintiff will then serve the complaint to the defendant or multiple defendants and file the complaint with the court. The defendant will then serve the plaintiff and the court with an answer to the complaint. They can also file a counterclaim against the plaintiff in their answer.
After the complaints and answers are filed (initial proceedings), the parties will exchange all relevant documents and information that they have to support their claims. Parties may also have to provide a testimony to the counsel. Conferences will take place through the court to see if the case needs to go to trial. Oftentimes the case is settled by the parties before trial or through a motion practice. If it is not settled the case will go to trial. In trial, all evidence and legal documents will be reviewed by the court.
Generally, a jury will hear a commercial litigation lawsuit. The parties involved can waive the jury and have the case heard by a judge if they would like. The choice between having the case heard by a judge or jury can be a strategic decision depending on the unique case. A case can also not be heard by neither a judge nor jury, but rather an arbitrator or panel of arbitrators.
The length of the process depends on various factors involved in the case. The type of issue plays a role in the length of the litigation along with the amount of motion practice that occurs. If the parties settle the case before trial, the process can be much shorter. In general, the average case will take at least a year but can be longer depending on the unique situation.

A judge may order the losing party to pay the costs of the lawsuit. These costs may include court filing fees, witness expenses and the costs of preparing exhibits. As a general rule, each party is responsible for paying his or her own attorney’s fees, with the following exceptions:

  • Parties may have agreed in a contract to pay the other party’s attorney’s fees in the event of litigation
  • The lawsuit may involve a statute that provides for payment of attorney’s fees
  • Courts may award attorney’s fees to one party, if it is found that the other party engaged in bad faith or frivolous litigation, or pursued legal theories that have no merit

An appeal is usually an option, but it may or may not remedy your dissatisfaction. Courts of appeal are limited to deciding questions of law, not fact. For example, a court of appeal will hear your argument that the judge in your case did not give the jury the proper instructions but probably will not hear your argument that the jury should have reached a different decision based on the facts. Courts of appeal are reluctant to overturn a jury’s verdict, unless there is absolutely no evidence to support the verdict. The theory is that juries, who hear the evidence and see the witnesses who testify, are better able to judge close questions. If you do appeal and win, the most common remedy is that your case will be sent back for a new trial. If you win the appeal you will most likely be granted a new trial, not necessarily a new result. Appeals are generally allowed but do not always provide a solution to your dissatisfaction.

If you have a business dispute and are considering commercial litigation, be sure to team up with one of our commercial litigation attorneys. If you have any further questions regarding commercial litigation, feel free to contact the A. Cohen Law Firm, P.C., and we would be happy to discuss your case.

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