December 31, 1999
By Kirby G. Mason, published on December 31, 1999, in Business in Savannah.
Before a business owner decides to take a dispute to court, there are some important matters to consider.
First, there are three primary ways to resolve a civil dispute: mediation, arbitration and trial. Mediation allows both parties to agree to a settlement with the help of a neutral party whose job it is to listen to both sides and help find a mutually agreed upon solution. Arbitration allows disputing parties to choose a neutral party to make a binding decision in the case. The proceedings are usually confidential, and the decision is normally not subject to appeal.
Trials can be decided by either a judge or a jury through the traditional litigation process. If the parties choose a bench trial, the judge will decide the case. In a jury trial, the judge provides the legal framework and the jury decides issues of disputed fact, ultimately naming the winner of the case and deciding the monetary amount of the award, if any.
Before deciding to sue over a business dispute, be sure to consult a litigation attorney who is experienced in such matters. The first thing your lawyer will discuss with you is whether you have a genuine legal claim, or what your lawyer would call a “cause of action.” All transgressions, no matter how offensive, do not give rise to a cause of action. In this discussion, you will need to be completely honest with your lawyer and discuss all the facts, the good and the bad. Your lawyer should tell you what you need to know and not what you want to hear.
There are various causes of action including breach of contract, fraud and various wrongs known as torts. Each “cause of action” comprises a different list of required elements. A dispute with a contractor or vendor may boil down to breach of contract (either oral or written). In that case, you would need to prove that (1) you had a contract with the contractor or vendor, (2) you upheld your portion of the contract, (3) the other party failed to do what the contract required and (4) that failure caused you economic damages. Even when all these elements exist an evidentiary rule may make it difficult or impossible to prove.
If you know that you have the evidence to win your case you may want to confront the other party to attempt an out of court resolution either through arbitration, mediation or mutual agreement. Most individuals will do what they can to rectify a situation if they know they are wrong. On the other hand, the contractor or vendor may have a valid argument that you have not considered or even a potential claim against you that may persuade you to find a compromise rather than pursue a lawsuit.
When an amicable resolution is not possible, you will want to consider how much time and money you are willing to spend to win your case. Also, make sure that you have the time to devote to a lawsuit, which can be a lengthy process.
Finally, it is very important to consider the financial situation of the defendant whom you wish to sue. If that person or company is not able to pay, a court decision in your favor will be a hollow victory. If the other party is insolvent or files bankruptcy, a lawsuit may not be worth pursuing from a financial point of view.
Before pursuing litigation, carefully consider all of the facts of the case, other possible solutions and the possibility of collection on a favorable judgment. A little time spent weighing your options in advance can save you a great deal of time and effort in the long run. In addition, this process can also help you to create a stronger case that is more likely to be successful in court.
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Kirby Mason is a partner at the law firm of HunterMaclean who specializes in business litigation. She can be reached directly at 912-236-0261 or kmason@huntermaclean.com.
