Civil and Commercial Litigation

Whether it be a shareholder dispute, breach of contract, enforcement of a non-compete agreement, or an acquisition gone bad, the biggest mistake a client can make in litigation is throwing good money after bad. Our focus on a client’s return on investment in our services is critical to the success of our civil and commercial litigation practice. Any business or individual who has been involved in litigation understands that significant time, energy and money can be spent on resolving a dispute. In our approach to litigation, we first identify the client’s goal and then set forth a plan that effectively and efficiently meets that goal. We are aggressive in the execution of that plan, and our experience affords us the flexibility to modify that plan along the way to achieve the desired goal.

Case Examples

Our recent litigation matters included the following:

• Breach of contract, breach of warranty, quantum meruit, unjust enrichment, accountings;
• Temporary restraining orders, preliminary injunctions, and permanent injunctions;
• Breach of fiduciary duty by officers, directors, partners, managers, employees, and agents;
• Breach of employment agreements, restrictive covenants (non-competes, non-solicitation), confidentiality agreements, and independent contractor agreements;
• Shareholder derivative actions, piercing the corporate veil, and shareholder, member and partner disputes;
• Estate litigation involving wills and trust contests and competency;
• Consumer fraud and deceptive business practices, fraudulent transfer, and fraud;
• Trade secret misappropriation, property damage, conversion, and tortious interference cases;
• Creditors and debtors in mortgage foreclosure actions and secured transactions, as well as commercial lease disputes;
• Enforcement of judgments, settlement agreements, and supplemental proceedings;
• Trial, arbitration, and mediation.

Case Strategy

Our transactional and litigation practices complement each other well, as experience gained in one strengthens the knowledge base for the other. We combine our experience, knowledge base, and approach to any dispute with dogged determination and persistence to realize the client’s goals. Because we are intimately familiar with the formation of business entities, negotiation and drafting of contracts, formulation and execution of estate plans, and the establishment of asset protection structures from a transactional standpoint, we know where the weaknesses lie and, therefore, where to attack or defend.

But the importance of planning and strategy cannot be understated. Just as an architect has to first consider the top of the structure before designing its base, our litigation strategy consists of first planning for trial and then working back through the decision tree. Our pleadings are then drafted with an eye towards the discovery that will get us to trial. We employ this principal in all of our cases (see Case Examples below [hyperlink?]) in Civil Litigation (see What Is Civil Litigation below [hyperlink?]).

Our attorneys focus on Civil Litigation solely in Illinois’ state and federal courts. We not only have mediation, arbitration and trial experience but our lead litigator also is a licensed mediator who has served as an arbitrator over civil litigation matters. Our proven track record extends across a wide-range of Civil Litigation from both sides of the table, i.e. as plaintiff’s counsel and defense counsel. We often are referred the complex, difficult cases that require significant effort, planning, and determined execution. And we do not stop after getting a judgment, award or settlement. We have ample experience in post-judgment collection, supplemental proceedings, and enforcement of settlements to chase down, uncover and collect hidden assets or monies that are owed to our clients.

Case Fee Structures

While most of Civil Litigation matters are billed at very competitive hourly rates, we will offer contingency rates and blended fee structures under certain, limited circumstances.

What Is Civil Litigation?

Civil litigation is the formal legal process between two or more parties, seeking monetary damages or equitable relief rather than criminal sanctions or penalties. The majority of our civil litigation files are commercial litigation cases, which involves persons or businesses engaged in commerce. These are in contrast to other civil matters such as divorce, family law, and bankruptcy, which we do not handle.

“Initial Pleadings Phase.” Civil litigation begins with the filing of a complaint, commonly called a lawsuit. The person or entity filing the complaint is the plaintiff. However, the defendant may file a counterclaim against the plaintiff, thereby making the defendant a counter-plaintiff and the plaintiff a counter-defendant. The plaintiff files the lawsuit in state or, if certain “jurisdiction” requirements are met, federal court. The plaintiff typically files the lawsuit in the county of his, her or its choice, which attorneys call “venue.” In addition to choosing jurisdiction and venue, the plaintiff must make a “Jury Demand” at the outset; and the defendant may make a “Jury Demand” with its initial filings. By making a “Jury Demand,” the plaintiff or defendant dictates whether the trial will be a bench trial or a jury trial. A bench trial is a trial where the judge decides both the facts and the law. A jury trial is a trial where the jury (6 or 12 panel) decides the facts and applies them to the law as decided by the judge. This very important distinction must be addressed at outset of the litigation, along with the where to file the lawsuit (i.e. jurisdiction and venue). The theories of the case and the proof needed to meet the elements of each cause of action must be considered when crafting the initial pleadings. The initial pleadings consist of complaints, counterclaims, third-party complaints, motions, and affirmative defenses. This “initial pleadings phase” takes, on average, anywhere between two and eight months.

“Discovery Phase.” The “discovery phase” of litigation can begin shortly after the initiation of the lawsuit. In fact, immediate discovery is common in litigation that involves a preliminary injunction motion, which is a pleading that typically seeks to enjoin a party from doing something. However, the discovery phase usually begins after the conclusion of the pleadings phase. The discovery phase begins with the propounding of written discovery to parties and the issuance of subpoenas for records to third parties. Written discovery consists of both interrogatories and production requests. Interrogatories are questions to be answered by the opposing party under oath. Production requests are requests for documents to be disclosed by the opposing party under oath. Oral discovery typically, but not always, begins after the conclusion of written discovery. Illinois is one of the few jurisdictions that allows for discovery depositions, for many jurisdictions allow only evidence depositions. A deposition is a process wherein a witness answers oral questions posed by an attorney before a court reporter. The court reporter takes down the question asked and the answers given by the witness. A discovery deposition can be used to impeach a witness at trial, whereas an evidence deposition may be introduced as testimonial evidence at trial. Both can be a powerful tool. The discovery phase of litigation can take as little as four months and as long as four years, depending on the complexity of the facts of the litigation, the parties’ conduct, and the court involved.

“Pre-Trial Phase.” The “pre-trial phase” of litigation consists of dispositive motions filed to prevail on an important issue in the case or even to dispense with the entire case before trial. If the case cannot be terminated without the need of a trial, the parties then will file motions in limine and issue trial subpoenas. The court may require the parties to attempt to hold a pre-trial settlement conference to determine if the case can be settled without the need for a trial.

Arbitration. Certain cases will be subject to mandatory arbitration, which will occur after discovery but before the “pre-trial phase.” Some cases are subject to mandatory arbitration by terms of the governing contract; whereas, other cases are subject to mandatory arbitration by statute or local rules. The arbitration panel may consist of one or three arbitrators. Unless the arbitration is binding upon the parties, the arbitration award (i.e. the decision by the panel) may be accepted or rejected by the parties. If rejected, the parties then proceed to the pre-trial phase.

Trial. Trial dates will be set by the court prior to the pre-trial phase. Trials can last one day to several months, depending on the complexity of the case and amount of evidence and number of witnesses to be presented. We have seen trials held as quickly as 60 days after the filing of the complaint (small claims cases), and we have seen trials take more than 6 years to get to trial after the filing of the original complaint. As noted above, the bench trial is before only a judge, who renders rulings on law and serves as the fact finder. In a jury trial, the jury is the fact finder. Jury trials begin with the jury selection process called voir dire. Depending on the case and the client, we will work with jury selection consultants.

Appeal. Depending on the court’s rulings before and during the trial, a party may file an appeal after the court enters a final and appealable decision. This may happen as early as the initial pleadings phase if the court grants a motion to dismiss with prejudice and makes the ruling final and appealable. Also, a party may appeal the granting of a motion for summary judgment, a ruling by the judge during the trial, or the verdict rendered by the judge or the jury.

Mediation. Clients often will ask if there is a possibility of settling their lawsuit without having to engage in the time, energy and expense of litigation. Most cases do settle before verdict at trial. In fact, the percentage is quite high. Parties can settle before the lawsuit is even filed, called a pre-suit settlement. Sometimes, the parties will engage in mediation before a judge or a mediator. The mediator is a neutral third party who will listen to the parties’ theories of the case and make recommendations to bring the parties together toward a settlement.

Post-Judgment Collection & Supplemental Proceedings. After a judgment, award, or even a settlement, a plaintiff or counter-plaintiff will need to take further action to actually collect the money due to them. Depending on the case and the client, we will use consulting investigation services to locate people, documents, and assets.