Your Litigator's Tactical Toolkit: Part One
For business owners who do not regularly encounter litigation, many aspects of the process are poorly understood. A lot happens between filing a lawsuit and going to trial, and many cases can be dismissed, or even won, before trial. In this new series, we will discuss the exit ramps that may help avoid the expense and time commitment of trial, including motions to dismiss and summary judgment, as well as what happens during the discovery phase between bringing suit and trying a case.
This first article provides a broad overview of those concepts. The later articles in the series will take each tool in turn, explaining when it is available, what it can realistically accomplish, and what clients should expect in terms of cost, timing, and strategy.
Can You Just Get a Case Dismissed?
One of the most common questions I get when talking to a client who has been sued for the first time is: “Can’t we just get the case dismissed?” The short answer to that question is almost always “no.” But that answer does not focus on the “dismissed” part of the question; rather, it addresses the “just” part. Getting cases dismissed is a regular part of our day-to-day work, but it always requires a good bit of effort and—unfortunately—expense. We cannot simply call up the judge and ask her to dismiss the case because it is unfounded.
In reality, there are several ways to get a case dismissed at various stages in the litigation, but the rules vary greatly depending on the type of motion you are filing. This is true of both state and federal courts.
Motions to Dismiss vs. Summary Judgment: Two Different Exit Ramps
There are two main dismissal methods: the motion to dismiss, which is filed at the very beginning of a case, and the motion for summary judgment, which is usually filed after the discovery phase. The legal and evidentiary standards for those two methods are very different.
A motion to dismiss is an argument that the case described in the complaint or petition—the first substantive document filed with the court that initiates the case—is legally insufficient even if every fact alleged in the complaint is assumed to be true. This is a difficult procedure for two reasons.
First, a competently drafted petition will make sure that all of the legal bases are covered and will have been drafted with the idea of avoiding a motion to dismiss in the first place. Second, even if the initial complaint is technically defective, most courts will give the plaintiff an opportunity to amend its complaint to fix any legal deficiencies.
While this is a high hurdle to overcome, there are two main reasons motions to dismiss are often effective. First, not all complaints are competently drafted. Second, the deficiency that caused the dismissal may be an element that the plaintiff cannot allege because the facts needed to support it simply do not exist, and no amount of creative writing can make up for that deficiency.
Why Discovery Is Usually the Most Expensive Phase of Litigation
The discovery phase is usually the most expensive part of litigation short of trial. This is where the parties request information and documents from each other and take depositions. While it might seem obvious that a case that should be dismissed at the outset should not progress into discovery, judges rarely see it that way. Although there are some notable exceptions, filing a motion to dismiss rarely results in the suspension of a lawsuit. It is not unusual for a case to go on for six months to nearly a year before the court rules on a motion to dismiss. Therefore, most cases go through at least a portion of discovery.
There are four main types of discovery requests that we use to build our cases or support our defenses: requests for production of documents, interrogatories (written questions), requests for admissions, and depositions.
Through these methods, litigators seek two basic categories of information. First, there is information that will be useful to your claims or defenses and to your opponent’s claims or defenses. This is easy to understand: if you are defending against a claim for damages, you want to see all of the information that supports those claimed damages. Likewise, you don’t want to be surprised by damaging information during trial. The second category is information that you may not want your opponent to use at all. This is sometimes harder for parties involved in litigation to see—especially if those parties are direct competitors. If your knee-jerk reaction is to provide as little information as possible to the other side, you may be playing into your opponent’s hands.
There is a general rule that information requested but not provided in the discovery phase cannot be offered later on. For example, if you withhold information about your profit margins during the discovery period, you may have a hard time proving lost profits at trial. The exchange of information can be even more difficult in trade secret infringement cases. But a failure to provide critical information can result in a dismissal at the summary judgment stage.
How Summary Judgment Offers a Second Exit Ramp
Summary judgment is the next opportunity to have a case dismissed. This usually, but not necessarily, happens after the close of discovery. Summary judgment is available if you can show that there are no material facts in dispute and that you are entitled to judgment as a matter of law. This is a more forgiving standard than the standard applied to a motion to dismiss.
In a motion to dismiss, the facts alleged in the complaint are assumed to be true. In a motion for summary judgment, the moving party must demonstrate that applying the law to the undisputed facts can lead to only one conclusion.
But it takes actual evidence to dispute a fact. A party cannot claim that a material fact is disputed without at least some evidence. This is why motions for summary judgment are usually reserved for after the close of discovery. Without sufficient discovery, a party can avoid summary judgment by claiming that it has not had sufficient time for discovery and believes evidence will be uncovered during the discovery phase. That is usually enough to convince a judge that summary judgment is not yet warranted.
What's Next in This Series
In this series of articles, we will explore these concepts in much greater detail and discuss the costs involved. Part II will delve into motions to dismiss. Part III will offer a detailed explanation of the primary discovery methods available to litigators, and Part IV will dive deep into summary judgment practice. Finally, in Part V, we will discuss the last method that can get a case resolved quickly and with much less expense than going all the way to trial—settlement and how to get there.
Klemchuk PLLC is a leading IP law firm based in Dallas, Texas, focusing on litigation, anti-counterfeiting, trademarks, patents, and business law. Our experienced attorneys assist clients in safeguarding innovation and expanding market share through strategic investments in intellectual property.
This article is provided for informational purposes only and does not constitute legal advice. For guidance on specific legal matters under federal, state, or local laws, please consult with our IP Lawyers.
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