This post is an overview of commercial litigation lawyers in Illinois:
Commercial litigation is a broad term and includes court proceedings about business activities or relationships. Usually, commercial litigation occurs between two businesses, but sometimes it can occur between a business and an individual. Commercial litigation between a business and an individual may be a dispute between a customer and a retailer over deceptive business practices or between two businesses that agreed to work with each other. Commercial litigation also includes debt collection.
When an individual or business has a dispute they cannot resolve on their own, a commercial litigation attorney often is hired to attempt to resolve the dispute. If the lawyer can not resolve the dispute with letters and phone calls a lawsuit would have to be filed.
The fist step in filing a lawsuit is to prepare a formal document called a complaint. The complaint accuses the other party of wrongdoing and asks the court to resolve the dispute. The person or company that files the suit is called the plaintiff. The person or company being sued is called the defendant. The defendant will receive a document called a summons, informing them that they are being sued. The defendant also will receive a copy of the complaint.
A plaintiff can ask the court to resolve a dispute in several ways. In the typical case, a plaintiff wants money, such as when a party is trying to collect a debt. However, in some situations, a plaintiff may ask for specific performance (asking the court to force the defendant to do something, or to prevent the defendant from doing something). For example, an individual may want a contractor to repaint a porch the way it was agreed to be done, or a small business may want to stop another business from using a name that is too similar to its own.
What happens during the course of a lawsuit varies greatly, and it depends on the type of dispute, the complexity of the evidence and what the plaintiff is asking for. In Illinois commercial litigation lawsuits there are some basic phases that are common in most cases.
First, the defendant must respond to the accusations. When an individual or business is sued in Illinois, they have a certain number of days to respond. The most basic response to a lawsuit is called an answer, which is usually prepared by an attorney and includes the defendant’s side of the story. An answer may deny the accusations in the lawsuit, or admit to the accusations but explain why the conduct was appropriate. For example, in the case of debt collection, the party sued may admit to not paying but claim that they received a defective product or service. It is important that the defendant respond by the deadline or the court may automatically decide the case against them.
The next phase of commercial litigation is called discovery. This is when both parties gather as much information as they can about the other party’s case. Discovery can be compared to an investigation. The process is led by each party’s lawyer, and each side must cooperate with reasonable requests. In Illinois, parties may ask for copies of relevant documents (receipts, contracts, letters, e-mails), ask for written questions to answers (called interrogatories) and question the other party under oath (called a deposition).
After discovery, the parties may start preparing for trial. However, this is also a common time to discuss settlement. The reason that this is a good time to discuss settlement is because once discovery is complete your attorney is in a better position to predict how a trial may go. Most commercial litigation in Illinois ends in settlement because settling a case saves time and money, and gives the parties more control over the outcome.
In Illinois, there are two options when it comes to paying a commercial litigation attorney: an hourly fee or a contingency fee.
When an attorney is hired on an hourly basis, the client pays based on how much time the attorney spends on their case no matter what the result is. This includes time spent meeting with the client, working on the case in the office and appearing in court. The hourly fee should be agreed upon before the lawyer is hired. If you are the client you should ask to have this put in writing so there is no confusion as to what you are paying for. We also suggest that you ask for detailed monthly invoices. Too often attorneys don’t send a bill for six months and then out of the blue the client is asked to pay a large sum.
When an attorney is hired on a contingency basis, the lawyer only gets paid if the case is successful. A contingency fee is a percentage of the amount the client wins (either the amount awarded by the court or the amount agreed upon in settlement). The attorney’s percentage is usually agreed upon before the lawyer is hired and in most cases it is at least 1/3 of what is recovered. Taking a case this way is risk-reward for both the client and the attorney. The attorney could make a lot of money for little work if the case resolves quickly or they could work hundreds of hours and end up with nothing. The client could end up receiving less than they are entitled to or could end up saving money.
Attorneys representing defendants are almost always paid hourly as there is really no other way to compensate them.
A plaintiff’s attorney can charge on an hourly or a contingency basis. They are less likely to work on a contingency basis if the defendant doesn’t have insurance or the funds to pay a settlement or if the amount of the loss is not large enough to justify taking the case on a contingency basis. In other words, if you are suing a business for $10,000.00 while that is not a small sum of money, it’s not enough for a lawyer to take on a contingency basis.
Finally, please note that under Illinois law a business can not act as their own attorney. So if you are a business owner who is being sued or want to sue someone that is important to take into consideration.
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