Eric F. Greenberg
[2] PLAN FOR THIS, GET THAT: It’s somewhat ironic that all a litigation lawyers’ strategic planning and information-gathering are made with an eye toward how things would play out at a trial, but trials are actually rather rare. Most cases – over 90% - get settled, meaning the parties agree to a result before a trial, or are thrown out before trial by the judge for being somehow insufficient. Practice pointer: A settlement is, by definition, “out of court,” so don’t say “settle out of court,” like they do on TV.
[3] BEFORE TRIAL: Before a trial, which can be before a jury or just a judge, the key activities are either discovery (such as asking the other party or outside witnesses for written documents or for oral testimony under oath in answer to questions, called a deposition), or motions (for example, asking the judge to throw the case out for overall inadequacy under the law, or to force someone to answer your discovery requests).
[4] ALL THOSE APPEALS! Most cases start in courts referred to as the trial court, and if you lose there, you can commonly appeal to the next highest, or appellate court, if you’ve got ‘grounds.’ Grounds might be, among others, that you think the trial judge kept out, or let in, evidence they should not have, or because the judge explained the law incorrectly to the jury. If you lose again, you might have grounds to appeal to the highest court, usually called the Supreme Court. The federal courts have these three levels, and most states’ courts do as well. (Fun fact: New York State names its lowest court, the trial court, the “Supreme Court,” and its top court the Court of Appeals. No idea why.)
[5] WHAT EXACTLY FOR? I recommend you always ask these two important questions about litigation you hear about:
A. What is the legal basis of the claim? Did the defendant, for example, breach (break) a contract, act negligently (failed to use reasonable care) and cause someone harm; use your trademark without authorization; steal a trade secret; or violate a state or federal law prohibiting some behavior or requiring some action? And:
B. What remedy are they seeking? Usually money (often referred to as ‘damages’). So for example, a corrugated package fails to properly hold the heavy appliance it was packaged in, breaks and falls on a consumer’s foot, and the consumer sues the company that sold it for negligence, claiming the company didn’t use reasonable care in designing or making the package, maybe because they didn’t adhere to the industry standards for the package, and if the injured person wins, they get money to compensate them for lost wages since they had to miss work, medical bills, and their pain and suffering.
When governments win cases, sometimes the remedy is a financial penalty, sometimes it’s an injunction (order) preventing the company from selling or making a product, sometimes it’s putting a person in jail. When companies or NGOs sue governments over new laws or regulations, they typically are seeking a court order called an injunction, preventing the law or regulation from going into effect, commonly on grounds that it somehow violates the plaintiff’s constitutional rights or, for example, that a regulation is not authorized by the law. (More on injunctions later.) Sometimes NGOs sue federal agencies to force the agencies to make a decision, such as when the Center for Science in the Public Interest sued to force FDA to decide whether to prohibit seven chemicals from being used in food as flavors.
[6] CLASS IT UP: Money damages are also usually the remedy in so-called ‘class action’ lawsuits, in which a representative consumer sues a company for, for example, making a misleading claim on their package label in violation of a state’s consumer protection law. The case is brought on behalf of the ‘class’ of consumers similarly affected, and the remedy is sometimes a small dollar amount refund or discount to all the consumers. Examples include cases against companies whose package labels claim their food product is ‘all natural,’ but in fact contain artificial or synthetic ingredients, or companies whose beverage label claims their product is loaded with “veggies” when it is mostly fruit juice, again allegedly misleading consumers.
[7] INJUNCTIONS: As noted, sometimes the remedy sought in a case is an injunction, which is an order by the court for someone to stop doing something (such as selling their product that contains a trade secret they took from your company without authorization), or, rarely, to specifically do something (like turn over property to someone else).
An example is the closely watched Oregon lawsuit where the plaintiffs seek an order blocking the state’s EPR law because they say it violates several of the plaintiff businesses’ constitutional rights. A similar case is pending in California against that state’s EPR law.
[8] PRELIMINARY INJUNCTIONS: Sometimes, injunctions are temporary, as a judge determines based on an early, basic outline of the facts that the plaintiff has a good shot at winning the case, so they give them the relief they want while the case gets decided. So the judge orders, essentially, Keep everything as is while I figure this out. For example, in July, a federal judge issued a preliminary injunction that prevented California from enforcing its SB 343 law that tried to impose criteria for when packages could feature chasing arrows or similar symbols that consumers might see as claiming a package is recyclable.
[9] STAY, JUST A LITTLE BIT LONGER: Sometimes, too, a case will be decided, by a judge’s ruling or a jury verdict, but the judge ‘stays’ the decision while the case gets appealed to the higher court. They do this to, again, hold everything as it was, to minimize the damage in case the appeals court decides the ruling or verdict was incorrect.
[10] IN DEFENSE OF JUDGES: It’s a disservice to federal judges – but media reports do it all the time – to mention which President nominated the judge when discussing a specific decision the judge made. Doing that zooms right past the quite reasonable benefit of the doubt any judge should start with that they’ll approach every case with an open and fair mind, and instead assumes that every judge is a corrupt lackey. Few are.
Eric Greenberg can be reached at [email protected].
Or visit his firm’s Web site at www.ericfgreenbergpc.com.
INFORMATIONAL ONLY, NOT LEGAL ADVICE.
