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Winning Early: 6 Common Pre-Trial Options in Business Litigation

On Behalf of | Mar 1, 2023 | Firm News

If someone sues your business, you want to mount a solid defense. Often, the first thing that comes to mind is successfully arguing your case in court. However, court appearances and trials are often best thought of as last resorts. There are many ways you can defend your business with fewer costs, delays and uncertainties.

Ultimately, the best strategy for your defense will depend on the facts of the case. Even so, your attorney will likely form that strategy from some combination of common tactics. These include a range of legal options you can pursue prior to a trial date. In this article, we will take a look at six common tactics your attorney might consider.

Motion to dismiss the case

There may be reasons your attorney can ask the court to dismiss the case against you without ever hearing the evidence. Many of these reasons are procedural, including:

  • Lack of jurisdiction
  • Improper venue
  • Lack of a valid claim
  • Failure to include a mandatory party
  • Improper notification

For a motion to dismiss to succeed, the defendant typically needs to show that the structure of the claim is not valid. These motions do not consider any facts under dispute.

Request for summary judgment

Your attorney might also get the court to throw out the case by making a successful request for summary judgment. The result may be similar to that of a successful motion to dismiss, but the timing and legal issues are different.

Defendants typically ask courts for summary judgment after both sides have had time to complete their discovery. As the U.S. Courts website informs journalists, either side can request summary judgment for the whole case, or part of it.

There are two requirements for a summary judgment:

  • There is no need for a trial to resolve any disputes about the facts
  • The law provides clear direction

Notably, your attorney does not need to jump straight to a motion to dismiss or a request for summary judgment. Often, requests for summary judgment will build upon the success of other legal actions.

Motion for discovery

The discovery period is when both sides have the opportunity to ask for and review the witnesses and evidence the other side might bring to trial. As the American Bar Association (ABA) notes, the aim of discovery is to avoid “trial by ambush.” Television shows and movies may feature surprise witnesses and evidence to heighten the sense of drama. These surprises don’t typically play a part in real-world trials.

It’s common for attorneys to take depositions of anyone who might play a role in a future trial. These depositions are under oath, so they offer a good look at what both sides can expect from future testimony.

As the ABA notes, attorneys may also pursue other methods to get or protect information during the discovery process:

  • Subpoenas
  • Testing if pieces of evidence, such as documents, are genuine
  • Argue that the other side has no need to request certain materials
  • Coaching for more helpful depositions

The rules for discovery may vary slightly between different states and the federal system. However, the rules typically block requests to discover any materials that would lead to undue burdens or costs.

The exclusion of evidence or witness testimony

Everyone knows that trials rely upon evidence. However, there are rules for the types of evidence that either side may bring. These rules can often become complicated, but it’s vital that you ensure jurors only see and hear valid evidence. Good attorneys will ask the courts, ahead of trial, to exclude any flawed evidence or testimony.

Expert testimony, in particular, tends to play an important role in business cases. Most jurors need witnesses to interpret and explain the most complicated parts of these cases. If you let someone introduce testimony based on a flawed, junk science, that could seriously damage your chances. It’s typically better to try to prevent such a witness from testifying.

Change of venue

Because businesses often operate in multiple jurisdictions, it’s important to ensure that any potential trial takes place in the right one. There are generally two considerations here:

  • Which court has jurisdiction?
  • Which is the appropriate venue?

Jurisdiction is generally a question of whether a court has the appropriate authority to hear a case. The appropriateness of a venue also considers its location and the convenience it offers both parties and any potential witnesses.

Many businesses write contracts that require arbitration or identify a specific venue for lawsuits. When plaintiffs sue elsewhere, these businesses may try to move the suits back to the venues identified in their contracts. In some ways, this means the businesses will benefit from a “home court advantage,” as they may work with courts and judges that better understand the appropriate laws.


The fact is that most cases settle outside of court. There are many reasons this is true, including the fact that trials are expensive and always contain an element of uncertainty that most people dislike.

As a result, it’s important to work with an attorney who understands how to leverage your strengths in negotiations. Even if you believe you can win your case, you want to consider how much it would cost you to pursue that verdict. In many cases, although not all of them, a negotiated settlement will help you better achieve your goals.

That said, it’s important that your attorney clearly understands your goals and helps you enter negotiations with as strong a position as possible. A thorough discovery or the exclusion of certain pieces of evidence or testimony may help you win a summary judgment. They may also help you reach a better settlement.

The right tactics at the right time

We already noted that your best defense strategy will depend on the facts of the case. It will also depends on your goals and the way things develop over time.

The important thing to remember is that trial is only one option, and it’s not always the best one. Your attorney has a whole arsenal of different tactics you can pursue. You should never feel stuck thinking that everything looks like nails because your only tool is a hammer. Your defense should incorporate as many different tactics as necessary, layered and timed appropriately to work toward your goals.