The person or business who files a lawsuit generally chooses the forum or venue for the suit. However, the rules of civil procedure determine whether that venue or another (or both, either, or neither) is appropriate. This will depend on the type of case, the location of each party, and the location of the business transaction in question. Thus, a court may order a suit moved from one venue to another.
One possible advantage of filing suit first in a business dispute is the choice of venue for the suit. So-called “home-field advantage” does matter, even in business litigation. Under federal court rules, for instance, you can file suit either in the other party’s judicial district or in the district in which a substantial part of the business occurred. If the facts support venue in either district, then the first to file will get to choose the venue. A local venue, with a familiar judge and procedures, can be advantageous to you, as opposed to a venue with an unknown judge and different procedures. A distant venue also can result in spending substantial time and money traveling to and from court and other events related to the lawsuit.
Another benefit to filing for suit first is that you may catch the other party off guard, which makes the individual or business far less prepared. Choosing to initiate a lawsuit requires a great deal of preparation; by the time that you are ready to file suit, you will have spent hours with your attorney going over the facts and gathering evidence to support your case. Conversely, the opposing party may not expect the suit, yet they are immediately subject to court deadlines that they must work fast to satisfy. The more prepared that you are for litigation, and the less prepared your opponent is, the greater the likelihood that you will prevail in your suit.
Perhaps the most important benefit to suing first is that, as the plaintiff, you get to present your case first and last at trial. Your side gives an opening statement first. You put on witnesses first. And after the defendant puts on their evidence, you can offer rebuttal evidence. Your lawyer also presents closing argument first and, following the other side’s closing argument, ends with a rebuttal closing. Meanwhile, as plaintiff, you are doing this from a better physical position: at a desk right next to the jury box. Cognitive psychologists established long ago that people remember what happens first and last—the beginning and the end—more than the long middle that tends to blur together. When you are asking the jury to rule in your favor, being the plaintiff has significant advantages.
At Williams Mestaz, L.L.P., we are experienced trial lawyers who dedicate our efforts to protecting your rights and interests with respect to business disputes. We will gather the facts surrounding your case, present your options, and work with you to develop the best strategy for your case. Contact Williams Mestaz, L.L.P. at 602-256-9400.