Litigation FAQs

WCG | Wright, Cortesi & Gilbreath

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Frequently Asked Litigation Questions

The information contained herein is for informational purposes only as a service to the public and is not legal advice or a substitute for legal counsel. Persons viewing this information should not act upon the information contained herein without seeking legal counsel.

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Litigation FAQs

What types of lawsuits does WCG typically handle?’
WCG handles a wide variety of general civil litigation cases, including breach of contract, commercial litigation, probate disputes including will contests, and fiduciary litigation, patent, trademark and copyright infringement, and employment litigation.
What are some examples of cases that WCG attorneys have handled?

My Sweet Petunia v. Stampin’ Up!, 2021 U.S. Dist. LEXIS 17769 (D. Utah Jan. 28, 2021)

  • WCG attorneys served as lead counsel for patentee My Sweet Petunia and successfully obtained a summary judgment of infringement in the District of Utah against a company that was making a competing crafting product.

Sunless, Inc. v. Selby Holdings, LLC, 2021 U.S. Dist. LEXIS 149902 (M.D. Tenn. Aug. 10, 2021) and Sunless, Inc. v. Selby Holdings, LLC, 2022 U.S. Dist. LEXIS 56638 (M.D. Tenn. Mar. 29, 2022)

  • WCG attorneys served as lead counsel for defendant Selby Holdings and succeeded on several motions to dismiss in the Middle District of Tennessee.

Research Found. of State Univ. of N.Y. v. Mylan Pharms., Inc., 723 F. Supp. 2d 638 (D. Del. 2010)

  • WCG attorney Shane Cortesi was part of the team that successfully obtained a preliminary injunction in favor of the patentee that prevented a generic drug company from introducing a copy of the patentee’s pharmaceutical product.
Where can I file my lawsuit?
One of the first questions we consider is whether to bring suit in federal court or state court. Federal court is only available if the issue is a federal question (e.g., a patent, copyright, or trademark case) or if the plaintiff and defendant are in different states and the amount in controversy exceeds $75,000. Our attorneys are licensed in federal and state courts in Tennessee, Georgia and Ohio. WCG attorneys have been admitted on a pro hac basis in the District Court of Utah, and the District Court of Massachusetts.

If your lawsuit does not qualify for federal court, or we think there is an advantage of filing in state court, we can file in state court.

Which state can I file my lawsuit in?
To file a lawsuit, the court must have personal jurisdiction over the defendant and venue must be proper under the applicable venue statute.

Sometimes personal jurisdiction and venue are easy, such as where the plaintiff and defendant reside in the same judicial district or where the contract in dispute contains a forum selection clause. Other cases are more complex, especially if the parties reside in different states or countries.

Do we handle lawsuits outside of Tennessee?
Yes. WCG attorney Stephan Wright is also licensed and frequently litigates in Georgia due to the proximity of our Chattanooga office to Georgia, and Ohio, where he initially practiced law.

We also periodically handle cases outside of Tennessee, Georgia and Ohio by associating with local counsel licensed in the state of the lawsuit.

Should I try to resolve the issue myself before engaging an attorney?
As a general rule, settlements often make sense for both parties. That being said, there are strict time limits (statutes of limitations) for filing lawsuits. For example, defamation cases must be filed within six months in Tennessee. In addition, if you are seeking an injunction to prevent someone from, for example, selling a product that infringes your patent, trademark, or copyright or violating an employment agreement, any delay in moving for an injunction will decrease your chance of obtaining one. Thus, you should have an attorney advise you on the applicable time limits and the disadvantages to waiting.
What happens after a complaint is filed and served?
Generally, in federal court, the defendant has 21 days to answer the complaint and file any applicable counterclaims. In Tennessee state court, the defendant has 30 days to answer and file any applicable counterclaims. Although it may be possible to obtain an extension, we recommend you engage an attorney as soon as you are served and seek the extension well before the deadline expires.
What is a counterclaim and how does it differ from an affirmative defense?
A counterclaim is an allegation made by a defendant against the plaintiff and seeks its own relief. Typically, the relief requested is money damages. However, in patent cases, the defendant typically files a counterclaim asking for nonmonetary damages – i.e., a declaration the patent is invalid or not infringed.

An affirmative defense is a defense to the plaintiff’s claim. Examples of affirmative defenses include statute of limitations, statute of frauds, fraud and contributory negligence. Affirmative defenses must be included in the Answer.

What happens after the Answer is filed?
After the pleadings close, the discovery phase begins, where the parties exchange documents, ask interrogatories, seek admissions and take depositions. The discovery phase typically may take one or more years, especially in federal court. Often at the end of close of discovery, parties typically move for summary judgment.
What happens at summary judgment?
At summary judgment, the moving party seeks to convince the judge that the case does not need to go to the jury, because there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law.

We have argued and succeeded on a number of summary judgment motions in federal and state court and often summary judgment is a critical juncture in the case, as it often provides a good opportunity for settlement even if the case is not fully resolved at summary judgment.

Will my case go to trial?
Statistically, very few cases go to trial because most litigants appreciate the finality, cost savings and certainty that settlements provide. However, we prepare all cases as if they were going to trial in order to maximize the best outcome for our client in a potential settlement and also to preserve our rights if the case goes the distance.

We became attorneys because we like going to court, but we are focused on obtaining the best possible outcome for the client, whether that means arguing the case before a jury or reaching an out of court settlement.

What can I do as a client to set myself up for success throughout this process?
Tell us all relevant facts, including the ones that are not favorable. This will allow us to be prepared to address them as they come up in the case. It will also allow us to provide you our best assessment of the strengths and weaknesses of the case.

Also, have patience. Litigation, particularly in federal court, takes time. Judges dockets are busy and the discovery process especially can be drawn out.

Be prepared to spend time and money on the case. Unfortunately, litigation is expensive, particularly complex cases. However, sometimes you have no other choice but to file suit and enforce your rights.

What factors do we look at when determining whether to represent a client in a lawsuit?
We look at a number of factors in deciding whether a lawsuit is a good fit for our firm, including whether the type of claim that is being brought is within our skillset, whether we have the capacity to take on the case, and whether the client has realistic expectations in terms of the possible outcome.
I won or lost at trial. What happens next?
Most civil cases in Tennessee can be appealed as of right pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure. However, not every case should be appealed, and an appeal is not a retrial of the case. Courts of Appeals typically do not allow for the introductory of new evidence, though they do provide a forum to argue that evidence was improperly excluded by the trial judge.

The best cases for successful appeals are those where the record shows that the trial judge made an error of law in the decision. Factual errors are more difficult to overturn, especially, if decided by the jury.

What happens on appeal?

An appeal is initiated by the party appealing, known as the appellant, filing a notice of appeal. Each party then has the opportunity to file briefs. In Tennessee, the case will be heard by a three judge panel, which may decide the case on the briefs or after hearing oral argument after receiving the briefs.

My case is on appeal. Is the trial court’s judgment still enforceable?
Typically, an appeal does not automatically stay enforcement of the trial court’s judgment. However, the appealing party can seek to stay the judgment while the appeal is pending by filing an appeal bond.

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