Shrewd businessmen and women are often deterred from bringing a potentially successful lawsuit because of uncertainty about how much it will cost in both time and money.

Unexpected issues can arise in seemingly straightforward cases, making it difficult for even experienced attorneys to predict with certainty how long litigation will take or how much it will cost.

For example, prolonged discovery, which is the evidence-gathering phase of a civil lawsuit, can quickly inflate litigation expenses and drag out a lawsuit far longer than desired. However, the South Dakota Supreme Court sought to reduce some of that uncertainty when it created its new, optional set of procedural rules for expedited civil actions.

Up until Jan. 1, 2016, the rules for civil lawsuits were the same for all cases that exceeded the $12,000 cap for small claims court – from a $15,000 lawsuit for an unfulfilled warranty to a complex breach of contract dispute with millions of dollars at stake.

The new rules are a laudable attempt to tailor an alternative set of rules for cases where full-blown, unlimited trial procedures are not necessary to reach a fair result.

The rules apply to cases where the plaintiff seeks only money damages of $75,000 or less from any given defendant. A plaintiff cannot use the new rules to seek equitable relief, that is, to compel or prevent another person’s actions.

The new rules limit the time the parties will spend litigating by putting them on a strict schedule from the outset of the lawsuit. The judge is required to set a trial date when the case begins, and that trial usually must be held within a year after the case was filed. Although a year might not seem fast, a civil lawsuit under the conventional rules of civil procedure is rarely resolved within that time frame.

Costs are controlled under the new rules by restricting the amount of discovery the parties must endure. Under the traditional rules of civil procedure, there is no limit to the number of times an opposing party can demand that you answer written questions or turn over related documents. If used indiscriminately by an opposing party, those discovery procedures can occupy you and your attorney for many hours and quickly lead to much larger legal bills than expected.

The new rules place strict limits on each party’s use of discovery and protect all involved from falling into a quagmire of endless discovery requests.

It is always important to consider whether the possible result of a lawsuit is worth the potential time and expense involved. The South Dakota Supreme Court has cleared an alternative, more efficient path for bringing small or medium-sized civil cases.

If you find yourself considering a lawsuit with stakes too high for informal small claims court but low enough that you fear the cost of traditional litigation could eclipse its potential benefit, you and your lawyer may consider whether the new rules for expedited civil actions are an option.

Rische is an attorney at Davenport Evans Law Firm specializing in commercial and complex litigation



Insight focuses on issues in the workplace, technology, sales and marketing, and small business. If you’d like to submit a column, contact Rosemary McCoy at rmccoy@sfbusiness or 977-3970.

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