COMMERCIAL LITIGATION


              

I have represented business clients in substantial jury and non-jury trials in disputes concerning unfair trade practices, breach of fiduciary duties, diversion of business, lost profits, breach of contract, distribution of products, product liability, harassment and other employee/employer issues, collection matters, shareholder and business partner disputes and concerning  real estate leases and sales.


THOUGHTS ON WHAT TO EXPECT

I try to counsel my clients to conduct their business in ways that reduce the chances that they will be faced with litigation. When a dispute does arise, we look for an opportunity to resolve that dispute without the need to file or defend a lawsuit.  In an appropriate case, we will have substantial negotiations and even mediation with the opposing side or sides in the dispute, in an effort to resolve the problem.

When we have decided that reasonable settlement is not possible without a lawsuit, we will file suit.  Besides the obvious cost and uncertainty involved in litigation, both sides in a lawsuit become subject to the power of the court. A case schedule is usually imposed.  Documents must be produced, often in large quantities containing financial and other materials that may not otherwise have been disclosed.  Protective orders may be needed to limit disclosure of proprietary materials.  The parties in the lawsuit, and other people with knowledge, must answer questions under oath in interrogatories or in depositions, or both.

Frequently, as in the case of a claim for lost profits from harm to a business, expert witnesses such as an economist or accountant may need to be employed to provide their opinion as to the dollar value of a loss. 
 

Because of the expense involved, a careful eye must be kept on whether the likely recovery in the suit justifies extensive depositions and expert witness testimony.  A close, open and comfortable working relationship is needed between the attorney and client to make the best decisions on these mixed questions of success in a lawsuit and financing the lawsuit.
 

Careful preparation and cooperation between attorney and client are necessary to ensure that accurate answers are given to questions in interrogatories and in depositions. After I have counseled with my clients on the importance of honesty in the litigation process, I feel that it is rare for a client to take the litigation and other risks of being dishonest; that part has not been a problem.  What I do worry about for clients in litigation is that their credibility be maintained against accidental or less than careful answers to questions and testimony.
 

Most business law cases are settled before trial, as with most cases, generally.  But cases are settled by good preparation for trial.  Most commercial cases are tried to a judge, rather than to a jury.  They are often thought to be too boring or too complicated for juries. I believe even complex commercial cases can be tried to jurors, if justified by the added expense trial by jury requires.