SUMMARY

Litigation is often a losing proposition for businesses, as every dollar spent on lawyers is a dollar lost. Nevertheless, sometimes commercial operations are faced with no good alternative. We believe in using the Court Rules and our experience to minimize litigation expenses and to maximize the potential for recovering costs from an unreasonable adversary. We do not believe in “throwing grease on the fire” through tactics that benefit only the attorneys involved.

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Commercial litigation has always been troublesome for consumers and businesses because every dollar spent on attorneys fees and costs simply saps more profit from the original endeavor. Nevertheless, in some situations the business person has no alternative but litigation where another party is being particularly aggressive or intransigent. These cases are managed pursuant to the civil rules and are litigated in a manner similar to injury claims. Court rules and procedures which push the parties toward compromise settlements, though, can have a particularly unfair impact on these cases, where a liquidate-able debt cannot be collected in full or enhanced with fees and costs. On the other hand, thorough knowledgeable of civil practice and procedures, including the Offer of Judgment rule and the Case Evaluation procedure, and the ability to negotiate these rules accurately and with speed, will strengthen an ethical party’s bargaining position if utilized aggressively. Not only are speed and efficiency essential to an economic outcome, proper use of civil rules and procedures may open the door to actual attorneys fees and costs that otherwise would not be collectible.

We believe that commercial litigation should be handled in a manner similar to domestic relations work, in the sense that we don’t believe that it is our role to “throw grease on the fire”. We believe that unduly aggressive tactics merely add to the ultimate litigation expense and commercial loss. All too frequently an attorney who urges the litigant to spare no expense to “punish” his adversary ultimately punishes only his own client with excessive fees and costs. Nevertheless, we find that our familiarity with trials, juries, the rules of evidence and the rules of pleading enable us to litigate more effectively and less expensively than many attorneys less experienced in litigation, without relying upon “scorched earth” tactics.

Commercial litigation does have some specialized subject matters, including the Uniform Commercial Code [sale of goods], the Statute of Frauds [contract provisions required to be in writing], the Parol Evidence Rule [when a contract is limited to its “four corners”], Covenants Not to Compete, and the Consumer Protection Act, to name just a few. We are well versed in many of these areas, however, we do run into areas where we are not familiar with a particular substantive law, and in those situations we partner closely with a business attorney who has specialized in the particular subject matter. In some areas, such as bankruptcy, we prefer to simply refer clients to an attorney who specializes in the area of law at issue.

Although the damages collectible for breach of contract or in a commercial context may be entirely different than the damages collectible for personal injury, the basic proof “problems” and “approaches” are very similar, both in terms of testimony, in terms of documentation, and in terms of tactics and strategy.

As in all litigation cases, there are limitations on recovery of which you should be aware. You may read more about these limitations here.