Typically, a business litigator is geared for battle, ready to seek justice on the client’s behalf, or to vigorously defend against an unjust claim. The client, meanwhile, usually just wants to get back to business; the case is merely an impediment.
These competing viewpoints present unique challenges for business litigators. They must be problem-solvers and dispute-resolution experts, and no matter how strong the case might be, full-blown litigation should be the option of last resort.
Let’s say one of your new, high-tech startup company clients has asked you to intervene in a potential legal matter. The former CEO, which the board of directors just fired, is threatening to sue. Instead of calling you for advice before they fired him, the company officers waited until the situation erupted into the threat of a breach of contract action. Meanwhile, the company is barely meeting payroll. Its executives and staff have voluntarily taken pay reductions to keep the start-up afloat. The possible exposure from a poorly prepared severance agreement totals well into six figures. The company wants to resolve this problem as quickly and efficiently as possible. So, where do you begin?
Business Conflicts Require Resolution. For the most part, business people are bottom-line thinkers. How much is this going to cost, what is the likelihood of success, and how disruptive is this going to be to my business? Notice, they usually do not ask the question: “What will we win?” Dispute resolution in the business context does not necessarily mean the same thing as obtaining a verdict for your client in court.
Nevertheless, you have to think like a lawyer in assessing the facts of a case. What are the plusses, what are the minuses? What is the chance of success when you try the case before a judge or a jury? How strong are my facts? How likable are my witnesses? What do the supporting documents show? Is the law on my side, or am I facing an uphill battle?
The best solution for your client arises from the amalgamation of the business and the litigation paradigms.
Before you can search for a successful business solution for your client, you must first understand your client’s business. Get to know how your client’s business operates; what matters most to this company? What is the strategic plan? Who makes the day-to-day decisions? How is information gathered, stored, and disseminated?
Once you have a grasp of the business and how it operates, apply its guiding principles to finding a resolution to the pending legal problem. You can uphold your ethical and professional obligation to represent your client’s legal interests, while at the same time, consider the issues from your client’s viewpoint as a business person. The business litigator must become a close ally of his or her business client, all the while remaining steadfast in preparing the case for trial.
Remember that especially for business folks, time is money, and as much as they want to prevail, they want to do so in a way that is cost-effective and minimally disruptive.
Develop a Plan. Your legal strategy should resemble a business plan in that you outline the issues, assess the strengths and weaknesses of the case, the likelihood of success, and estimate the cost of litigation. The client must realize that this plan is not set in stone and will be modified as your investigation, preparation and discovery progresses. Business clients like plans, even if they are living documents that occasionally need to be revised.
The plan should set forth the legal assessment you would make in preparing a trial brief for the court. For example, how strong is the statutory, regulatory and case law in supporting your case? What are the hidden issues that might surface? How strong is the other side’s case? Your client will appreciate this clear and thoughtful assessment, and performing this exercise early will help focus your approach.
When Trial is Necessary. Prepare the case as you would in any matter going to court. But, particularly in business litigation, you must simplify the complicated facts. Every business has its own jargon, acronyms, and descriptions that may be foreign to the fact-finder.
It’s important to humanize your client and prepare to tell the story of your case with real people rather than a nebulous “company.” Make sure your client realizes that their presence is needed for all aspects of the trial.
Returning to our scenario of the start-up company caught in a bind and requiring a quick resolution, remember that you have to think like a lawyer and a business person at the same time, In this case, the best approach may be to stand firm against the threat and let the former CEO know that your company client is prepared to go all the way to trial. In the meantime, work behind the scenes with your client to devise a palatable and affordable resolution to the problem to present in a negotiation before the suit is even filed.
If the negotiation attempt does not succeed, you will have at least explored this option to its fullest with the company. If the case proceeds into suit, you can always revisit the possibility of the negotiated solution. Your preparation for trial may help persuade the opposing party that an agreement is the best option when they realize the strength of your case. If not, then you are ready to take the case to trial.
Successful business litigation requires both ways of thinking. Your client expects no less, and our professional obligations to our client demand it.
Published in the New Hampshire Bar News, Vol. 24, No. 7, December 13, 2013.
Brian L. Champion is a partner at Libby O’Brien Kingsley & Champion, LLC, with offices in Kennebunk, Maine; Portsmouth, NH; and Burlington, Mass. He has practiced as a civil litigator for more than 25 years and is admitted to practice in Maine, New Hampshire, Massachusetts, the District of Columbia, the US First Circuit Court of Appeals, and the US Supreme Court. .
Brian Champion