Article by Joanne M Cassidy
Litigation in its most basic form is simply the resolution of a dispute between two or more parties through intervention of a court, a judge, and sometimes, a jury. Typically, someone involved in a dispute will hire an attorney in the city where he resides or does business to represent him in the preliminary negotiations and the trial. For instance, the petitioner (person who is making a claim against another) will retain a litigation attorney, trial attorney, or litigating attorney, which are just different names for attorneys who specialize in representing clients before the court. Most attorneys believe there is a strategic advantage to hiring an attorney who practices in the city or locale where the trial will take place. In fact, it is not uncommon for an attorney who practices law outside of their city but who has a local client, to retain a trial attorney in a different city to associate with him for purposes of that particular litigation matter.
What sorts of business disputes can be litigated?
The answer is: almost anything. Some examples of situations that I have encountered in my commercial law practice that required the involvement of a litigation attorney are commercial business disputes and contractual disputes that require commercial litigation. Some examples of when a litigation attorney should be consulted are:
a) Corporate dispute: your business partner walks out, locks the door, refuses to return his shares to you and refuses to allow you any access to the company, including its financial books and records
c) Contract and Employment dispute: you signed a non-compete agreement with your employer when you started working for him; now you want to open a competing business and the employer wants to prohibit you from doing so
d) Contractual and Collections: your company performed some services for a customer and the customer now refuses to pay
e) Purchase and Sale of a Business: you’re in the middle of buying a business and the seller backs out after you have expended a large sum of money in preparation for the purchase
What To Expect From Commercial Dispute Litigation
Each of these examples has its own set of facts and its own set of relevant laws. Presuming the parties have tried to work out a resolution to the dispute between them and that effort has been unsuccessful, it’s time to consult with a commercial litigation attorney.
The good part of litigating a dispute is that an experienced litigator will first evaluate your claims and give you an honest opinion of your chance of winning in court. The attorney will listen to your explanation of what has happened, review all relevant documents, conduct some independent research, come to a likely conclusion and tell you what to expect if you go forward with the law suit. Although a trial attorney, like a transactional attorney, cannot guaranty a particular result, she can give you her opinion of what is likely to happen during the litigation process and in court.
The bad part of litigation is that in the beginning of the process, your attorney cannot predict the course the litigation may take. For instance, the opposing party may be anxious to move the case along or he may decide it is in his best interest to stall, to drag it out for months or even years, during which time you are spending more and more time, effort and money, all with no guaranty of success.
Many, if not most, litigation attorneys, try to help the litigating parties come to a compromise resolution of the dispute rather than take the case to trial. No one likes the uncertainty of trial. Even with the best efforts of an experienced commercial litigation attorney, you can never predict what the judge or jury will decide.
Having said that, don’t despair. There are other means to help settle disputes, such as informal discussion, mediation and arbitration. If those methods are unsuccessful, litigating with a good, experienced litigation attorney may bring you the justice and satisfaction you need.