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Commercial Litigation: What Business Non-Litigators Need to Know

by Rob L. Wiley

A fair number of lawyers these days, if asked in what area of the law they practice, will answer – COMMERCIAL LITIGATION. More than one person getting such a response will then stare blankly in return and say, “Huh?”

Anyone in business needs to know not only what commercial litigation lawyers do, but how these attorneys can help a business with difficult problems. I explore this subject from the point of view of someone who has practiced in commercial litigation for over twenty-five (25) years, representing businesses and individuals involved in all kinds of commercial cases.

First some basics: Commercial or business litigation has become an increasingly important part of the trial practice in many law firms as the number and size of personal injury suits has declined because of what is commonly called tort reform and because of increasing public hostility to what some see as “frivolous” personal injury claims (i.e. the McDonald’s hot coffee case and the Washington, D.C. pants pressing case).

So what is “commercial litigation?” Who needs a commercial litigator? And what do commercial litigators do?

First, a wide variety of civil lawsuits now get lumped into the category of commercial or business litigation. Traditionally, lawyers who represented banks and brokerage houses, handled breach of contract claims between merchants, or represented energy companies and their adversaries in pipeline disputes, antitrust cases, and pricing battles were viewed as “commercial litigators.” Now, however, commercial litigation encompasses much more – disputes between landowners and surveyors, fights between political candidates and consultants, and claims for things like defamation and invasion of privacy. In the past few years, I have represented parties involved in each of these kinds of disputes. Now lawyers who handle any kind of suit OTHER than a claim coming out of an auto accident often describe themselves as commercial litigators.

Anyone involved in a business activity could find himself or herself a party to a “commercial litigation” matter. A couple of years ago I worked on a claim brought by a former employee of a large company who objected to the use of her photo in one of that company’s publications. The case settled without a trial and the settlement is confidential, so I cannot provide any other details. I can say that from the perspective of both sides, it really was a business matter. The lawyers on both sides primarily work on business – not personal injury – matters and, most importantly, both sides made what I can only describe as business decisions to settle when they did.

Finally, what do commercial litigators do? Well, they argue motions in court, take pre-trial testimony of witnesses (depositions), and study letters, e-mails, and other documents looking for that key piece of evidence – that “smoking gun” – that will turn a case in their client’s favor.

Sometimes they even gent to trial, though most of their cases settle without trial. Commercial litigators must learn about a wide variety of subjects – the breadth of the global economy, really. In over twenty-five years of commercial litigation practice, I have seldom had two identical cases – even when the client I represented was in the same industry as my last case. In addition to knowing courtroom and pre-trial procedure, a good commercial litigator becomes an expert on his/her client’s business and functions as part of the business team.

Take, for example, telecommunications. For the last fifteen years or so, I have represented a large multi-national telecommunications company (or one of its affiliates). In those ten years, I have handled 8-10 significant matters for them. The issues in those cases ranged from business disparagement to customer billing practices to lost telephone equipment to a major fight over the location of a cell phone tower. Each case differed and each required learning an entirely new part of the company’s business.

If you have questions about what a commercial litigator does and how they serve the business community, please call me at 281.367.8007 or e-mail me at [email protected].

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