Wilson Elser’s experienced attorneys understand how difficult commercial litigation matters can be, navigating them requires careful deliberation with the company’s marketplace and future at stake – our attorneys offer innovative and timely counsel that supports client business goals and are adept at managing tradeoffs effectively.
Written Advocacy
The commercial litigation often relies heavily on written advocacy – including pleadings and briefs – as an essential way of persuading judges and audiences of your client’s position. A well-organized narrative provides the strongest tool for persuasion.
Litigation requires meticulous case preparation, which includes gathering contracts, correspondence and evidence to support your claim. Arranging and indexing this material enables legal teams to craft strong arguments on your behalf.
Business disputes can be complicated. Commercial litigators are skilled at navigating the intricate calculations required in deciding whether or not to pursue or defend a case, and the most efficient ways to do it. They bring business practicality to complex legal challenges often involving “bet-the-company” decisions; and are adept at cost and risk management by working with clients on creating alternative fee arrangements like capped fees, flat rates and retainer arrangements that support predictability while controlling expenses.
Depositions
Depositions are one of the first steps taken when gathering evidence for a lawsuit. They usually occur under oath and are recorded verbatim by a court reporter (though nonverbal cues such as head nods, handshakes and uh-huh’s aren’t).
As part of direct examination, an attorney questions witnesses directly. At this stage, they may pose queries and review relevant documents as part of the case.
Depositions require being clear, honest and succinct. Furthermore, it’s beneficial not to offer up information not specifically requested, in order to prevent opposing counsel from knowing “where the bodies are buried” so they may use that knowledge at trial. Finally, remembering you are under oath during depositions will aid your performance as you will avoid lying under oath during these proceedings is key.
Discovery
Decisions on case strategy and resource allocation often have to be made quickly at depositions and hearings, making attendance at these proceedings and engaging in other forms of written discovery so essential for commercial litigation success.
Discovery is the process of collecting information from parties not involved with your case, such as medical professionals, employers, credit card companies, telephone companies, banks and social media sites. Subpoenas may be issued in order to gather this data.
Commercial litigators must carefully weigh when, whether and how to file, defend or settle claims, as the results could have an enormous impact on a company’s market presence, opportunities and profitability. This requires having a profound understanding of complex business issues combined with extensive resources that provide national coverage.
Expert Witnesses
Expert witnesses can dramatically bolster a case, yet can also be expensive and time consuming to manage. Litigators must understand how best to utilize these experts so as to reduce cost and save both cost and time.
Expert witnesses play a vital role in providing attorneys, judges and juries with knowledge on technical or complex matters that exceed common experience. For example, mental health experts can translate medical terminology so laypeople can better comprehend clinically significant issues of a case, while vocational rehab specialists may determine if an injury related to specific work activities has caused this harm to a plaintiff.
Staying abreast of all developments in a case is vitally important if a party appoints an expert witness who works independently. This is particularly vital if they appoint one as they could otherwise become misled by new information that could alter their perspective and lead to inaccurate judgments from them.
Negotiation
Settlement is typically the preferred means for resolving litigation matters, providing opportunities for cost-effective dispute resolution while limiting attorneys’ fees. Recognizing early whether settlement may be possible can provide an early opportunity to save both time and money by reaching an amicable solution to disputes.
Negotiations is often an exercise in seeking information that confirms their beliefs while disregarding information that challenges them. An effective approach would be to empathize with and try to understand the other party’s viewpoint as part of your negotiations process.
Negotiated outcomes may fall short of an ideal or preferred position; however, this can still be acceptable provided they also positively advance other interests. It is crucial that parties clearly define and clarify their negotiating mandate to ensure everyone involved participates in the negotiation on equal terms.
