Commercial litigation can be tough to define even when speaking with lawyers. While commercial litigation is tough to define, that is not necessarily a bad thing. In fact, commercial litigation provides anyone within it with unparalleled experience in the wide range of business disputes that it encompasses under its umbrella. This fact makes commercial litigation work the perfect type of work for anyone in the legal field that is interested in a constantly changing variety of cases and subjects, and especially invaluable for recent law school graduates. The next time that someone asks you to define what commercial litigation means to you, just remember that its breadth is exactly what makes it the perfect practice area in which to start your legal career. With any legal dispute a commercial business or company may be facing, the security and financial well-being of their business is a priority. What can help maintain your business’s bottom line is having an experienced commercial litigation attorney. While it may seem like just another added expense, it is a necessary one. A skilled and knowledgeable business and commercial litigation lawyer can truly help mitigate the time and cost of a lawsuit. If you try to settle this on your own through negotiations or mediations, you may find yourself looking at a lawsuit and then wishing you had simply hired an attorney to begin with.
Reasons You Should Hire A Lawyer For Your Commercial Or Business Litigation Case
There are many reasons to hire a lawyer when your business is facing litigation, but here are just some of the main ones.
• Getting it done right the first time: When facing litigation either by another business or you are suing another entity for commercial reasons, you do not want to have to backtrack because you didn’t hire a lawyer from the beginning. The sooner your lawyer is in on the loop, the more he or she can help you.
• Time is money: An attorney can help make litigation go as smoothly and efficiently as possible. And as the old saying goes, time is money and you certainly do not want to be wasting your time with legal matters any more than you have to.
• Being prepared makes all the difference: While your commercial dispute may seem like it could be settled outside of court, do not count on this. It only takes one issue to go unresolved before parties pursue litigation. If your attorney is there from the beginning, preparing you and your business for trial in case it comes to that, you will feel secure in knowing you will be ready and prepared.
• Focus on your business instead of legal problems: You shouldn’t have to be worrying about your legal problems. Instead, you should be worrying about what you are good at and that is running your business.
What a Commercial Litigation Lawyer Do
A commercial litigation lawyer is a legal expert who represents a company’s interest in a financial dispute. The lawyer’s purpose is to protect the company’s right and obtain the best outcomes at the end of the litigation process. When you contact a commercial lawyer, the first thing this person will do is analyzing your case. You will be required to answer all their questions and provide relevant proof to help them understand how they should proceed. You might be seeking for representation, or you might be acting as a claimant. A commercial lawyer’s primary role is to choose the best legal option that will minimize the financial risks for your business. After establishing your claim’s potential, they can tell you whether it’s best to have a court lawsuit or an out-of-court settlement. Either way, the lawyer’s role implies various responsibilities since they can handle all the legal matters on your behalf, from proof-gathering to the actual filing.
These are some of the most common duties commercial litigation lawyers usually have to undertake during a litigation process:
• Conducting the initial case evaluation
• Drafting the necessary motions or pleadings
• Formulating responses to the other party’s complaint
• Exchanging information with the other party during the discovery process
• Preparing the necessary documentation for the court lawsuit
• Choosing the best strategy to deploy in court based on the existing evidence
• Presenting the case in court
• Negotiating with the other party’s lawyers during the settlement phase
• Appealing the case if the negotiation fails
Here are some examples of the most common commercial disputes that require legal assistance:
• Breach of contracts
• Corporate disputes
• Fraud disputes
• Intellectual property disputes
• Debt collection
• Partnership or shareholder disputes
• Employment disputes
• Breach of fiduciary duty
• Tortuous interference
• Product liability claims
Typically, commercial lawyers don’t have experience in all these different litigation areas. Therefore, it’s essential to seek a lawyer who has proven experience in the niche that interests you if you have a dispute to solve.
Civil litigation is a lawsuit between two parties to enforce or defend a legal right where the plaintiff typically seeks compensation in the form of monetary damages from the defendant. Many different types of lawsuits fall under the broad umbrella of civil litigation. When businesses or companies are involved in a dispute, the lawsuit is generally known as commercial litigation. A common question is whether commercial litigation is different from traditional litigation. The answer is both yes and no.
Commercial litigation generally progresses the same way that other civil litigation matters do. These typical litigation stages are: retaining an attorney, conducting factual investigations, researching applicable law, sending demand letters, engaging in settlement negotiations, filing suit, conducting discovery, participating in motion practice, trying the case before a judge or jury, filing post-trial motions, and so on.
Commercial litigation is different from most other civil lawsuits by virtue of the involvement of businesses rather than just individuals, and because the issues involved are very specialized and typically more complex, both factually and legally. Many times, commercial litigation is filed in federal court, rather than state court, and can be a class action or multi-district litigation. Additionally, commercial litigation can take many twists and turns and persist for years as compared to other types of civil litigation. Commercial litigation also can be more expensive due to the costs of discovery, particularly e-discovery, and the costs of forensic experts.
There are many different types of commercial litigation, including the following:
• Aviation Disputes
• Bad Faith
• Breach of Contract
• Breach of Fiduciary Duty
• Business Torts
• Class Actions
• Employment and Labor
• Fraud and Misrepresentation
• Insurance Coverage
• Intellectual Property and Patent Infringement
• LLC Member Disputes
• Partnership Disputes
• Privacy, Cyber-security and Data Breach
• Product Liability
• Real Estate, Land Use and Environmental Litigation
• Restrictive Covenant
• Securities Litigation
• Shareholder Disputes and Derivative Actions
• Tax Disputes
• Trade Secret and Unfair Competition
While this is not an exhaustive list of the types of commercial litigation, it highlights some of the more prevalent types of disputes that can arise in the business context.
What Are The Trends
Political administrations change, laws change, rules and regulations change, court appointments change, the economy changes, and the business landscape changes. The commercial litigation environment is no exception. Several areas of business litigation are poised for change, or have already changed. Yearly case figures generally show that the volume of litigation and the time required to resolve cases is increasing. For example, the most recent federal court statistics show that civil case filings increased 5% overall for the 2016 fiscal year. Per the same statistics, the median time from filing to disposition for civil cases was 9.2 months, up from 8.8 months in the prior fiscal year. According to one report, commercial litigation trends indicate that companies with “bet-the-company” cases have quadrupled over the past two years. The same report found that businesses are seeking a faster and more efficient resolution of cases via settlement, and that company spending on employment, intellectual property, and class action litigation is increasing due to the greater risks involved in those types of cases.
The following types of commercial litigation have experienced increased volume, and these robust trends are expected to continue.
Cyber-security and Data Breach Litigation
Increased cyber-security and data privacy litigation is expected due to the escalating frequency, scale and sophistication of cyber-attacks and the resulting data breaches. According to one study, the average total cost of a data breach globally is $3.62 million, and the average global cost per lost or stolen record is $141. These costs incorporate legal expenditures, including litigation costs. In cyber-security and data privacy litigation, the key threshold issue is whether consumers have standing to seek relief for data breaches and improper disclosure of personal information. Also, states continue to expand and pass laws protecting consumer data. These state laws provide consumers with additional avenues for relief for data security breaches and are leading to increased lawsuits.
Employment disputes are increasing and they are expensive, lengthy and injurious to an employer’s reputation. This trend of increased litigation arising out of the workplace is expected to continue. According to one study, the average employment claim takes 275 days to resolve and the average cost to defend and settle is $125,000. And, per the same study, for those employment claims that are not settled, the median judgment is approximately $200,000, which is in addition to the cost of a defense. However, the study found that about 25% of employment cases result in a judgment of $500,000.00 or more. According to the same employment litigation study, U.S. companies have an 11% chance of having a claim filed against them by an employee. But, per the study, some states have even higher chances of employee litigation.
Securities Class Actions
Case records show that there was a significant uptick in securities class actions. According to one study, in 2016, plaintiffs filed 270 federal securities cases, which was a 44% increase over the prior year. The same study reported that a record 3.9% of U.S. exchange-listed companies were subject to class action filings in 2016, which was above the historic average of 2.8%. A midyear assessment found that for the first six months of 2017, plaintiffs filed a record 226 new federal class action securities cases. This was 135% above the 1997-2016 historical semiannual average of 96 filings and the highest filing rate since the Securities Clearinghouse began tracking such data. This same assessment reported that 4.7% of U.S. exchange-listed companies were sued in federal securities class actions in the first half of 2017, which was an increase over the percentage of companies sued in 2016. This is an unprecedented spike in securities litigation activity.
Often when people think of litigation, they think of lawyers taking claims to court or defending claims brought against their clients. However, due to the cost and damage to business relationships that occur during court battles, dispute resolution is often used. Most top law firms have specialist litigation and dispute resolution departments, whilst smaller or specialist firms concentrate all their resources on litigation. Often, work as a trainee will begin by preparing documentation or conducting research on relevant laws and case histories or drafting preliminary motions before the court. Eventually though, you will move on to more complex activities as you gain experience. Litigators usually work closely with colleagues from other departments (e.g. banking and finance, corporate, commercial and real estate) and a whole host of other support staff. Litigation is subject to frequent changes and developments over a period of time.
What makes a good litigator?
A litigator requires good communication and negotiation skills. However, it’s not so much about arguing cases but making a cogent and reasoned case in favor of your client’s interests. You’ll need to have a strong academic background and be flexible and creative when it comes to tackling new challenges. In order to be a good litigator, you will need a keen sense of commercial awareness, good command over legal and technical principles and the ability to present facts, law and strategies in a reasoned and persuasive manner.
Some common types of complex commercial litigation include:
• Intellectual property disputes: Patents, trademarks, copyrights, and trade secrets laws all protect the intellectual property of organizations. Your business may need to file a lawsuit if your intellectual property is being misused or you may be named as a defendant if you are accused of violating someone else’s IP rights. Intellectual property disputes often hinge on complex details and highly-technical situations and you need an attorney with unparalleled experience in these difficult cases.
• Employer/employee disputes: Both state and federal laws govern relationships between employees and the companies they work for. Employees may have obligations to your organization, like protecting trade secrets. You also must ensure you comply with fair wage and hour laws and non-discrimination regulations. If your employees believe you have acted unfairly, you can be sued.
• Customer lawsuits for breach of warranty or defective products: Most products have implied warranties, including a warranty of merchantability and of fitness for the purpose for which the product is sued. You may also provide an express warranty for your products. Breach of warranty and defective product claims can come in the form of class action litigation in which multiple plaintiffs join together to take legal action against your business.
• Breach of contract cases: Contracts create private law. If either party materially misrepresents their intentions or fails to fulfill their obligations in the contract, a breach of contract claim can be filed for damages. The non-breaching party can seek specific performance or other equitable remedies, or may seek monetary payment for losses resulting from the breach.
Business Litigation Lawyer
When you a Utah Commercial Trial Lawyer, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506