Commercial Litigation

PRACTICE AREAS - COMMERCIAL LITIGATION

Mark Osherow is Florida Bar Board certified as specialist in Business Litigation. This area of practice generally includes "commercial litigation." We are prepared to expeditiously meet the needs of clients from small business owners and start-ups to major corporations listed on the national stock exchanges., as well as individuals, in the effective handling of commercial litigation issues.

We pride ourselves on our thorough research and ability to digest our client's needs to proceed with a plan of action on what can frequently amount to an expedited basis in these types of matters. We have the experience to go into court quickly to obtain pre-trial relief including injunctive relief, restraining orders, writs of  replevin, attachment and garnishment as well as other pre-judgment remedies that may be necessary in such matters.

Depending on the issues, we can strategically posture our clients to take advantage, through a carefully planned out strategy of the assets and strengths of our defense, where necessary, and are prepared to seek the appropriate relief where non-meritorious scattershot litigation has been launched. With our client's input, we seek to establish a well constructed plan of action with our client involved in the process through prompt communication of the details of the decision making process so that client input can be well considered throughout the matter. Most importantly we belive in giving each client our attention so that the matter will be effectively and thoughtfully handled in a cost-effective but, where necessary, assertive manner.

GENERAL COMMERCIAL LITIGATION INFORMATION

The term "commercial litigation" covers a broad spectrum of cases stemming from business conduct. For instance, a CEO whose company is being sued for products liability might be interested in reading about that area of law for a discussion of the basic principles of personal injury defense. We handle many different kinds of commercial disputes and ways that businesses might use the adversarial system more effectively or avoid it altogether.

Qualities of a Good Commercial Litigator

As commercial litigators we strive to be effective advocates and advisors. Many businesspersons fail to see how important it is that the attorney they hire be able to play both of these roles. Some commercial litigators who are very good in the courtroom are poor advisors who are unable to suggest alternatives to costly court battles. Today, many commercial disputes can be time-consuming and costly. No party should initiate or perpetuate litigation solely because he or she is offended or indignant at the other party’s actions. Often, there is too much money at stake to allow emotions to rule over rational judgment. It is the responsibility of a good commercial litigator to tell his or her client the benefits and risks of taking a case to trial, and to act as an advisor in the office. The advocacy role should be saved for trial or for settlement negotiations. A businessperson may seek the advice of an attorney while still feeling indignant over having been sued. He or she may wind up hiring the attorney based on the perception that the attorney feels as indignant over the case as he or she does. If the attorney is simply telling the client everything he or she wants to hear–rather than what the client needs to hear–the attorney is not treating the role of advisor as seriously as the role of advocate.

Litigation has become a routine cost of doing business for many companies in this country, but litigation is not painless, even for the party that wins the lawsuit. Eventually, however, it may be necessary to sue another party. It is a skill to know when to turn to the courts to settle commercial disputes.

Many commercial disputes involve counterclaims, cross claims and joinder of third parties. “Counterclaims” are claims brought by the defendant against the original plaintiff, “joinder” is a way to bring third parties into a dispute, and “cross claims” are claims between an original defendant and third parties joined to the dispute. Good legal counsel may be able to suggest claims that a company may have against the party bringing the lawsuit or against third parties. Assuming a more offensive posture may help convince another side to settle a dispute or drop it altogether.

One of the worst facts about commercial disputes is that a company can be forced to defend itself far from home in a court that applies unfamiliar rules. If a business is sued in a faraway court, it may be able to seek a transfer to a court closer to the company’s home base. The rules about when this is possible are complex, but attorneys experienced in handling commercial disputes will know these rules well. Forcing a plaintiff to travel to another jurisdiction to bring a claim sometimes is enough to convince him or her to drop the claim altogether. For this reason, many businesses include forum selection clauses in routine business contracts.

It is the nature of most commercial disputes that attorneys are brought into a matter only after something has gone wrong: a deal has fallen through, an account is overdue or a disgruntled customer has filed a lawsuit. These certainly are appropriate times to call upon a lawyer; however, most commercial litigators could offer advice about how to avoid these problems in the first place. As a result of years of litigating commercial disputes, we are keenly aware of relatively simple steps that, if taken early, often can prevent headaches later. The trouble is that most businesses do not ask their lawyers the right questions in advance.

See the Business Litigation Practice Area as well.