March 2014 Dicta
by Robert Bogdanowicz, Deans & Lyons, LLP
What comes to mind when you think of the word “divorce”? I’m sure it isn’t picnics and sunshine. We all know divorce in the context of a marriage can lead to a brutal legal fight. Unsurprisingly, it can be just as contentious when a business partnership comes to an end. While every business divorce is different, the following guidelines should help aspiring trial lawyers keep their case (and client) grounded.
Prepare your client. I’m not talking about deposition preparation. I’m talking about preparing your client for the reality of litigation. Emotions will run high, especially at the outset, and they will color your client’s decisions. Let your client know litigation is uncertain; there is no “slam dunk” claim or defense. Even experienced business owners may not realize how long it may take to try or settle a lawsuit—or how much it can cost to get there. Ask your client what they ultimately want to accomplish and provide realistic timeframes, cost estimates, and expectations. They may not want to hear it, but we’re not supposed to be a “yes” person.
Tailor your fees to the economics of the case. Business litigation can be expensive. It’s not uncommon for claimed attorneys’ fees to exceed the actual damages at issue. That may be unavoidable, but it doesn’t mean you can’t be tactical. When you make a budget (and you should), take the economics of your case into account. How much money is at issue? What does your client want? What is the realistic outcome? If you think tactically, you’ll realize not every case requires hours of researching Supreme Court case law or review of every email your client has ever sent. There are creative ways to accomplish your goals without working your file into submission. If you have flexibility, look to alternative fee arrangements.
The best defense is a strong offense. Rarely are contentious business divorce cases one-sided. Whether your client initiates the lawsuit or not, chances are, you will be prosecuting and defending claims; the accusations will be a two-way street. Regardless, turn your client’s case (and story) into the stronger one. Take charge of the litigation process and drop bombs—SMART bombs. Don’t wait for the other side to request a deposition, send discovery, or push the case to trial. Take control early and chances are, your client will end up in a better position, whether by settlement or trial.
Everyone loves a good injunction. When appropriate, use injunctive relief. Business divorces usually involve trade secrets, intellectual property, bank accounts, and other business property. Those issues will make your client extremely nervous; perhaps your client has control over some of it, perhaps none. If you can keep the “status quo” while pushing the case to resolution, that’s one less thing your client will be worried about. Even if you’re handling a case where there’s not much money at issue, remember that money—however much it is—is important to your client. Injunctions don’t have to be expensive if you tactically seek to restrain particular activity (and not the entire universe).
Don’t let emotion rule the day. This goes for both you AND your client. As I said earlier, emotions undoubtedly will run high—not only at the outset of the case, but when the litigation rollercoaster hits its inevitable peaks and valleys. This case is a big part of your client’s life—it represents their blood, sweat, and tears (and is probably how they put food on the table each night). Recognize that, but don’t be afraid to keep your client in check. Be stern and confident in your advice when it’s contrary to your client’s emotion-fueled action or decision. Make sure you’re not the one getting wrapped up in it, too—it’s easy for that to happen when you’re a zealous advocate. You can drop SMART bombs and respect opposing counsel; the two are not mutually exclusive.
Robert Bogdanowicz is a trial lawyer at Deans & Lyons, LLP. You can reach him at firstname.lastname@example.org or at (214) 965-8500.