Richard R. DuVall, Partner at McCabe and Mack LLP, spends most of his time at our Hudson Valley firm overseeing, and in many cases acting as the primary litigator, in our Commercial Litigation Department.
This area of law demands that Rick navigate many different personal dynamics and complex situations. He reports that the experience, however, is deeply satisfying when he can help “a stressed business owner or other litigant through the process and get them a good result.”
This month, we asked Rick to answer some of the most frequently asked questions about commercial litigation; here are his responses:
A. In its shortest description, commercial litigation involves disputes between businesses or business people. It does not involve injury cases with blood or broken bones, nor personal divorce or child custody matters. It includes such diverse areas as collection of business debts, loans, mortgage foreclosures, partition of properties between cotenants, boundary or land use disputes, contract disputes about property or business purchase and sale matters, construction disputes, shareholder or partnership disputes, including dissolutions or control disputes, covenants not to compete, and other similar matters.
A. It almost always starts with analyzing the nature of the friction or potential friction, through targeted and also general gathering of the relevant facts and history from the client or potential client. We also consider information from other sources to build context around the material presented by our client. Frequently the client or a referring attorney has a sense of the “field of battle”, and sometimes the goal and process is obvious given the nature of the default or claimed misconduct complained of. But sometimes that sense is not quite on target, or there are evident hurdles to be identified and worked around. We try to develop a goal or range of goals that the facts and the law might support, and build a strategy to get from where we are “today” to where the client wants to be, given the range of possible legal outcomes.
A. I tried to describe the range in general terms above. There is no limit to the variety of disputes and fact patterns that have come across my desk over the years. Corporate dissolution cases seem to come in waves, and partition cases, too. As properties are passed down through a family it is not unusual for friction to arise. Family companies are a frequent source for a variety of commercial disputes, in good times and in downturns, especially where there are generational or succession events or issues. When the economy turns down, collection, foreclosure and bankruptcy matters tend to increase.
A. Data breaches to my understanding may give rise to class action claims if the volume of affected people is too large to be effectively represented in any other manner. It is not an area that gets litigated frequently in most small or middle sized companies– say sales of $5 million to $150 million.
In our current hot real estate market there are frequent purchase and sale disputes where either buyers or sellers are behaving in what we used to consider erratic fashion.
A. Well a “civil case” would include most all commercial litigation. Civil litigation is simply litigation which is not criminal in nature. Criminal prosecutions involve the state or federal government asserting a breach of criminal law (murder, arson, robbery). Civil litigation is everything else– injuries, divorces, foreclosures, corporate and property disputes, where both of the litigants are private entities, like people or business entities or governments in non-criminal settings.
A. You first want to make sure that any insurance policies that might be available are investigated. You want to identify potential other parties that may be responsible for the harm that the plaintiff (the party bringing the lawsuit) has claimed. And you want to make sure that the lawyer or firm that you choose to represent your company has experience that will enable them to walk you through the process rationally and economically from the start. Many lawyers can fight effectively for their clients and will wage litigation like a Civil War battle is going on. When needed that can be effective. A more targeted approach based upon experience with similar cases is frequently a better way, and can lead to either an acceptable resolution or, if it is taken to trial, a targeted and streamlined, hopefully cost effective, litigated resolution.
A. Usually, this happens only after you have taken and tried all less confrontational approaches without meaningful success. However, in the right scenario, you may need to file suit immediately, without any advance notice, if irreparable and serious harm is being done or is about to be done.
A. There are many paths to the end. Sometimes we need to educate the opposing side and the judge for a period of time until they understand the most likely outcome, and get that outcome into a resolution, or barring that, a litigated result and a court’s judgment.
A. Keep good records, good notes, be honest with your lawyer, take consistent positions as much as possible, and be realistic about the costs and benefits of the process.
A. The cases we handle are occasionally straightforward, but more often complicated either factually or legally. It is satisfying to tell our clients at the outset what the future process will likely be like, and then walk them through it over a period of months or years, while they are made more comfortable with our relationship, seeing what we discussed early on in the case roll out in front of them. It doesn’t always turn out as I predicted, but taking a stressed business owner or other litigant through the process and getting them a good result while we keep a good working relationship is quite satisfying.
If you need representation in a commercial litigation case, reach out to McCabe and Mack Partner Richard R. DuVall at 845.486.6858.