TIPS FOR SURVIVING BUSINESS LITIGATION: BUSINESS NOT PERSONAL

By Anthony C Duffy

Paraphrasing the famous line in the Godfather movie for non-criminal purposes, business litigation is or should be about “business”- not “personal” animosities or disputes.
Humans have emotions and unique and diverse personalities. Disputes almost inherently create adversarial attitudes and conduct that, when unresolved, can result in legal proceedings.
Sometimes business disputes have foundation in personal issues, such as retribution, “making someone pay” or vindication of personal beliefs.

Other forms of legal proceedings do concern and are founded on personal claims and conduct, including defamation, disparagements of reputations, personal injury and marital dissolution cases.

Even in marital divorce cases, including in California, “no fault” standards are applied, except especially when children and their welfare are at issue. The grounds of “irreconcilable differences” are virtually automatic. The couple can have an irreconcilable difference about whether they have such differences.

The difference is that the claims may be based on personal rights and injuries.

However, the motivations and goals for managing, maintaining or defending the business case should not be based on emotion or personal motivations.

Business litigation is different, or should be. It is about “business”, not “personal”.

Not recognizing such distinctions can lead to disappointing and even injurious results.
Lawsuits and arbitrations can cost a lot of money, and divert time, energy and resources that could be applied profitably to the business enterprise.

The results often are uncertain. While some facts and factors in the lawsuit can be predicted or evaluated, and should be analyzed continuously and carefully, how a judge or jury will rule is never certain.

People are not computers. Their decision making, whether judge or jury, is not determinable as a mathematical equation.

There are risks any time a jury verdict, court judgment or arbitrator’s decision is rendered.

These uncertainties are not reasons to avoid litigation entirely.

They are, however, factors to consider when deciding whether to initiate or perpetuate a lawsuit, especially for plaintiffs and claimants.

Defendants and respondents often have less choice since the demands against them may be unwarranted, lack merit and otherwise are unacceptable or not feasible.

Rights, properties and interests, as well as precedents, often are at stake and should be enforced and protected, not surrendered just to avoid a lawsuit.

Lawsuits are often the only or best means to serve those legitimate interests.

Keeping the focus on business and business objectives at all times is essential.

When personalities or animosities become significant or driving motivations in a legal case, the business people need to question themselves, and their legal counsel, about why they are involved in or continuing the lawsuit, as opposed to settling the dispute.


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