The Right Person for the Job

You wouldn’t hire an electrician to install a sink or a carpenter to repair an air conditioner, yet oftentimes business owners involved in serious legal disputes look for guidance from attorneys with little or no experience handling the particular dispute they’re facing. Those of you who have done this know exactly what I’m talking about. You hired the law firm that prepared your estate plan to sue a former employee who violated a non-compete agreement. You hired the law firm that represented your brother-in-law in a car-wreck case to sue a competing business for copyright infringement. You hired the law firm that incorporated your business and continues to serve as its registered agent to sue a business partner for breach of contract.

This is ill-advised and you shouldn’t do it, and I’ll tell you why you shouldn’t do it: The skill set needed to handle a serious business dispute is very different from the skill set needed to handle other types of cases and other legal issues. This is not to say there aren’t attorneys who excel in multiple areas. I am fortunate to count among my friends and colleagues attorneys who are capable of providing exceptional representation in almost any type of case, from products liability and personal injury to securities fraud and anti-trust. But those attorneys are the exception and not the rule. Most of us do better when we stay in our lane.

Three Ways a Business Case is Different from a Personal Injury Case

While the bulk of my practice centers around helping clients resolve serious business disputes, I’ve also handled several personal injury cases over the course of my career, affiliating myself with other attorneys who specialize in that area.  From my perspective, there are three significant differences between a case arising from a business dispute and a case involving personal injuries.

Business Disputes Often Require Creative Solutions

When someone is injured in a car-wreck, generally the solution is to cause the wrongdoer–or more often, their insurance carrier–to pay money to compensate the victim for his or her injuries.  Money may be the solution in a business dispute too,  but rarely will an insurance carrier be standing in the wings to make payment.  The money likely will come directly from the wrongdoer.  As a result, the ability of the wrongdoer to pay might be a key factor in any settlement negotiations. A monetary settlement might require the participation of  third-party bank or finance company, or that the victim accept payments over time.  

And business disputes often are about more than money.  A business owner may seek to prevent a competitor from hiring away a key employee who is subject to a non-compete agreement.  A business owner may seek to remove from store shelves a competing product that allegedly infringes the business owner’s patents.  The parties to a business dispute might desire to continue their business relationship rather than end it, but require legal assistance to help them resolve their differences and agree upon a path forward.  

Personal injury cases generally do not involve these complexities. That isn’t to say they aren’t complex; personal injury cases can be extraordinarily complex and require a high degree of skill to successfully navigate.  But the skill set is different than the skill set required in a business case.

Business Disputes Often Involve Voluminous Document Discovery

A personal injury case might involve voluminous medical records or records regarding the accident or incident at issue, but generally speaking, the volume of documents involved in a personal injury case will pale in comparison to the volume of documents involved in even the most routine business dispute.  A case involving an alleged breach of contract, for example, may require review of the parties’ representatives’ email communications.  If those communications happened frequently and/or over a long period of time, there could be thousands of potentially-relevant emails to review.  A patent infringement case typically requires review of the patent holder’s communications with the United States Patent and Trademark Office, and those communications–and the Office’s actions–can be extensive.  A business dispute involving the sale of a company may require the attorneys to dig through reams of documents generated during the course of due diligence as well as numerous drafts of the final transaction documents.

The ability to efficiently and effectively compile and review relevant documents and bring them to bear on a client’s behalf is an important skill in a business dispute, and one that attorneys who practice in other areas may not necessarily possess. 

The Outcome of a Business Dispute Often Depends on the Resolution of Legal Issues

Just by their nature, personal injury cases tend to involve a fight over the facts that can only be resolved by settlement or through trial.  Business cases, in contrast, tend to involve a fight over both the facts and over legal principles that govern the parties’ claims.  Because the Court, and not the jury, is tasked with deciding legal issues, the parties generally must request a decision on these issues well in advance of any trial.  This, in turn, requires the submission of oftentimes-voluminous written arguments.  This puts a heavy premium on attorneys who are skilled researchers and writers.  A well-written legal brief can make a material difference in the outcome of a case arising from a business dispute.  This is less-true in a case arising from personal injuries, where the outcome is more dependent on the jury’s assessments of the facts.  

How Do I Know If I’m Hiring the Right Person for My Business Dispute?

To one degree or another, all business disputes are unique.  As a result, the likelihood of finding an attorney who has handled a case exactly like your case is somewhat remote.  However, as you’re interviewing different attorneys to determine whom you should hire, don’t be afraid to ask about their experience in cases like yours.  If your case involves alleged legal malpractice, ask if they’ve ever handled a legal malpractice case.  Ask how many.  Ask about the results.  If your case involves the sale or acquisition of a business, ask if they’ve ever handled a case involving the sale or acquisition of a business. Ask how many.  Ask about the result.    If your case involves the alleged infringement of a patent, ask if they are a member of the Patent Bar.  Ask if they’ve ever previously filed a lawsuit for patent infringement.  Ask about the outcome.

The key takeaway is that you should ask attorneys about their background and experience, and not merely assume, for example, that a really good trusts and estates lawyer will be really good at handling a breach of contract case involving your deceased mother’s business.  Although some attorneys really can do it all, those attorneys are few and far between.  In my experience, there are many more lawyers that try to do everything and end up doing some things very poorly