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3 Overlooked Ways to Strengthen your Commercial Litigation Practice

By Kornfeld LLP (posts)

Looking for practical tips that will help grow your commercial litigation practice?

Dan Parlow has been practicing law at large and small firms since the late 1980s, and is currently managing partner at Kornfeld LLP. With all that experience comes a wealth of practical know-how, especially in matters related to commercial real estate, shareholder, partnership and other business disputes.

Dan recently presented a webinar for the Trial Lawyers Association of BC on commercial litigation tips for general litigators. He’s boiled down three simple, yet effective lessons learned to become a better lawyer and to build a better practice.

  1.   Manage Client Expectations

Pursuing an informed understanding of the client’s expectations upfront is essential to reducing problems in the course of a legal action—with the case and with your relationship. Make sure you understand your client’s assumptions before you begin.

A common example is that clients want to “put a CPL on title,” or register a Certificate of Pending Litigation as soon as possible. The difference between a hastily prepared Notice of Civil Claim and CPL registered on title, and documents that came of sound and considered legal judgement and preparation is often critical. Potential adverse consequences range from the relevant portion of your client’s claim being dismissed on application with the CPL being struck on that basis; to the CPL being set aside on hardship grounds; to heavy unforeseen risk if the client is required to post security; to heavy financial cost to the client; and the potential of an appeal. Not least to consider are potential ethical concerns to lawyers who may hastily file pleadings based on an unsupported cause of action which could amount to “promoting suits under frivolous pretenses” in breach of the oath of office. Dan says he has seen many inadvertently inappropriate claims of this nature filed over the years.  

The most critical tool in managing client’s expectations and your reputation is fostering effective communication. Generally, once the issues are considered and the potential pitfalls of rushing to file, the client may re-think its strategy. If they are unwilling to listen and you accept the retainer, you may well end up regretting having accepted the case. In these circumstances, the prospects of the client later being unwilling to accept responsibility for short-sighted actions, and blaming the lawyer when strategy has gone awry, is greatly increased.

Dan’s advice is to slow your client down to allow the case for a CPL, and its potential consequences of its filing to be fully considered from the start; to never let the client’s problem become your problem; and to be alive to your ethical obligations at all times. On occasion, it is preferable to allow the client to seek alternative counsel if they insist on a course of action without proper regard to the above considerations. 

  1.   Perform an intensive case review up front

When taking on a commercial litigation case, performing an intensive case review up front will often allow much greater leverage for when the time comes to present in court.

In a recent case of ours, the parties were able to settle by agreement on the first day of trial. In the Notice of Civil Claim, the plaintiff asserted a direct and indirect interest in valuable commercial property based on a largely undocumented alleged agreement. After conferring at the outset with Associate Counsel Susan Smith, who has more than 30 years of litigation experience, the potential remedies in this scenario multiplied, to the client’s substantial benefit, and increasing the leverage which led to ultimate resolution of the case.       

Dan has found that, no matter how much experience one has acquired in one’s  own legal career, the effort of seeking an independent case review by a colleague almost always brings with it opportunities to learn and be surprised about matters not yet known or yet considered to be applicable to the fact scenario at hand.

“The more different someone’s background is, the more their perspective will offer, and the greater opportunity to improve my own performance in the litigation,” says Dan.

To gain an effective review, always seek an independent set of eyes. Additionally, ensure there is sufficient time to fully review the history and real-life issues of the case so as to leave sufficient time for full consideration of alternative potential remedies and defences before finalizing initial pleadings. In rush cases where that time is simply unavailable, don’t forget the opportunity to amend and refile. Dan has done so within only a few days of his original filing, changing the entire course of the case, and unconcerned about “wasting” his “free amendment” as subsequent amendments are invariably granted by consent or on order.

  1.   Be flexible (keep an open mind to changes)

Dan’s third lesson for effective conduct of litigation is to continue to be open to new facts and causes of action as the file progresses, rather than focusing entirely on the collection of facts and admissions to support one’s initial narrative. Very often, the initial narrative which leads us to characterize of one’s claim or defence in a certain manner, turns out to have been preconceived. Keeping your eyes open to changes in that narrative, and to emerging legal issues, can be of substantial benefit as the case proceeds. 

In the case referenced above, Dan and his colleague Nils Preshaw learned through a thorough review of documents, witness interviews, and ultimately examinations for discovery, of new and unforeseen narratives: that the alleged contract may have been brokered by an unlicensed individual; and that the relevant bank financing may have been obtained through creation of a sham lease agreement overstating rents. These gave rise to new defences to the primary claim based on ex turpi causa (or, “from a dishonorable cause an action does not arise”). Through these processes, Dan and Nils further became aware of other investment schemes previously engaged in by the Plaintiff with alleged similar fact patterns which may have allowed for damaging “similar fact evidence” to have been introduced at trial with the purpose of disproving certain factual assertions based on the key under-documented alleged agreement. They believe that all of these defences added significant leverage for defence purposes which was of substantial assistance in early resolution of the claims.  

Keeping an open mind to the unknowns, and minimizing ego-based assumptions that you have “everything covered”, is always a worthwhile endeavour. 

 

 

 

 

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