Understanding and Winning Commercial Litigation

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In this article, I go over 2 main topics.

  • What is commercial litigation?
  • How to win in commercial litigation

Commercial litigation is a topic not many business owners understand or even come across – until the inevitable happens and they find themselves looking down the barrel of a dispute or lawsuit. 

What commercial litigation is​

Put simply, when a business enters a dispute and it extends to such a point where negotiations are not working or resulting in a resolution that pleases the involved parties, it normally proceeds to litigation. Commercial litigation can be the result of many commercial dispute types. It could be due to copyrights, trademark infringements, negligence, and many other reasons. It could also be induced by terms of your agreements with your customers or providers.

For example, if you are in the construction business and one of your contractors failed to adhere to delivering on the timelines in your contract, that can put you and them in a position to fight in court.

Commercial litigation can be complex and diverse in nature. Some disputes can come from the competition, from parties involved in insolvency, consumer protection laws, partnerships disputes, amongst other reasons. 

From another perspective, commercial litigation falls into 2 main categories. 

1. Disputes that are aimed at the heart of your business.

For example, you run an insurance business and one of your clients files a dispute claiming that you failed to honour the terms of your insurance policy and hence, breaching your contractual agreement and obligations. 

2. Disputes that are not directly related to the core of your business.

For example, one of your employees has filed a dispute alleging unfair dismissal or sexual harassment. This is a serious allegation and cost you a lot but is not directly related to the core of how you go about your business.

In both cases, your business is at risk. Although arguably, disputes directly related to the core of your business can be a lot more catastrophic because if you lose in such disputes, your business can see itself drowning under a mountain of other similar disputes and at best, your business reputation can be tarnished. 

How to win in commercial litigation​

The best way to win in commercial litigation is to avoid it – which I went over earlier. If you can’t avoid it by chance, then you need to have the right strategy and the right lawyer to pursue the litigation and ensure you’re not only represented in court but get the outcomes and court judgements you and your business need.

Winning in commercial litigation is dependent on two elements. 

How you manage your business

The best way to win in commercial litigation is to avoid it – which I went over earlier. If you can’t avoid it by chance, then you need to have the right strategy and the right lawyer to pursue the litigation and ensure you’re not only represented in court but get the outcomes and court judgements you and your business need. 

Finding and appointing the right lawyer

Finding a litigator is like finding a husband or a wife. It’s a commitment and choosing the wrong person can cost you a lot. Litigators are not all made equal for various reasons. For starters, litigators can and will have experience in different areas of the commercial law to the point that some litigators specialise in certain niche areas of the commercial law. And so, a key factor in selecting a lawyer is understanding their background and experience.

For example, I’ve worked for decades in construction law, franchise law, property law as well as other areas. Some lawyers may not have had experience at all in dealing with construction disputes. Hiring someone who has minimal experience in the specific area of your business and dispute, is like firing at a target, blindfolded. 

Conclusion​

To conclude, commercial litigation generally two or more businesses going after each other that once attempted to resolve their dispute and the dispute resolution efforts were unsuccessful. And so, going down the route of litigation is the only option. As a business, the best way to maximise your chances in winning commercial litigation is by 1) preparing ahead of time through bringing the right legal counsel to advise and protect your operation, and 2) appointing the right commercial litigation lawyer when and if the inevitable happens and you have no choice but to go down the path of litigation. 

Who is Lazarus Legal?​

A trusted Litigation Lawyer can make the ultimate difference for your business. At Lazarus Legal, we work with a range of clients across many sectors – helping them thrive and grow but most importantly, fight and win their battles.

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Barry Lazarus

Barry Lazarus

We’d be lying if we told you that this bloke isn’t the big honcho of our team, but his name is a dead give-away. The founder of Lazarus Legal, Barry Lazarus is an old school, tough as nails lawyer. They don’t forge litigators like this anymore. With decades of experience in both Australia and South Africa, his wisdom is as renowned as his name.

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