In general terms, a Florida commercial litigation lawyer represents a individuals or companies’ financial interests when they have a dispute, typically with another business but also sometimes with individuals or even government agencies.
How Can a Commercial Litigation Lawyer Help Me?
If you have a business dispute of any kind, you may be wondering what to do next. Your commercial litigation lawyer will ask you questions about the issue so they can analyze the situation and make recommendations. In some cases, they may believe than an out-of-court settlement is a better option. In others, they may recommend you proceed to trial to prove your case. They will also have thoughts about strategy and what you will need to prove your case.
You can help your attorney by answering their questions honestly so they will have the information they need to best help you. Sometimes clients may not mention things that they think “look bad” for their case. Unfortunately, the other party often knows about these things and doesn’t hesitate to tell their lawyer. If you believe there may be difficulties with your case, it’s better to discuss them with your attorney before you get to court. There may be ways to handle these issues, and it’s always better to have a plan for dealing with them than to get blindsided in court.
Your Florida commercial litigation attorney may also ask you to look for certain documents, such as signed contracts pertaining to the matter at hand, email communications, etc. However, the attorney may also do some of the proof-gathering or investigating, or they may hire a third party to do it. They might also ask you for a list of witnesses to an event involved in the case.
If you are the claimant, plaintiff, or the party filing the lawsuit, your attorney will advise you on the viability of your case. If they don’t think your case is likely to succeed—for example, if there is simply not enough evidence to prove the case in court—they may be able to recommend other legal options for recovering lost assets or other difficulties you’ve encountered. They will also work to help you reduce or eliminate any future losses.
If you are the defendant, or the party being sued, your commercial litigation lawyer may recommend an out-of-court settlement if they believe things aren’t going to go well for you in court. This can happen for many reasons. Sometimes there isn’t enough evidence to prove you weren’t at fault in the situation, even if it’s the truth. This can be frustrating to hear but, in a situation like this, making a small settlement can protect you from losing far more money in court if the other party agrees. In short, a settlement may be a good way to mitigate the financial risks for your business, including protecting your reputation from unfavorable media coverage of a trial.
If your attorney recommends going forward with a court case, not only will a lawsuit be filed but there would be various motions and discovery requests that would take place. Your Florida commercial litigation attorney will continue fact-gathering, looking for evidence, contacting witnesses and preparing them to testify, requesting information from the other party’s attorney, and keeping you up-to-date on the case’s progress.
Here are some specific tasks your attorney may do in relation to your case:
- Performing a first case evaluation
- Drafting any motions or pleadings needed to move forward
- Drafting the complaint or responses to the other party’s complaint
- Participating in the information exchange of the discovery process
- Preparing any documents needed for the court lawsuit
- Recommending strategy to use in court based on the existing evidence
- Representing your business and arguing your case in court
- Negotiating with the other party’s attorneys if there are settlement talks
- Taking the lawsuit to trial, whether jury trial or bench trial
- Appealing rulings throughout the lawsuit or the final ruling
What Situations Can a Commercial Litigation Lawyer Help Me With?
There are a variety of situations that cause people to seek the help of a commercial litigation lawyer. Here are some examples:
- Breach of contract claims
- Corporate disputes of all kinds—may involve conflict between partners, shareholders, members, owners, investors, difficulties with employees, etc.
- Fraud disputes—may involve inside or outside parties.
- Intellectual property disputes.
- Debt collection.
- Partner or shareholder difficulties.
- Employment disputes.
- Unfair and deceptive trade practices.
- Breach of fiduciary duty claims against an executive of the company.
- Tortious interference.
- Product liability claims.
- Breach of Non-Competition Agreements
- Breach of Non-Solicitation Agreements
- Misappropriation of Trade Secrets
Breach of Contract Issues
These can arise in many ways. Often, we see these disputes in business-to-business (B2B) situations where one party has failed to do something promised in a contract. For example, one party may have been paid to provide a service or product they didn’t produce for some reason; or, they may have ignored some other provision in the contract, such as non-disclosure of certain information.
Depending on the situation, there are many different ways to handle these issues. A judge may declare the contract terminated, in which case the innocent party usually does not have to perform any further obligations of the contract. The judge may also order financial compensation to the injured party, such as a refund of what they paid and, in some cases, damages based on missed opportunities. In other situations, a judge may order both parties to comply with the terms of the contract, such as requiring a transfer of property in a breached sales contract. However, the court can also refuse to enforce a contract if the breaching party can provide a solid defense for their actions. In some cases, the claimant may have breached the contract first—for example, not paying for the service—in which case the party that broke the contract had no obligation to continue with their end of the deal by performing the service.
Other contracts may be unenforceable because they violate federal, state, or local laws. (This is why it’s always important to consult a qualified business attorney when you consider signing a contract, as you may be able to avoid finding out in court that your contract isn’t viable.) There may also be situations where the contract is not enforceable due to “an act of God,” such as a hurricane preventing someone from fulfilling their duties under a contract.
Partnerships and Other Small Business Disputes
Small or family-owned businesses in Florida are often organized as LLCs, partnerships, or sometimes S-corporations. Disputes among owners, partners, or shareholders can happen for a wide variety of reasons. There may be disagreement about managing the company. Sometimes owners or partners just have different visions for the future of the business and can’t come to a compromise.
Another common issue is compensation, or how profits are divided among the owners/partners/shareholders. This frequently brings all parties into court. If you feel you aren’t being compensated appropriately for your role in such a business, it’s a good idea to consult a Florida commercial litigation lawyer before making any decisions about how to proceed. Your attorney can explain your options. In some cases, the judge will force a sale or dissolution of a business if they believe the owners can’t continue to run it together. The division of the assets of the business will depend on various circumstances, but it’s very important that you have a skilled attorney to explain everything you’ve done for the business.
In other situations, the parties may be able to work things out internally. They may buy out a partner or owner who has created difficulties, or rewrite the business agreement terms about who gets what compensation or how decisions are made. For example, they may decide that one person is in charge of certain decisions in a particular area, while another executive is in charge of some other area, and still other types of decisions require the board to vote.
Often you will need to go over your operating agreement with your attorney to learn what next steps are possible because these contracts frequently provide a roadmap for handling such disputes.
Employment & Contractor Disputes
Conflicts with employees or former employees (or contractors or former contractors) may also create legal difficulties for businesses. Many times they arise from a disagreement about how much a person was supposed to be paid or what benefits they were meant to receive. Workers may also bring lawsuits related to what they believe was an unfair termination.
Generally with executives and higher-paid positions, frequently there is an employment contract. However, more and more we are seeing employment and contractor agreements with other staff as well. Again, it is best to have an experienced Florida attorney help you with these contracts. A one-size-fits all approach, or using the same contract for different positions and situations, may not be the best idea. Your lawyer will take into consideration the job duties and responsibilities, and consider all possible legal issues that may need to be addressed in the contract. If there is a legal dispute later, you will be able to refer to the contract in court. Your attorney will advise you on the best strategy based on the contents of the contract and the employee’s claims.
With any employment situation it is pertinent to follow state and federal labor laws. Issues may arise when terminating an employee, but there may also be disagreements about how much a person was to be paid. Your Florida attorney would be able to advise you about employee or contractor matters.
Florida commercial litigation attorneys also handle issues of shareholder, partner, member or owner’s rights. Sometimes people who own a minority of a company have issues with how the company is run. They may believe the majority owner or owners are making poor decisions for the business, or taking steps that will unfairly disadvantage the minority owners. Often, these disputes arise over how much of the company profits are paid out or distributed to shareholders as dividends, but there may be other disagreements as well.
If you are in such a situation, it is well worth your time to consult a Florida commercial litigation lawyer about your options. These generally depend on the shareholder/partnership/LLC agreement that governs how the company is run. If these are written properly, they usually contain provisions for handling disputes among the owners. There may be options for buying out a shareholder/partner/member who is displeased with how the company is being run but lacks the ownership interest to do anything about it. In this case, you may be able to cash out your ownership interest in the business, then move on and invest your money in something else.
If you need assistance with commercial law issues, or have questions about any potential legal matter, please contact Apfelbaum Law for a consultation. You can also check out our Litigation Practice Area for more information. We have offices in Port St. Lucie and Stuart, but provide legal services throughout the Treasure Coast and Florida.