How Revealing Your Well-Prepared Hand Can Sometimes Yield The Best – And Fastest – Results In New York Business Litigation June 30, 2009

I recently had an experience where an extremely costly commercial lawsuit about a claimed breach of contract and misappropriation of proprietary intellectual property by a fiduciary of a new york small business was avoided. Although I would like to say that the lawsuit was rendered completely moot, and averted entirely, to be completely candid, my efforts weren’t that successful; however,  they did have the positive effect of making the lawsuit far more limited in its scope, and thereby will likely save both sides significant sums of money on their legal fees. (Yes, believe it or not, there are some of us who actually still take pride in the amounts of money we manage to save for our clients.) So what was the magic formula?

The answer is relatively straightforward: since we believed that our position was especially strong under New York law, particularly given the language in the parties’ contract which gave sole and exclusive ownership of all intellectual property to the LLC, we simply showed the other side a draft of the papers we intended to file with the Court, and gave them a day to mull it over. In response, the other side’s attorney contacted me, and began open and frank discussions about how we could resolve our clients’ differences.

Consider two alternative scenarios:

Scenario #1: we could have merely threatened suit, but as you probably know, most threats of lawsuits are not taken very seriously, and therefore, I’ve found, usually is just a waste of time.

Scenario #2: : we could have immediately filed suit and sought injunctive relief from the Court, and thereby not only incurred thousands of dollars in Court filing and attorneys’ fees for both sides, but this would have almost certainly poisoned the atmosphere between the parties, and made the resolution of this particular issue far more costly and difficult than necessary.

The moral of the story is obvious: if you have a strong and well-reasoned position, it is definitely worthwhile to spend the time and money to prepare legal papers that reflect this, and to let the other side know it. Everyone knows that’s the heavy lifting, and that it takes virtually no effort to walk (or electronically file) those papers over to the court. Taking this important first step may just save you loads of time, aggravation and money.

Jonathan Cooper is a New York Business Litigation and New York Commercial Litigation Lawyer with a focus on New York breach of contract and New York business fraud claims before the Nassau, Queens, Brooklyn, Bronx, Westchester and Suffolk County courts of New York State. For more information, feel free to contact his Long Island office at 516-791-5700.

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