Many times in partnership disputes, litigators arrive at the scene after the dispute has erupted and the lawsuit has started or parties are entrenched in their positions and a lawsuit is the only way out. Since that is the usual set of facts I get confronted with, there are always instances in the lawsuit when I tell one of the partner clients, “I really wish you had sent an email that said this,” or “Why didn’t you do this when your partner was telling you that?” It is easy to say those things in hindsight, right?
There is an effective way of taking advantage of that hindsight, though, when a partner sees a dispute on the horizon. You need to call a seasoned, commercial litigation attorney, who handles these types of partnership disputes as part of his or her daily law practice in advance of the lawsuit stage. This pre-suit advice can serve two important functions. First, it can help the partner understand the ramifications of certain decisions in light of contractual and fiduciary duty obligations. Routinely, partners are so caught up in the moment and the emotion that the partner does not process or appreciate the consequences of certain decisions. With a litigation lawyer to provide counsel at this pre-lawsuit stage, the consequences can be understood, but more importantly, the litigator’s lecture about how things could have been done differently will be avoided. The point is the litigation lawyer stays in the shadows and in the background. There is no need to surface until absolutely necessary.
The second, more tangible consequence of the pre-suit litigation lawyer’s advice is that the dispute can be avoided. Effective counseling from a commercial litigation lawyer who has litigated cases about breach of fiduciary duty, shareholder oppression, breach of contract, fraud, accounting, and derivative lawsuits on behalf of the entity can potentially help prevent the lawsuit from ever erupting. Good litigation advice can only come from an attorney’s experience in the trenches in these emotionally charged disputes where people’s lifetime investments are at stake, hard labor is on the verge of being wasted, and relationships built on trust and confidence are forever destroyed.
I have recently been hired by a partner in Houston who may be on the verge of getting sued based on the noises his partners are making. Now, we have the opportunity to work in a way that gives him the upper hand going into a lawsuit, because his conduct will be guided, focused, and deliberate–value an experienced Texas commercial litigation lawyer can bring to the table.