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Category Archives: Business & Civil Litigation

Judge Patrick Dinkelacker rules Finney Law Firm client has prescriptive easement over portions of proposed Hyde Park Square development

Author By Christopher P. FinneyPosted on

Judge Patrick Dinkelacker this week issued a ruling in a case that has been simmering since December of 2024 in favor of our client, Lee Robinson, recognizing our client’s right to what Ohio law references as a “prescriptive easement” over portions of property on which a developer had planned to place retail shops, a boutique hotel, apartments and an underground parking garage.

The decision establishes our client’s right — acquired by usage and by operation of law (see below) — to have vehicular ingress and egress over portions of the developer’s property, meaning his accessway must be maintained as it is, and the grade of the entrance to our client’s parking lot must stay the same.  Since the developer’s plan were to engage in construction activity blocking the easement area, and it planned to place buildings in the easement area and change the grade of the easement relative to our client’s parking lot, the developer is effectively prevented from moving forward with currently-planned development.

It is generally a surprise to lay persons (and some attorneys), but one can gain ownership of another’s property in most states (if not all), including Ohio and Kentucky, by continued occupancy and use of the property for a protracted period of time — in Ohio 21 years and in Kentucky 15 years.  In law school we learn the five required elements to achieve this end as O.C.E.A.N.: Open, Continuous, Exclusive, Adverse and Notorious use and occupancy of the property.  If proved, in Ohio by “clear and convincing evidence,” then the adverse possessor has full legal ownership of and title to the property.

A stranger to title can also acquire the lesser right of “easement” over another’s property by eliminating the “exclusive” part of the adverse possession requirements, so O.C.A.N, for the same 21-year period in Ohio, to establish what is known as a prescriptive easement.  This easement is every bit as good or better than an easement given by express grant, and (for example) passes with title  to the property benefitted by the easement.

It was precisely this type of “prescriptive easement” benefiting Finney Law Firm’s client’s property on Hyde Park Square that Judge Dinkelacker recognized by his decision this week.

The team that prepared and tried this case (the preliminary injunction hearing) were Christopher Finney, Julie Gugino, J. Andrew Gray, Mickey McClannahan, and Emma Friedhoff, among others, greatly aided by Steve Griffith of Taft Law.  Our expert witness at trial was noted Clermont County attorney and title insurance agent Doug Thomson.

You may read the whole decision here: Robinson Decision

When Can a Company Sue Over Commercial Disparagement?

Author By Todd McMurtryPosted on

Commercial disparagement, also known as trade libel, is a cause of action by which a business can seek damages when false and damaging statements about its products, services or overall operations cause economic harm. The core elements of a claim typically include a public false statement, the presence of malice or intent to cause harm and demonstrable financial damage to the business.

Commercial disparagement can occur through written publications, spoken statements, digital communications, advertisements and even social media posts. If a competitor claims that a company’s product is defective or unsafe or alleges unethical business practices without a factual basis, these statements can damage the company’s brand and diminish customer goodwill, leading to loss of revenue. Rapid spread of information online increases the potential impact of disparaging statements.

Although commercial disparagement and business defamation have similarities, such as the underlying falsity of the statements made, there are key differences. Defamation is damage to the reputation of a company or its owners, whereas commercial disparagement is injury to the company’s economic interests. In business defamation cases, harm to reputation often presumed. In contrast, plaintiffs in commercial disparagement cases must provide concrete evidence of a direct link between the disparaging remark and the financial damage incurred.

Companies suing for commercial disparagement can seek compensatory damages, covering actual financial losses directly caused by the disparaging statements. These can include lost profits, decreased sales and harm to business relationships. In cases where malice or fraudulent intent is proven, punitive damages may also be awarded to punish the offending party and deter similar conduct in the future. Additionally, injunctive relief may be sought to prevent further dissemination of the false information.

Defendants in commercial disparagement lawsuits have several potential defenses. Truth is the most powerful defense; if the statement in question is factually accurate, it cannot be considered disparagement. Another defense is privilege, where certain communications are protected due to the context in which they are made, such as in legal proceedings or governmental reports. Additionally, the defense of opinion may apply if the statement is clearly a subjective view rather than a factual assertion. Lack of malice or intent to harm can also be a defense, asserting the statement was made negligently rather than with deliberate intent to damage the business.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; mickey@finneylawfirm.isoc.net; 513.797.2850.

Eminent Domain and Transportation/Utility Easements

Author By Casey A. JonesPosted on

Scenario:

You own a home or commercial property, and you receive a letter from the Department of Transportation, Duke Energy, or another utility provider seeking a temporary or permanent easement over your property for purposes of constructing a utility pole, water lines, traffic signals, etc.

Do you have to agree? What are your options?

The reality is that if a governmental or public utility company wants an easement over your property, they will – in almost every circumstance – get it, through litigation if all else fails. However, that does not mean that you have to agree to everything they are asking of or offering to you.

The easement sought may be a “taking” (on a temporary or permanent basis) of the right to use your property as you wish, the right to access certain areas of your property, or of parking spots for your customers. It could mean lengthy construction that may deter customers or make it difficult to see or access your business. Each of these situations have a value, tangible or otherwise, to you as the property owner.

Given the likelihood of the requesting entity eventually obtaining the easement (i.e., the right to use the property) that it seeks, via eminent domain proceedings or otherwise, attempting to fight the “taking” through litigation may or may not be the best option or strategy for you. If you have received one of these letters or “offers,” we would be happy to discuss your options and whether there are certain terms that we should focus on for purposes of negotiation. We have had great success with negotiating compensation (netting the client substantially more, even accounting for any legal fees) and/or addressing concerns over potential damage to the property, ensuring that the client is afforded adequate protections so that they will be made whole in such event, among other concerns.

Temporary or permanent easements can have a lasting impact on you, your property, and your business, and it is important to make sure you are covering your bases in negotiating reasonable and favorable terms, ensuring as much protection as possible, and yes – receiving adequate compensation. We understand this, as do the companies seeking the easement. They are generally receptive to negotiating the terms so that the parties can have an amicable agreement in place to allow the necessary improvements, while minimizing any adverse effects to the owners’ ability to use and prosper from their property. However, it helps to have an experienced attorney on your side to help advise you and present your negotiated terms in a manner most likely to be effective.

For assistance in assessing your options or negotiating easements, please contact Casey A. Jones, Esq. at casey@dev.finneylawfirm.com or (513) 943-5673.

Residential Foreclosures: The Procedural, Pre-suit Pitfalls

Author By Diana L. EmersonPosted on

Pursuing a residential foreclosure is not for the faint of heart. The foreclosure process is fraught with procedural pitfalls – many of which arise even before initiating the formal legal process in court.

This is especially true in the case of a residential mortgage foreclosure, where a borrower (“debtor”) has defaulted upon his or her mortgage payments and the mortgagee (“creditor”) is attempting to collect the entirety of the loan through a judicial sale of the debtor’s residential property.

The creditor must not file immediately upon the debtor’s defaulted payment. Instead, the creditor should understand what pre-suit obligations he or she may have by reviewing (1) the contractual requirements under the note and mortgage, (2) the statutory requirements under R.C. §1349.78, and (3) any regulatory requirements that may be applicable to the loan.

Failing to abide by any of these pre-suit requirements may be fatal to a foreclosure action.

Before initiating a formal foreclosure action, it is paramount that a creditor reviews the note and mortgage for any contractual pre-suit requirements. Although it is not common, some notes and mortgages require written notice of actual acceleration of amounts due in the event of default. Regardless of whether this provision is or is not included, reviewing the note and mortgage should be the first step any creditor takes towards pursuing a residential foreclosure.

After reviewing any contractual pre-suit requirements, a creditor must then review his or her statutory pre-suit requirements. Under §1349.78, a creditor is required to send a cure letter to the debtor if: (1) the debt is secured through a mortgage lien on the debtor’s residential real property, (2) the debt is not in the first mortgage position, and (3) the debt has been accelerated or is in default according to the terms of the promissory note. This letter must be sent at least thirty days before the initiation of a foreclosure action, and must include specific language outlined in R.C. §1349.78.

Depending upon the type of loan, there may also be regulatory pre-suit requirements.  These requirements are often applicable when the loan is backed by the federal government.

Once a creditor has completed these pre-suit requirements, they can then begin preparing the complaint and pursuing formal legal action against the debtor.

As demonstrated, foreclosure actions are procedurally complex – even before filing the formal suit against the debtor. Failure to abide by any of the above-mentioned requirements could result in the ultimate dismissal of the subsequent foreclosure action.

Rethinking Service of Process: Key Takeaways from Ohio Supreme Court’s Latest Decision on Proper Service

Author By Ashley L. DuckworthPosted on

In August 2024, the Ohio Supreme Court issued an opinion in Ackman et al. v. Mercy Health West Hospital, LLC, et al. reaffirming the principle that a party’s active participation in litigation does not waive the affirmative defense of insufficient service of process, provided the defense is properly raised. This decision, which builds upon and reinforces the earlier case of Gliozzo v. Univ. Urologists of Cleveland, Inc., could have significant implications on litigation strategy and assertion of affirmative defenses

The Case Background

Ackman arose out of a medical malpractice and wrongful death lawsuit filed against a doctor, his employer, a hospital, and Medicare. The doctor and employer responded with an answer asserting the affirmative defenses of insufficiency of process and insufficiency of service of process. Over two years later, they sought summary judgment, arguing that the case was not timely initiated because the doctor had not been served with the complaint. The plaintiff opposed, asserting that the doctor had waived the defense by actively participating in the litigation.

The Ohio Supreme Court, referencing its opinions in Gliozzo v. Univ. Urologists of Cleveland, Inc. and First Bank of Marietta v. Cline, clarified that a party does not waive the defense of insufficient service of process simply by participating in the litigation, as long as the defense is preserved in the pleadings.

The Court emphasized that it is the plaintiff’s responsibility to ensure proper service, and failure to do so according to the Civil Rules, especially in relation to statutes of limitations, can result in the case being dismissed, regardless of the defendant’s engagement in the litigation.

Potential Implications for Litigation Strategy

  1. Strategic Use of Service of Process Defenses and Litigation Tactics: Defendants can now assert with greater confidence a defense based on insufficient service, even after prolonged litigation. The ruling unequivocally establishes that active participation in the case does not automatically waive this defense, provided it is properly raised within the appropriate timeline. As part of their broader litigation strategy, defendants may strategically delay raising this defense knowing that failure to properly serve a complaint can later serve as a dispositive ground for dismissal.
  2. Increased Importance of Service of Process: This ruling underscores the critical importance of properly effectuating service and adhering to procedural rules and deadlines. Litigators must ensure that all potential affirmative defenses, notably insufficiency of service of process, are raised in the initial responsive pleadings. Plaintiffs must also be diligent in completing service within the prescribed timeframe to avoid dismissal on such grounds.
  3. Risk of Dismissal for Plaintiffs. For plaintiffs, this ruling serves as a reminder that the window for correcting service issues is narrow and high stakes, as failure to perfect service could result in the loss of an entire case. In this case, Ackman, service was not effectuated within the required time frame, and refiling would have been outside the statute of limitations, leading to the dismissal of the claim on summary judgment grounds with no opportunity to refile or correct the service. Litigators must be vigilant in ensuring proper service at the outset, particularly in complex or multi-party actions, to avoid the risk of dismissal and the permanent loss of the claim.

The Ackman’s Decision in the Evolving Landscape of Service of Process Law

This Ohio Supreme Court decision in Ackman significantly contributes to the ongoing discourse surrounding the service of process in Ohio. This ruling builds upon and extends prior case law, particularly in light of procedural challenges posed by the COVID-19 pandemic. A 2021 case, CUC Properties v. SmartLink Ventures, Inc., raised concerns regarding the validity of service when USPS return receipts included notations such as “Covid 19” or “C19.” In that case, the First District Court of Appeals determined that such notations failed to meet the requirements of Civ. R. 4.1 for valid service of process, stressing the need to adhere to procedural rules even amidst pandemic-related disruptions.

The CUC Properties decision highlights that while innovative solutions were necessary during the pandemic, courts cannot compromise due process protections. The recent Ackman ruling reinforces this principle, highlighting the consequences for failing to effectuate proper service, even when a party has otherwise participated in the litigation.  As the Ohio Supreme Court emphasized, certainty in litigation is paramount, and defendants are under no obligation to assist plaintiffs in fulfilling their duty to perfect service. This decision marks a critical point for litigators, urging them to ensure procedural rigor to avoid jeopardizing their cases due to service-related missteps.

For further discussion on the impact of COVID-19 on service of process, see a related article here: Hamilton County Court of Appeals rules that certified mail practice during pandemic is not effective service of process – Finney Law Firm.

Additionally, the full court opinion can be found here: Ackman v. Mercy Health West Hosp., L.L.C..

Why Company Buy-Sell Agreements Need Regular Updating

Author By Todd McMurtryPosted on

A buy-sell agreement is an essential document for any business with multiple owners. It outlines the procedures for the transfer of ownership interests in the event of specified triggering events, such as the death, disability, retirement or exit of an owner, whether voluntary or not. Keeping a buy-sell agreement up to date ensures that it reflects the current circumstances of the business, the owners’ intentions and applicable legal requirements. Neglecting to review and revise a buy-sell agreement periodically can have adverse consequences.

The components of a buy-sell agreement include:

  • The specification of triggering events, which can be an owner’s death, divorce, bankruptcy or desire to sell their shares. 
  • A valuation method stipulating how the business will be appraised, commonly by a fixed price, a formula-based approach or an independent valuation by a third party. 
  • Mechanisms for funding a buyout, which often involve life insurance policies, installment payments or financing arrangements. 
  • The process for transferring ownership interests, including timelines, required documentation and approval processes.

As a business grows and evolves, an outdated agreement might not accurately reflect the current value of the business, leading to disputes over compensation during a buyout. Additionally, changes in tax laws, business regulations and personal circumstances of the owners can render existing provisions inadequate or even legally non-compliant. This can result in costly litigation, strained relationships among stakeholders, and potential financial instability for the business.

A company should engage experienced business counsel who can tailor to buy-sell agreement to the business’s unique needs. Legal counsel can identify outdated provisions, suggest necessary modifications, and ensure that the agreement complies with current laws and best practices. The updating process should involve a comprehensive review of the existing agreement, a thorough assessment of the current business environment and consultations with all relevant stakeholders. An attorney can help address complex issues such as valuation disputes, funding challenges, and succession planning, providing strategic advice to safeguard the company’s future.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; mickey@finneylawfirm.isoc.net; 513.797.2850.

 

Do’s and Don’ts of Business Divorce Negotiations

Author By Todd McMurtryPosted on

In a business divorce, where owners of an enterprise part ways, structuring negotiations effectively can help prevent prolonged disputes, preserve relationships and ensure a fair division of assets and responsibilities. 

Here are some do’s and don’ts of conducting business divorce negotiations, along with insights on when mediation may be beneficial.

Do’s:

  • Prioritize respectful communication — Discuss reasons for the split between owners in a dispassionate, professional manner. Respectful communication fosters trust and can prevent misunderstandings that might escalate the conflict.
  • Establish Shared Goals — Identifying the parties’ intentions can serve as a foundation for the negotiation. Whether it’s the continued success of the business or fair compensation to a departing owner, keep the focus on constructive outcomes rather than on personal grievances.
  • Prepare a comprehensive agenda — Your agenda should cover and prioritize all relevant issues, including treatment of financial assets, intellectual property, customer lists, ongoing projects, liabilities and personnel. This helps guide the discussions and allows parties to gauge progress.
  • Involve legal and financial experts — Professionals can clarify complex issues, help prevent costly mistakes and provide unbiased perspectives that aid in reaching fair settlements.
  • Be open to compromise — Flexibility in negotiations can bring about a less acrimonious outcome, which is important if the parties must maintain any future business relationships.

Don’ts: 

  • Don’t let emotions speak for you — Remain calm and focused on the business aspects. Outbursts or even passive aggressiveness can throw the negotiations off course.
  • Don’t rush the process — While efficiency is important, rushing through negotiations often leads to missed details or unresolved issues. Take the necessary time to address every point thoroughly to avoid future conflicts or financial repercussions.
  • Steer clear of public disputes — Dragging the split into the public sphere can only hurt the business’s image and reputation. Try to project a message that all is well with the company.
  • Avoid taking intractable positions — Approaching negotiations with a combative mindset can derail progress. Refrain from issuing ultimatums or threats, which tend to create hostility and resistance.

If business divorce negotiations become contentious or reach an impasse, mediation provides a cooperative environment to work out solutions. The mediator, a neutral third party, can guide discussions, defuse emotions and divide the dispute into smaller elements, which can help move past gridlocks. Mediation is especially beneficial when there’s a power imbalance or if one party is less experienced in business negotiations. A mediator can level the playing field and ensure that both parties feel heard and respected. 

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; mickey@finneylawfirm.isoc.net; 513.797.2850.

 

How Business Defamation Differs From Personal Defamation

Author By Todd McMurtryPosted on

Defamation is a false statement presented as fact that injures the reputation of the person or entity about whom it is made. In a lawsuit alleging defamation of a business, the damages that need to be proved must be related to the business’s economic losses. These can consist of harmed relationships with customers, suppliers, and investors, ultimately affecting sales, profits, and overall market position. Unlike in personal defamation actions, business defamation damages are usually not presumed.

The following are types of damages that a business can prove in a defamation lawsuit:

  • Actual damages — A business can demonstrate that the defamatory statements have caused direct financial harm, such as loss of sales, customers or contracts; reduced profits; or expenses incurred in counteracting the defamatory statements. Actual damages are often the primary form of relief sought, as they represent the concrete impact on the business’s bottom line.
  • Reputational harm — In proving reputational harm, the business must show that the defamatory statement resulted in a loss of goodwill, that is, the trust and loyalty among customers that the company has built over time. This may be difficult to quantify precisely but can be inferred from other evidence, such as customer testimonials, expert testimony, or financial performance indicators.
  • Loss of business relationships — Defamation can cause a company to lose valuable relationships with suppliers, distributors or other business partners. If the defamatory statement falsely suggests that the business is unreliable or unethical, it could result in a diminution of trust and credit, which could harm the company’s operations and bottom line.
  • Punitive damages — These damages might be awarded if the business can prove that the defamation was committed with actual malice, that is, with knowledge of the falsity of the statement or with reckless disregard for the truth. Punitive damages are awarded not to compensate for harm but to punish the wrongdoer and deter similar conduct in the future.

The primary difference between defamation of a business and defamation of an individual lies in the relative availability of presumed damages. For certain types of defamation of an individual, damages for reputational harm need not be proved, such as when the defamatory statements are classified as libel per se or slander per se. Examples are false statements alleging someone committed a crime, has an infectious or contagious disease, has been engaged in sexual promiscuity or is unfitness to perform their profession. The reason for presumed damages is that an individual’s personal reputation is usually of unique importance and that defamation has a direct, immediate social impact. 

For a business, however, presumed damages are generally not awarded unless the plaintiff can show actual malice or demonstrate that the defamation was of a nature that inherently caused harm to the business’s commercial reputation. An example is where the false statements impugned the plaintiff’s trademark or brand to the point that it is irreparably weakened. Although the harm is speculative, it may warrant damages if it is reasonably quantifiable and traceable to the alleged defamation. 

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; mickey@finneylawfirm.isoc.net; 513.797.2850.

 

Proving “the Case Within the Case” in a Legal Malpractice Action

Author By Todd McMurtryPosted on

A person or company alleging legal malpractice bears a unique burden often referred to as proving “the case within the case.” Essentially, the plaintiff must show two layers of causation: first, that the defendant attorney’s conduct fell below the standard of care, and second, that if the attorney had handled the underlying case competently, the outcome would have been more favorable. The malpractice trial must simulate or recreate the original case so that the factfinder — usually a jury — can determine the probable result if the attorney had acted appropriately.

To meet the burden of proof in a legal malpractice case, the plaintiff must present evidence that not only establishes what the attorney did wrong but also enables a jury to assess what the result would likely have been if the lawyer had handled it correctly. In a negligence case, this would involve presenting testimony and other evidence that would have been on record in the underlying trial. If it was a criminal case in which the plaintiff was convicted and/or received a heavy sentence, it would have to be shown that the outcome would have likely been an acquittal or a lesser sentence if the attorney had been more diligent.

In structuring the case within the case, a judge must apply the same procedural and evidentiary rules and jury instructions as in the original trial. The judge must make sure that the jury’s focus is on the evidence rather than on conjecture. This sometimes involves the judge giving specific instructions to clarify that the jury is not reconsidering the underlying case itself but instead determining what the outcome should have been.

The case within the case becomes more complex when the underlying case ended in a settlement rather than a trial. The plaintiff still must prove that a more favorable outcome could have been achieved. However, settlements involve numerous factors, including the strengths and weaknesses of the case, the risks of litigation and the plaintiff’s own preference for certainty over potential future gains. In these instances, the jury does not evaluate what a judge or jury would have decided in the original case but instead assesses whether the plaintiff could have obtained a better settlement if the attorney had handled the matter more competently.

If the matter was settled, the court may rely more on expert testimony to help the jury understand how settlements are evaluated, particularly if they involve specialized fields like corporate law, intellectual property or personal injury. Experts can provide insight into typical settlement values and how specific errors by the attorney — such as failing to pursue certain claims or neglecting evidence that would have strengthened the plaintiff’s position — may have impacted the settlement. Additionally, the judge may instruct the jury to consider how the attorney’s actions influenced the plaintiff’s decision to settle, such as if the attorney failed to fully advise the client of the risks or potential outcomes of going to trial.

A person bringing such a lawsuit should entrust the matter to a professional malpractice attorney who understands the underlying case and can vividly show how the defendant’s conduct fell short of the applicable standards of care.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; mickey@finneylawfirm.isoc.net; 513.797.2850.

A Guide to Effective Preparation for Commercial Litigation

Author By Todd McMurtryPosted on

Even the most well-run companies can become involved in disputes that end up in court. These disputes can arise in a variety of situations and can impact a business’s operations, finances, and reputation. Examples of common commercial disputes include breaches of contract, intellectual property disputes, employment issues and regulatory compliance matters. 

Whether your company finds itself as a plaintiff or defendant, careful and thorough preparation is crucial to the outcome. To prepare for impending commercial litigation, the following are among the essential steps to follow:

  • Assess the situation — Understanding the nature of the dispute is vital. Determine the facts and legal issues involved, identify the parties and assess the potential risks and impacts on the business. This initial assessment will help in formulating a response and determining whether to pursue litigation, seek a settlement or explore alternative dispute resolution methods.
  • Gather and preserve evidence — Companies should assemble and organize all relevant documents, emails, contracts and other records related to the dispute. It is equally important to preserve this evidence to prevent loss or destruction, which could lead to adverse inferences in court. Implementing a legal hold on relevant data can be an effective way to ensure preservation.
  • Review insurance policies and notify carriers — Review any relevant insurance policies to determine if they provide coverage for the dispute. This could include comprehensive general liability (CGL) insurance, directors and officers (D&O) insurance, or errors and omissions (E&O) insurance. Understanding coverage options can help in planning for legal costs and potential liabilities. It is also important to notify your insurance carriers that coverage claims may ensue. 
  • Consult with legal counsel — Engaging a skilled business litigation attorney early in the process is essential. An attorney can provide guidance on the legal issues, help develop a strategy and represent the company’s interests. Legal counsel can also assist in navigating complex legal procedures and negotiating with the opposing party.
  • Develop a litigation strategy — Based on the initial assessment and consultation with legal counsel, develop a comprehensive litigation strategy outlining the desired outcomes, key arguments and mitigation of potential risks. 
  • Identify and interview witnesses — Identify witnesses who can provide testimony or evidence in support of the company’s position. Interview these witnesses to understand their perspectives and gather detailed information. Witness testimony can significantly impact the outcome of the case.
  • Manage public relations — Litigation can attract public attention and affect a company’s reputation. Develop a public relations strategy to manage communication with the media, stakeholders and the public. Clear and consistent messaging can help protect the company’s image and prevent misunderstandings.
  • Evaluate settlement options — Not all disputes need to be resolved in court. Evaluate settlement options throughout the litigation process. Settlement can be a cost-effective and time-saving alternative to a lengthy trial. 

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; mickey@finneylawfirm.isoc.net; 513.797.2850.

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