May 18, 2016 – The specter of litigation often keeps business clients awake at night – that legitimate fear of ending up in court, facing civil, regulatory, or criminal allegations that could cost them everything they have invested – and perhaps much more.
These business clients count on their lawyers for advice and defense. How confidently could you advise a client about how to avoid or handle business ligation? Would you know where to turn for fast and accurate answers?
Savvy lawyers turn to the experienced attorney-authors of State Bar of Wisconsin PINNACLE’s Business Litigation in Wisconsin, newly revised and expanded for 2016.
The following insights from the book demonstrate some potential complexities of business litigation:
Be Sure Who You Represent
It may sound obvious, but, as discussed in Chapter 3 of Business Litigation in Wisconsin, identifying the client can be both complex and critical in business litigation. The attorney must clarify, both to himself and herself and to the potential parties, exactly who the client is – the company, the CEO, or an employee – before undertaking representation.
For example, corporate counsel interviewing employees as part of a litigation defense must make it absolutely clear to the employees that he or she represents the corporation, not them.
Similarly, in a closely held corporation, the parties could have different interests. A sales manager could have individual liability, the company could have liability under respondeat superior, while the company’s president could have no liability.
In short, clarity in representation is essential – and sometimes harder than it seems.
Don’t Forget the Economic Loss Doctrine
The economic loss doctrine is a judicially created doctrine intended to preserve the distinction between contract and tort. As such, it is likely to come into play for any case alleging a tort claim in which the parties involved have a contractual relationship.
Although the doctrine appears straightforward in theory – when the only injury is an economic loss the parties to a contract are restricted to contract remedies – its application in practice is much more complex, requiring as much an exploration of its exceptions as its applicability. All of this is explained in Chapter 1.
Promise or Puffery?
Misrepresentation claims are the nuts-and-bolts of commercial litigation practice. When deals fall apart, claims that the other party provided false or misleading information often follow. Similarly, unfulfilled customer expectations often lead to claims that the seller misrepresented the product.
As explained in Chapter 1, a misrepresentation must have been a representation of fact to be actionable. Sales “puffery” will not generally be held to be a misrepresentation of fact if it turns out to be untrue, because the statements are merely the opinion of the seller. But that’s sometimes easier pleaded than proven; determining whether a particular statement is mere “puffery” depends on its level of specificity.
Business Litigation in Wisconsin is available in print to members for $149 and to nonmembers for $189, and online via Books UnBound®, PINNACLE’s interactive online library, for $159 for members. To order or for more information, visit the WisBar Marketplace or call the State Bar at (800) 728-7788 or (608) 257-3838.
As with all CLE Books publications, this volume will be updated regularly, and purchasers who subscribe to automatic supplementation receive future updates at 10 percent off the regular price.