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Case Study — continued
for the small-business victim. Armed with faith that you have a case with these essential elements, you can begin the business litigation trek with the confidence that there can be a happy ending. There are many other important elements to a successful business litigation case: damning corporate e-mails and “smoking guns” located in the midst of tens of thousands of pages of discovery documents; arrogant corporate officers/ employees (including corporate counsel); success in opposing the summary judgment and motions in limine; smart jury selection; good pre-trial depositions for valuable impeachment at trial; professional audio visual technical support; strategically interposed objections during trial; good damages supported by a reasonable expert; helpful jury instructions;
34 — The Advocate Magazine
OCTOBER 2013
a team of reasonable and respectful plaintiffs’ lawyers; a judge who is convinced – either before the start of or during trial – that plaintiff ’s case is legitimate; and, a good dose of faith in the system. When Casablanca notified Wyndham that it would hire a lawyer to file suit if Wyndham did not right the wrong, Wyndham’s general counsel wrote to Casablanca stating, “[y]our assertions are baseless and will receive no serious consideration from a court of law.” In the end, poetic justice prevailed, as the same arrogant general counsel who declared Wyndham a winner before litigation even began ended up signing the settlement agreement following the jury’s $3.9 million verdict for fraud and breach of contract.
It bears mentioning that if the contract upon which you are suing contains an attorney’s fees provision, careful consideration must be given the consequences of a bad result before you and your client decide to move forward with a lawsuit. California Civil Code section 1717(a) provides that the prevailing party in an action on a contract containing an attorney’s fees provision shall recover attorney’s fees. Who the prevailing party is, however, is not always clear. In Silver Creek, LLC v. Blackrock Realty Advisor, Inc. (2009) 173 Cal.App.4th 1533, the court explained the basic rules that determine who is the prevailing party. The trial court is charged with deciding which party obtained “a greater relief,” either in terms of quantity or quality. The trial
Case Study continues