№ AUSTTX
DS
Attorney
Derek Sullivan
Sullivan & Associates
Business LawIntellectual Property
- City
- Austin
Business Law · Sub-Practice
Business Litigation
Business litigation is expensive, slow, and uncertain. A good litigator knows when to fight — and when to resolve.
§ Overview
What your situation actually involves.
Commercial disputes arise from broken contracts, partner disagreements, fraud, non-compete violations, IP theft, and countless other sources. When a dispute cannot be resolved through negotiation, experienced litigation counsel is essential.
Business litigation covers a broad range of disputes between companies or between business owners: breach of contract claims, partnership and shareholder disputes, fraud and fraudulent misrepresentation, trade secret misappropriation, non-compete and non-solicitation enforcement, employment claims brought by former employees, debt collection and enforcement of judgments, real estate disputes, and corporate governance conflicts. Business litigation moves through filing a complaint, discovery (document production, depositions, interrogatories), motions practice (motions to dismiss, summary judgment), trial, and post-trial proceedings. Most business cases settle before trial — often after significant discovery costs. An experienced business litigator evaluates the strength of the case, manages discovery efficiently, pursues early resolution when appropriate, and prepares the case for trial when it isn't. Pre-litigation letters and cease-and-desist strategies can often resolve disputes without filing.
§ Key considerations
- ▸Jurisdiction and venue — where the lawsuit will be filed and what law applies
- ▸Evidence preservation — immediately preserve relevant documents and communications
- ▸Statute of limitations — the deadline to file may be closer than you think
- ▸Alternative dispute resolution — arbitration clauses in contracts may require non-court resolution
- ▸Injunctive relief — emergency court orders to stop ongoing harm are available in urgent situations
- ▸Cost-benefit analysis — litigation costs must be weighed against realistic recovery prospects
§ How attorneys approach this
- ›Case evaluation — assessing the claims, defenses, and realistic outcomes
- ›Pre-litigation demand and negotiation — attempting resolution before filing
- ›Complaint or answer drafting — initiating or responding to the lawsuit
- ›Discovery — exchanging documents, deposing witnesses, and gathering evidence
- ›Motions practice — filing and opposing dispositive motions
- ›Settlement negotiations or trial preparation and trial
“The attorneys who win the most business litigation are the ones who settle the cases they should settle and fight the ones they should fight — not the ones who file everything and litigate maximally. A plaintiff who gets a $200,000 judgment after $180,000 in legal fees has not won. A business litigator who gets a $450,000 settlement in mediation 8 months into a case that would have cost $300,000 to try has done tremendous work. When evaluating litigation counsel, ask specifically how many of their cases settle and when — pre-suit, early in litigation, after discovery. The answer tells you a lot about their judgment.”
§ What to look for in an attorney
- 01Commercial litigation track record — business cases require different skills than personal injury or family law
- 02Trial experience — most cases settle, but a litigator with real trial experience negotiates differently
- 03Industry familiarity — tech contract disputes, construction claims, and franchise litigation each have specializations
- 04Realistic early assessment — an attorney who gives you a straight probability assessment, not false optimism
- 05Fee structure clarity — hourly billing for litigation adds up fast; discuss budgets and milestones up front
- 06Settlement judgment — knowing when a case is worth settling and when it's worth pressing
⚖️
§ Ask these at your consultation
6 questions that matter
- ❓How strong is my case — and what are the realistic outcomes including the worst case?
- 💰What is this litigation likely to cost through discovery, through trial?
- 🔍Is arbitration or mediation required, or would it be advantageous?
- 📋Can I get an emergency injunction to stop the harm while the case proceeds?
- 💬What is the statute of limitations for my claim — how much time do I have?
- 💡What should I be doing right now to preserve evidence and protect my position?
§ Frequently asked questions
Common questions about business litigation.
Q 01
Should I sue or try to settle first?
Almost always try to settle first — through a demand letter, direct negotiation, or mediation. Litigation is slow, expensive, and uncertain. A strongly-worded demand letter from an attorney often produces settlement at a fraction of the litigation cost. Mediation is confidential and non-binding, and a good mediator can bridge gaps that direct negotiation can't. If settlement genuinely isn't possible — the other party is acting in bad faith, a judgment or injunction is needed to enforce rights, or the exposure requires court determination — then litigation becomes necessary. Having tried to resolve the dispute first also positions you better with a judge or jury.
Q 02
What is the difference between arbitration and court litigation?
Arbitration is private dispute resolution before a neutral arbitrator (or panel) instead of a judge. It is typically faster and less expensive than court litigation, and the proceedings are confidential rather than public record. Arbitration is frequently required by contracts — especially employment agreements, consumer contracts, and commercial agreements. Arbitration decisions are generally final with very limited appeal rights, unlike court judgments. Mediation is different from arbitration — it is a facilitated negotiation where the mediator helps parties reach agreement but imposes nothing. A mediator's proposal is not binding unless both parties agree.
Q 03
My business partner is stealing from the company. What can I do?
This is a serious situation requiring immediate action. Preserve all evidence — financial records, communications, transaction logs. Do not alert the partner or give them time to conceal assets or destroy evidence. Consult a business litigation attorney immediately about your options: emergency injunctive relief to freeze assets, derivative claims on behalf of the company, breach of fiduciary duty claims, and potential criminal referrals. In many states, minority shareholders have rights against majority shareholder oppression. The operating agreement or shareholder agreement will govern many aspects of the dispute — have your attorney review it immediately. Time matters significantly in these situations.
Q 04
Can I recover my attorney fees if I win?
In the United States, the general rule is that each party pays their own attorney fees — unlike the "loser pays" rule in many other countries. Exceptions exist: contracts that include attorney fee provisions (common in commercial agreements), statutes that allow fee-shifting in certain claims (civil rights, consumer protection, IP infringement, some employment claims), and bad faith litigation conduct. If your contract has an attorney fee provision, it usually applies both ways — the prevailing party recovers fees regardless of which side won. This is worth checking before filing, as it affects the cost-benefit calculation for both plaintiff and defendant.
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