Business Law Litigators Should Know

Abstract

In my experience as an expert witness for a number of excellent litigators, I find that litigators know the Rules of Civil Procedure, the Local Rules, the Rules of Evidence, and the personalities of the judges extremely well. I find that in business issues, litigators tend to use terms like “fiduciary duty” and “limited liability corporation” in a manner not consistent with the use of the terms (as interpreted by business lawyers) in the relevant statutes or case law. There are a number of aspects of business law that, depending on the nature of the case or the issues being addressed, may be important for a litigator to know. This paper addresses the entity records available through the Secretary of State’s office, a recognition that an LLC is not a corporation (except in some cases for tax purposes), agency considerations and other duties arising in the various forms of entity, buy-sell agreements, veil-piercing, securities laws issues in capital formation, UCC articles 2 and 9 (with a little bit of article 8), tax issues, mortgage foreclosures (the paper is important), an hostile work environment, waivers are not everything, don’t forget “its unConstitutional,” the unintentional partnership, electronic signatures, whistleblower protections and various confidentiality requirements, ethics attendant to business lawyers, and other issues. Also this paper gives advice to business owners and the lawyers who counsel them. Perhaps the most significant is with respect to their material agreements and handbooks - don't put them on the shelf and then ignore them. Use these agreements where appropriate, review these agreements, and update these agreements to reflect changing circumstances and changing law.