Los Angeles Business Litigation Blog : Los Angeles Business Litigation Lawyer & Attorney : Daniel Reisman Law Firm : California Civil Litigation & Contracts

Via The Complete Lawyer, Savvy Lawyers Value Their Human Capital:

Use litigation as an opportunity to negotiate a business deal. In hard economic times, GC’s are not in the “millions for defense but not a penny in tribute” mood. Google’s GC Eric Schmidt famously said that litigation is “just a business negotiation being conducted in the courts.” The more working parts any potential business deal has, the easier it is to find solutions that benefit both parties in different ways. Before we can explore the most effective and efficient business solution to a commercial problem, we must shed our merits-based resolution blinders and explore the parties’ commercial interests. One of the swiftest means of doing so is bringing the decision-makers on both sides to the planning, problem-solving and bargaining table. If the parties agree that these brain-storming sessions can be considered “mediations” you can avail yourself of state or federal confidentiality protections. Then let the business people do what they do best: plan for a productive future rather than fighting about an unproductive past.

Settling earlier often means spending less and potentially earning more. But, shedding “our merits-based resolution blinders” may not be so easy. Clearly delineating and distinguishing among commercial interests and personal interests can be difficult for both lawyer and client, especially when smaller businesses and/or individuals are involved. Many business relationships are also personal relationships. Thus, the negative impact of a dispute that reaches litigation on, for example, longstanding friendships, may prove difficult to ignore. While a collaborative approach to dispute resolution may lead to a productive future, sometimes moving forward may require a judgment about an unproductive past.

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On the transactional side, the Obama Administration seems to believe that quite a bit can be accomplished in as little as thirty days. The administration released a report yesterday about the crisis in the auto industry, which states, among other things, that Chrysler has until April 30 to finalize an agreement with Fiat as well as reduce health care and other debt in order for the company to receive more aid according to The New York Times. In other words, the struggling automaker has about thirty days to put a massive agreement together that a variety of interested parties find satisfactory.

Normally, joint ventures, however categorized, take at least a few months to materialize, and joint ventures of international scale can take years. However, I think the Obama Administration has at least one good reason to impose such a harsh deadline on the agreement--if Chrysler does finalize an agreement with Fiat by April 30, it will show that, at least when necessary, both government and private business (or whatever amalgamation we have now) can act fast, and perhaps even efficiently.

Of course, in this case, there are unusual and extraordinary circumstances involved given the government-imposed ultimatum that Chrysler faces. The question is whether such circumstances are necessary in order for large business transactions to move at a fast pace.

Similarly, on the litigation side of the fence, disputes that have reached litigation may still be resolved in a relatively short timeframe, depending on the willingness of the parties to settle.

For example, Ars Technica reports that Microsoft and TomTom have settled their patent dispute. I discussed Microsoft's suit against TomTom in a previous post. In short, Microsoft sued TomTom alleging patent infringement. In the time since that post, TomTom filed a counter-claim for patent infringement against Microsoft.

As far as I know, the exact details of the settlement have not been released, but, according to Ars Technica, TomTom essentially agreed to pay Microsoft for its patents and remove support for the FAT filesystem from its products over the next two years.

While the few details released seem to imply that the agreement is a little one-sided, Microsoft and TomTom still managed to resolve their patent dispute in about a month. Thus, despite the size of the businesses and the scope of the claims involved, it was apparently possible to reach an agreement rather quickly.

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