Attorney discusses litigation under new WV business court - Beckley, Bluefield & Lewisburg News, Weather, Sports

Attorney discusses litigation under new WV business court

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How will the West Virginia's new business court change the way attorneys litigate business disputes?

John Tinney with the Tinney Law Firm addressed this question at the West Virginia Bar Association's May 4 conference.

"Before the establishment of the business court, trying a ‘business' case presented a daunting challenge for the parties, lawyers, judges and juries," he told attendees.

The business court division, which went live in October 2012, is not actually a separate court.

It is a separate docket within the circuit court system. Parties must file referral motions within three months from the time the suit is filed. However, a circuit judge can choose to refer the case at any time.

 In his career, Tinney said there has been a transition, even in the different types of lawyers.

"I consider myself a trial lawyer not a litigator," he said. "Trial lawyers try cases, litigators do not. A persuasive argument can be made that the trial lawyer has passed away, died, is dead. The trial lawyer is survived by an offspring known as the litigator. It is said that the first litigator was the bastard child of the trial lawyer and alternative dispute resolution."

In the early days of trying business disputes, Tinney said even the more complicated ones could be completed in 18 months, even if it went to jury.

"Today, that is improbable, if not impossible. With everything on a circuit judge's plate, getting a block of time on their docket to try a two to six week jury trial is nearly impossible. So the judge throws the case into the mediation brier patch."

However, the business court's division is to resolve cases within 10 months from the date the initial case management document was filed.

One challenge in business disputes, Tinney continued, is relating evidence in layman's terms to the jurors.

"The evidence they will hear in a business case is often about matters that are totally alien to their education and life experiences," he said. "Over my 42 years of trial practice, I remain firmly convinced that most jurors try their best to understand the evidence, weigh the testimony of both fact and expert witnesses, evaluate the lawyers' arguments and try to understand the judges instructions. Sometimes, it doesn't work."

Tinney called the early days of his career litigating business disputes "the good old days or the wild wild west."

"Failures of the wild west days are usually attributable to the judge who had neither the time nor inclination to learn the case, an occasional rogue juror who escaped voir dire and will advocate for his or her personal convictions and the lawyers who failed to educate the jurors."

Four specialized judges have been selected for the new business court — 23rd Judicial Circuit Judge Christopher C. Wilkes (Berkeley, Jefferson and Morgan counties), 11th Judicial Circuit Judge James Rowe (Greenbrier and Pocahontas counties), 5th Judicial Circuit Judge Thomas Evans III (Jackson County) and 24th Judicial Circuit Judge James Young Jr. (Wayne County).

Tinney said in business cases, parties are "significant business entities" so lawyers must know about issues like non compete clauses and other statutory regulations.

He said lawyers also must be able to outline the story.

"No. 1 was to identify the key points of strengths and weaknesses," he said, later noting that a perceived weakness could turn out to be a strength. "Then, we build around that skeleton, filling in the vital organs, disregarding surplus fat; sometimes an initially perceived weakness will be embraced as a strength. This formula was the beginning of trial preparation irrespective of whether we were representing a plaintiff or a defendant. The trial lawyer must give the jury a tutorial, teaching the subject matter of the client's case. It must be a believable story."

This is why he said the trial team must "remain critical under the new business court."

"To tell an understandable and believable story to the jury and soon to be the judge, all details of fact must be identified and then either embraced or disregarded," he said. "While the story will be pitched to a judge in the business court, the core principle will remain the same. This is intensive and expensive legal work."

Tinney continued saying preparing these business witnesses also is important for the new business court.

"The CEO, CFO, COO … are usually fish out of water," he said, adding that lawyers must get these witnesses to understand the overall risk, not just monetary.  

"It is imperative that the client's decision-makers receive sooner, not later, a realistic appraisal of the case," he added. "Failing to keep the client informed as the case progresses can lead to an awkward situation when on the eve of the trial, the client is told that its options are limited or non-existent.

Tinney also encourages lawyers to ask witnesses in these business disputes two questions.

"What is the downstream effect if there is a defeat? What will that do to the business?"