Business plaintiffs: not an oxymoron.

• Author: Jackson, Gary W.

Businesses are not always the defendants in lawsuits. They are often plaintiffs. But scant attention has been devoted to the unique considerations which arise when a business brings litigation. While we read more about the large jury verdicts and settlements in cases brought by individuals, the results in cases initiated by business entities dwarf the former group. Last year, North Carolina's largest recovery was a $67.3 million award to a group of family-owned recycling businesses against Waste Management Inc. The verdicts and settlements in cases where the plaintiff is a company are usually at the top of North Carolina Lawyers Weekly's annual survey.

The types of cases in which businesses are plaintiffs are immensely varied:

* Small companies alleging predatory conduct by larger concerns.

* Companies claiming accounting malpractice.

* Partnerships or close corporations embroiled in internal disputes.

* Construction defects.

* Disputes involving breaches of contract.

* Business torts such as product defamation or misleading comparative advertising.

* Lawsuits to recover losses denied by insurers.

The stakes are usually high in cases brought by businesses. Many claims present life-or-death financial consequences for the plaintiff. Yet many business plaintiffs pursue their lawsuits from the perspective of a defendant. Most businesses have more experience in litigation as defendants. They are sued by employees, stockholders, consumers and patrons. They approach lawsuits wearing the defendant's hat -- even when they sit at the plaintiff's table. But the differences between being a defendant and being a plaintiff are as stark as those between being a quarterback and a linebacker. Important decisions at every stage of a dispute are influenced by which role the party is playing:

* What lawyer does the company choose?

* Does the company arbitrate or litigate?

* If it litigates, which court does it choose?

* How should the lawyer be compensated?

* What litigation strategies should be employed?

* Given the risks and expenses of litigation, is litigation even the best course?

A business plaintiff's answers to these questions may be very different from a defendant's answers.

* Which lawyer? Plaintiffs' lawyers and corporate defense lawyers are like the quarterbacks and linebackers. They play the same game on the same field, but they have vastly different goals, skills and methods. Though litigators at large corporate law firms can and do represent...