Do I Need a Commercial Litigation Attorney or a Business Attorney?

What a business attorney does

A business attorney, sometimes called a transactional or corporate attorney, works on things that are supposed to go right. The practice includes forming corporations, LLCs and partnerships; drafting and negotiating contracts, leases, employment agreements and operating agreements; handling the purchase and sale of businesses and real estate; advising on governance, compliance and financing; and keeping the company's records in order. The measure of good transactional work is that no one ever has to read the document in a courtroom.

Business attorneys negotiate constantly, but they negotiate deals, where both sides want to reach agreement. They may send a firm letter when a counterpart is late or out of line. What they do not usually do is take a dispute through discovery, motions, hearings and trial.

What a commercial litigation attorney does

A commercial litigator works on things that have gone wrong between businesses, or between a business and its owners, employees, customers or vendors. The practice includes evaluating claims and defenses, writing and answering demand letters, negotiating pre-suit settlements, filing and defending lawsuits in state and federal court, obtaining or opposing temporary restraining orders and injunctions, conducting discovery and depositions, arguing motions, trying cases to judges and juries, handling arbitrations, and enforcing judgments. The day-to-day of that work is described in what a commercial litigation attorney actually does.

Litigators spend most of their time outside the courtroom, and most cases they handle settle. But everything they do is shaped by the possibility of trial: what the evidence will show, what a judge will allow, how a jury will hear it. That is the skill a dispute requires, and it is not the same skill as drafting the agreement.

Why the distinction matters

Litigation runs on procedure that transactional lawyers rarely touch. In Texas state court, the case is governed by a discovery control plan under Rule of Civil Procedure 190, with limits on depositions and written discovery that depend on the level chosen. Required disclosures under Rule 194 are due on a schedule. Evidence is admitted or excluded under the Texas Rules of Evidence; a letter that a business attorney considers a clear admission may be inadmissible under Rule 408 if it was part of a compromise negotiation. Fee recovery on a contract claim depends on satisfying Civil Practice and Remedies Code § 38.002, including presentment of the claim and the 30-day tender window. Federal court has its own rules. Arbitration has others.

A lawyer who does not work in those systems daily can learn them for one case, but the client pays for the learning, and the other side's litigator does not have to.

When your business attorney is enough

• Interpreting a contract term before any dispute has formed, to decide how to perform or whether to renew.
• Negotiating a change to a deal, a payment plan or an exit with a counterpart who is cooperating.
• Sending a first, measured letter to a slow-paying customer or a vendor who has fallen short, where the relationship is intact and no one has mentioned lawyers.
• Documenting a settlement both sides have already agreed to, in a dispute that never approached litigation.

When you need a litigator

• A lawsuit has been filed against the company, or you have decided to file one. The timing of that decision is covered in when a business owner should bring in a litigation attorney.
• You have received a demand letter from a lawyer, or you need to send one that will be taken seriously.
• You need a court order quickly: a former employee has your customer data, a partner is moving funds, a counterparty is about to do something that cannot be undone.
• The dispute is in arbitration, or there is an argument about whether it belongs there.
• The claim involves fraud, fiduciary duty, trade secrets, a non-compete or an ownership fight, where the remedies and the procedure are specialized.
• You have a judgment and the other side is not paying.

When you need both

Most business disputes of any size involve both kinds of lawyer, and the question is who leads. Once a dispute has hardened into claims and defenses, the litigator leads. The business attorney remains essential for three reasons.

History. The lawyer who negotiated the agreement knows what each clause was meant to do, what was traded for what, and which drafts said something different. That knowledge shapes the litigator's reading of the contract and the search for documents.

The business keeps running. While the dispute proceeds, the company still needs contracts reviewed, a lease renewed, a financing closed. Those tasks stay with the business attorney, who also helps keep the dispute from disrupting them.

Settlement structure. When a dispute resolves, the terms often involve transactional work: a buyout, a license, an amended agreement, a restructured debt. The business attorney drafts; the litigator makes sure the release and the enforcement terms hold.

A conflict to watch for in owner disputes

When the dispute is between the owners of a company, the lawyer who has represented "the company" for years represents the entity, not any individual owner. That lawyer may be unable to take either side, and an owner who assumes the company's lawyer is also theirs may find that advice given in confidence was given to the company. Each owner in a partnership or shareholder dispute generally needs separate litigation counsel, and the sooner that is sorted out, the fewer communications are in the wrong hands.

Example

Suppose two owners of a Dallas distribution company, who have used the same business attorney since formation, fall out over one owner's side business. The majority owner asks the company's attorney to "handle it." The attorney correctly explains that she represents the company, that the dispute is between its owners, and that she cannot act for one against the other. The majority owner retains a litigator, who reviews the operating agreement the business attorney drafted, asks her for the drafting history and the capital account records, and sends a demand letter asserting fiduciary breach. The minority owner retains separate litigation counsel. The business attorney continues to handle the company's ordinary work, provides documents to both sides as the company's records require, and, when the dispute settles with a buyout eight months later, drafts the amended operating agreement and the transfer documents while the litigators finalize the release. Each lawyer did the part of the work they were suited to, and the company's operations continued.

How to choose a litigator when you already have a business attorney

Ask your business attorney for a referral; most have litigators they trust and will say candidly whether they handle disputes themselves. Then ask the litigator the questions that matter: how often they handle this type of claim, how often cases of this kind reach trial or arbitration hearing in their practice, who will do the work, how fees are structured at each stage, and how they will work with your existing counsel. A fuller list is in questions to ask before hiring commercial litigation counsel. Tina Wysk represents businesses and owners in commercial litigation in Dallas state and federal courts and in arbitration, and regularly works alongside clients' existing business counsel.