What Does a Commercial Litigation Attorney Actually Do?

Commercial litigation, defined by the dispute

Commercial litigation is the resolution of business disputes through the courts or arbitration: contracts, partnerships and shareholder relationships, fiduciary duties, fraud, construction and real estate, trade secrets and non-competes, securities and investments. The parties are businesses and the people who own, run or invest in them. The commercial litigator is the lawyer who takes a dispute from the first sign of trouble to its end, whether that end is a letter, a settlement, a judgment or an appellate opinion.

Most people see only the courtroom part, which is the smallest part. The rest of this article describes the work phase by phase, what the lawyer is doing in each, and what the client should expect to be doing alongside.

Assessment and the work before any lawsuit

Assessment

Every matter begins with an evaluation. The litigator reads the contract and the key communications, builds a timeline, identifies the claims available and the defenses the other side will raise, and checks the deadlines: limitations periods, contractual notice requirements, answer dates. The lawyer also asks the questions a court will never ask but the client must: can the other side pay, what will discovery expose, is there insurance, and what does a win actually produce.

The product of this phase is a recommendation and a budget by phase, not a prediction of victory. Preparing for your first meeting with a litigator describes what makes this phase efficient.

Work before any lawsuit

A large share of commercial disputes end here. The litigator drafts demand letters and responses, negotiates directly with the other side or its counsel, proposes or evaluates pre-suit mediation, and drafts tolling agreements that stop the limitations clock while talks continue. On the defense side, the lawyer answers demands, evaluates exposure, and gives notice to insurers. In both roles the lawyer issues a litigation hold so that the company preserves evidence, and advises the client on what not to say or send.

This phase requires a trial lawyer's judgment even though no suit exists, because every letter is written for two audiences: the recipient today and a judge or jury later.

Pleadings and the early motions

Pleadings and the first strategic choices

If the case is filed, the litigator drafts the petition or the answer. These are not forms. The plaintiff's lawyer chooses which claims to plead, knowing that a contract claim can carry attorney's fees while a fraud claim does not, that some claims trigger a defendant's insurance while others do not, and that the damages pleaded set the discovery level under Rule 190. The defendant's lawyer decides whether to contest jurisdiction with a special appearance, challenge venue, remove the case to federal court, move to compel arbitration, file a verified denial, plead affirmative defenses that are waived if omitted, and bring counterclaims.

The forum is decided here too: a Dallas County district court, the Texas Business Court, federal court or an arbitration provider, each with its own rules and pace. The companion article on the stages of a commercial lawsuit in Texas lays out the sequence that follows.

Early motions that can end or reshape the case

Some cases are decided in their first months. The litigator evaluates and, where warranted, files or opposes:

• an application for a temporary restraining order and temporary injunction, where money later will not undo the harm;
• a motion to dismiss a baseless cause of action under Rule 91a, or under the Texas anti-SLAPP statute where speech or petitioning is involved;
• special exceptions to force the other side to plead its case clearly;
• a motion to compel arbitration or to transfer venue.

Each motion is a cost-benefit decision: what it will take to brief and argue, what it will buy if granted, and what it will reveal about the strategy if denied.

Discovery and the motions that follow it

Discovery

Discovery is the longest phase and consumes the most of the lawyer's time. The litigator serves and answers written discovery, negotiates the scope of document production and the search terms for electronic records, prepares and defends a protective order for confidential information, reviews the client's documents for privilege and responsiveness, and produces them. The lawyer takes depositions of the other side's witnesses and prepares the client's witnesses to be deposed. Where the case needs experts, the lawyer retains them, works through their analysis, and defends their designations against challenges.

The client's role here is substantial: finding and providing documents, identifying the people with knowledge, and sitting for a deposition. A good litigator keeps discovery proportionate to what the case is worth and tells the client in advance what it will require of the company. What discovery is in a business lawsuit explains the rules.

Summary judgment and the pretrial motions

When the facts are developed, the litigator asks whether the case, or part of it, can be decided without a trial. A traditional summary judgment motion under Rule 166a argues that the undisputed facts entitle the movant to judgment; a no-evidence motion argues that the other side has no evidence of an essential element after an adequate time for discovery. The lawyer also handles motions to exclude experts, motions in limine on what the jury may hear, and the briefing of legal questions such as contract interpretation that the judge decides.

Negotiation and mediation

Settlement is not a separate phase; it runs alongside everything else. The litigator advises when to make or respond to an offer, what the case is worth in light of what discovery has shown, and how to structure a resolution: payment terms, releases, confidentiality, non-disparagement, security for performance. Dallas courts commonly refer business cases to mediation under Chapter 154 of the Civil Practice and Remedies Code before trial, and the lawyer prepares the client, the mediation statement and the negotiating plan. The decision whether to settle, and on what terms, belongs to the client; the lawyer's job is to make sure it is an informed one.

Trial, judgment and appeal

Trial

If the case does not resolve, the litigator prepares it for trial: the exhibits, the witness outlines, the deposition excerpts, the jury charge or proposed findings for a bench trial, the motions in limine, the opening and closing. At trial the lawyer selects the jury, examines and cross-examines witnesses, handles objections and argues the law to the court. Texas Rule of Civil Procedure 216 requires a jury demand and fee at least 30 days before trial, so the jury-or-bench decision is made well in advance. Few commercial cases reach a verdict, but the other side prices every case on whether your lawyer is ready and able to try it, which is why trial preparation starts on the first day, not the last month.

Judgment, collection and appeal

After a verdict or ruling the litigator drafts or opposes the judgment, handles post-judgment motions, and either begins collection (abstracts, execution, garnishment, post-judgment discovery) or defends against it by posting security and appealing. Appellate work has its own rhythm of records and briefs, and some litigators handle it themselves while others bring in appellate counsel. The client's decision at this stage is often economic: whether to appeal, whether to accept a discounted payment now, or whether to pursue a defendant whose assets are hard to reach.

Working with the rest of the client's team

A litigator does not work alone. Transactional counsel who drafted the contract know its history and can fix the form for the future; the litigator should coordinate with them rather than second-guess them. Accountants supply the numbers that damages and fee claims depend on. Insurers and coverage counsel decide who pays for the defense. In disputes with reputational stakes, the lawyer coordinates what the company says publicly with what it is arguing in court. The litigator's role in this group is to be the person who sees how each piece will look to a judge or jury.

What the client decides, and what the lawyer decides

Under the Texas Disciplinary Rules the client makes the decisions about the objectives of the representation, including whether to accept a settlement offer, and the lawyer consults with the client about the means. In practice: whether to sue, whether to settle and for how much, whether to accept a jury trial, and whether to appeal are the client's calls. How to plead the claims, which discovery to pursue, which motions to file and how to examine a witness are the lawyer's, made in consultation. A client who understands this line is rarely surprised, and a litigator who respects it keeps the client in control of the things that matter.

What the job mostly is

From the outside, litigation looks like argument. From the inside, it is mostly judgment about what not to do: which claims not to plead, which depositions not to take, which motions not to file, which offers not to reject. The rules give every party the same tools; the skill is in choosing among them so that the case costs what it should and ends where it should. Whether you need a commercial litigator or a business attorney addresses the first choice, and questions to ask before hiring commercial litigation counsel helps with the second.

Tina Wysk represents businesses and their owners, as plaintiffs and defendants, in Dallas state and federal courts and in arbitration, across the phases described here. Her commercial litigation practice is described in more detail there.