“Next time, bring kryptonite.” – unattributed.
Richard Carlson – who bills himself as one of the world’s foremost experts on happiness – made a fortune with his series of books – Don’t Sweat the Small Stuff. Admirable as that sounds, that’s not our philosophy here at Brinen & Associates. We do sweat the small stuff. We sweat the small stuff so our clients don’t have to worry themselves.
As lawyers, that’s our job.
As litigators, whether we’re in federal or state court, we know that small stuff sometimes makes all the difference. If you don’t pay attention to the fine points of rules and procedures, a slight oversight will end up being outcome determinative.
This consciousness of those small issues is the essence of our litigation strategy: “you have to do it right before you have the opportunity to be right.”
Every move an adversary makes should be reviewed to determine if there are procedural flaws that can be exploited to our client’s advantage.
One of our recent litigation victories in U.S District Court for the District of Nevada illustrates this point. We won a dismissal of an action for anticipatory breach brought against our client. The dismissal was based on the principles of federal comity and the “first-to-file” rule. The underlying dispute in this case arose from our client’s stock option plan, as amended by the board of directors. The client had previously filed for a declaratory judgment in Alabama state court asking the court to declare that the options issued in excess of the stated amount of the option plan were invalid. Subsequently the spouse of the client’s former CEO filed a lawsuit in the Nevada District Court asking that her options issued in excess of the stated amount of the option plan be declared valid.
After the Nevada complaint was filed, our firm filed a Motion to Dismiss or Stay the proceeding or, in the alternative, request a more definite statement of the Plaintiff. Plaintiff opposed, and asked that the case only be stayed. In granting our motion to dismiss, the judge cited the chronology of the actions, the similarity of the parties between the Alabama matter and the Nevada matter, and the similarity of the issues between the Alabama matter and the Nevada matter. The Court also sided with the client in the argument that Federal comity should apply, and the dismissal is appropriate since the Plaintiff can be heard in Alabama.
This all falls under the category of small stuff – jostling for position about which court will hear and decide the ultimate issue in dispute. Sometimes procedural flaws are minor and create minor setbacks – amended complaints or creating a need to re-serve a complaint – sometimes those minor setbacks kick you out of court, and force you to another court – as is happening here. Our client has real reason to prefer having this case decided in Alabama, where the original action was filed. Our client certainly doesn’t want to bear the burden and expense of litigating the same issue twice.
So that’s why we can’t help but sweat the small stuff. Some procedural flaws create a cascade of procedural flaws, which create a more permanent, collateral estoppel.
And when that’s not the case, beating back the opposition procedurally, pointing out the bad lawyering and procedural flaws may dispirit even the most ardent opponent.
Even as we sweat the small stuff, we do our best to avoid wasting time and money by quibbling over points of law when it will serve no strategic or tactical purpose. As seasoned litigators, we have learned from our years of sweat and experience when and how to turn the small stuff to our client’s material advantage.