Why is procedural law often more decisive than the underlying facts in business litigation?
Steven Mirsky explained that procedure frequently shapes the outcome of litigation because it sets the framework for how a case is managed. Plaintiffs typically push to accelerate proceedings, while defendants often try to delay. Key decisions—such as whether to file in state or federal court, whether to challenge a forum selection clause, or whether to enforce a choice of law provision—can dramatically influence the trajectory of a dispute. By leveraging procedure, parties can strategically box in their opponents and create favorable conditions for resolution.
What are common early procedural mistakes that undermine companies in litigation?
According to Steven, one of the most frequent mistakes is waiving personal jurisdiction instead of challenging it. Companies may also mismanage tactics like attempting to quash a summons, which could have been more effectively handled through a motion to dismiss or demurrer. Another common misstep is mishandling a “snap removal,” where defendants quickly transfer a case from state to federal court. While this can be effective, it carries risks—particularly if the defendant has not confirmed the citizenship of all parties, which can result in a motion to remand and weaken credibility.
How do jurisdiction, venue, and forum selection clauses affect business litigation?
Steven clarified that jurisdiction determines which law applies, while venue determines the specific court where the case will be heard. Choosing a larger, slower-moving court like Los Angeles may benefit defendants seeking delay, while smaller jurisdictions can expedite proceedings. Forum selection clauses in contracts are generally upheld as valid, and challenging them requires strong grounds. However, even a weak but good-faith challenge can delay proceedings, creating leverage in negotiations or litigation strategy.
What role does motion practice play in controlling litigation tempo and outcomes?
Steven described motion practice as one of the most important procedural tools for both plaintiffs and defendants. Motions ask the court to take specific actions, influencing tempo, costs, and case strategy. Common motions include motions to dismiss, demurrers, motions to compel arbitration, and motions for removal or remand. Because only a small percentage of cases reach trial, most disputes are resolved during the pleading or discovery phases—making motion practice a central battleground.
How can procedural tools be used differently by plaintiffs and defendants?
On the plaintiff side, Steven advised carefully reviewing contracts and evidence to anticipate defenses, selecting favorable venues, and pleading causes of action that allow flexibility in avoiding restrictive clauses. On the defense side, procedure often serves as both a shield and a stalling tactic. For example, some defendants compel arbitration and then fail to advance the process, leaving the case in limbo. While Steven noted ethical concerns with such tactics, he acknowledged they are commonly used to pressure plaintiffs into settlement.
What procedural safeguards should executives implement proactively?
Steven emphasized that the single most important safeguard for executives is to build protective provisions directly into service agreements and master service agreements. Many in-house attorneys rely on templates that prioritize deal-making over litigation readiness. However, if a dispute arises, these contracts form the foundation of procedural leverage. Ensuring that contracts include favorable forum selection, choice of law, and arbitration provisions gives companies the upper hand before litigation even begins.