NATIONWIDE COMMERCIAL LITIGATION ATTORNEY
Navigating Complex Commercial Disputes, Including Antitrust and Contracts Cases
When do I Need a Commercial Litigation Attorney?
A commercial or business litigation attorney represents businesses, corporations, and organizations in legal disputes. They work on various legal matters, including breach of contract disputes, shareholder disputes, intellectual property disputes, business torts such as unfair competition or misappropriation of trade secrets, and regulatory compliance issues. Commercial litigation attorneys play a critical role in protecting their clients' interests and ensuring they are able to operate their businesses effectively. They may represent clients in court proceedings or alternative dispute resolution methods such as mediation and arbitration.

We Help Protect You and Your Business Interests.
The commercial litigation team at Whitcomb Selinsky, PC has a deep understanding of business law and strong advocacy skills. They evaluate the merits of each case and devise an appropriate prosecution or defense strategy that aligns with your legal and business interests, including if a jury or bench trial is best for your case. Our commercial litigators are experienced trial lawyers and recognize that all cases should be prepared for trial. However, they also understand the primary goal is to achieve the best possible outcome for you and your business in a cost-effective manner. Whether the matter involves high-stakes risk to the company or is a discrete issue, we can help you navigate the complexities of business law and protect your interests.

Types of Commercial Litigation Cases We Handle
Antitrust Cases
Breach of Contract Actions
Breach of Fiduciary Duty Allegations
Business Disputes
Business RICO Claims
Business Torts
Class Action Lawsuits
Derivative Actions
Insurance Coverage Cases
Intellectual Property (IP) and Patent Infringement Cases
Misrepresentation Actions
Product Liability Claims
Securities Litigation
Shareholder Issues
Trade Secret Lawsuits
Unfair Competition Actions
What is the Difference Between a Jury Trial and a Bench Trial?
Jury Trial
During a jury trial, a group of 6 - 12 individuals is selected to hear evidence and determine the facts of a case. In a jury trial, the judge oversees the proceedings, instructs the jury on the law, and ultimately enters a judgment based on the jury's verdict. Although the 7th Amendment guarantees the right to a jury trial in most cases, Rule 38 requires that a party “demand” a jury trial. The written demand typically accompanies the complaint or answer. Either party may demand a jury trial.
It may be unknown whether a jury trial is to your advantage in complex commercial litigation matters, including class actions. In this case, you can demand a jury trial and then offer to stipulate to a bench trial later. This is far easier than waiving your right to a jury trial and filing a motion with the court in the future.
Bench Trial
In a bench trial, the judge alone determines the outcome of a case. The judge hears the evidence, makes findings of fact, and applies the law to those facts to render a verdict. If the parties seek to convert a jury trial to a bench trial, the parties simply need to stipulate to a bench trial, and no motion is required. However, bench trials are not necessarily speedier and more efficient. In fact, jury trials may result in lower costs, faster verdicts, and a common-sense result.
Depending on the case's complexity, a judge may request hundreds of pretrial submissions and proposals costing you additional expenses. In jury trials, jurors tend to turn out verdicts faster as deliberations typically take a few hours or days. In addition, jurors in federal court cases often possess advanced degrees and technical know-how. This subject matter knowledge can be an advantage.
Common Terms in Commercial Litigation Trials
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Pretrial Motions
Motion for Summary Judgment
Summary judgment is a mechanism for deciding a case without the expense, effort, and time of going through a trial. But it is only appropriate when the material facts of the case are not disputed by the parties and the outcome is more-or-less obvious.
For example, a plaintiff might move for summary judgment when it claims the defendant failed to perform a contractual obligation owed to the plaintiff. Additionally, the parties do not dispute that there was a valid and enforceable contract, the defendant did not perform the duties, the plaintiff held up its end of the bargain and otherwise fulfilled all conditions precedent, and the plaintiff was harmed in some meaningful way. All that is left is for the judge to determine what legal obligation was owed.
In terms of breach of fiduciary duty or contract interpretation, this is the role of judges, not jurors. Therefore, summary judgment would likely be appropriate, and there is no need for trial.Limine
A motion in limine is a motion brought by either party to exclude, limit, or include evidence before it is offered at trial. These motions ensure a judge may rule on certain issues before they come up in a trial to avoid unnecessary delays during the trial. A motion in limine is also used when a party anticipates that the evidence may be objected to for several reasons during the trial and want to ensure that the evidence will be allowed. Besides addressing evidentiary concerns, motions in limine are also used to set limits on damages or remedies sought by the parties.
Daubert/FRE 702
Daubert motions are common pretrial motions used to limit or exclude expert witness testimony that fails to meet certain evidentiary requirements, is not reliable, or is not relevant. When these motions are used it is most often challenging the expert’s expertise (including qualifications), methodology, and conclusions. In jury trials, a judge typically decides on these issues prior to trial in an effort to narrow the issues addressed at trial.
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Picking a Jury
Voir Dire
Voir Dire is the process of questioning prospective jurors about a variety of topics in order to ascertain if the juror is biased for or against a party or otherwise unable to decide the case in an impartial manner. In federal court, the magistrate or judge conducts voir dire with the use of questionnaires produced by the parties. The questionnaires’ purpose is to help counsel determine potential disqualifying bias, but also to determine whether or not the potential juror is likely to favor their party.
In state courts attorneys typically perform voir dire in person, while the potential jurors are seated in the courtroom. Besides the information received from the juror’s answers, the attorneys in federal cases will often use online resources at trial to discover information about the jurors, such as social media postings. Counsel members sometimes ensure that any online research – particularly into social media – does not alert the potential juror. -
The Trial
The following details some of the key steps in the federal jury trial.
Preliminary Jury Instructions
Before trial, the parties should exchange proposed jury instructions and verdict forms. These instructions and forms pertain to the substantive issues of the case such as what elements must be proven to find a party liable and how damages are measure damages. These instructions are usually based on model or pattern versions created by a committee for the jurisdiction.
Many judges issue standard preliminary jury instructions. Often those instructions address fundamental matters like juror’s general conduct, note-taking in the courtroom, use of social media during the trial, banning independent investigation or research into the case via news or conversations with non-jurors, avoiding prejudice, how to communicate with the judge, and the meaning of common terms like “direct” or “circumstantial,” as well as how to view objections from counsel.Jury Charges or Final Instructions
The parties will stipulate, or the court will order, the final instructions or “jury charges.” These charges often include the necessary elements of liability and remedy, how to view evidence, evidence the jury cannot consider, and legal definitions. The jury must apply the law as described in the charges to the jurors’ factual findings.
Opening Statements
In a bench trial, most judges will dispense with opening statements and proceed directly to the presentation of evidence as they are already familiar with the case. However, in a jury trial, the opening statement is crucial. The opening statement is the first opportunity for the jurors to hear the basis for the parties’ claims. The opening statement is a “roadmap” to guide the jury in evaluating the evidence that will be presented, describing the evidence and testimony that will be presented. Visuals can be extremely useful for guiding the jury in an opening statement but should be approved by the court ahead of time in order to avoid objections. Any visuals must be accurate.
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Presenting Evidence
Witnesses
The primary source of evidence in most jury trials is witness testimony. Accordingly, the parties should prepare lists of witnesses they intend to call ahead of trial. A witness list should include the witness's name, a description of the topics the witness will discuss, an approximate length of the testimony in hours, and the order in which the witnesses will be called.
Stipulations
Any facts that both parties agree on may be presented to the jury in the form of a stipulation. Stipulations save time and can help the jury understand the basic facts of the case.
Deposition Recordings
Sometimes witnesses cannot be available for trial. In lieu of in-person testimony, previously-recorded deposition testimony can be read or played before the jury. The parties must exchange designations of excerpts of transcripts or audio/video to be presented ahead of time so that parties have a chance to object. This gives the court time to rule on any objections outside the presence of the jury, which could lead to prejudice.
Exhibits
Exhibits should be accounted for ahead of the trial so that the parties can raise any objections. Again, this gives the court time to rule on such objections outside the presence of the jury. Often, courts will not permit exhibits not previously marked for admission. Impeachment exhibits not previously marked are permitted as they are used on cross-examination to contradict or call into question witness testimony.
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Logistics
Jury trials tend to move at a slower pace with regular bathroom breaks, lunch breaks, and breaks for the parties to argue legal or evidentiary issues outside the presence of the jury. These trials are fairly regimented and limited to a set time. Bench trials can be more flexible. Additionally, a bench trial permits the parties to argue evidentiary issues in the middle of questioning witnesses without fear of prejudicing jurors.
Closing Argument
The closing argument should attempt to persuade the jury to piece together the relevant facts and reach a decision. A closing argument revives concrete facts and testimony offered during the trial. It also appeals to the jury’s sense of right and wrong.
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Post-Trial Motions
Judgment as a Matter of Law
Judgment as a Matter of Law (JMOL) is a motion, from either party, challenging the sufficiency of the evidence presented to the jury. If the court decides there is insufficient evidence to reasonably support the party’s case, then the case is over under what is sometimes called a directed verdict. A party can move for JMOL before or after the jury reaches a verdict.
Motions for a New Trial
Although rare, a party can also move for a new trial if certain conditions are present. Courts have ordered new trials when there was improper striking of jurors, improper compromise verdicts, outside influence, inconsistent verdicts, or a verdict that is contrary to the weight of the evidence.
Motions for Costs and Attorney Fees
After the trial, the prevailing party can request the court order costs and fees. Costs are generally available to the prevailing party, but fees are only permitted by statute or if the parties previously agreed to the trial lawyer’s fees arrangement.
Review of Jury Findings
It is extremely rare for an appeals court to disturb a jury’s findings.
Are Jury Trials Better than Bench (Non-Jury) Trials?
Although a common perception is that bench (non-jury) trials are speedier and more efficient, this is not always the case. In fact, jury trials may result in lower costs, faster verdicts, and a common-sense result.
Costs
Both bench trials and jury trials have the potential to be incredibly expensive, especially if you are litigating against an especially litigious party. That said, jury trials may be the most cost-effective option because they typically do not require as many pretrial submissions or proposed conclusions and findings of fact. Depending on the complexity of the case, a judge in a bench- trial case may request hundreds of pretrial submissions and proposals.
Speed
Conventional wisdom would posit that a single decision-maker will work faster than many, but in practice, jurors tend to turn out verdicts much faster than judges. After a bench trial, the parties will gather the evidence and arguments presented, package them as post-trial submissions, and present them to the judge. The judge, in turn, reviews the submissions and writes findings of fact and conclusions of law, often taking weeks. Whereas, a jury trial will often result in much swifter conclusions because the jury rarely deliberates longer than a few hours or days before producing a verdict.
Layperson (a.k.a. Commonsense) Perspectives
It is a common misbelief that jurors, unlike professional judges, lack the specialized knowledge and expertise to comprehend complex cases and technical subject matter. However, Federal jurors often possess advanced degrees, varied life experience, and technical know-how that can be a real advantage to a party presenting difficult claims. The layperson perspective can result in commonsense solutions that attorneys and judges neglect.

Meet Your Commercial Litigation Legal Team

Joe Whitcomb
Founder and President
Joe Whitcomb is the founder and president of Whitcomb Selinsky, PC. In addition, he manages the firm and heads up the Government Contracting and International Business Transactions practice areas.

Doug Fields
Senior Attorney | Litigation Practice Director
Doug is a proven, seasoned trial attorney with over 32 years of litigation experience in State and Federal courts. He is well-versed at operating in dynamic atmospheres and is able to quickly adapt to the ever-changing demands of today’s legal environment. He has broad experience in developing, settling, mediating, and trying hundreds of cases in a wide array of practice areas in State and Federal Courts throughout the U.S.

Tim Turner
Senior Attorney
Tim Turner is a member of Whitcomb Selinsky, PC’s Labor and Employment group. He centers his practice in the Health and Safety sector, defending clients against MSHA and OSHA regulatory enforcement actions.
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