Commercial Litigation

What is commercial litigation?

Any dispute involving a business’s core products or services.

That routinely includes breach of contract and other common law or statutory violations (e.g., business torts), but also a wide range of disputes with vendors, customers, competitors, or among owners and shareholders, as well as those involving government enforcement, intellectual property, and much more.

The other legal issues businesses face that do not have a direct impact on commercial activities—such as employment claims, tax issues, SEC compliance, or personal injuries that may occur on a premises, work site, or elsewhere (except product liability)—generally fall outside of a what is typically considered a commercial practice.

Wright Commercial Litigation leverages broad experience that cuts across many different industries to help you resolve any type of legal issue affecting your business or interests. Feel free to contact the firm if you are running a business or an owner, shareholder, consumer, or other person needing assistance with a commercial dispute.

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What areas of law do you specialize in?

The firm operates a general commercial practice equipped to handle a variety of disputes and, accordingly, does not “specialize” in one specific practice area. Nonetheless, if an area of ideal emphasis for the firm had to be identified, it would be those issues that are so complex they make your head spin.

Any number of firms can provide legal assistance on routine matters. Wright Commercial Litigation is happy to do so as well and can likely do it at a great value. But what the firm thrives on most are those novel, complex, and particularly thorny questions of law or fact that literally keep others up at night. That also happens to be where the firm can deliver its greatest value.

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I've just been sued. What should I do?

  • Takes steps to preserve evidence. 
  • Notify your insurance carrier (if applicable).
  • Determine the deadlines to respond. 
  • Consider contacting an attorney for assistance. 

First, be aware that if you have been sued you have a legal obligation to preserve relevant information of all types—paper, email, electronic data, mobile phone, social media, etc.—from the moment you have a reason even to legitimately “anticipate” a legal dispute might occur.  That often is well before a suit is ever filed but certainly arises upon service of a “citation” (in Texas state court) or “summons” (in federal court) notifying you of a lawsuit. Allowing information to be lost or destroyed at that point can be considered “spoliation,” which may result in sanctions and other adverse consequences.

Second, if you have insurance, be sure to promptly notify your carrier and provide all requested information.  Failing to provide notice of the claim against you or your business in a timely manner could affect your rights to have the insurance company pay the costs of defense and/or any ultimate settlement or judgment.  Your insurer may select an attorney to represent you or allow you to choose one yourself within certain limitations, but you should still in the meantime consider the steps below to ensure your rights are preserved.

Third, determine the initial deadlines for a response.  Missing a deadline can prove highly detrimental and even result in a default judgment – that is, a ruling against you simply because no defense was timely presented.  The deadline to answer a lawsuit differs depending on the type of forum. In Texas state courts, you typically have until 10:00 a.m. on the first Monday that is at least 21 days after being properly served and, unlike federal court, there is no general “Rule 12 motion to dismiss” practice that can defer that requirement (although there are certain other procedural devices available to dismiss claims at the outset that are clearly lacking merit).  In federal court, you generally have 21 days to file an answer or else one of several different types of FRCP 12 motions that can defer that requirement.  Several factors may impact those general deadlines in any instance, however, including the type of service, whether jurisdiction and venue is proper, weekends or legal holidays, and special statutes that may result in a different timing altogether. In particular, the day on which you actually first see a copy of the citation or summons may not be the same day it was considered “served” under the law—especially for an out-of-state business that can be served through it being sent to the Texas Secretary of State—such that the general 21-day deadline to respond may be significantly less by the time you first actually become aware a lawsuit was filed.

Finally, as a result of the foregoing, unless you intend to represent yourself (called pro se) and feel confident in navigating all the procedural rules and other requirements, you should consider contacting an attorney to evaluate your situation and help you respond.

Wright Commercial Litigation is one option to consider if you seek legal representation. The firm’s principal attorney has more than 10 years of experience in state and federal courts throughout the nation, as well as arbitration, all the way from initial filing of a suit on through appeal and post-judgment resolution.  Click here to request a free consultation.

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I just received an arbitration demand. What should I do?

  • Takes steps to preserve evidence. 
  • Notify your insurance carrier (if applicable).
  • Determine the deadlines to respond. 
  • Consider contacting an attorney for assistance. 

First, be aware that you have a legal obligation to preserve relevant information of all types—paper, email, electronic data, mobile phone, social media, etc.—from the moment you have a reason to legitimately “anticipate” a legal dispute might occur, whether that is a lawsuit, arbitration, or anything else.  That often occurs before any formal proceedings are instituted but certainly arises upon service of an arbitration demand or notice. Allowing information to be lost or destroyed at that point can be considered “spoliation,” which may result in an adverse arbitration decision issued against you for not preserving evidence.

Second, if you have insurance, be sure to promptly notify your carrier and provide all requested information.  Failing to provide notice of the claim against you or your business in a timely manner could affect your rights to have the insurance company pay the costs of defense and/or any ultimate settlement or judgment.  Your insurer may select an attorney to represent you or allow you to choose one yourself within certain limitations, but you should still in the meantime consider the steps below to ensure your rights are preserved.

Third, determine the initial deadlines for a response.  Missing a deadline can prove highly detrimental and result in a default award being issued against you – that is, one issued simply because no defense was timely presented.  The deadline to respond to an arbitration demand depends on what provisions are in the contract that allows arbitration to occur. An arbitration provision may specify deadlines itself, incorporate deadlines by making reference to some other source, or say nothing at all on the topic. If silent, then the deadlines that apply will usually be set by the arbitration organization that is administering the dispute. One of the most commonly used ones for arbitrating commercial disputes—the American Arbitration Association (“the AAA”)—has a standard set of rules published online that require an “answering statement” be submitted within 14 calendar days of the arbitration demand being served, which is a period substantially shorter than for most lawsuits. If, however, you have a legitimate question whether arbitration is proper in the first place, then it may be necessary to file a lawsuit in a court with jurisdiction to have a judge determine the threshold question of whether you even legitimately agreed to arbitrate in the first place. That may require even quicker action since it requires drafting and filing your own lawsuit, properly serving the other party with notice, and seeking a temporary restraining order or other emergency relief to stop the arbitration proceeding in the meantime.

Finally, as a result of the foregoing, unless you intend to represent yourself (called pro se) and feel confident in navigating all the procedural rules, other requirements, and nuances of arbitration, you should consider contacting an attorney to evaluate your situation and help you respond.

Wright Commercial Litigation is one option to consider if you seek legal representation. The firm’s principal attorney has experience with a variety of arbitration forums, as well as working to vacate improper awards in court after they have been issued.  Click here to request a free consultation.

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I just received a subpoena. What should I do?

  • Takes steps to preserve evidence. 
  • Notify impacted third parties (if applicable).
  • Determine the deadlines to respond. 
  • Consider contacting an attorney for assistance. 

First, be aware that, even as a nonparty to someone else’s dispute, you have a legal obligation to preserve information of all types—paper, email, electronic data, mobile phone, social media, etc.—whenever you have a legitimate reason to “anticipate” it may be relevant to the legal dispute between others.  That may occur before any claim is filed but certainly arises upon service of a subpoena requesting information. Allowing information to be lost or destroyed at that point can subject even a nonparty to adverse consequences, such as contempt of court and a range of associated penalties. That is why every subpoena in Texas is required to specifically inform the recipient that failure to obey the subpoena without adequate excuse can result in “fine or confinement, or both.”

Second, if complying with the subpoena may require you to produce information in your possession, custody, or control that actually belongs to another person or is subject to someone else’s confidentiality rights, you should determine whether you have an obligation to notify that person the information is being sought. Most confidentiality agreements include a provision requiring immediate notice to the person whose information is sought, so they can take actions themselves to intervene and prevent you from disclosing their information.  Even if there is no obligation to provide notice, you may still find it advisable to notify another person and, absent a law or court order barring you from providing such notification, there is rarely any harm in doing so just to be on the safe side.

Third, determine the initial deadlines for a response.  Missing a deadline after being served with a subpoena can turn out to be very costly and detrimental even if you are not directly involved in the legal proceeding.  A subpoena in Texas state or federal court can be issued to compel testimony or the production of documents/electronic information, or both at the same time. (Arbitration statutes also allow persons to be summoned to provide testimony and documents in similar fashion.)  Subpoenas requesting document production in particular are often extremely broad and burdensome because: (i) the issuer may not know exactly what to request, (ii) the issuer views the subpoena as their only chance to get information from you as a nonparty to the dispute, (iii) the issuer is fishing for information upon which to potentially sue you or your company as well, or, (iv) the issuer wants to harass you.

Although courts often give nonparties more leeway in discovery than an actual party to the litigation, a failure to respond on time and assert proper objections to a subpoena can result in a waiver that requires you to spend time complying with ridiculously overbroad requests and may even eliminate important protections like the attorney-client privilege. A subpoena must state the date by which you are required to comply (which can often be negotiated with the issuing party to a later date, or otherwise delayed and/or modified by filing a motion with the court), but the deadlines and processes for objections and other ways of protecting your rights are not readily apparent without a careful review of the appropriate procedural rules and other law.  As a general matter, though, subpoenas issued from Texas state courts must be objected to before the deadline for compliance to halt the process until a ruling is issued, whereas subpoenas in federal court must be objected to by either the deadline for compliance or within 14 days of service, whichever is earlier. That is one example of the small print that is not always readily apparent to those unfamiliar with the litigation process.

Finally, as a result of the foregoing, unless you intend to represent yourself (called pro se) and feel confident you can navigate all the rules and other procedural requirements, you should consider contacting an attorney to evaluate the subpoena and help you respond.

Wright Commercial Litigation is one option to consider if you seek legal representation. The firm’s principal attorney has issued and responded to numerous subpoenas in a variety of courts and arbitration proceedings (as well as the unique Rule 202 pre-suit discovery petition in Texas), and knows how to efficiently protect your interests as a nonparty in any forum. Click here to request a free consultation.

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How much do you charge for litigation?

It depends on the matter, scope of services sought, and billing arrangement.

Wright Commercial Litigation seeks to provide high quality service at a great value no matter the client. That requires, first and foremost, paying close attention to both the need and budget. Sometimes all a client really needs is a limited service, such as providing guidance on a particularly tricky legal issue that will be key in any dispute or sending a demand letter that lets you other side know you are serious. Many types of limited scope tasks can be done on a flat fee or capped fee basis. Others require an hourly rate, as is typical with full-scale litigation representation. Otherwise, Wright Commercial Litigation is somewhat unique in striving to take most commercial cases on a contingency basis, or some other type of alternative fee arrangement when appropriate. It all depends on the circumstances, including the identity of your adverse party, the type of case, the amount at issue, and the remedies available to you as either a plaintiff bringing suit or a defendant making counterclaims.

No matter your need or budget, however, the firm can usually find a way to provide its services at a great value. More often than not the firm can give you an idea of the anticipated costs or offer a contingency fee after a short initial discussion (and reviewing key paperwork). You are free to go compare that to other options and always encouraged to do so.

Click here to request a free consultation on your matter and see if the firm can take the case on a contingency basis or some other alternative arrangement.

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"Force Multiplier" Options

What is a “force multiplier”?

Something small that can achieve the same or even better results than a much larger option at less cost. At least, that’s how the firm likes to explain it.

You will not find the phrase defined in most dictionaries because it is primarily used only by the military. Still, the Oxford Reference online offers one that encapsulates the notion fairly well, defining the military version as: … “The effect produced by a capability that, when added to and employed by a combat force, significantly increases the combat potential of that force and thus enhances the probability of successful mission accomplishment.”

Before law school, the firm’s founder spent 10 years in the U.S. Marine Corps and working overseas in a role often considered to be one of the premier force multipliers in the military world. That is the same type of service he seeks to bring now to the legal realm. … Read more.

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I’m an in-house counsel. How can limited scope services benefit me?

By helping reduce your legal spend without sacrificing any quality.

In-house counsel are constantly under pressure to reduce costs of litigation, whether for an entire docket or one expensive case. The options for doing so are not always great. Typically it means switching to a new firm with lower rates. There are trade-offs, however, which may not become apparent until too late. Doing so midway through a case can be detrimental in ways you may never know and end up not actually saving money in the end, especially when the new firm is always needing to “get up to speed” or unknowingly plowing the same ground already fully explored by your previous counsel.

Wright Commercial Litigation offers another option to select in-house counsel: lower the expense in key areas without needing to change firms or sacrifice any quality by hiring the firm to assist on a limited scope basis.

The firm’s principal attorney, Jason E. Wright, previously worked for nearly a decade at two different international AmLaw 100 firms and knows well where they can be most inefficient. He can integrate seamlessly to exploit your existing counsel’s command of the facts while leveraging far lower rates and independent focus on efficiency to save you money in targeted ways and areas.

Contact the firm here for a free consultation if you are an in-house counsel interested in limited scope services.

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I’m an individual owner, investor, or consumer. How can limited scope services benefit me?

By providing behind-the-scenes or other limited scope help only when needed.

The hourly rate for an experienced commercial attorney is often well beyond the means of most individual clients. Statutes that allow a prevailing party to recover attorney’s fees, along with contingency arrangements, can go a long way towards increasing access to legal services for the ordinary consumer or small business owner.  Yet, a recovery of attorney’s fees are not always available in every type of commercial case and some matters simply are not suitable for a contingency fee. Limited scope services can help fill that gap by allowing individual clients to receive high-quality legal assistance from an experienced commercial attorney only in the background or as needed. Most bar associations recognize the benefit of that option and, thus, expressly allow attorneys to be engaged on a limited scope basis so long as the client is fully informed and agrees at the outset.

Wright Commercial Litigation seeks to tailor its services to each client’s unique need and budget by seeking first to take a case on contingency if at all possible and otherwise offering reasonable hourly rates along with a range of other alternative options. Still, some matters do not justify the cost of full-scale legal representation. The firm is proud to offer limited scope services to help individuals and other clients lower their costs and receive professional assistance only as needed on specific issues (sometimes called “court coaching” also) or working behind-the-scenes to provide assistance with legal research, drafting, and procedural issues at key stages for those who may otherwise be comfortable managing their own lawsuit (called a “pro se” litigant).

Most of the firm’s representations in this category come by way of special referral from trusted sources. Nevertheless, anyone interested in learning more about a limited scope engagement is welcome to contact the firm and request a consultation on their matter.

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How much do limited scope services cost?

Generally the same as for full-scale representation depending on the type of fee arrangement (billable hour, flat fee, contingency, or hybrid).

The savings with limited scope services comes primarily in the fact that an engagement is defined in specified ways that both parties agree at the outset to exclude the need for wide-ranging representation. When that is done for something like preparing a written brief, conducting research on a specific legal issue, or carrying out other easily estimable tasks, then it can usually be done on a flat or capped fee basis as well.

More involved engagements are better suited for hourly billing, yet still come with Wright Commercial Litigation’s commitment to low rates and a value-based billing philosophy. Click here to learn more.

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Hourly Billing

Just how “reasonable” are your hourly rates?

That depends on your matter. The more complex and challenging the issue, the more value Wright Commercial Litigation can provide. On the other hand, you might be able to find an even lower hourly rate for a very routine task.

Certainly the firm cannot (and does not) guarantee it has the absolute lowest rates across the board or that they will be considered “reasonable” to all persons. What may be an exceptionally low rate to a corporate in-house counsel used to paying what the large firms in Texas charge for commercial matters will often not be the same for an individual person who has never needed to hire an attorney before. It is in comparison to the market for similar services by similarly qualified litigation attorneys that Wright Commercial Litigation is confident in saying that its rates are quite “reasonable.”

Unfortunately, specific hourly rates cannot be quoted here because, among other reasons, it can depend on the circumstances of your matter and billing arrangement (which may include a “hybrid” fee, sliding scale with volume discount, or any number of other alternative approaches). The firm strives to be flexible in all things though.

Fill out the contact form to request a free consultation and find out for yourself.

Never hurts to talk and, more often than not, the firm can quote you a specific rate or alternative arrangement on the spot after an initial discussion to understand the specific circumstances of your matter and determine your needs (and let you know if you don’t really need the firm’s services to begin with, which happens quite frequently). Feel free to take your time then and compare that to other options in the market.

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What stops a client from not paying at all with “value-based” hourly billing?

Nothing, except trust … which is a two-way street between lawyer and client.

Clients must place a lot of trust in their lawyer; especially when charged by the hour for a service based primarily on professional judgment alone. Your lawyer should be just as willing to trust you as the client. Wright Commercial Litigation takes care to bill by the hour only for what it truly believes adds “value” to a matter—even preemptively writing off charges if not satisfied that the firm’s own standards were met—and trusts that in return clients will find the result worth the amount ultimately billed. Still, if a client is not satisfied for any reason or does not agree the firm’s efforts on any particular item actually added value to their matter, then the firm does not want to be paid for that no matter the time or effort expended. Providing a service clients themselves deem valuable is far more important than mere profit.

That said, the firm does take certain measures to protect itself from the rare unscrupulous client. Those previously unknown to the firm may be asked to make a refundable deposit or satisfy certain due diligence requirements. At a minimum, hourly engagements are conditioned on prompt payment and the firm retains a right to withdraw at any time it appears lawyer and client are no longer seeing eye-to-eye on material matters. As such, someone taking undue advantage of the firm’s trust by unwarranted exploitation of the “value-based” billing commitment would likely, one way or another, not remain a client for very long. But that does not happen often. Mutual respect is a powerful thing.

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Who will be working on my matter?

The firm is small for a reason. That’s to ensure every client—from the largest corporation to pro bono recipient—receives the same quality and service.

Every case or project taken on by the firm is thus personally handled by Wright Commercial Litigation’s principal attorney, Jason E. Wright, although he may determine in his professional judgment it is necessary to contract with additional attorneys, support staff, or other vendors to assist on a matter. When that is done, all core legal work is still personally handled (or closely reviewed and approved) by him before it ever reaches a client for approval, let alone gets seen by an outside party. Unlike other law firms, however, that does not mean extra time billed to a client for various levels of attorneys to review and revise the same work product. There is no “additional” charge for ensuring the firm’s own standards of quality are met; that’s simply the core service provided.

Of course, the consequence of being so focused on quality is the firm can only take select matters. While it would be great to help everyone who may need or want the firm’s help, the reality is that Wright Commercial Litigation would not be able to deliver such a great value if it were to grow and become like other traditional firms with large staff and overhead costs.

Rest assured that if you and the firm agree to an engagement—no matter the type—it was selectively accepted and will not be passed off to someone else to carry the load. Rather, you will receive the firm’s dedicated efforts from beginning to end. If the firm cannot commit to that level of service at the outset, then it will respectfully decline an engagement and, when appropriate, help you find someone else who can.

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Do you offer alternative fees?

Absolutely. The firm endeavors to tailor services to each client’s unique need and budget. The options are limited only by one’s imagination.

Click here to learn more about the firm’s focus on commercial contingency and other forms of alternative billing arrangements.

 

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Alternative Fees

Can you tell me more about a fixed fee?

With a fixed fee, the law firm already has a good idea of the amount of time or work that will be necessary on a project and thus can quote it at a set amount expected to provide an acceptable level of profit.

If it is not a routine task done over and over, the firm is making an estimate of the time it thinks will be needed. All risk of being wrong on the time needed falls on the law firm as opposed to the client, and the firm otherwise has an incentive to be as efficient as possible in order to increase its profit margin. In general, a fixed fee is really no different from the price you may pay for any other good or service, with variations that can range from rather cheap to a premium price depending on the options available on the market.

Fixed fees typically work best on matters with defined parameters that are largely subject to the lawyer’s own control, such as a specific research project, legal opinion, or transactional matter. That allows a firm to realistically estimate the time needed and determine a fair price. Other types of legal work are inherently more unpredictable and, as such, very difficult to estimate the time or costs required. This is particularly true, as in the classic example, for full-scale litigation. That is due primarily to the involvement of other actors who cannot be controlled (the opponent, third parties, a court, etc.) as well as the “elastic” nature of litigation — such as the ability of a plaintiff to easily amend a pleading to assert expanded or new claims, a defendant’s corresponding ability to lodge counterclaims, and, perhaps most unpredictably for litigation, the rules of discovery that allow parties to seek broad types of electronic or other information.

Nonetheless, some repeatable types of litigation can be done for a set fee and there are always limited scope tasks easily capable of estimation for purposes of an alternative arrangement. It all depends on the circumstances.

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How does a contingency fee work?

In a full contingency case, the firm takes on a risk of not being paid at all for its services in the event there is no recovery.1 That requires due diligence on the front end to make sure a claim has merit and there is some reasonable assurance of ultimately collecting from the adverse party or their insurance provider.

In return for taking on that risk, a firm will typically require compensation by a rather significant percentage of any recovery (which is usually more in the end than would have otherwise been paid on an ordinary hourly basis). This is done not only to reward the firm for its risk but create an incentive for it to maximize the recovery to benefit both lawyer and client.

Contingency arrangements have long been a feature of personal injury cases and certain types of class actions, which allows those not otherwise able to afford an attorney or who would not prosecute a claim due to the small amounts involved to be represented with no or little up front cost.

Nonetheless, the contingency fee is more commonly seen in commercial litigation these days as well. Occasionally it may be used even on the defense side, with a law firm’s compensation in that situation determined as a percentage of savings realized for a client facing an easily quantifiable exposure to loss.

Wright Commercial Litigation takes civil matters of all types and sizes on either a full or partial contingency basis (as well as hybrid fee arrangements). Click here to request a free consultation and find out if a contingency fee may be right for your commercial dispute.

1 Please note the firm’s contingency arrangement may require you to still pay court costs, expert charges, and other litigation expenses when incurred and regardless of the outcome of your case. The firm offers both full and partial contingency options dependent on the case, which will be covered in detail in a written agreement prior to any engagement.

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What kind of hybrid fees are available?

The possibilities are limited only by one’s imagination.

A hybrid fee, put simply, is any combination of the main traditional types of billing—fixed fee, hourly, and/or contingency—and may include some rather common arrangements seen these days, such as placing a “cap” on top of a normal hourly rate (which gives the client a benefit of paying only for time incurred if coming in under the cap along with a guaranteed ceiling not to be exceeded) as well as mixing an hourly fee at a reduced rate with a smaller contingency percentage. Other examples may include a “holdback” arrangement whereby a client releases a portion of fees only upon certain phases or measure of “success” being attained, or even a true retainer where a client pays a larger one-time, monthly, or annual fee to secure the services of an attorney whenever needed for any type of matter.

Whatever form it takes, the hybrid option opens up significantly more matters to alternative arrangements.

Wright Commercial Litigation will consider any type of arrangement that a creative client would like to propose or try out and, due to the firm’s smaller size and focus, it can be much more flexible than others in experimenting with new approaches. All you have to do is request a free consultation and ask.

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Free Consultations

How does the initial consultation and engagement work?

It is a simple process not all that different from selecting any other type of service provider.

  1. Fill out the contact form.1
  2. If an initial consultation is scheduled be prepared to discuss your matter in detail, answer the firm’s questions, and want the end goal looks like for you.
  3. The firm will, typically by the end of that initial consultation, have already formulated a basic strategy and can let you know if the firm can take the case on a contingency basis, or otherwise quote you a fee, rate, or alternative arrangement.
  4. If both sides are in agreement on the general approach, you will then be provided a written agreement detailing the specific terms and conditions of representation.
  5. Take your time to review the engagement and propose changes if desired, as well as talk with other professionals and consider all your options.
  6. If you wish to move forward, you will be provided the engagement agreement to execute electronically and fulfill any other conditions necessary for the firm to start working on your matter.

Once the final step is complete, Wright Commercial Litigation will be formally engaged to represent you in the matter. The firm will work diligently to reach the best possible outcome for you, in the most efficient manner, while keeping you informed at all major steps along the way.

Click here to start the process for requesting a free consultation.

1 Please note that submitting a request for consultation does not establish an attorney-client relationship or obligate the firm to conduct a consultation. The firm tries to respond to each submission as soon as possible but may be unable to do so in a timely manner or even determine, on the rare occasion and in the firm’s sole discretion, it is more appropriate not to respond. As a result (and especially if your matter is urgent), you should continue contacting other attorneys, law firms, and resources to find one that best meets your needs.

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