TENNESSEE: An Introduction to Litigation: General Commercial

Perspectives on Commercial Litigation in 2025

When clients seek representation in connection with a complex commercial litigation matter (or any other litigation issue for that matter), they have done so because they have a problem that they need solved, and they understand or have been advised that they need a litigator to help solve their problem. Clients do not come to litigators with a checklist of motions, depositions, and hearings they would like taken. While they may understand the litigation process, or they may think they do, they do not retain a litigator to contract for that checklist of litigation tools to be deployed. Rather, they retain litigation counsel to help them achieve the most effective and efficient solution to their problem.

Top-tier litigators understand this, and they further understand that the client’s perception of their problem may be dead on accurate, somewhat incomplete, or fundamentally wrong. The first step in successfully representing a client in an actual or potential commercial litigation matter is to discern exactly what problem the client needs to solve, reach consensus with the client on exactly what that problem is, and determine how, and to what extent, litigation can help solve the problem. Seasoned litigators also understand that is not a one-time process in a given case. Instead, that is a continuous process that should inform every step that is taken, and those that are not taken, throughout the life of a case.

Consider a simple hypothetical that helps illustrate litigation as problem solving. Imagine a baker whose Instagram account is hijacked the week before Valentine’s Day. She fears lost sales, reputational damage, and fraudulent posts tarnishing her brand. Her “litigation problem” is not simply regaining password control. Her short-term problem is salvaging the month’s revenue, and her longer-term problem is regaining her customers’ trust and her bakery’s long-term viability and value. A swift state-court petition for emergency injunctive relief, paired with subpoenas to the platform for account logs may be all the solution the baker needs. While she might want to pursue the hacker for damages, that may or may not be in the baker’s economic and commercial interests, even if that might serve her emotional interests. That is where the continuous approach to problem-solving comes into play.

Costs – financial, time and emotional —all play a critical role in discerning the client’s problem and crafting the best solution. For a publicly traded or otherwise large corporate client, costs of litigation and settlement ranges translate into EPS forecasts, while for a sole proprietor, the issue is how much can the business afford to spend without threatening its short-term and/or long-term viability. While initial litigation budgets are helpful, even if prone to being inaccurate, the more important discussions about litigation costs are those that take place as part of the continuous reassessment of the client’s problem and the extent to which it is or is not being advanced through that litigation. “Litigating on principle” warrants special mention. Every experienced litigator has experienced the client who announces that they are more concerned with the principle of the matter than the costs. While clients occasionally adhere to that view as costs mount, those clients are the exception that proves the rule. Many clients who boldly announce they are more interested in principle than cost and cost-benefit; a couple of large invoices usually cause them to revisit their desire to litigate on principle. Therefore, the careful litigator tests this point of view at the beginning of the litigation and revisits this with the client throughout the life of the litigation. While the traditional legal fees model is hourly billing at a standard rate, that arrangement can be cost-prohibitive to certain clients. Lawyers should not shy away from considering alternative fee arrangements, such as reduced rates combined with some kind of contingency fee if a certain outcome is achieved, as these arrangements can benefit both the client and the lawyer.

One often hears that someone is a “trial lawyer,” rather than a “litigator.” While this distinction does help separate those who have the skills, and perhaps more importantly, the courage to take cases to trial, there is a nuance that often gets lost amidst the bravado. Contrary to some public opinion, and the opinions of some lawyers, taking a case to trial is not an end in itself. Instead, in the appropriate case it can be a means to the real end, which is solving the client’s problem. Thus, while clients should generally seek out litigators who have, and will, try cases if necessary, the best litigators understand just how few cases are, or need to be, tried. Even though only a small percentage of complex commercial cases go to trial, the prospect of trial must inform every action that is taken or not taken throughout the case. Pity the litigator who thinks that a series of improper objections and incomplete answers are advancing the client’s interest and then watches at trial as their befuddled CEO tries to explain the inexplicable in front of a jury in those few cases that do make it to trial. And while only a small percentage of cases go to trial, when it comes to complex commercial cases, it often is difficult on the front end to predict the likelihood that a given case will go to trial. The careful litigator conducts the litigation as though the case might go to trial even while they are trying to find the earliest termination point that will solve the client’s problem.

It is not possible to discuss litigation today without discussing artificial intelligence (AI). There is a large, and ever-increasing body of literature on the use of AI in the provision of legal services, including its role in litigation. Much of that literature uses as a hook such ill-considered ideas as having an AI machine draft a brief and then filing that brief without reviewing it to determine if the case citations are relevant or even real. That, of course, is a terrible use of AI, and it should go without saying that no one should ever do that. A more nuanced question about the use of AI is how litigators should react to the fact that AI is with us to stay. AI is only going to become more powerful and prevalent, and it can, if deployed properly, help reduce legal costs to clients. Those reduced costs to clients equate to reduced revenue for litigators and law firms. Short-sighted litigators and firms may be tempted to foreswear AI for this reason, particularly since in these early days of AI, the rationale for that position can be dressed up in concerns about the limitations of AI, most notably quality control. Litigators will be well-served to take a longer-term view and realize that AI is here to stay. Once one takes that view, the question becomes how to deploy AI to advance clients’ interests and how to turn the “threat” of AI into a competitive advantage. It will increasingly make sense for litigators to not only incorporate AI as merely prudent, but to make the use of AI to drive efficiency a key component of marketing to clients. While AI may drive down the fees a litigator may earn on a given case, those resulting cost savings to the client can and should be seen as an advantage in the marketplace for legal services. If properly deployed in both the practice of law and the business of law, AI can help top-tier litigators improve their ability to serve their clients efficiently and grow their practice.