Business litigation both civil and criminal in nature has constituted a considerable part of Mr. Carrow's practice. He has successfully litigated complex business disputes and has represented foreign and domestic directors, officers and employees of the client business at the administrative, trial and appellate levels of the judicial system(s).
Types of Business Lawyers Initially, a distinction must be drawn between the two types of business lawyers involved in the practice of law. The first are commonly referred to as "transactional" or "office" lawyers. The second, "courtroom" or "litigation" lawyers. The latter often work closely with the former in satisfying the client's needs.
The distinction is clear in the United Kingdom, where the legal profession is divided between solicitors (office lawyers) and barristers (trial lawyers), although the dichotomy has been blurred of late by procedural changes in the law of England and Wales (see "Current Comments" elsewhere on this web-site). Traditionally, the barrister has been regarded as a specialist pleader who also gives expert opinions on all legal matters. Until the recent changes were effected, barristers had virtually exclusive rights of audience (appearance) in the courts of England and Wales on behalf of clients. This is to be compared with the solicitor, who is a general law agent dealing with litigious and non-litigious matters. The solicitor's involvement in litigation is limited, however, to providing the barrister attending to the matter with "instructions", usually delivered in writing prior to commencement of the trial. The barrister's courtroom presentation is limited by the instructions which he receives from the solicitor, who typically sits behind the barrister in the course of trial. This allows the barrister to take further instructions from the solicitor when and as required. Generally, the solicitor cannot speak in court except to further instruct the barrister.
Notwithstanding the fact that the United States law is an extension of the English common-law, the practice methodology is quite different. There is no formal categorization of "barristers" and "solicitors" and a lawyer who has qualified to practice in one or more states, by being called to the bar, is empowered to serve in both capacities, i.e., both as a business office lawyer and as a trial lawyer. For a practical matter, in many instances the distinction remains. The typical large firm has a business law department, the members of which attend to the day to day transactional business concerns of the client, such as providing counsel to business corporations and other business entities, and a litigation department, which serves the business client as an advocate before administrative tribunals and the courts. Smaller firms, and sole practitioners, will often refer business litigation to counsel who practice in that field, or associate a trial lawyer to assist him or her in meeting the client's needs in preparation for, and conduct of, litigation. Much of Mr. Carrow's practice consists of representation of, referrals from, and association with, office/transactional attorneys.
Despite the fact that in most instances the client is required to employ the services of of two lawyers to pursue litigation, it is generally conceded that, at the end of the day, the client's interests are best served by this procedure, whether the business dispute is domestic or international in nature. This conclusion has generally been accepted in England and Wales, which has recently broadened the scope of the solicitor's practice, by allowing increased rights of audience, i.e., rights to appear before the courts, to those solicitors who have qualified as "solicitor advocates". The larger British solicitor firms have either continued their long established relationships with barristers to meet their advocacy requirements, or have adopted the practice of their American brethren and established separate transactional and litigation departments to satisfy their clients' business litigation needs. The smaller solicitor firms, and sole practitioners, have, in the main, continued to limit their business involvements to transactional business law. The bottom line to the client, that is the cost of representation, has not been significantly reduced by the reforms proposed and implemented by Lord Wolf.
What Constitutes Business Law Almost every aspect of business is impacted by what is generally referred to as "business law". Although if may be difficult or impossible to define the total scope of business law, one can start with the basic premise that the client is a sole proprietorship, corporation, partnership (general or limited), joint venture, limited liability company or some other form of business entity.
Categorizing the areas of law that involve business is the most challenging task, since the scope of legal involvement of business is virtually limitless and encompasses everything from agriculture to zoning. The business law chapter headings, to the exclusion of sub-categories, include: governmental administrative agencies and the regulation of business; regulation of business through the criminal law; torts, including negligence, fraud and deceit; contract formation, defenses and remedies; civil rights; sales law and product liability; domestic and international trade; negotiable instruments and secured transactions; international business law with its numerous ramifications; rights of consumers, debtors and creditors; consumer protection; property, intellectual property and computer law; agency and private employment law, business formation, monitoring, counseling and transaction management; corporate law and franchising law. The businessman may not be able to itemize with particularity all of the business law problems he may face in the conduct of his business, but it is fair to say that, in all likelihood, he will recognize the problem when he encounters it.
An anecdotal example of how the joint efforts of a transactional lawyer and a litigation lawyer can inure to the ultimate benefit of the client was presented in a case recently completed by Mr. Carrow. He was retained to represent a corporate real estate broker and the company's agent, in a complex action in which plaintiff developer sought approximately fifty million dollars in compensatory damages, and a like amount in punitive damages, from Mr. Carrow's clients. The claim was based upon allegations that the clients breached their fiduciary duties arising out of the plaintiff's purchase of certain valuable Nevada property.
The plaintiff was represented by Brobeck Phleger & Harrison, San Francisco's largest law firm. For reasons that are not here relevant, Mr. Carrow was retained by his client-defendants one day prior to commencement of the trial. In a questionable decision, the presiding judge refused a continuance of the trial date, notwithstanding Mr. Carrow's late entry into the action.
With the invaluable assistance of the client's in-house transactional lawyer, after a five week trial the jury found in favor of Mr. Carrow's clients, against plaintiff, and Mr. Carrow's clients were awarded their costs of suit. This, despite the fact that Mr. Carrow was required to assimilate massive pre-trial discovery, including over 4,000 pages of deposition transcripts, and to prepare his defense on a day to day basis in the course of of the litigation. (See, Grand Land Investment v. Coscan/Stewart, San Francisco Superior Court No. SCV-960340.) Mr. Carrow gives much of the credit for the successful outcome to the associated transactional lawyer's knowledge of the business background of his client and the facts relevant to plaintiff's claim.
On a similar note, and recognizing the international character of this web site, another case recently completed by Mr. Carrow is worthy of note. An English solicitor instructed Mr. Carrow to provide a defense for the Irish rock group U-2's English lighting company in an action arising out of events that occurred in France. The instructing solicitor traveled to California to assist in trial preparation and at trial. The somewhat mind boggling factual situation was this: the client defendant was an English resident, the co-defendant U-2 rock band was resident in Ireland, the event giving rise to the claim occurred in France, the plaintiff was hired outside the United States, and the trial was conducted in California. Fortunately, through the joint efforts of the client's transactional solicitor, and Mr. Carrow, together with their joint input on the international legal issues presented, the case was settled to the satisfaction of the client in the course of trial, thus, avoiding the many conflict of laws issues that would otherwise have been presented had the litigation continued.
On occasion, the facts surrounding the business dispute involve allegations of fraud and deceit, or other wrongful acts, of a criminal nature. Mr. Carrow has had considerable and successful experience in defending against such charges, but limits his criminal defense involvement to "white collar crime", which is defined and discussed elsewhere on this web site.
In all aspects of business law, time, expense and travail can be avoided by recourse to the alternative dispute resolution procedures of negotiation, mediation and arbitration. In addition to his experience as an advocate involved in the ADR process, Mr. Carrow has acted as a private arbitrator and as a settlement conference and trial pro tempore judge for the Superior Court of California, which is the equivalent of the English High Court, i.e., the highest trial court in California.
Each of the categories discussed herein below, to wit: Commercial Law, Construction Law and Other Business Related Civil Law are sub-categories of the general topic of business law. They are treated individually because of the added emphasis placed on those areas of law by Mr. Carrow's practice. Other business law sub-categories of Alternative Dispute Resolution and White Collar Crime defense, are addressed elsewhere on this web site.
The fee terms of Mr. Carrow's representation on all business litigation matters, whether predicated on an hourly or contingent fee basis, or a combination of the two, are negotiated on a case by case basis.
Litigation of Commercial Claims
Mr. Carrow limits his involvement in commercial litigation to claims and disputes of a substantial nature.
One would think that "commercial law" would include all law that, by definition, involves commerce. Lest the reader be confused, it does not. If all commerce related law were encompassed by that term, there would be very little law remaining. Even torts and criminal law often involve commerce, directly or indirectly . To make matters even more confusing, certain areas of law generally treated as falling within the ambit of "commercial law," arguably do not, e.g., intellectual property law, information technology & multimedia law and tax law, to mention but a few. For purposes of this page, "commercial law" is defined to encompass substantial matters affecting credit, debt collection, bankruptcy and the Uniform Commercial Code, including creditors' rights, mortgage foreclosure, banking law, development financing, and contracts for the sale of goods.
Experience has established that commercial claims and disputes are especially well suited for the alternative dispute procedures of negotiation, mediation and arbitration, discussed above.
Litigation of Construction Claims
A large part of Mr. Carrow's practice consists of construction related litigation including:
Representation of Contractors Before Public Agencies,
Including Licensing & Bid Disputes;
Involving the Contractor;
Architects & Designers;
Involving Subcontractors;
Involving Material persons;
Against Contractors and/or Developers;
Contractors, Subcontractors and/or Owners;
Claims;Contentious construction matters have made up a substantial part of Mr. Carrow's thirty-seven years of the practice of law. He has successfully litigated or negotiated settlement of numerous complex construction disputes, both private and public in nature. His practice is limited to construction claims and disputes of a substantial nature.
Consistent with his attitude with regard to other business related disputes, Mr. Carrow seeks, wherever possible, to bring the advantages of ADR procedures to the construction industry.
As is the case with business and commercial disputes, the facts surrounding construction disputes sometimes involve fraud, deceit, or criminal behavior. As in other areas of the law, Mr. Carrow's involvement in crime is limited to offenses of a "white collar" nature.
Litigation Of Other Civil Claims Mr. Carrow's practice includes other civil litigation of a substantial nature. The term "civil law" is subject to definition, but to many, it is not an easy task.
According to Blacks' somewhat pretentious definition, civil law "is that body of law which every particular nation, commonwealth or city has established particularly for itself; more particularly called 'municipal' law, to distinguish it from the 'law of nature,' and from the international law. Laws concerned with civil or private rights and remedies, as contrasted with the criminal laws." (Blacks Law Dictionary, 6th Ed., 1990.)
For a practical matter, the distinction is not nearly so difficult as some have attempted to make it. With the exception of several "special proceedings" such as contempt, which are considered "quasi-criminal" in nature, the only distinction in the law recognized by most lawyers and courts is between criminal and civil actions. A civil action is prosecuted by one person against another for the declaration, enforcement or protection of a right, or the redress or prevention of a wrong. A proceeding by which a person charged with a public offense is accused and brought to trial and punishment is known as a criminal action. Thus, in most cases, it is easy to distinguish a civil from a criminal proceeding. If the plaintiff in the action is "the People," you are in all likelihood dealing with a criminal action. Virtually all other actions are "civil actions."The number of categories of law encompassed within the term "civil law" is almost endless. One surfing the web, will come across web sites offering attorney services and, more often than not, the entries are broken down by category, since most lawyers concede that they are not qualified to practice in all. At a minimum, there are at least sixty categories of civil law. This is exclusive of the sub categories within those categories.
Recognizing his limitations, Mr. Carrow places his primary emphasis on the civil law categories mentioned above, i.e., business, commercial, and construction litigation. He will, however, consider on a case-by-case basis the feasibility of his assuming the representation of a client on another, business related, civil matter.
Parenthetically, provision by Mr. Carrow of consultation and expert witness testimony on the laws of Britain and the United States, discussed elsewhere, would not, in itself, be considered a category of law. It is more the business of explaining the state and meaning of the law.
Without belabouring the point, Mr. Carrow's preference for Alternative Dispute Resolution procedures remains.
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