ABA Section of Business Law

Our mini-theme: Doing Nothing

Old-fashioned values of restraint and prudence are exalted in the three articles that make up this month's mini-theme, provocatively titled "Doing nothing." The purpose of the title is not to extol the virtues of lethargy. Our "Doing nothing" is the thoughtful exercise of a lawyer's best and considered judgment. The authors recognize that for strategic legal and business reasons, the advice a lawyer may give his or her client will be to take no action, or limit the action being proposed.

Stacie Tobin writes about the myriad decisions that a business litigator confronts. Lawsuits bring direct and indirect costs, including disrupting the lives of the business' employees who might better be going about the daily task of earning the firm more money. Discovery may hurt rather than help, and some witnesses should never be called to the stand at trial.

Michael Feder writes about the potential minuses of filing bankruptcy. A Chapter 11 reorganization is very expensive, takes forever, places a cloud on the operations of the company (particularly those in certain fields), and disrupts the harmony of the workplace.

Finally, Deborah Wilcox discusses issuing a cease-and-desist letter in a trademark dispute. Merely sending such a letter creates risks — of winding up in an inconvenient forum and of establishing beyond peradventure your own infringement if the mark that is being disputed actually was put into use before your own. The author identifies the potential for embarrassment if a letter is sent to a sympathetic target.

The commonplace "discretion is the better part of valor" has real life application in the world of business law. Take heed, though, the title of this mini-theme should not be taken too literally. Pick up this issue and read each of the articles. Don't just sit there, do something.

— Arthur F. Fergenson

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