The “Ace up the Sleeve” and Civil Litigation Strategy

The Cardsharps, painted by Caravaggio

The lawsuit, Transport Drivers, Inc. v. Coca Cola Refreshments USA Inc. (“TDI” v. “CCR”), in the U.S. District Court (D. Minn.), is a generic and stunningly boring contract dispute (like many others, admittedly).

In a nutshell: A predecessor of CCR made a promise to a predecessor of TDI in 1985. CCR and TDI made later promises to one another in 2010. The issue is whether the 2010 agreement erased all of the obligations in the 1985 agreement or whether CCR’s ’85 obligations persisted until 2013. In 2013, TDI suffered a loss that, TDI argues, CCR agreed to cover back in 1985.

This past week, U.S. Judge Donovan W. Frank (D. Minn.) denied CCR’s motion for judgment as a matter of law. That is, Judge Frank ruled that CCR could not win its argument — that the 2010 agreement effectively obliterated any and all obligations under the 1985 agreement — based solely on allegations in the pleadings and the related contracts.

As this matter proceeds, the Court is hopeful that discovery will lead to greater clarity over the relevance of these competing agreements and the nature of the business relationships between TDI and the relevant Coca-Cola entities. For these corporate entities seeking to govern their business affairs by contract, it seems clear that this case will likely be resolved by an interpretation of contractual terms to which the parties mutually agreed. Going forward, therefore, the parties will have the obligation to clearly persuade the Court regarding which contract governs this dispute and whether the terms of that contract support a judgment in their favor. Because the answers to these critical questions remain unclear at this stage, CCR’s Motion for Judgment on the Pleadings is denied.

Though the dispute is deadly dull (that is, if you’re not the one tagged with or threatened by $500,000+ of liability or one of the people being paid by the hour to win the dispute), there is a hidden gem on a strategic issue that civil litigators come across regularly.

If you have a card up your sleeve — the proverbial “ace in the hole” — when do you play it?

In TDI v. CCR, TDI discovered what it might have thought was a key “gotcha” fact against CCR. “TDI noted ‘significant questions as to the very existence of [Coca-Cola Enterprises, Inc.],'” a “non-party signatory” of the 2010 agreement. One can almost imagine TDI’s glee that it might win the case because a non-existent Coca-Cola entity entered into the contract on which CCR relies.

In response, however, CCR pointed out that “[t]he correct entity that is the signatory to the [2010 Agreement] is Coca-Cola Enterprises Inc. (no comma),” which apparently exists.

Our point: legal arguments are unlike playing cards. An “ace in the hole” has indisputable value (at least in some card games). Many legal arguments, on the other hand, seem strong but, when “played,” it turns out they make up a losing hand. While one cannot generalize to cover how and when to play all “hidden facts” in every legal dispute, it is often best to play them promptly rather than holding them back.

Often bombshells end up being duds — the sooner known, the better.