Litigation strategy is often described as foresight: the ability to anticipate every move before it is made. But strong outcomes rarely come from prediction alone; they come from taking the time to understand the client’s problem, identifying the legal principles, and exercising sound judgment as the case develops. CMM Partner David Green’s recent win for our client, a financial technology firm, shows this strategy in practice.

In this case, the arbitrator awarded damages under the faithless servant doctrine, which allows employers to recover compensation paid to employees who act “disloyally” during their employment. Claims involving employee disloyalty are never routine. Although the faithless servant doctrine is well established, its application depends entirely on the circumstances. Here, an employee who had access to the company’s clients and confidential information secretly diverted clients and formed a competing company, all while still employed.   

Our strategy focused on accountability. The core issue was straightforward: the employee was paid to act in the employer’s interests and did not. The law provides a remedy for that breach of trust. From there, the case was developed with attention to how the record would support both liability and damages.

During discovery, it became clear that key documents in the opposing party’s exclusive possession were deleted and could not be recovered. In law, this intentional or negligent destruction of evidence is known as “spoliation.” These documents would have supported our client’s liability and damage claims. Rather than allowing this to derail the case, the issue was presented in a way that explained the evidentiary gaps without overstating them. The absence of records became part of the context the arbitrator needed to fairly evaluate the claims and decide in our favor.

That disciplined approach carried through to damages. The theories pursued aligned with the available proof and the governing law. The case did not depend on any single theory or artificial precision, which allowed the strategy to remain flexible and resilient.

The result in this case reflects a strategy tailored to the client, the conduct at issue, and the realities of the evidentiary record. Effective strategy is not about forcing every case into the same framework. It is about understanding what makes a dispute unique and exercising judgment accordingly. At CMM, we guide clients through those realities with clarity, discipline, and purpose.

That is how we think about strategy. And in this case, it delivered an excellent result for our client.

For guidance, reach out to David Green at 631-738-9100.