“Used car sellers know when they’re lying.”

This is an old joke. (In fact, we called it an old joke over six years ago.) But there might be a nauseating ring of truth to the joke for many readers.

It might have to do with the complexity of the products. It might have to do with the mysteriousness and intangibility of the products for many buyers. It might have to do with the relative newness of the product category (compared to, say, cars). It might have to do with the highly competitive and “change-on-a-dime” market for computer software or the low barriers to entry. (Anyone who can code (or download shareware?) can hold themselves out as a software company.) It might be a combination of all of these factors.

Whatever it is, there are many lawsuits between unhappy buyers and sellers of computer software, particularly high-end customized software for commercial applications.

Prairie River Home Care (“PRHC”) v. Procura, a.k.a., Complia Health is a classic example. According to Prairie River, Procura’s software “was disastrous…from the moment the [contract to buy it] was executed…”

And things are looking grim for Defendant Procura in the lawsuit.

From recent filings in the case, it seems that Procure’s litigation behavior cries out culpability.

We have never seen a litigant bail on court-ordered mediation the day before it is scheduled but it appears to have happened in PRHC v. Procura.

Similarly, we have never seen a litigant refuse to produce a corporate representative for a deposition, but, again, it appears to have happened in PRHC v. Procura.

Vietnam
Vietnam War, 1967

When we have found ourselves in similar situations as counsel for a plaintiff, we wonder whether this is a war of attrition strategy — in which a culpable defendant fights (unfairly, if necessary) all the way to perdition (if necessary) hoping the adversaries give up or collapse before the culpable defendants do.

When we have found ourselves in similar situations as counsel for a defendant like Procura, it has been nauseating. In fact, it is even stressful serving as local counsel when a client behaves as Procura seems to be behaving in PRHC v. Procura.

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