Extrajudicial assistance

Extrajudicial assistance and judicial assistance

The term extrajudicial assistance refers to all those activities related to legal and advice assistance rendered outside of the courtroom. Namely, when there is no Court proceeding in progress.

The term judicial assistance, on the other hand, refers to the defense of the Client in the context of a process rendered by the Lawyer, and in the course of a lawsuit.

Our Lawyers offer both extrajudicial assistance and judicial assistance. The team of Attorneys includes both “litigators“, i.e. experienced Attorneys in litigation and in legal battle that typically takes place in Court, and Attorneys devoted primarily to providing extrajudicial assistance services. 

All our Attorneys are trained to quickly resolve Client’s problems in the least burdensome way possible. Therefore, even “litigators” always consider finding a quick solution that does not force the Client into lengthy lawsuits.

Nevertheless, sometimes lawsuits are necessary. In such cases, we act with the utmost thoroughness, preparing the lawsuit both technically and legally, often also following a detailed infringement analysis. 

Extrajudicial assistance includes legal services of a different nature, always focused on the protection of corporate assets and industrial and intellectual property rights. 

Among the main types of extrajudicial assistance, we highlight:

  • Drafting of legal opinions;
  • Sending of demand letters;
  • Replying to demand letters the Client received;
  • Negotiations with the counterparty to find an amicable solution subsequent to demand letters;
  • Drafting of settlement/conciliatory agreements following demand letters;
  • Assistance in mediation and conciliation proceedings;
  • Keeping the know-how confidential;
  • Internet Domain Recovery;
  • Company Privacy Compliance;
  • Assistance in commercial and corporate affairs.

A Legal opinion? It’s always a great point to start

We often recommend approaching a legal issue through the drafting of a thorough legal opinion.

The legal opinion is a very important tool in order to study a case thoroughly and examine the legal issue in the light of the most recent case law. This provides the Client with a complete overview of the situation and the chances of success, accompanied by a careful analysis of weaknesses and strengths.

This phase is often underestimated, but it is actually strategic: in fact, it is possible to make thoughtful and serious decisions only after legal opinion has been prepared. 

We at Studio Turini consider this phase so essential that we often agree with the Client on the possibility of deducting, in whole or in part, the costs for the legal opinion from the expenses that the Client will eventually have to bear in order to carry out subsequent operations (such as sending a demand letter, initiating a lawsuit or other type of operations).

In the field of our competence, we prepare highly thorough opinions and, thanks to the collaboration of specialized professionals and technicians, we are able to examine the matter from both a legal and technical perspective.

A TASK FORCE OF EXPERTS TO DEFEND YOUR IDEAS

Pay attention to the Demand letter! It is not a simple letter

What does a Demand letter mean?

The Demand letter is a very serious matter.

In fact, although it is an extrajudicial private act, through the Demand letter a person is intimated to keep or cease a certain behavior, warning that otherwise a judicial proceeding will be undertaken against that person. 

We always advise, before sending a Demand letter, to be clear about the objective to be achieved in the light of the client’s strengths and weaknesses. 

Sending a Demand letter in which, for example, you ask the other party to cease production of a specific product because you believe there is infringement without first verifying the actual existence of infringement, is a mistake that should be avoided.

Before sending a Demand letter, it is important to carefully analyze the case and, if necessary, do more detailed research or request technical opinions. 

Once a clear view of the situation is achieved, we identify the most effective course of action. We also anticipate the counterparty’s possible reaction to the Client and recommend the most appropriate operations. 

If the client wants to prosecute judicially against the counterparty, and has founded grounds, the Demand letter will have a certain tenor. Otherwise, for reasons of cost or commercial convenience, the Demand letter will have a very different wording because the intended purpose is different.

We know how to draft the right Demand letter for the different situations, and each letter is carefully tailored to the individual needs and specific situation of the client. 

When the client wants to send a Demand letter, we:

  • Examine the case;
  • Evaluate whether a thorough legal opinion or a technical opinion is needed;
  • Decide with the client the best defensive strategy; 
  • Draft a Demand letter constructed for the intended purpose. 

This is followed by the further steps related to the sending of the Demand letter, including eventual negotiations with the counterparty. 

What if I receive a Demand letter?

Receiving a Demand letter from a Lawyer or directly from a competitor should raise alarms and make it necessary to immediately contact a Lawyer who can advise and properly reply. 

The Demand letter should never be underestimated and, above all, it is absolutely not appropriate to reply autonomously.

A wrong reply can jeopardize the situation and can make defense very difficult. The risk is that by responding incorrectly, you would put yourself in the wrong.

The Demand letter can have various contents, depending on the right being invoked. It is possible, for example, to receive:

  • a Payment letter;
  • an Ascertaining letter; 
  • a Demand letter in which you have been asked to cease production of a product or the use of a trademark because it is deemed to be infringing;
  • a Demand letter in which it is claimed that a Copyright has been infringed.

We have long experience in responding to this type of Demand letters and we are able to first check whether the adversary claims are grounded or not. We will then suggest to the client the best defensive strategy and agree with him/her on the actions to take next. 

When the client comes to us having received a Demand letter:

  • We examine the case;
  • We evaluate if an in-depth legal opinion or a technical opinion is needed;
  • We decide with the client on the best defensive strategy; 
  • We prepare the reply to the Demand letter, or react more harshly by initiating legal action or by proposing an alternative dispute resolution (such as mediation, assisted negotiation or arbitration, depending on the case);
  • We follow the next steps and negotiate with the counterparty to reach a possible settlement agreement, if the situation permits and the client requests it. 

Reaching a good Settlement Agreement? If you know who to rely on, it often pays off

Reaching a good Settlement Agreement is often an optimal solution.

It means finding an amicable solution with the counterparty, to end an ongoing dispute, or to avoid litigation before a Court.

Thus, the Settlement Agreement allows the parties to put an end to the dispute and give each other rules so that they can peacefully continue their activities, without the need for the intervention of a Judge.

A Settlement Agreement can be reached before starting a lawsuit, for example, after receiving or sending a Demand letter. It is also possible to reach an agreement when the lawsuit has already begun.

We at Studio Turini have long experience in negotiating and drafting Settlement Agreements, but it is never possible to rely on a previous blueprint in order to prepare them. In fact, each matter represents a unique case that needs to be handled differently. So, each agreement is prepared taking into account the circumstances of the specific case and must be “sewn” according to the parties’ needs. 

The Settlement Agreement is normally “definitive“, in the sense that it aims to finally close and resolve all pending issues between the parties, in order to avoid future disputes on the same matter. Settlement Agreements are also referred to as “full and final settlement” when they aim to settle definitively the relationship between creditor and debtor regarding the payment of a certain sum of money. 

Writing a Settlement Agreement is always a very delicate operation. The parties have to grant concessions and waive the right to take legal action, so we pay the utmost attention to avoid a breach of the Settlement Agreement. Therefore, we identify in advance the possible remedies for the Client in order to react promptly against the counterparty who has not fulfilled its obligations.

Assistance in Mediation or Conciliation

How does Civil Mediation work and when is it convenient?

When the parties are unable to reach a Settlement Agreement and they don’t want to go to trial, we often recommend Mediation Proceedings. 

Civil Mediation is an extrajudicial dispute resolution procedure, in other words, a procedure that takes place outside the Court, without the intervention of a Judge. 

Mediation is regulated by Italian law and it is a procedure that aims at conciliation between the parties. By instituting Mediation, the parties can meet in a neutral place to discuss their dispute or controversial issues in the presence of an impartial third party, the Mediator, who listens and helps them to find an agreement. 

The Mediator does not issue a decision, but he is a facilitator who has studied techniques and rules to help the parties find a common ground and reach an agreement.

If mediation is successful and a Settlement Agreement is reached, the parties verbalize it in the presence of the Mediator. The verbalization of the agreement constitutes an enforceable title and thus, in case of violation, it can be enforced in Court.

If  no agreement is reached, the Mediator verbalizes the failure to conciliate the parties and they continue to be free to act as they want. 

Whatever the positive or negative outcome of Mediation, this procedure is characterized by strict confidentiality. Therefore, everything said and written in the course of the proceeding must be kept confidential, and neither party may use it in any eventual trial.

What do you need to start a mediation procedure?

The interested parties may appear alone before the Mediator. However, it is preferable that they are assisted by experienced Lawyers who can support and help them during the procedure. The purpose is to open negotiations with the counterparty in order to reach an agreement.

Assisting a client in a Mediation procedure requires special attention. Studio Turini’s Lawyers have decades of experience in assisting their clients in Mediation and have attended specific courses, which include mediation and problem-solving techniques.

Mandatory Mediation

The Italian Law foresees Mandatory Mediation for specific matters, so that it is to be carried out compulsorily before starting a lawsuit. 

It is mandatory to first institute the Mediation procedure when the dispute concerns:

  • Property rights (property, usufruct, usucaption, real estate purchases and sales, etc.);
  • Division of the estate and succession matters;
  • Family pacts;
  • Lease and commodate;
  • Rental of enterprises;
  • Damages compensation deriving from medical and health care liability;
  • Defamation by the press or other means of advertising;
  • Insurance, banking and financial contracts;
  • Condominial controversies.

According to Italian law, mediation is not compulsory for cases concerning patents, trade marks, designs, copyrights, unless they are related to matters for which, on the contrary, mediation is compulsory. 

However, we often recommend voluntary Mediation proceedings, because under certain conditions it is preferable to quickly solve a dispute through a Settlement Agreement, rather than initiating a lengthy and costly lawsuit. 

A Settlement Agreement can also be reached with the involvement of Lawyers only. Mediation is therefore used in complex cases and most litigious situations, as the presence of the Mediator, a neutral third party, favors the reaching of an agreement between parties who are on widely different and diametrically opposed positions.

Know-how and industrial secrets, between technical and commercial information

The term know-how generally refers to all knowledge that has been acquired or improved in the professional practice of an activity and the enterprise has an interest in keeping them confidential.

In the Italian legal system, trade secrets are information protected by Article 98 of the Industrial Property Code, which defines them as business information and technical-industrial experiences, including commercial experiences, subject to the legitimate control of the holder, if it is confidential, has economic value as secret and it is subject to measures that are reasonably adequate to keep them confidential. Know-how represents all trade secrets of a company and includes both technical information (such as working procedures, industrial diagrams, technical drawings, etc.) and information of a commercial nature.

The confidentiality method of Studio Turini

A trade secret can be protected and defended before the Court against possible abuses or unauthorized disclosures. It can also be included in the company balance sheet, and they can be sold or licensed.

However, in order to protect it effectively, it must be kept confidential. This is possible thanks to a series of procedures and activities that can identify what the trade secret consists of and demonstrate that it is indeed kept confidential.

We at Studio Turini have developed a know-how confidentiality method with which we identify and crystallize a company’s trade secret. In this way, we add value to the company itself and create a useful tool to avoid unauthorized disclosures or industrial espionage.

Thanks to an in-depth analysis of the context, including inspections and dedicated meetings, we are able to prepare the most appropriate tools. Our mission is to respond effectively to the client’s needs, adapting each solution to its particularities.       

Recovering a domain registered by others? Studio Turini’s distinguished experience

When a domain is abusively registered by others, it is possible to react and take action to ask for its cancellation or transfer. 

In Italy, we are one of the first Law firms that dealt with Domain Name Recovery. Lawyer Laura Turini is the author of one of the first publications on the subject – “Internet Domains and Conflict Resolution”, published by IlSole24Ore in 2000. Nowadays, for the recovery of abusively registered domains, we collaborate with one of the most important national providers in domain name registration.

How Domain Recovery Works

A domain name can be recovered in different ways. Sometimes a Demand letter can be sufficient, but much more often it is necessary to take legal action.

However, a very good method to recover domain names is to use the Administrative domains recovery procedure. We have gained solid experience in Administrative domains recovery, dealing with this matter for decades, even for important Clients. 

The recovery of a domain registered abusively by others, is essential to avoid speculation and damage to the trademark. Trademarks can quickly lose value if not adequately protected.

Privacy and GDPR: what does it mean to be ‘Compliant’?

Privacy, understood as the protection of personal data, has a fundamental role in every company. Here at Studio Turini, we have been dealing with this issue since the late 1990s, and since then we have been assisting companies in their efforts to comply with the Privacy regulation, helping them to find their way in a regulatory context that is constantly changing.

Indeed, over the years, the Privacy regulation has evolved, in parallel with the evolution of technologies and their applications in business processes. 

Today, the GDPR (EU Regulation 2016/679), in addition to the measures provided by the previous regulations, requires the adoption of work and information flow management procedures that comply with the requirements of the regulation in force. 

Nowadays, more than ever, it is essential to be ‘compliant’ – to correctly analyse the processed data and to set up a data management model that is constantly updated and compliant with the GDPR.

Data analysis, management and updating: the Studio Turini model

We have gained significant experience in analyzing different business models, their internal and external information flows, and their Privacy compliance. We have developed a method of correct Privacy management that can be adapted to the specific Client’s needs and to the different business sectors. 

We can therefore assist the Client in the evaluation of internal organizational models and in the implementation of procedures and documents compliant with the GDPR, safeguarding the integrity of existing company assets and respecting the particularities of each individual situation. 

Since this method also requires an in-depth analysis of the management of document flows, it can be useful to identify any weaknesses in the protection of trade secrets and know-how.

Our consultancy service on Privacy and GDPR is also crucial for all those who work on the web, in the field of technology and software development. In fact, the implications of personal data processing also involve these sectors and must be carefully managed.

Corporate law and contracts: rely on an updated partner 

In a market characterized by technological innovation and the continuous evolution of business models, there is a growing need for economic operators to have clear indications in order to comply with the current regulation. 

At Studio Turini we have gained significant experience in managing commercial and corporate operations, especially where IP and IT assets are involved. 

We provide strategic advice at every stage of the Client’s business project, starting from the correct project set-up – to the negotiation and finalization of each single contract. 

We take care of the drafting of corporate agreements and commercial contracts, paying particular attention to the intellectual and industrial property profiles involved in the operation. 

We assist companies in carrying out ordinary and extraordinary operations, studying their needs and preparing the necessary documentation. Thanks to an extended network of correspondents throughout the world, our Law firm is also able to effectively assist Clients in foreign operations and in any matter with international aspects.

chiara morbidi

Get in touch with our expert

Avv. Chiara Morbidi

Head of Legal Department  

We are equipped with a specialized software for the management of patents, design, trademark, copyright's portfolios" Battista Software Project" - Studio Brevetti Turini s.r.l. Project co-financed under Tuscany POR FESR 2014-2020

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