News. Worthy.

Certain Things in Business Litigation Will Never Change

January 31, 2019
Minnesota Lawyer and Finance & Commerce - Partner Content
Author: Arthur G. Boylan

We live in an era of indisputable change for lawyers and the legal profession. It seems new practice areas or specialties bearing the latest alphabet soup pop up each year. Likewise, if you look no further than the most recent lawyer magazine or bar journal, you can easily find pronouncements on latest alternative fee arrangement, the anticipated impact of technology on our work, and the changes that will inevitably be caused by the newest generation of professionals in the practice of law.

Change is a constant, no doubt about that. As a general matter, most progress and change in the legal profession is positive; so it should be welcomed with open arms. But, as much as things change . . . certain things for the business litigators of the world are immutable.

The fundamental nature of the work of a business litigator has never really changed. Many non-lawyers (and some lawyers too), find the descriptor “business litigator” terribly uninformative. People find it even more puzzling and opaque when the terms such as “complex” or “commercial” are added someplace in the moniker. So what, exactly, is the work of a business litigator? Simply put, business litigation is “fights over money.” Unfurling that succinct explanation typically produces a knowing nod and a wry smile from my conversational counterpart. After this description, they intuitively understand the work of a business litigator practice entails—no need to describe the causes of action, the applicable statutory schemes, the pleadings, the discovery squabbles, the depositions, the motion practice or the meet and confers. While other things will evolve and change, the basic notion of a “fight over money” will never really change.

To be sure, it is comforting to sum up business litigation in such a succinct and simple phrase. Admittedly, however, the actual work of a business trial lawyer is rarely simple or succinct. Even as other things change, one immutable aspect of business litigation is the need for detail. If history is any guide, this will never ever change. The highly specific granular detail of the business deal gone wrong is a necessary component, which can be equal parts complex and dull. This aspect of business litigation will not change either, except that the details are likely to become increasingly granular.

But business litigation is never dull, notwithstanding the need for granular detail. That is because nearly every fight over money is, at least in part, personal. This, too, is very unlikely to change. Typically, before the dispute erupted, a business person made a decision to hire, to fire, to buy, to sell, to trade, to breach, to take a risk, or to move forward with an opportunity. Those decisions usually bear the hallmarks of the oldest motivations we all are familiar with including greed, envy, arrogance, lust for power, or loyalty. At least one of the litigants is looking to the legal system to obtain vindication or confirmation for their actions. So, even as things change, business litigation will always require dissection of the true motivations for each important player in the drama. Read more.

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