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By 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.
Regardless of whatever else changes in the legal profession or the law, there will always be the unique challenge for the business litigator to weave all of the disparate pieces together. Within some practice areas, the resolution of a disagreement depends on the close read of a statute or a single fact—regardless of what other facts exist. But, in most business litigation, the proper framing of the dispute breathes life into the granular details, reveals the motivations of the players, and provides the seemingly obvious story to the judge or jury. This is when the truly skilled business litigators shine. They seize the opportunity to define their client’s cause in a classic and familiar theme that also shows why it is fair for their client to win. Then, with a familiar story arc providing the framework, the rest of the details fall into place for the judge or the jury with less effort. The result—in retrospect—was obvious all along. Statutes and case law will definitely change. The businesses will inevitably become more complex. But the core themes available to help define and breathe life into each fight over money will remain the same.
Ultimately, as changes to the profession continue, many aspects of business litigation will evolve. But, if history is any guide, those changes will not (and probably cannot) impact certain fundamental aspects of fights over money.