When I was first assigned to write this article on what being a business litigation lawyer entails, I realized that I hadn’t asked myself this question in many years.
Back then, I was a first-year lawyer who had just been hired by a large California law firm. One of my first “duties” as a young lawyer was to decide which of the firm’s five departments I wanted to practice in — and business litigation was one of my choices.
All I knew at the time was that the coolest, seemingly most successful partners were in that department. I also heard they handled disputes involving professional sports leagues, which appealed to me greatly. Yet, if I’m honest, I had no idea what they actually did on a day-to-day basis.
Sure, it’s easy to conclude that a business litigation lawyer simply represents businesses in lawsuits. That’s a good start to a half-hearted answer. The truth is, business litigators do a whole lot more than that.
So, in this article, we’ll start by giving you a general overview of the complex nature of business litigation. After that, we’ll break down some of the less obvious things that distinguish business litigation lawyers from their colleagues who represent individuals or families.
There’s a lot to discuss here, so let’s dive in.
Representing businesses vs. individuals
Let’s start by getting the obvious question out of the way — what’s the difference between representing businesses and individuals?
First off, the legal issues faced by businesses are often more complex and multifaceted than those encountered in personal law.
For example, while a business might have routine contract disputes (much like an individual), it can also run into trouble with a myriad of other issues, like labor and employment laws, safety regulations, corporate espionage, environmental protection laws, shareholder grievances, supplier issues, and multi-jurisdictional disputes.
Depending on the size and scope of the company, they may also face class action lawsuits or mass tort allegations.
Moreover, the legal strategies a lawyer uses must account for the broader impact of litigation outcomes. Indeed, the resolution of any given lawsuit can affect a company’s market position, financial health, and even its operational viability.
Thus, unlike individual representation, where the focus might be on resolving a single legal issue that impacts a person or a family, business litigators need to consider the long-term strategic interests of the entity, including public relations and regulatory compliance.
Finally, the stakes in business litigation often extend beyond financial penalties or awards. For businesses, legal disputes can influence shareholder value, consumer perception, and competitive advantage.
As a result, business litigators have to operate with a sharp awareness of the broader business ecosystem, where outcomes are measured not only in dollars but also in reputational impact and strategic positioning.
With all that out of the way, let’s take a look at some of the more esoteric parts of being a business litigator.
The importance of understanding a client’s business
For business litigation lawyers, having a profound understanding of each client’s business is critical. Representing a business entity in legal disputes requires an intimate familiarity with its operations, industry norms, and the competitive environment in which it operates.
This depth of knowledge is necessary in order for litigators to tailor their legal strategies in a manner that not only addresses the immediate legal issues but also aligns with the client’s broader business objectives and values.
This is exactly why successful business litigators go beyond the surface details of any particular case. Instead, they make it a point to know the finer points of their client’s industry.
This immersion might involve studying industry trends, understanding regulatory frameworks, or even engaging with the client’s products or services firsthand.
This sort of comprehensive insight allows attorneys to anticipate potential legal challenges and advise their clients proactively. The goal, of course, is to help clients avoid litigation when possible or position them favorably when it’s inevitable.
Finding your niche as a business litigation lawyer
Lawyers who represent individuals specialize all the time. Attorneys who practice family law, estate law, or criminal law are great examples of this. But did you know that business litigators can also be highly specialized?
The difference here is that specialized business litigators are more likely to focus their practice on particular industry niches.
As a young associate, for example, I worked with partners who specialized in representing grocery stores, food manufacturers, reinsurance companies, and yes, even professional sports leagues.
Specializing can offer business litigation lawyers several advantages, but it also comes with a host of challenges. Consequently, the decision to specialize should be weighed carefully.
So, let’s take a look at some of the key potential benefits and limitations of niche representation:
Advantages of specialization
- Expertise and authority: Specializing in a niche industry allows litigators to develop a deep understanding of specific legal issues, regulatory environments, and business practices. This expertise can make the litigator a go-to authority in the field, attracting clients seeking their particular brand of specialized knowledge.
- Efficiency: Deep familiarity with a specific sector can lead to more efficient handling of cases, as the learning curve for understanding the client’s business and industry context is significantly reduced.
- Network and reputation: Focusing on a niche can help attorneys build a strong network of industry contacts and a powerful reputation, which can be invaluable for attracting new clients and engaging with experts.
Disadvantages of specialization
- Market vulnerability: Specialization makes litigators more susceptible to fluctuations in their chosen industry. A downturn in the sector can directly impact the demand for legal services in that niche. (As an aside, a downturn in a sector can also lead to increased disputes, which is an obvious boon to litigators).
- Limited diversification: Being highly specialized may limit the attorney’s ability to take on a diverse array of cases, potentially making the practice more vulnerable to changes in law, technology, or market dynamics. Don’t believe me? Just ask anyone who spent their career representing companies who manufactured VCRs.
- Risk of rapid evolution: As industries evolve, there’s a risk that a niche area within a niche area may become less relevant. For example, tech lawyers can’t really “just” be tech lawyers, can they? That’s an industry that has evolved at an unprecedented pace over the past 25 years. Fortunately, a commitment to continuous learning and adaptation can mitigate this risk.
Who the heck is a business litigation lawyer’s client?
When representing a business, identifying the client can be more complex than it appears at first glance. The business entity itself is the client, but within that entity, there are various stakeholders, including executives, shareholders, and other employees.
Navigating this maze requires a clear understanding of who has the authority to make decisions on behalf of the company and how those decisions impact the legal representation.
Understanding who you represent
A key challenge for business litigators is understanding the corporate structure well enough to identify the decision-makers but also understanding that those individuals are not the actual client.
This often means working closely with corporate executives or the legal department to establish who has the authority to instruct the lawyer and make decisions related to the litigation or other matter.
This can be particularly challenging when, for example, a lawyer represents a company whose CEO has been accused of age discrimination by an employee.
Is the client the company or the CEO? Can a lawyer represent both without conflict? These questions are topics for a whole separate article, of course, but this example illustrates just how important it is for a business litigator to have a clear understanding of the true scope of the representation.
Other ethical considerations
Another primary challenge in representing businesses is maintaining the attorney-client privilege across a broad organization. In companies with multiple departments and levels of management, ensuring that privileged communications are adequately protected requires careful planning and clear guidelines.
For example, while the privilege may cover communications between attorneys and company representatives when discussing matters concerning the pending dispute, not all communications will be covered.
Thus, one of the business litigator’s key duties is making sure that everyone within the organization (and their own legal team) understands how and for whom the privilege is maintained.
The many hats of business litigators
Business litigators play a significant role not only in resolving disputes but also in influencing and shaping business practices and legal standards. Through their work, they contribute to the development of case law and regulatory compliance strategies that can impact entire industries.
Educating clients and preventing disputes
One important but often overlooked role of business litigators is educating their clients about legal risks and compliance requirements. By providing guidance on best practices and regulatory changes, litigators can help businesses avoid future disputes. This preventative aspect of their work not only benefits the individual client but also contributes to higher standards of legal compliance within the industry.
Strategic litigation as a business tool
Strategic litigation can serve as a tool for businesses to protect their interests, challenge regulatory constraints, or gain a competitive edge.
Business litigation lawyers advise clients on the potential risks and benefits of strategic litigation, not just from a legal standpoint but also considering the broader business objectives. This approach to litigation can influence industry-wide business practices, while helping the main client achieve its short-term goals.
For example, a landmark case in data privacy can result in enhanced data protection measures across the industry. Similarly, litigation that clarifies the scope of intellectual property rights can influence how all companies manage their assets going forward.
Ultimately, the role of business litigators extends far beyond resolving one-off disputes. Through their expertise and ongoing strategy efforts, they play a crucial role in their clients’ success, both through individual company representation and by pursuing industry-changing strategies.
Conclusion
From deciphering the intricate legal landscape to navigating the web of corporate structures, the business litigation lawyer’s journey is one of continuous learning and adaptation.
They not only serve as advocates in the courtroom but also as strategic advisors shaping industries and safeguarding their clients’ interests.
Being a business litigation lawyer entails far more than just resolving disputes — it’s about shaping the future of the business itself.
