Mentoring in Business Litigation Cases

This article, written by shareholder Michael Lambert, was originally published by the NH Bar News and can be found here (pg 34).

The practice of law is a complex and often difficult endeavor.  This is particularly true for business litigators.  Not only do we operate in an adversarial setting, but we are also frequently faced with complicated and urgent client needs, some with existential commercial consequences.  Understanding clients’ business needs, advocating for them throughout litigation, exploring settlement, trying a case to a judge or jury, and handling post-trial motions and appeals requires a variety of skills.  These skills come from training; they are developed though experience; and they are learned through observation.  Importantly, the skills of most accomplished business litigation attorneys are the product of years of mentorship by a more senior lawyer, which is a vital part of a lawyer’s professional development.

Mentorship takes many different forms.  For those working in multi-lawyer firms, mentorship often involves a more senior attorney taking a new lawyer “under their wing.”  New lawyers practicing solo, however, must rely on mentorship from other members of their Bar Associations, their law school connections, or their network.  Whatever the source, effective mentorship requires effort from both the mentor and the mentee. Mentors need to encourage and underwrite training opportunities, afford new lawyers the opportunity to shadow them during all phases of a case, and ultimately provide chances for them to take ownership of aspects of a case.  Young lawyers need to actively seek out mentorship, whether it be from inside or outside of their firm and be persistent in requesting opportunities to learn and practice the nuts and bolts, nuances, and art of handling business litigation cases.

Business litigation presents challenges for effective mentoring for obvious reasons.  Law firms cannot bill business clients for associate training and most business clients do not want an inexperienced lawyer handling important aspects of their case.  This is where the distinction between training and mentoring is important.  Developing the fundamental skills necessary to be a successful business litigator, at least initially, often must be done apart from business litigation cases.  Fortunately, the opportunities to develop those skills through pro bono work are abundant.  Learning how to interview a client, prepare a witness, argue a motion, take a deposition, try a case, and handle an appeal are all possible through various pro bono programs in New Hampshire.  For example, NH Legal Assistance and 603 Legal Aid partner with lawyers and law firms to provide training to both new and experienced lawyers so that they can assist unrepresented tenants appearing for eviction matters.  This gives lawyers an opportunity to meet with clients, assist in pre-eviction negotiations and mediations and, if necessary, represent the tenants at hearings.  Likewise, lawyers can develop skills critical to business litigation through the Trial Skills Training Academy put on by the NH Judicial Council and by representing indigent clients in misdemeanor and felony matters.  This program provides both training and real-life opportunities to develop critical skills, including managing client expectations and building their trust, handling hearings, negotiating with prosecutors, and preparing for and trying cases.  These are just two opportunities for lawyers to develop and hone skills that are necessary in business litigation, while at the same time providing a valuable service to those in need.   There are many other such opportunities, and it is incumbent upon both new lawyers, and those mentoring them, to seek out and take advantage of them.

While mentoring often focuses on the trial skills that new lawyers need to develop, having that be the sole focus often neglects other skills that are critical for successful business litigators.  Good mentorship also involves including new lawyers in client interviews and intake, potential conflict issues, meetings with clients, and the development of a case strategy and commensurate budget.  Observing how more experienced lawyers handle discovery disputes and interact with opposing counsel is invaluable.  A good mentor will also share their thought process on case strategy, including during mediation, dispositive motions, and trial preparation.  Allowing new lawyers to shadow, to observe and to participate in a mentor’s thought process throughout the life of a business dispute is critically important to the development of skills necessary to become an effective business litigator.

Mentoring has become more difficult since the pandemic for obvious reasons.  Lawyers working from home miss the opportunities for “micro-mentoring” that present themselves daily.  Organic interactions happen less frequently and the effort to involve new lawyers in cases becomes logistically more burdensome.  Some of the most important skills and instincts young business litigators develop are from just being around and observing more senior lawyers.  Less time in the office means less time for these meaningful interactions.

Changes to the way courts are conducting business also deteriorate mentoring opportunities, both structured and informal.  Prior to the pandemic, it was common for lawyers to sit in the courtroom watching multiple hearings, or even trials, before their case was called.  While there are many benefits to remote hearings, lost is the opportunity to observe other lawyers making arguments to the court, witness distinctive styles, and see what arguments and advocacy work and do not work, both in general and with particular judges.

Mentorship, both training and shadowing, requires commitment and a consistent, deliberate effort. Mentoring is an investment in the next generation of business litigators, making sure that they have both the skills and the intangibles that they will need to handle sophisticated clients, demanding situations, complex issues, and exacting judges.  This requires the mentor to underwrite training and pro bono opportunities, to intentionally involve new lawyers in all aspects of the case even though they are not billable, and to share their thinking, thought process and approach throughout the life of a case.  It will also require the mentor to cede the reins where appropriate and give the younger lawyer meaningful opportunities in a case.  These are all hallmarks of good mentorship.  It is incumbent on young lawyers to take responsibility for finding training and mentorship opportunities and not expect that they will just come to them.  Mentorship of the next generation of business litigators is necessary so that business clients can continue to receive the same skill and advocacy that the business litigation bar has provided over the years.