Becoming a savvy commercial litigator requires more than a mastery of courtroom tactics. “We consider all tools available to secure our clients’ objectives,” as Weil’s skilled partners explain…
Chambers Associate: In your own words, what is commercial litigation? What kinds of clients do you tend to work with?
Matthew Connors: We help our clients resolve their most important business disputes whether they be with counterparties, stockholders, regulators, governmental entities, competitors, or anyone else. Most of the matters that we work on are high-profile and can significantly impact a client’s financial situation and often even impact a client's viability as a going concern. Our clients include large publicly-traded companies and their senior officers and directors, private equity funds and their portfolio companies and special situation funds, among many others. One of the most important aspects of what we do is making sure that we understand our clients’ business and the markets in which they operate, so that we can give them the best possible, holistic advice.
Celine Chan: We partner with our clients to resolve their highest stakes, most sensitive employment and employment-related disputes. We are often retained to handle a wide range of litigation matters, from discrimination, harassment and retaliation claims to restrictive covenant enforcement and defence, to executive termination and compensation issues and other contract and tort employment-related issues. These cases typically implicate our client’s most senior executives or board members and accordingly, their most sensitive and valuable business information or client relationships. These matters are truly bet-the-company from a financial or reputational perspective (or both). We work with clients from a wide range of industries, including financial services, private equity, pharmaceuticals, retail and cosmetics, technology and hospitality.
Brian Liegel: Weil’s commercial litigation practice helps our clients navigate their most challenging issues and achieve the best possible outcome for the business. We offer strategic thinking and leverage our capabilities to help the client resolve disputes before litigation, litigate important cases, challenge adverse rulings on appeal and even establish procedures and best practices to avoid litigation in the first place. I’m privileged to have the opportunity to represent clients ranging from household name brands, cutting-edge companies and businesses large and small which come to Weil for their most important matters.
CA: What does a typical day look like for you from start to finish?
"We pride ourselves on being expert in the substantive law, but then we get to use that expertise in many different forums on a daily basis to achieve the best possible results for our clients, which is very rewarding and a lot of fun."
MC: One of the things that I really enjoy about my job, and which keeps it interesting is that each day is different. One day I can be in court for a hearing, the next I can be preparing a very senior executive for a deposition, and the next I can be in a mediation. We pride ourselves on being expert in the substantive law, but then we get to use that expertise in many different forums on a daily basis to achieve the best possible results for our clients, which is very rewarding and a lot of fun.
CC: I really do not have a “typical” day. Because of how varied the matters we handle are, every day is quite different. That said, my days often involve some combination of calls with our clients strategizing about an employment issue, conducting fact witness interviews in connection with an investigation, preparing a witness for a deposition, drafting correspondence or a brief, preparing for a court or arbitration hearing, sparring with opposing counsel or reviewing and revising various other employment-related documents.
BL: I start each day the same way, which is identifying how I can best help our team at Weil tackle our client’s pressing needs. Sometimes that involves working with associates on research to prepare a strategy deck or brief. Other times, that means taking a deposition or working with a company witness to prepare for their own deposition. Other times it means studying the record and our case filings to prepare for and present argument at a hearing. While the day-to-day specific task varies, the overriding goal is to ensure that the Weil team is coordinated and providing quality work for our clients.
CA: How much does the practice overlap with others at the firm? How often do you find yourself collaborating with counterparts and colleagues in other practice areas?
MC: One of the things I have really enjoyed as I have gotten more senior is how much I get to work with lawyers in other groups and departments at Weil. Weil is a very collegial place, and I think our culture is one of the things that sets us apart from peer firms. I frequently get calls from my colleagues in our Corporate and Restructuring Departments about the risks and likely litigation outcomes from structuring deals in certain ways. And, on the flip side, I have a whole firm of lawyers who are expert in their particular fields who I can—and do—call with questions about specific issues that I am working on. Everyone is working on high-stakes, fast-paced matters, yet we are willing to take time to help each other. I think that is something that makes Weil special and unique.
CC: Our Employment practice overlaps and intersects with virtually all other practice groups within the firm daily. Employment issues are deeply intertwined with a company’s other business decisions and those decisions often raise employment issues to consider. As a result, we are regularly coordinating with our colleagues in other departments to not only advise them on employment issues but also to understand the broader implications of any particular employment-related decision. This way, Weil is able to provide a truly one-stop, full-service experience for our clients.
BL: When I was interviewing at firms a decade ago, many described themselves as using a “One Firm” approach across offices and practice groups. After many years at Weil, I believe we really practice what we preach. I routinely work with partners and associates across offices as we focus on staffing our matters with the best people for a client, no matter their location. We also work seamlessly with other practice groups, including our colleagues in the corporate and restructuring practices. I’m proud to work at a firm where, when a client faces a crisis, other attorneys across all practice groups will drop everything to help provide urgent assistance.
CA: What would you say is the most important skill a successful commercial litigator should have?
CC: One of the most important skills as a successful commercial litigator is to understand your role (and the goal) in the broader context of a client’s business. Zealous advocacy on behalf of your client is always paramount of course. But knowing how and when to strike the right balance between the “legal” wins and what constitutes a “business” win from a client’s perspective is what we believe sets our firm apart. Litigation doesn’t occur in a vacuum, and it is important as partners to our clients to never lose sight of their ultimate business objectives.
BL: I think the most important tool to a commercial litigator’s success is the ability to be persuasive. Persuasion can come in many forms – pre-litigation negotiation, written advocacy, oral argument and presenting to a jury – but at its core it is our job to advocate for our client’s position and persuade others to agree.
CA: As a partner, what are your responsibilities when working on a case?
MC: One of the things I try very hard to do is keep everyone on my teams up-to-speed in real time, with everything that is going on in a case, so everyone can substantively participate. It is the responsibility of everyone on the team—from the senior partner to the first-year associate—to know what is going on and raise thoughts and potential issues. Sometimes, a more junior lawyer will raise something that others have yet to think about. So, it is important that everyone speak up and feel comfortable doing so.
"Associates are usually the ones steeped in the factual record, so it is critical that associates share what they have identified with the entire team so we can discuss and strategize."
BL: One of my most important responsibilities is ensuring that our entire team is coordinated and working efficiently to serve our client’s needs. I also think it is critical that partners empower counsel and associates to participate in substantive aspects of the case and, when appropriate, get live experience in deposition or in court. At Weil, we stress the importance of the entire team from the most junior associate to the most senior partner. Associates are usually the ones steeped in the factual record, so it is critical that associates share what they have identified with the entire team so we can discuss and strategize.
CA: What drew you to the practice of commercial litigation?
MC: I found the subject matter fascinating. I work on a lot of securities and M&A-related litigation and there is a well-developed body of securities and Delaware fiduciary duty law that the members of my group pride ourselves on being expert in, yet that law is continually evolving, making every matter unique and exciting. Every day, we take our knowledge of the law and apply creativity and judgment to help our clients think through the ever-changing legal landscape to achieve the best possible results.
BL: I knew I wanted to be a litigator for as long as I can remember, but was not sure whether I wanted to do criminal or commercial litigation, let alone any particular specialty. One of my favorite things about Weil’s Complex Commercial Litigation practice is the broad types of matters that we are able to work on. I enjoy being able to apply my skills in oral and written advocacy on behalf of clients in matters that range from significant antitrust class actions to copyright claims, consumer fraud and breach of contract disputes.
CA: What do you find the most rewarding about the work?
MC: I am a social person by nature. I like working with and helping others and meeting new people. As I mentioned, I was initially drawn to this area of litigation because I found the subject matter fascinating, but the reason I have continued doing it at Weil for over thirteen years now, and what I find the most rewarding, are the human interactions. I really like my colleagues at Weil, and I really like our clients, and meeting new clients and helping them resolve their most challenging problems.
"Employment matters are often emotionally charged and every issue is unique because of the human element of our work. That keeps our space interesting."
CC: Employment matters are often emotionally charged and every issue is unique because of the human element of our work. That keeps our space interesting. Ultimately, the most rewarding aspect of our work is that we are partners with our clients in helping resolve problems and protect their businesses.
BL: I enjoy teaming with my colleagues at Weil and the client to achieve positive outcomes. As much as I enjoy achieving those outcomes, I also really enjoy all the strategizing and preparing that is required to get there. I have a distinct memory early in my career of meeting with key potential witnesses at one client’s headquarters shortly after they were named in a significant consumer fraud class action. We worked closely to learn their business and prepare our legal defense. It was a long road, but we eventually had the entire case dismissed and vindicated our client and its products.
CA: And conversely, what are some of the biggest challenges you face and how do you manage them?
MC: One of the biggest challenges for me is that there are a lot of competing demands on my time—both among work-related tasks and other personal commitments. Being highly organized and making sure everything is on one calendar is very helpful in ensuring that I get everything done and am able to make time for the personal activities that are important to me.
CC: One of the biggest challenges for me is accepting that certain aspects of our work is out of our control. You can file the most eloquently written brief and make the most compelling oral argument before a court, and that judge may still rule against your client. There may not have been much more you could have done to change the outcome, and that part is tough. But we continue to always advocate to the best of our ability and control as much as we can.
CA: Are there any trends affecting your work in the practice at the moment?
MC: Two come to mind. First, a lot of companies are considering and undertaking liability management transactions, where certain debt holders are treated differently than other debt holders, which often draw litigation. We have been working with our Corporate and Restructuring colleagues quite a bit on structuring those types of transactions and addressing any litigation that arises from them. Second, earlier this year, Delaware enacted new safe harbors in 8 Del. C. § 144 for transactions involving either controlling stockholders or interested directors or officers, which companies are starting to try and test out. It has been interesting to start structuring transactions to utilize the new safe harbors, and we are watching the Delaware courts closely to see how they address any issues that come up under the new statutory provisions.
CC: All aspects of employment law are constantly evolving. The landscape of restrictive covenant legislation continues to change rapidly across the 50 states (and as we recently saw, at a federal level as well). At the same time, our clients’ interests in protecting their confidential information and client relationships remain paramount. We are continuing to see a lot of counselling and litigation (both on the enforcement and defence side) stemming from these obligations.
CA: What advice would you give to aspiring commercial litigators?
"One cannot be an effective litigator without also being a knowledgeable commercial partner and staying focused on the ultimate business goals and how a particular legal issue fits within that framework."
CC: Understanding your client’s business is critical. To do that, lawyers must establish connections with the client’s business and operations teams, as well as the in-house legal team. One cannot be an effective litigator without also being a knowledgeable commercial partner and staying focused on the ultimate business goals and how a particular legal issue fits within that framework.
BL: I think the best advice for an aspiring commercial litigator is to keep practicing. There is always room for improvement both in skills like writing and taking depositions and in substantive knowledge. Our field is constantly changing and I think it rewards those who are curious and enjoy learning.
CA: How can a law student demonstrate a keen interest in and a good understanding of the practice of commercial litigation?
MC: Stay up to speed on the key cases and how litigation is developing and changing. One of the things that makes this job really interesting is that the law is not static. It is constantly being tweaked and applied to new facts and circumstances by courts. When I am interviewing people, I am always impressed when someone can engage with me on that and has views on the most up-to-date decisions, and I am even more impressed when someone has thoughts on where litigation may go next based on recent developments.
CC: In addition to absorbing as much knowledge through reading and keeping up with the legal trends, law students should be asking a lot of questions. When incoming summer associates ask how they can show their value, I always say after any opportunity they are given – whether to sit in on a call or deposition prep, observe an oral argument or draft a memo – give some thought to the assignment or observational opportunity, and then go back to the supervising attorney to ask: “Why did you ask that question,” “Why didn’t you make this point,” “Why did you answer the question that way,” “Why did you strike or add that,” etc. Soak up as much information and feedback from more experienced attorneys.
CA: Reflecting on your career thus far, is there anything you wish you’d better understood about commercial litigation before starting out your career?
MC: It is not so much about commercial litigation, as being a big law attorney in general, but I would encourage folks just starting out to remember that it is not always about work. I initially thought that making my life entirely about work would make me successful (I purposefully lived close to the office, I carried my laptop with me everywhere, so I could be responsive, etc.), but you will actually hinder your development by being so one dimensional. Do not get me wrong, we work a lot, but you have to find time for your other interests and passions. That will make you a better and more well-rounded lawyer and a much more interesting person.
CC: I probably sound like a broken record, but learning to be a good business partner with your clients is just as important as being a good legal partner. But that business aspect of the legal practice is more difficult to appreciate for attorneys just starting out because their tasks are often more discrete and contained. Asking questions about how a task fits into the broader litigation objective, and further, understanding what the ultimate business objective is, however, will make for a more effective commercial litigator at every level.
BL: I think that newer attorneys often have an unrealistic understanding of the firm’s expectations of them from a business development standpoint. While bringing a new client to Weil is of course exciting, it’s not realistic for most associates. Instead, one of the best ways to generate future business is for attorneys to do outstanding work and obtain good results for their current clients on their current matters. Additionally, it is important to be engaged in your community and form relationships with your peers – which are things that many are already naturally doing.
