Mark Lerner enjoys watching his adversaries’ unique or flashy styles, but a straightforward and trustworthy approach is what has driven his long record of success in the courtroom. Lerner heads the Employment Practices and Litigation Group at Kasowitz Benson Torres and is also included in Lawdragon’s Most Powerful Corporate Employment Lawyers guide.
“Over time, credibility is an enormous asset which helps clients immeasurably,” Lerner explains.
The New York-based partner has an enormous amount of trial experience, having spent over seven years as a federal prosecutor before entering private practice in 1999. He also spent two years working on Capitol Hill between his time at Amherst College and Stanford Law School, and a year clerking for a federal judge.
Lawdragon: Can you describe for our readers the mix of work you do within the employment arena?
Mark Lerner: I am a litigator first, and will try any type of case. My employment litigation practice revolves around five active areas: restrictive covenant enforcement/defense; misappropriation of trade secrets and breach of fiduciary duties; executive and private equity contract disputes involving carried interest, bonuses and severance; sexual harassment and discrimination claims; and wage and hour actions.
One of the unique aspects of employment law is the opportunity to get involved before litigation starts. This is usually not an option in other areas of litigation, when defense lawyers get called only after a complaint has been filed. So an important part of my practice is walking clients through difficult situations, whether it be how to hire a business group from a competitor, or how to fire an employee who may sue.
LD: How did you first become interested in developing this type of practice?
ML: I was a federal prosecutor from 1991 to 1999. I tried numerous cases with and against some well-known New York trial lawyers. Eventually I was teaching trial techniques and second-chairing junior prosecutors. When I entered private practice, I wanted to leverage my trial skills, which can really add value to my clients.
On my first day at Kasowitz, I was asked to try a case that was rapidly coming up for trial. It was in an employment case, and I quickly learned that employment-related trials were more frequent than in other areas, so I gravitated toward the area and have enjoyed it ever since.
LD: What are some aspects about this work that you find professionally satisfying? What keeps you excited about it?
ML: Mapping out a strategy knowing what a trial will look like down the road. And, when you are well prepared, even when the case takes twists and turns, you can adjust advantageously. That is very satisfying.
I also enjoy taking clients through the process, including depositions and trial. I always tell clients that not every day at trial will feel like a great day for us. It’s a long game, and you fight to win every play, but there’s the occasional sack. Otherwise the case wouldn’t be going to trial!
LD: Out of all the work you’ve done in your career, what would you say is the most interesting matter you’ve handled?
ML: I tried a case in 2017 for a private equity firm against one of its former partners who claimed carried interest rights superior to all of the other partners. What made it interesting is that he had spent years “setting up” this claim, and he was well-equipped to do so, with a J.D./MBA, a Masters in Engineering and 10 years in private equity. To prevail in the case, I had to learn that firm’s complex fund and compensation structures; understand what the plaintiff had done over time; and then design a trial strategy which would both educate the court and tell our story effectively. When the judge delivered his decision, his lengthy opinion recited the facts and conclusions exactly as we had advocated.
LD: Can you describe a recent matter that you’ve handled?
ML: I recently represented Douglas Elliman Real Estate in a lawsuit against competitor William Raveis Real Estate for raiding one of Elliman’s branch offices – Raveis hired Elliman’s branch manager and agents accounting for two-thirds of the branch’s sales and then moved them across the street to join Raveis. We discovered that the Elliman manager had orchestrated the exodus while she was still at Elliman, and Raveis had helped her. We sued the manager for breach of fiduciary duty and Raveis for aiding and abetting, and then won a substantial jury verdict that included punitive damages.
LD: What was the impact of this case?
ML: The case was widely covered in the real estate press, and it established boundaries around the extent to which brokerages can recruit groups of agents from a competitor. It made it clear that branch managers owe their primary duty of loyalty to their employers, and not to their sales agents who are often their friends. It provides strong protection to real estate brokerages so that their managers cannot work against them by recruiting agents to another firm.
LD: Did you have any jobs between undergrad and law school? What were they and how did they contribute to going to law school?
ML: After graduating college, I worked for two years before starting law school. I spent most of that time working for Senator Christopher Dodd in Washington, D.C. As I sought to advance my career, I realized that most of my superiors were lawyers, and that’s what made me seek a law school education. At the time, I thought I would use my degree to return to public policy work, not to become a litigator.
LD: So you did not expect to have this type of practice while in law school?
ML: Even in law school I did not anticipate being a commercial litigator. I aspired to be an Assistant District Attorney or an Assistant U.S. Attorney, more from the public service aspect, or going back into public policy in Washington, D.C. But I enjoyed the courtroom so much as a prosecutor that I pursued a career as a litigator in private practice.
LD: What advice do you have now for current law school students?
ML: Your law school class friends and other connections will become invaluable resources during your entire career. Form strong bonds and maintain them, and it will pay off personally and professionally.
LD: How would you describe your style as a lawyer? Or, how do you think others see you?
ML: You have to adopt a style that is comfortable and works for you. My style is to be doggedly persistent, and trustworthy to judges, juries and clients, without necessarily being flashy. Trustworthy means if I can’t represent a fact to be true, I don’t. If I’m not sure a fact will be proved by the evidence at trial, I won’t claim it will be in an opening statement. Judges and juries remember these things, and any failure to deliver will hurt you.
I enjoy watching other styles, but what I do best is deliver facts, back them up, and not sell something to a judge, jury or my clients that I don’t believe in myself. That approach allows me to deliver my arguments with a high degree of confidence and forcefulness that maximizes my persuasiveness in the courtroom. It also serves me well with clients, as they come to trust my judgment and prediction of the direction a case will take.
LD: There are many high-quality firms out there. What do you try to “sell” about your firm to potential recruits – how is it unique
ML: We are aggressive but at the same time thoughtful and strategic. We do not shy away from a fight, and if you want to litigate boldly, we are the firm for you. Young lawyers will learn litigation from partners and senior associates who have been to court, argued motions and tried cases. We love to provide opportunities for young lawyers to get experiences that add to their capabilities, and overall we present clients with an extremely well-rounded team at every level.
At Kasowitz, we regularly handle cases in the limelight of press coverage so we understand the added pressures that can bring as well. Learning how to do that is an important part of our training.
LD: Do you have a favorite book or movie about the justice system?
ML: One of the best portrayals of the criminal justice system I’ve seen is “The Night Of,” an HBO mini-series that takes the viewer minute-by-minute from a young man’s arrest to his prosecution for a serious crime in New York City. It is dark, gritty and meticulously realistic. For books, I always recommend Tom Wolfe’s “The Bonfire of the Vanities” for fiction, and Jeffrey Toobin’s “The Run of His Life” about the O.J. Simpson criminal trial for non-fiction.