• January 10, 2018

We recently profiled retired U.S. Magistrate Judge Keys, and he pointed out what we already knew: it isn’t just older lawyers who have a lot of interesting things to say about the practice law. Mentoring flows both ways from junior lawyers to senior lawyers as well as senior to junior.

Minnesota Litigator (“ML”): Given the long line of success in your career, I thought you, Emily McNee, would be a great person to talk to from your insight as a relatively junior lawyer.

Emily McNee: I appreciate that. Happy to be here.

ML: How long have you practiced?

Emily McNee: Five years now. I graduated from law school in 2013 and then spent a year clerking for Judge Louise Bjorkman at the Minnesota court of appeals. And then, from there I joined Littler Mendelson. So, I’ve been with Littler about four years.

ML: Maybe you’re close enough to your own decision to go to law school to advise people who are now graduating from college and wondering, “What next?”

Emily McNee: And I also teach at the University of Minnesota Law School as a legal writing adjunct. So, I’m close to the law school in that way also. In terms of advice for people thinking about law school, I think they need to decide if being a lawyer is something that they’re interested in. There are a lot of people who find the experience of law school enjoyable, but then they finish school and it’s sort of, “Well, what now?” And they haven’t necessarily thought about that on the front end.

Going to law school and being a lawyer are two different things. I think there are a lot of avenues coming out of law school, but for people who are interested in working with people, helping to solve problems, intellectually-challenging issues, law school and being a lawyer can be a good fit.

ML: Anything about the practice of law come as a surprise to you?

Emily McNee: I don’t know that anything was a huge shock. I guess, coming from an appellate court where you don’t really have too many day-to-day emergencies—people can’t call up the judicial law clerk and talk to them the way that they can in a district court setting, talk to the judge’s law clerk … The shift from clerking for an appellate judge to active litigation practice is definitely different, but I don’t know that there was anything in particular that I could put a finger on that was unexpected.

ML: How frequently day-to-day are your days interrupted by things so that you’re not able to plan your day?

Emily McNee: Maybe a third to 50 percent of the time. You’ll think you have your day planned, and then other things happen.

ML: You do defense work and employment cases, right?

Emily McNee: Yes.

ML: I’m going to guess that emergencies that disrupt your work days are along these lines: Employer calls up and says, “I need to terminate this person,” or “I’ve gotten this complaint about a supervisor,” and things like that?

Emily McNee: Yes, “I’ve had this situation come up. What do I do?” And something that surprised me about Littler was that … We’re a large, global law firm, and so you might expect that the clients are also large, global companies, but we actually work with businesses of lots of different sizes. So, sometimes I’m working with a company that doesn’t have an in-house lawyer. I’m just working with the HR representative, or sometimes it’s the company owner himself or herself. And so, there’s a lot of variety in terms of whom I’m dealing with and getting those questions from.

But it’s things like that, in terms of, “We have an issue we need advice on,” or “agreement we need drafted,” or anything like that.

ML: Sexual harassment in the workplace has been in the news a lot lately, as you know. I’m wondering whether you have experienced a surge in these kinds of complaints in your past few years in your practice. Have things changed from your perspective in your work? Or is it just now something that’s getting public attention but has always been there basically at the same rate?

Emily McNee: It’s definitely getting more public attention now. In terms of whether it’s going to result in increased lawsuits, I think that remains to be seen, in part because I would expect that there’s probably going to be some kind of increase in the number of people going to the government agencies to make complaints, the EEOC or the Minnesota Department of Human Rights. Companies are not necessarily notified instantaneously when that person makes a complaint. So, there’s may be some gap in terms of when a person goes forward with a complaint and when the company finds out. But it will be definitely interesting to watch, and see as a result of what’s happening in the news right now and across America, does that result in an increased number of sexual harassment claims? And then, relatedly, is there going to be any push in terms of changing the law on that front?

ML: Do you think there should be changes to the law?

Emily McNee:  You know, I don’t think so at this point, based on how the courts have interpreted the statutes. I don’t think so.

ML: Jumping back to an earlier question about somebody thinking about law school, is there any book, or movie even, that you would recommend somebody considering law school read or watch?

Emily McNee: I recommend a book called “Getting to Maybe.” And it’s a book that deals with how to grapple with law school exams and how to think about a question, not in terms of just black and white, but “the maybe portion,” right?

And I think that it’s actually a book that I would recommend for folks who are considering law school because I think it gives you the best sense of what type of thinking law school teaches you to do and expects of you. And that’s very different, in my experience, from some of the things that I did in college. And I think it gives you a taste of what law school is going to be like. So I think it’s helpful for both 1L students and people who are considering getting into law school.

The other thing that I would recommend for people interested in law school is to do an LSAT prep course. I did one, and found it to be extraordinarily helpful. It’s not going to give you any kind of insight into what law school is going to look like or what being a lawyer is going to be like, but I think it’s something that college students or people interested in law school should consider.

In terms of movies, folks of my dad’s generation [ed. note: Minnesota lawyer, Michael W. McNee] would all recommend watching “The Paper Chase.” And I watched it before law school, but I didn’t find that it was really an accurate representation of my law school experience. Sure, their professors teach you the Socratic method, and the cold-calling, and those tense moments in class, but I don’t know that that’s a good modern depiction of law school life anymore.

ML: How about depictions of practicing law?

Emily McNee: I don’t know that I have a book or a movie for that. I think reading lawyers’ blogs are probably the best depictions of lawyer life because it gives you a sense of what is interesting enough to people to write about it. I think that’s the best inside glimpse. Your blog, for example, is one way to get a picture of what is going on in Minnesota litigation.

ML: If you weren’t practicing law, what do you think you’d be doing for work?

Emily McNee: That’s a hard question. I’ve wanted to be a lawyer since I was about 12, but I think if I wasn’t in law, I’d probably be in HR in some capacity. I spent most of my undergrad days working in admissions and in residence life and I really enjoyed the working with people, communication side of those types of roles. And I think HR is probably the next level of where one would’ve gone from those particular roles.

ML: What’s a recent memorable good day that you’ve had at work? What made it so?

Emily McNee: I recently won a motion for summary judgment on a case here in Minnesota, and it was a case where we weren’t sure if we … You’re never sure if you’re going to prevail. You can think you have good odds, but you can’t ever be certain of an outcome, right? And so, when we got the order finding in our client’s favor, it was a really good day and the client was thrilled and pleased with the results. It’s not just that we’ve gotten the result we thought was appropriate from the court, but also that the client was pleased with the work we did, so that was a really good day recently.

ML: What’s an example of a bad day? I suppose you could just say the converse, losing when you’d hoped to win?

Emily McNee: Losing when you’d hoped to win, I guess, would be one example. I think, for me as a young lawyer, I don’t know that there are really … I’d have to characterize it as one of the worst of the best days. Right? Because I love my job. But I would say something that’s really challenging is when you’re starting out in practice, and you’ve got one of those weeks where you think you’ve got your week planned, and then you get hit with —whether it’s a discovery dispute with the other side, or just unexpected issues that crop up and fill your day —dealing with that unpredictability.

ML: This might be a difficult question to answer but what insights, or thoughts, or “teachable moments” would you have for older lawyers? Maybe I should say for supervising lawyers, or for pre-computer lawyers? I don’t know how to put it, but are there particular things where you think, “Well, I think the kind of older lawyers would be wise to do blank,” or –

Emily McNee: Well, I’m always happy to be the stereotypical, computer-literate millennial when someone needs one of those.

Certainly, in the areas of legal research, I think that more recent grads, whether they’re younger lawyers or newer lawyers, have a lot to add in that area, in terms of how you go about finding cases or figuring out if something is still good law. But I think, often, newer lawyers can add a lot of perspective. They haven’t been practicing law for as long, so they might look at a case in a way that is more akin to how someone on a jury might view it, or an outsider. I think there’s a lot of value to having that perspective of someone who is not as wrapped up in what the law says or how something should play out under the current law, but maybe how someone else will look at it just for the set of facts in the case.

And then, I think recent lawyers have a lot of perspective and ideas about how they want their workplaces to look. I think that that’s something that recent, younger lawyers can bring to the table too.

ML: What do you mean by, “how they want their workplaces to look?”

Emily McNee: I think there are different values and ideas about how work gets done between folks who’ve been in practice for a while and “millennials,” for lack of a better term. And I don’t just mean in terms of work-life balance, although I think that that’s something that you see as much more of a trend in terms of what people are actively looking for in their legal careers. But how much technology is going to come into play with what you do, where you do your work, how you get it done, how you collaborate with others …

I think that millennial lawyers don’t necessarily fit all of the stereotypes of a millennial. So, you hear people say, “Well, millennials are going to want to have eight or nine jobs in their career, and they’re never going to want to stay at one place.” Well, I don’t fit into that stereotype at all. I’m happy where I’m at. I’m not looking for eight or nine more jobs down the road. And I also don’t fit into the stereotype of wanting the type of workplace where … I think I’ve heard it called “hoteling,” where you’ll just come in, and you’ll pick a place to sit down, and the place you sit the next day might be somewhere completely different. But I think that as technology increases in the way that we do our work, we’re going to have to think differently about how offices are organized, and how our workspaces are set up, those types of questions.

ML: You mentioned work-life balance, and there seems to be a cliché or an idea that older lawyers don’t respect work-life balance and younger lawyers, newer lawyers, insist on it. What are your thoughts about that? Is the cliché accurate?

Emily McNee: I don’t know that that’s completely accurate because I think everyone wants to have both a work-life and a personal life. Older lawyers are not saying, “I don’t care if I have a personal life,” but I think that they approach it differently perhaps, and maybe that’s where the cliché comes into play.

ML: How do they approach it differently?

Emily McNee: I think that more recent lawyers, younger lawyers … They’re more willing to accept that they’re on email constantly, right? I saw something on Facebook the other day that … A certain percentage of folks in whatever range you would consider to be millennials, the first thing they do when they wake up is check their email, and folks can’t get out of bed without having read their email first. It’s certainly the first thing I do when I wake up. But I think that that’s something I’ve grown up with, is having constant access to your email, and your phone, and all those sorts of things.

So work-life balance for someone who’s grown up with that kind of technology doesn’t necessarily mean being disconnected, but I think there’s also maybe more of a tendency to say, “Well, if I’m connected, I can be away from a physical workspace,” in a way that older lawyers aren’t necessarily used to. And so, that might cause someone to say, “Well, where are you on a Tuesday afternoon?” for example. And the millennial perspective would be, “Well, I was still fully-connected.”

Maybe it’s more a matter of communication about when you’re going to be in the office, or out of the office, or those types of things than it is about the actual work-life balance.

ML: Do you have any predictions for the course of legal practice in the next several years, either related to your specific practice area or generally?

Emily McNee: Generally, there seems to be an increased trend towards project management at least in the litigation world, which is the world that I’m in. Which is to say, having a process for how cases are handled, having efficiencies in that process so that you aren’t reinventing the wheel each time, being able to stick to a budget, and how to use technology to make all of those things work together. I think there’s going to be better technology, probably things we can’t predict, and I think there’s sort of a question of whether the trend of general practice firms is going to be something that continues.

ML: If somebody came to your door and said, “I got a new case, and I want your help on it,” and it is your dream case, describe it.

Emily McNee: In basic terms, defending against a single plaintiff lawsuit alleging some form of discrimination or retaliation. I particularly enjoy working on sex discrimination lawsuits and claims of what I’ll say leave or accommodation issues, so a disability claim under the Americans with Disabilities Act, or a claim under the Family and Medical Leave Act. I find those cases to be really interesting, and I like working on defense of single plaintiff cases best, because I like the story. You’re hearing about all of the issues in the case as they relate to one person, the plaintiff. And being on the defense side, I think folks lose sight of the fact … If they’re looking at employment law from the outsider’s perspective, they think of the defendant as just a company, but there are people on that side of the case too, and they have just as much of a story as the plaintiff has to present in terms of what happened. And just the human drama of the cases is so interesting. That’s what I like best.

ML: What percentage of your work is Minnesota versus outside of Minnesota?

Emily McNee: Because Littler has so many offices that you might think each office would have a fairly local practice, but depending on who the client’s contact is, and who they want handling their matters, you can have cases elsewhere. So, I would say maybe only 50 percent of my cases are here. I’ve also got cases in Chicago, Iowa, I do a fair number of cases there and that’s been really interesting and fun, I’ve got a case in Louisiana right now, and I’ve done some work in Wisconsin.

ML:  And do you have a sense of any difference between the practice in Minnesota, customs, or mores in Minnesota versus these other jurisdictions?

Emily McNee: I don’t know if it’s Minnesota-specific, or the fact that you deal with people more often and you get to know them, but I like to think that the folks in Minnesota are a little bit more civil, nicer to deal with than some of the other jurisdictions in which I’ve practiced. And just even some of the procedures … The fact that Minnesota’s more likely to have oral argument is something that I really appreciate. In Chicago, that’s not the case … There, summary judgments are decided without oral argument as a matter of course. But I think it’s maybe more dependent on fact of if you know the local customs, in terms of how people practice, and how they work through a discovery issue, or something like that. It’s maybe more the familiarity with having dealt with some of the same people over and over again in your jurisdiction that I think maybe lends to that.

ML: We always like to ask people if they were to take this opportunity to speak to the Minnesota Bench and Bar, would you have anything to say to them?

Emily McNee: That’s a weighty question. I think that it’s important for the litigators here in Minnesota to continue our reputation as a collegial community of lawyers. Minneapolis is both large and small in that you start to know the people you practice with, and I think that folks here deal really respectfully with each other, and I think that’s something that’s important to continue going forward in the legal community here. I think it makes a huge difference in terms of, for clients on both sides, how litigation proceeds through its course.

So, I think that’s really the most important going forward. That, and I think it’s important to have a tradition of mentoring both young lawyers, and then also, law students, because in a time when you’re seeing law school enrollment numbers down on a national basis, I think it’s important that folks who are considering law school or in law school have those connections to go forward.

[Previous Minnesota Litigator Profiles of Minnesota litigators: Anna Voss,  Civil Chief of the United States Attorney’s Office, Kenneth U. Udoibok, fighting for justice from Nigeria to Minnesota and beyond, Bill Tilton, 40 year St. Paul civil rights lawyer, Kristine Kubes, advisor and litigator for construction professionals, Rachhana Srey, plaintiff’s side wage-and-hour litigator, Eric Nilsson, banking/lending litigation, Roshan Rajkumar, products liability defense, Jerry Alcazar,  products liability defense, Liz Kramer, Arbitration Maven/Author of Arbitration NationTim Nolan, Lawyer/poet, Laurie Vasicheck, 25 year veteran of the Minneapolis office of the EEOC, Jake Holdreith, an IP litigator for “drug dealers” (better known as pharmaceutical companies), Pam VanderWiel, lawyer for Minnesota municipalities, Bill Dossett, Executive Director of Minnesota’s Nice Ride bike-sharing program, Christina Snow, lender/servicer real estate and foreclosure lawyer, Clayton Halunen, plaintiffs’ employment lawyer, consumer rights lawyer, Stephen L. Smith, straddling a civil and a criminal litigation practice (and later appointed to the Ramsey County District Court bench), Kevin Dunlevy, Minnesota real property authority, Vildan Teske, consumer rights class action litigation and service members class actions, Jim Behrenbrinker, civil rights/excessive force cases, Eric Cooperstein, “ethics maven“,  Mike Flom, Gray Plant’s General Counsel, Phil Gainsley, veteran solo civil litigator,  John Halpern, collections, Elliot Olsen, foodborne illness litigation, Dave Potter, railroad industry litigator, Katherine Mackinnon, ERISA plaintiff’s lawyer, Kristine Boylan, international IP/Complex Litigation lawyer,Karin Ciano, free-lance “federal sherpa,” Jerry Alcazar, products liability defense.]

[For Minnesota Litigator profiles of judges, see: Retired U.S. Magistrate Judge Jeffrey J. Keyes, Hennepin County Judge SusanRobinerRetired U.S. District Court Chief Judge James M. Rosenbaum (D. Minn.), Hennepin County Chief JudgePeter Cahill, Hennepin County Judge Thomas Fraser.]

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