They’ve Got Next: The 40 Under 40 - Mark Kelley of MoloLamken

Mark Kelley

Age: 39

Law Firm: MoloLamken

Practice Area: Litigation

Title: Partner

Location: New York

Law School: Yale Law School

Please describe two of your most substantial, recent wins in practice.

In June 2022, I represented a class of plaintiffs in securities-fraud trial in the Southern District of New York. The plaintiffs—investors and shareholders in a company called Dakota Plains—alleged that the company’s co-founders had concealed their ownership and control of the company.

Despite being an associate at the time, I was given major responsibilities and a leadership role in the case, so the pressure was on. What’s more, securities class actions rarely go to trial, so we had to work our case from the ground up with few examples to guide our strategy. Our hard work paid off: After a seven-day trial, the jury returned a verdict in the plaintiffs’ favor.

Not every “win” comes with a jury verdict, however. Last year, I helped lead a team representing two insurance companies in a fast-moving, bet-the-company showdown against a major credit-ratings agency. The case was important because suits against ratings agencies are very difficult, and our clients’ business was on the line.

We obtained a standstill of the threatened rating downgrade and then won an important discovery dispute involving a novel issue relating to the First Amendment. That allowed us to take discovery—including depositions—and resolve the case without further costly litigation.

What is the most important lesson you learned as a first-year attorney and how does it inform your practice today?

I’ll never forget a conference I attended while clerking on the district court. Two lawyers appeared in court to address a discrete issue. The first lawyer immediately launched into a speech about his complaints about opposing counsel, the strengths of his case, and the weaknesses of his opponent’s case.

When the opposing lawyer stood up, he simply said: “Suffice it to say I disagree with nearly everything what was just said, but that’s not why we’re here,” and proceeded to address the narrow issue the conference was convened to address. The first lawyer looked foolish; the second lawyer earned instant credibility.

The lesson from that experience? Focus on what matters. That simple lesson applies to so many aspects of trial practice, from discovery priorities to oral argument technique, from brief drafting to settlement negotiations. Lawyers can waste a lot of time—and money—fighting unnecessary battles.

Is there a discovery dispute? First determine whether the relevant material is something you really need before committing resources to the fight. Have a court hearing? Think about the points you want to make and try to avoid getting sidelined by the points opposing counsel wants to make. Writing an important brief? Focus on your strongest arguments and avoid watering them down with weaker points.

How do you define success in your practice?

Success to me is doing the work of a litigator in a way that maintains a genuine commitment to excellence while also finding satisfaction in the effort. It is no secret that being a high-stakes litigator is a hard job. There are many examples of unhappy lawyers.

I learned long ago that I produce the best work when I am satisfied, and I am satisfied when I embody a happy-warrior spirit. To be sure, there are hard days (or weeks) (or months). But the satisfaction of a job well done is a long-term goal, not a daily pleasure. And accomplishing that goal requires remaining cheerful in the face of adversity, practicing empathy and kindness, and finding fulfillment in hard-earned victory.

It also means remembering that I am a more effective leader when I demonstrate a determined, winning attitude. If I can embody this approach in a manner that junior lawyers admire, then I will consider myself to be successful in my practice.

What are you most proud of as a lawyer?

If I had to choose one piece of advocacy I’m proudest of, it would be my first trial (which was back when I was still a mid-level associate). We had a gutsy strategy: We opted to prove that the defendant acted knowingly, rather than just recklessly, to ensure the maximum possible recovery for the plaintiff class.

I had a major role in the trial, not just responsibility for much of the day-to-day work, but also arguing motions in limine and cross-examining the ex-CEO of the bankrupt company. After seven days of trial, the jury returned a very favorable verdict for the class.

Aside from my work as an advocate, I am proud to practice law at a high level without sacrificing my personality. This is important to me. I realized early on that successful lawyers find a way to enjoy and express themselves through their work.

I’ve been very lucky to work with incredible mentors—like Judge Richard Sullivan, Judge Dennis Jacobs, and Steve Molo—who exemplify working at the highest levels while also having a bit of fun. I’m proud that I’ve found a way to do the same, and I’m proud whenever my example inspires another junior lawyer to have some fun, too.

Who is your greatest mentor in the law and what have they taught you?

The greatest legal training I have received was the year I spent clerking for Judge Richard Sullivan on S.D.N.Y. And the most important lesson Judge Sullivan taught me was how to do the work of a litigator with the highest possible commitment to excellence while still having fun.

Judge Sullivan embodies the kind of lawyer I want to be through his incredible intelligence, generous sense of humor, commitment to justice, and happy-warrior spirit. I also have the good fortune of counting Steve Molo, a founding partner at MoloLamken, as a mentor. Steve often reminds me that our job as litigators is not to be right, but to persuade. That means you need to consider each point—each sentence—to determine whether it advances your goal of persuading the reader or listener.

Another lesson from Steve is embedded in a short story. One very late evening, I was on the phone with Steve and another partner discussing a complicated issue. During a brief lull, Steve said, “isn’t this a great job, where we get to think about such interesting stuff late into the night?” A cynical lawyer might shrug this off as oblivious, but Steve was right—it is a privilege to do high-stakes, complex litigation on behalf of great clients. When it’s late and I’m tired or frustrated, I try to remember that.

Tell us your two favorite songs on your summer music playlist.

Lately I can’t stop listening to “Tell ‘Em” by Sleigh Bells. I love that it repeats the question “did you do your best today?” while punishing electric guitar and distorted drum machines wail. My wife, son, and I are also loving Haim’s album, “Women in Music Pt. III.” We love to dance to the song “The Steps” in our living room, which our two-year-old asks for by saying, “play the steps one!”

Mark Kelley of MoloLamken, his wife Jillian, and their son, Bright, at one of the many birthday parties they attended this summer in New York City.

Photo Illustration: Jonathan Hurtarte/Bloomberg Law; Photo courtesy of Mark Kelley