Tom Wallerstein

This post is dedicated to William A. Rutter, who passed away last week. If you’re not a lawyer in California, you might not recognize the name. But at least in my world, Rutter is the guy who produced the invaluable and ubiquitous Rutter practice guides, covering a wide range of practice areas and procedures.

If you’re not from California, you might be more familiar with other Rutter creations, like the BAR/BRI prep course he founded, or his Gilbert Law Summaries for law students.

My firm, like most firms in California, has a series of Rutter guides on our shelves. And even though we run a virtually paperless office with Lexis, Westlaw, and other electronic research options, I still love my printed Rutter guides. We even have a joke about Rutter. Whenever a colleague questions their ability to handle a particular matter or solve a particular issue, we joke, “I’m sure there’s a Rutter Guide for that.”

The joke has a serious point, namely, that the basics of most practice areas can always be learned. And if it’s easy enough to learn a practice area, why shouldn’t a lawyer forming a solo practice or small firm become a true generalist, handling everything from family law, wills and trusts, civil, criminal, and essentially whatever walks in the door?

This “wombs to tombs” type of practice harkens back to the time when a small-town lawyer served his neighbors. It evokes wistful memories of a quieter life — a slower pace on some forgotten street, helping real people with real problems.

Being a generalist also is appealing if you’re opening a new firm because you never know how your practice will develop. When my firm started, for example, I thought I might focus on defending companies against harassment and discrimination claims. Although we had (and still have) some of those kinds of cases, we ended up working on a lot more trade secret disputes, mostly due to a simple twist of fate. So now we have developed an expertise in trade secret litigation that we never consciously set out to develop.

And especially when starting out, you might not have the financial luxury of being able to turn away a paying client, and you might need to take whatever you can get. Even though a generalist necessarily will charge less than a specialist, there also are more potential clients.

Of course, this cuts both ways. A specialist has fewer available clients, but with a higher rate, the specialist needs fewer clients to make the same amount of money.

I agree that lawyers starting a solo practice or small firm should consider specializing at least to some degree. Rutter guides notwithstanding, the modern practice of law has become so diverse and inherently compartmentalized that a single attorney simply cannot be truly competent in every practice area. On the other hand, even if developing an expertise sounds good, who’s to say that it even matters in the long run, provided a client is willing to pay for the work. Still, I have to believe that competence and expertise truly do matter.

Also, as a practical matter, you can’t learn it all and you can’t do it all, you can’t help but to have to choose what work you will do and what work you will decline. Whatever work you choose not to do you can refer, a critical way to establish relationships and help generate the business you want.

Sophisticated clients also demand specialists. As more clients become more sophisticated, through the internet and otherwise, the demand for specialists as opposed to generalists continues to grow. Specialists can market to their niche and usually will win a competition for services provided the client can afford the specialist.

For all these reasons, I think specialization is the preferred choice for someone who is considering opening their own small firm or solo practice.

But I have some important caveats. First, if you’re a Biglaw associate who might want to open your own firm someday, you should resist over-specialization. Some associates spend their entire careers working on a handful of mega-cases in the same area; say, securities or patent litigation. It might be tough for those attorneys to open their own firms if their skill and experience does not scale down to the lower-stakes cases they invariably will be handling on their own. While in Biglaw, greater exposure to different practice areas is more likely to translate into greater skill and experience with whatever becomes your specialty at your own shop.

My second caveat is that I strongly believe that an expert litigator can try any kind of case, even in an unfamiliar subject area. Conversely, an expert in any particular subject area will not necessarily be any good at trial, even if the case involves his specialty. I am grateful that, when I was a junior associate, the litigators at Hangley Aronchick Segal Pudlin & Schiller encouraged my exposure to a wide variety of practice areas. Quinn Emanuel has made its name with the same philosophy. It doesn’t matter whether the case involves patents, or trusts, or shopping malls, or oil rigs. If you’re going to trial, Quinn will probably beat you even if your lawyer is an expert in the particular subject matter.

So, which side of the fence am I on? I don’t handle transactions, trusts and estates, criminal matters, etc., so I’m certainly not a generalist in the traditional, small-town sense. Yet although I have some particular expertise in trade secret and similar litigation, I would like to think my trial skills have broader application. So am I a generalist or a specialist? The confusion really comes from the terms themselves. Being a trial lawyer — even of the generalist variety — is itself something of a specialty.

I’m glad I’ve got my practice guides lined up on my shelf; they do give me the comfort to know that I can quickly get the basics of any unfamiliar situation, even if ultimately I will call upon more expert help. But I also know that being great trial lawyer isn’t something you can learn in a book. Unfortunately, there’s no Rutter guide for that.

William A. Rutter, R.I.P.


Tom Wallerstein lives in San Francisco and is a partner with Colt Wallerstein LLP, a Silicon Valley litigation boutique. The firm’s practice focuses on high tech trade secret, employment, and general complex-commercial litigation. He can be reached at tomwallerstein@coltwallerstein.com.


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