Tom Wallerstein

For as far back as I can remember, the arrival of a new year has been an occasion for me to reflect on my life, where it has gone, and where it appears to be going. Many times I would spend New Year’s Eve simply being grateful; more recently, it has been an occasion to try to see a little furthur [sic].

This year, for the second consecutive year, our firm was approached by an Am Law 100 firm to explore the potential of our being acquired or otherwise merging. These overtures are flattering. They also intensify my annual ritual of considering my path and the choices I have made.

I have written before about some of the differences between Biglaw and small. My perception of those differences, however, has changed quite a bit in the nearly four years since I left Biglaw to help start a boutique firm. Our firm also has changed so much from one year to the next that my calculus of the pros and cons of Biglaw also has changed….

For example, I always emphasize that for Colt Wallerstein, the ability to handle smaller matters is very important. As I noted before, “[m]any big firms handle only matters in which the amount at stake is in the millions of dollars. This means that the prospect of an associate landing such a case is slim; a client would never entrust a multi-million dollar dispute to an un-tested associate.” Mark Herrmann recently made a similar point.

But as our firm has grown, the flip side to this dynamic has become more apparent. For example, our firm was asked to participate in a beauty contest to handle a matter in which the amount at stake was in the tens of millions of dollars. Ultimately, that client declined to hire us because, we were told, they worried we did not have a deep enough “bench.”

Simply put, we lacked the headcount, and the client was uncomfortable with our proposed solutions. That experience made me realize the importance of being able to scale up or down to meet the ebb and flow of business demands. It also highlighted an inherent limitation in being small. There are some cases you simply might not get unless you are part of a big firm.

As our firm has grown, so, too, has my perception of the advantages of a larger administrative and marketing staff. The busier we get, the more valuable our attorney time becomes, and the less cost-effective it becomes for attorneys to do anything that can be delegated.

Perhaps the biggest potential advantage of working in a big firm environment that was less important to me several years ago is the availability of cross-selling. Large transactional departments have traditionally generated litigation matters from their existing corporate clients. Depending on how compensation is calculated, there is potentially great appeal to a litigator being part of a firm with a large retinue of transactional clients who inevitably will have litigation needs. This ready-made source of referral work often has little or no appeal to associates.

Similarly, as my own book of business grows, more and more of our litigation clients ask us for referrals to transactional attorneys. It would be nice for those clients if I could refer them to the partner down the hall instead of to a partner in another firm. (On the other hand, we would lose our many referrals from transactional attorneys outside our firm who send us cases precisely because they know we will send transactional cases back to them.)

I have always enjoyed imagining radical changes, and the coming of the new year is a perfect excuse to do that. Receiving overtures to rejoin Biglaw feeds right into that natural inclination. But is it realistic? What exactly would it take for me to seriously consider rejoining Biglaw?

Of course, the likely and potential compensation would have to be right, and it would have to compensate for giving up the many intangible things I love about my job. The firm would need to allow me to maintain my relatively low billable rate and billing practices, as price competition with Biglaw is one of the primary ways I generate business. I’m not sure I would want to be put back into the position of trying to generate business if I had to double my billable rate and I were only allowed to sign new clients with disputes in the tens of millions of dollars.

Perhaps most importantly, I would look for a leadership or managerial role. Running and growing a firm has proven to be one of the most fulfilling parts of my current gig.

Anyone who has read a few of my last 51 columns on Above the Law knows that I’m happy as a clam with my firm. 2012 was the best year yet for Colt Wallerstein and it becomes increasingly hard to imagine doing anything else. Still, I never say never. I have always been one to listen to overtures. Perhaps 2013 will bring another opportunity that will give me reason to reconsider what I’m doing. For now, however, I think I’ll just toast my good fortune, express my gratitude to my family, friends, and colleagues, and continue to be happy that I made the move from Biglaw to boutique.


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 [email protected].


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