Tom Wallerstein

I’m pleased to announce that the reports of my death have been greatly exaggerated. To the contrary, I survived my surprise three-week trial. It wasn’t a total surprise, of course. I had been expecting a trial, just not one that lasted more than a week.

Not that I’m complaining. Frankly, trying cases is a whole lot of fun. I’ve written before about my passion for trials and the competitive aspect of litigation generally.

That internal motivation is crucial for me. Trials usually require demanding hours, and that is the least of it. Beyond the mere number of hours spent working, I often find trying a case to be exhausting. Not just physically, but mentally and emotionally as well. Whenever you’re not on center stage, say, conducting a witness examination, you are paying rapt attention, thinking and calculating and strategizing. Sustaining that over time, day after day, can be difficult. You have to give your all, and then some. And when even more is asked of you, fate will decide the rest…

That personal investment of time, energy and intellect translates into an emotional connection with the case. If you’re a trial lawyer, you know what I mean. If you’re not, just think of the strong emotional reaction people display to public figures on trial like Jodi Arias, Casey Anthony and O.J. Simpson. People who very closely followed those cases made an investment of their time and energy, and those are the very people most likely to have a strong emotional reaction.

In my recent trial, it helped to have a great client. I find it much easier to work on behalf of someone I genuinely like and respect. Also, my client followed our instructions closely and showed a willingness to work hard for his own success. I appreciate that. I’ve had other clients who continually sabotaged their own cases because they refused to follow my direction.

I also had a great team that worked tirelessly for the right result. Properly handling a trial of any significance requires a team approach and I am honored that mine is second to none. I am extremely grateful that they, too, made an impressive investment of time, energy and intellect, with excellent results.

My latest trial highlighted one of the most important pros and cons between Biglaw and small. Namely, the amount at stake might not have warranted the rates of many big firms, at least not through trial. I’m glad that my firm was able to make taking the case to trial an economically viable option for the client. It’s gratifying to help smaller companies have their day in court, just like Apple or Samsung.

Trials of smaller matters also allow more junior attorneys to get opportunities they likely would not in Biglaw. Conversely, there were many dozens of lawyers who worked on the Apple v. Samsung case, for example, who never saw the inside of the courtroom.

On the other hand, trying a case now always reminds me of some of the things I miss about Biglaw. As good as my trial team was, I missed having the senior paralegals, the IT support, the in-house graphics capacity, word processing and a sophisticated office services.

With trials, like other aspects of litigation, the pros and cons of Biglaw versus small are closely related. The greater ability of more cost-effective firms to take matters to trial is a direct result of their lower overhead and, accordingly, their lower rates. This lower overhead necessarily means fewer of the litigation bells and whistles which can be helpful when a trying a case. Conversely, those things I said I missed about trying cases in Biglaw – the senior paralegals, the IT support, the in-house graphics capacity, word processing and a sophisticated office services — are the types of things that make Biglaw cost-prohibitive for many clients considering whether to litigate a case through trial.

Many lawyers who leave Biglaw for boutiques or small firms look forward to the greater hands-on experience they will get. But then they try to litigate cases in the only way they know, which their new clients cannot necessarily afford. For example, your small-firm client might not be able to pay for daily transcripts, sophisticated document and trial management software, or animated video presentations. Trying a case outside of the context of Biglaw means learning a whole new set of skills you didn’t appreciate or recognize when you were in Biglaw, and in turn becoming an altogether more well-rounded attorney.

Law students and junior attorneys might overestimate the appeal of working on headline-grabbing cases when compared with doing more substantive work on smaller matters with fewer dollars at stake. Many Biglaw associates believe, because they want to believe, that working in a small firm means the cases they work on will be less interesting or less challenging or less… something. My experience is to the contrary.

My recent trial reminded me that, whatever the differences between Biglaw and small, certain things remain the same. Ultimately, the skills necessary to successfully try a $20 million case are the same skills required to try a $1 million case. Even if you are using a whiteboard or flipchart instead of an animated video, the essential components (witness examinations, opening statements, closing arguments, etc.) stay the same. Trying and winning the $1 million case is just as professionally satisfying as is trying and winning the $20 million case.

Ultimately, taking a case to trial and putting it into the hands of a jury (or judge) is an honor. I’m fortunate to have taken cases to trial in both Biglaw and boutique, and I can appreciate both the differences and similarities. No matter how stressful, no matter how much the requisite investment of time, energy and intellect, for me, taking a case to trial is fundamentally rewarding. Whatever my professional future holds, I hope it involves arguing in court on behalf of a client and doing my best to win.


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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