Biglaw, Boutique Law Firms, Litigators, Small Law Firms

Beyond Biglaw: Learning To Litigate

Can you learn how to become a great litigator while working in Biglaw, or are boutiques a better training ground?

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Ed. note: Please welcome our newest columnist, Gaston Kroub of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique here in New York. He’s writing about leaving a Biglaw partnership to start his own firm.

One of the criticisms leveled at Biglaw attorneys is that they do not have a lot of “real” experience — and as a result are somehow lesser lawyers. Biglaw litigators in particular are ripe targets for such remarks, even more so than their brethren in corporate, real estate, or tax. While it is often true that a Biglaw litigator will have much less trial experience or even “on their feet” courtroom experience than a criminal defense attorney, blunt attacks on a Biglaw litigator’s technical skills usually reflect more on the person making the criticism than the subject of that criticism.

For what litigation in Biglaw lacks in terms of volume, it more than makes up for in terms of scope and scale. The crucible that a series of high-stakes litigation matters subjects a Biglaw attorney to is just as capable of forming a highly-skilled litigator as a high-volume personal injury practice. Yes, there are good Biglaw litigators and bad ones, but that is a function of the lawyers themselves, rather than Biglaw’s ability to produce capable litigators. One can even argue that the Biglaw experience makes a better litigator, on average, than someone who learns their craft on a different track.

As someone who had previously spent his entire career as a Biglaw litigator, I am well aware of the perception within the legal community that Biglaw is not the place to develop litigation skills. At the same time, I have seen and learned from too many world-class advocates to truly believe that Biglaw can’t be a training ground for skilled litigators. Can people cycle through Biglaw without developing technical litigation skills? Sure. I have seen many an associate ride the carousel of burnout from document review project to research assignment and back. And I have also seen Biglaw partners treat a simple fact deposition as a Supreme Court argument, with commensurate levels of trepidation and halting performance. But I also know how much formal and informal training I and my colleagues got as associates. And how over time, with more cases under your belt (especially as lead counsel), you can develop a comfort level knowing that when the hour calls you can be prepared and deliver a solid performance, even on short notice.

All the training in the world is not a substitute for actual experience, as anyone who has played competitive sports can tell you. But actual experience in Biglaw can be difficult to obtain, especially if one is not planning to be in Biglaw for at least a decade. If you want to develop litigation skills in Biglaw, you must be prepared to seize opportunities that present themselves on two fronts: (1) through the firm’s formal training programs, which typically run the gamut from a lunchtime CLE for the litigation group to more intensive off-site trial training programs, and (2) by adopting a hyper-aggressive approach to getting practical experience, or at least getting to observe more senior litigators in action.

Shy litigators are disfavored, so do not hesitate, even at an early point in your Biglaw career, to let your ambitions be known. Of course, that advice is not license to pester partners for tag-along time, especially if you do not demonstrate the ability to be attentive and willing to learn beforehand. Most Biglaw partners (even the ornery ones) like to teach and are more than willing to talk about their pet litigation tricks and techniques. At the same time, no one likes to make an investment in someone who does not demonstrate that they are willing to make the investment in themselves first. So if you are one of those associates who likes to catch up on their Candy Crush progress during a CLE on deposition practice, do not be surprised if your invitation to tag along at the next deposition taken by the partner sitting next to you at lunch is never extended. In my experience, genuine interest in learning gets rewarded, especially if coupled with a touch of humility.

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What was most helpful to me in terms of developing litigation skills during my Biglaw career was the passage of time and the opportunities that unfolded as a result of my getting more senior with business of my own. Having the ability to watch and learn from great litigators helped, whether they were on my team or on the other side of the courtroom or deposition table. Also helpful was the formal training, which was extensive, and more importantly, delivered at appropriate stages of my development. Thankfully, as the years passed, the opportunities for more and more “real” experience started to present themselves. And while preparation can give you confidence, a necessary trait for any litigator, confidence borne out of preparation and experience is a more potent tonic. Mastery of litigation skills is a lifelong pursuit, so you need to be patient and always receptive to learning something new. At the same time, it is important to avoid the tendency to rely on “what worked last time,” as skills can quickly stagnate and shortcuts become the enemy of progress. Ultimately, one of the most exciting aspects of leaving Biglaw for a boutique is my expectation that I will have more opportunities to test my litigation skills and hopefully see them improve at a more rapid rate than if I had stayed a Biglaw partner. Considering how much I enjoy litigating, I am very much looking forward to seeing if that expectation turns out to be correct.

A final thought. For many reasons, it is a good idea for a litigator (whether in Biglaw or in a field that sees courtroom action infrequently, like patent litigation) to every so often get out of the office, and head over to a courthouse. Take some billable reading material, plop down on one of the benches and pay attention to the proceedings when they actually get started. There is so much to learn, especially if you have the opportunity to watch an argument or trial in your practice area. It is not as much fun as sitting at counsel table and arguing yourself, but the experience surely beats another afternoon at the office. For those in Biglaw who are concerned about getting in trouble, even in Biglaw no one pushes back too hard when you say you are “going to court,” and no one cares enough to try and figure out whether you actually need to be in court that day. Worst case, tell the truth and say you wanted to learn something. So take advantage, and invest in yourself. A client of yours will benefit down the road.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com. Any topic suggestions or thoughts are most welcome.

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique. The firm’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. He can be reached at gkroub@kskiplaw.com.

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