Biglaw, Boutique Law Firms, Intellectual Property, Litigators, Patents, Small Law Firms

Beyond Biglaw: Battle Of The Titans

Watching other lawyers in action is fun. Much more fun than watching myself in action, as I have had the opportunity to do on a number of occasions. Such as during my trial training days, when the instructors decided that making us watch clips of ourselves try and conduct a direct examination was valuable. At least they got a kick out of it. But as edifying as watching video of yourself can be, you can learn a whole lot more by watching other lawyers. This lesson was ingrained in me as far back as my 1L “summer clerkship” in New Jersey state court. I remember the clerks gathering around on motion day to check out arguments in front of other judges, mostly to watch the lawyers in action. Ditto for trials.

Of course, once you enter practice — especially in Biglaw, where opportunities to even get out of the office are hard-earned — it becomes even more important to turn opportunities to watch other advocates into learning experiences. Because of the nature of the cases we were handling, many of which involved Biglaw firms of some repute on both sides, there were plenty of opportunities to watch great lawyers in action. Just as frequently, I was able to watch inexperienced lawyers from great firms struggle to get through routine litigation events. I am sure that many other lawyers were forced to endure my inexperienced attempts to handle those events along the way as well. Experienced lawyers just love sitting through a deposition where the questioner spends an hour getting through the educational background of the witness…

As with most things, the more experienced you are, the more you can learn from watching other lawyers. You begin to pick up nuances, such as how a trial lawyer positions himself so as to be the first thing the jury sees when they leave the jury room, for instance. And you develop less tolerance for lawyers who continually make errors when before a judge, such as continuing to ignore questions when the judge is almost pleading for direct responses. The best way to learn on a continuous basis is from mentors and colleagues, of course. But familiarity can have a blunting function, so the occasional viewing of top-notch (or abject for that matter) practitioners in action is valuable.

Together with my partners, we recently had the opportunity to watch some lawyers at the peak of our respective slice of the profession handle an important argument. In a real-life court case involving parties of significant size. In a case of importance for the respective litigants. It was an interesting experience. And I learned a lot. First off, what was immediately striking was the sheer change of the usual patent hearing dynamic in the courtroom for this particular argument. Hearings in patent cases are usually on the sleepy side, due to dry technical material, judges who often hate such dry technical material, and patent litigators who manage to convert dry technical material into hardtack. In this case, everyone was on their best behavior, from the interested and engaged judge to the large support teams at counsel table on down. And there was a palpable crackle in the room, the legal equivalent of a televised boxing match, minus the cameras and throwing of any actual punches. Exciting stuff, even if the subject matter would have best been enjoyed over non-alcoholic punch at a Cal Tech engineering club meeting.

The plaintiff’s lawyer is a true legend, with a history of obtaining large verdicts in patent cases. Watching him highlighted the importance of three things to me. First, the need to present arguments as simply as possible. When a highly complex technical and legal argument is presented in terms my ten-year-old son could follow, the effect even on a sophisticated audience is striking. Simplicity commands attention. Second, the importance of being direct, especially when asking a judge for something. In fact, the more important the audience, the more important it is to be absolutely clear about what you are asking for. It is the first step to persuading someone to actually give it to you. Third, his enthusiasm for the argument was contagious. Watching someone, who has already attained the zenith of fortune and recognition this profession offers, jump out of his chair in excitement to present his argument was inspiring. I love being in court myself, and hope that my enthusiasm for my clients’ causes is as apparent when I am.

Watching the defendant’s lawyer was just as instructive. Again, three highlights. First, his ability to combine obvious erudition with a specific command of the case record was impressive. There are many smart lawyers, and many lawyers smart enough to realize just how smart some other lawyers can be. This guy was in the “scary smart” category, even for patent litigators — who generally fancy themselves pretty brainy to begin with. While his innate intelligence may be unobtainable, his command of the record is not, and a testament to the importance of preparation. Second, I was reminded of the importance of a physical presence, even when standing at the podium to argue to the bench. His posture and delivery were impeccable, commanding even. Third, and unsurprisingly for a man in the “scary smart” and commanding categories, he projected confidence. And confidence is reassuring, even for federal judges confronted with difficult subject matter advocated forcefully by two litigation titans.

It is easy to say that the smart lawyer is one who learns something from everyone he encounters. Unfortunately, we don’t always have the attention span necessary, or are simply too wrapped up in our end of things to really maximize our opportunities to do so. But when we can really focus and try to learn, there is a lot to gain. Especially when you are fortunate enough to watch skilled advocates make the difficult look easy.

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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