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

Beyond Biglaw: Candid Camera

What can litigators learn from cameras in the courtroom?

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One of the things that was always interesting about Biglaw was just how much the skills of senior partners were celebrated, even in the absence of any verification. Or rigorous comparison to their peers, for that matter. Such exaltation of abilities was not limited to individual lawyers, of course, but extended also to practice groups and even other firms. In fact, a fair amount of Biglaw’s “prestige” is pollinated by secondhand anecdotal evidence, many times passed along by people who have either never seen their subjects in action or who are not qualified to distinguish between a great performance and a mediocre one.

Of course, I do not doubt that many, if not the vast majority of, Biglaw reputations are well-earned. For example, even though my knowledge of real estate law is severely limited, I would feel comfortable hiring some of my old colleagues at Greenberg Traurig in New York for real estate help, should I ever be in a position to acquire or dispose of some commercial real estate. I admit that I have no frame of reference, other than reputation and some personal relationships, supporting such a prospective choice. But it is not like I could “shadow” a closing and figure out which set of lawyers is doing a better job anyway. “Wow, those guys really put out a nice refreshment spread in the room with the closing binders” would be the level of my analysis. Probably not a good idea to choose counsel solely on that basis.

Are there other options out there?

This issue is on my mind, because as I discussed in my column two weeks ago, the Supreme Court held oral arguments in an important patent case earlier this week. I know that the subject of cameras in the Supreme Court’s hallowed halls is a question of some debate. What I know is that I would have liked to watch that argument. Without having to spend time and money trying to attend in person. Reading the transcript (which I did) after the argument is no substitute for watching the argument live. So it was annoying to not be able to watch. (Bringing the goings-on in Washington D.C. closer to the general population, especially since technology makes it so easy to do so, seems more important than ever.)

Thankfully, some enterprising “lower” courts have been participating in a program to bring Federal District Court proceedings to a broader audience. I am very used to attending proceedings, whether on behalf of a client or for other reasons, but it is both pleasurable and convenient to be able to watch hearings of interest from a computer, when and where I choose to. In fact, I heartily recommend that litigators of all types spend a few minutes watching a hearing or two. You will probably learn something.

As a patent litigator, I naturally gravitated towards watching patent-related hearings. And I learned a lot. First off, there was one hearing I saw where one of the “name” senior litigators in the patent world was performing. It was interesting to watch him in action, and I took note of both how comfortable he was at the medium and how obviously well-prepared he was for the argument. There are not many opportunities to see Biglaw in action, but here was a shining example of what a well-respected litigator, supported by a deep team and significant client resources, was capable of. One thought I had was how valuable being able to see the argument on video would be for the junior lawyers working on that case. In the past, when client money flowed more freely, it was usually a safe bet that most if not all of the litigation team would be attending an important hearing. Nowadays, we comment that clients are really “spending” if we see more than two lawyers at counsel table.

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Thinking more broadly than just the litigation team, having video of actual hearings presents interesting pedagogical opportunities for Biglaw and smaller litigation firms to consider. As many who have sat through Biglaw “department lunches” know, there is usually some poor associate who has been “volunteered” to report on a recent decision from an appellate court, and inform the rest of the group of the legal implications thereto. The value of these discourses usually depends on how alert everyone remains after gorging on the Tex-Mex buffet spread. What could be more useful, and frankly interesting, would be a reverse analysis of a recently-issued decision, incorporating a review of the decision, the briefs, and the video of the hearing. A program like that would be an eye-opener for many young litigators, who often have no frame of reference for what happens to their briefs after they are drafted, for example. Senior litigators can benefit from a reminder of what types of arguments resonate with judges, and what types of questions they can encounter during argument.

Finally, it is worthwhile to note that checking if your judge has participated in a program where courtroom proceedings are recorded is an important due diligence step. Particularly for patent litigators, or other attorneys who find themselves conducting the bulk of their courtroom appearances in remote courthouses, having access to video of hearings before judges you have cases before can be very valuable. Especially since clients are reluctant to organize due diligence-type trips to watch arguments when expensive travel is involved. While the video can be a valuable supplement, it would not be wise to use it in lieu of other more traditional due diligence techniques, such as reviewing opinions and soliciting feedback from local counsel. Ultimately, programs like the Cameras in Court program should be encouraged, and expanded to make courtroom proceedings more accessible. For litigators, it is important to recognize that the content is available, and that we should do our best to use it productively — while we hope that one day it will be us on camera.

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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