One of Biglaw’s calling cards is the ability to marshal resources quickly to handle nearly any kind of legal issue. Going to trial and need some immediate help with responding to a host of motions in limine filed by your adversary? Even in these days of reduced associate classes, at most firms it would be no problem roping in the necessary support. Need to put a team together on short notice to respond to a preliminary injunction motion? Not a problem. An email or two to the head of the group and a fellow partner or two, and you can have all the resources you need.
With some luck, you can even benefit from assistance in multiple time zones, always a plus when dealing with court deadlines in “foreign” jurisdictions, as is commonly the case in patent matters. Just ask any East Coast-based patent litigator whether they appreciate the extra hour for filing they get in their Eastern District of Texas matters. I know everyone is super-organized and never files at the last minute, but sometimes “unexpected delays” can result in a litigator making full use of the allotted response time for a filing or two.
While the Biglaw beast can be roused to quick action on occasion, it often prefers to move very deliberately towards a target. Patent cases are a good example. While there may be a flurry of activity surrounding an important hearing, or the close of discovery, or trial, there is also a lot of “preparing the case” time. Cases that take years just to get to trial are normal, and when you factor in appeals, it is not unusual for a Biglaw patent lawyer to go from associate, to counsel, to partner during the pendency of a single case. I speak from personal experience on that point….
Biglaw firms are not immune to the persuasive charms of incentives, of course. When Biglaw is incentivized to move quickly, it does. Client money (when presented in the form of a loosened trial budget, for example) has that effect. Most of the time, however, Biglaw wants to take its time. The contribution of the billable hour structure to that characteristic has been well-documented. Of course, many clients are paying their Biglaw firms as much for the process as for the result. A client that wants scorched-earth litigation understands that those tactics take time to execute, as does the “delay so we don’t have to pay right away” strategy that is frequently employed by well-capitalized defendants against plaintiffs.
Even while I was in Biglaw, my preference was for action, rather than delay. My ability to implement my desired approach was directly correlated to factors such as my seniority, relationship to the client, and budget. If the client was one I originated, and the budget supported it, I could take an aggressive approach. If it was someone else’s client, however, I was often more constricted in the actions I could take to “move things along.” At times it could be frustrating, especially if the motivation for delay was the originating partner’s financial benefit, rather than the client’s best interest. Thankfully, I was spared from having to engage in wasteful delay tactics on the majority of matters I was involved in. Some of my colleagues were not so lucky, and their ability to develop practical litigation skills often suffered as a result. (If law students only appreciated how much their “Biglaw experience” will be shaped by the partner or two who they end up doing most of their work for.)
One welcome characteristic of our new firm is our ability to get things done — quickly. Quite simply, we are not motivated or incentivized to delay at all. For example, even though our firm has only been around for four months, we have already settled two patent cases. One on the defense side, and one on the plaintiff side. Patent applications? Drafts are ready in days, and we have been getting final versions filed not long thereafter. All while we have been spending a lot of time on business development, whether in the form of vetting patent portfolios that inventors have asked us to evaluate for potential monetization or building our network in the financial community focused on patent-related investments, for example. The fact that we are all experienced and capable of operating independently is a contributing factor to our early success in avoiding unnecessary delays in dealing with client matters. Enthusiasm for our new venture is another.
Of course, there is a fine line between responsive and quick client service, and haste. If anything, it is our expectation that as we transition from “start-up mode” to a (hopefully) larger and more mature practice, our early pace will probably be difficult to sustain. That would be fine, as long as we avoid the trap of treating a full plate of work as an excuse to procrastinate. I doubt that will be the case, as we have been working a full schedule between client matters and business development since day one. Ultimately, as a group of service providers, the answer to how fast or slowly we move is not ours. It is whatever the clients want. When they want a hare they get one. If they want a tortoise? We will do our best to slow down. Either way, we will do our best to help them win their race.
Please feel free to send comments or questions to me at email@example.com. Any topic suggestions or thoughts are most welcome.
P.S. Together with Professor Dan Ravicher of PubPat.org fame, my partners and I will be presenting a “Symposium on Trading Patent Litigation Events” at the Benjamin A. Cardozo School of Law, today at 6 p.m. The event is free, and registration is available at http://www.markmanadvisors.com/symposium.html.
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 firstname.lastname@example.org.