Last week, I addressed how technological advances and freer access to information can help ex-Biglaw partners like myself transition to a boutique practice without disruption — from the standpoint of being able to conduct a litigation practice in much the same way it was conducted while in Biglaw. As I said, it has become much easier to gain access to the litigation work product of Biglaw firms, for example, reducing Biglaw’s edge in knowledge management over a start-up firm like ours.
Of course, how best to exploit that work product requires training and skill, and to some extent a Biglaw-caliber background to begin with. In other words, the information may be more accessible, but it does not come with an instruction manual. At least when it comes to patent litigation, everyone needs to learn the trade the hard way.
But there is another important area where Biglaw’s edge is eroding….
I’m talking about marketing reach. I choose that term carefully, since there is no doubt that many Biglaw firms have skilled and robust marketing groups. Professionals. At both of my former Biglaw firms, we even had dedicated marketing staff to service the intellectual property practice.
Behind that professional marketing expertise lie three of Biglaw’s greatest assets: (1) a big pot of money for supporting marketing efforts, from glossy ads in the American Lawyer to sponsoring charity dinners thrown to honor big supporters of local causes (usually distinguished clients of the firm or rainmakers); (2) a cadre of rainmakers who are as adept at selling the firm’s services (to the small universe of clients who can afford them) as they are negotiating a deal or settlement; and (3) prestige. And it does not matter whether the last of the three was earned through sheer size, a legacy of success, or the fact that the firm was a trusted adviser to Andrew Johnson as he faced impeachment.
Biglaw firms are set up to serve large corporate clients and wealthy individuals, and that gives Biglaw a head start when marketing to them. In fact, in many situations non-Biglaw firms did not even have access to the in-house departments of major corporations. Even when I started as a first-year associate around the turn of the century, there was a presumption that the firm’s ties to a particular institutional client had been forged over millennia, and cemented by the transfer of Biglaw alumni to populate BigCo’s legal department. In short, firms and clients were glued together tightly. And unless a new client invited you to pitch, there was simply no way to try and get a foot in the door, absent a partnership with a Biglaw firm capable of generating such invitations.
But the professional world has gotten smaller, and it is easier than ever to reach out to in-house counsel when an opportunity presents itself. For example, nearly every firm that practices patent litigation, Biglaw or boutique, has a subscription to a service that notifies partners of newly-filed patent cases around the country. I know firsthand that Biglaw firms have set up marketing teams consisting of marketing staff and partners to go after defense work on those cases. In fact, nearly every in-house counsel charged with handling patent litigation that I have spoken to over the last three years has indicated that within a day of being sued, they receive “pitch packages” or other email “counseling invitations” from a host of firms. Twenty or more is not an unusual number to hear. Sometimes even their go-to firm is late on the trigger, and the company first hears about the lawsuit through some random email from a partner in a Biglaw IP practice in the jurisdiction that the case was filed in.
By necessity, our firm tries to get in front of in-house counsel in the hopes of securing defense engagements. Now that we are practicing at a small firm, thankfully with an active litigation docket, I have to be more judicious in terms of targeting cases that we think we can handle effectively and efficiently. It is imperative of course to reach out to existing or former clients of ours, but we also have to be enterprising and try to get in front of new potential clients as well. We know we can compete on price and quality, but it usually takes a bit more to get an in-house person unfamiliar with our firm to consider us. Our best chance at doing so is usually if we have prior experience with the asserted patent, or patentee’s litigation counsel, or some other compelling reason that can make our “cold” approach stand out from the barrage aimed at in-house counsel. While I have had success landing cases through these types of approaches in the past, it has not happened yet at our new firm. But it will, and what is important is that we have managed to get invitations to submit proposals for defense work from corporations of the same size and reach as when we were in Biglaw. Even at companies who we had no prior connection to.
How does technology make it possible, and why does our limited success to date suggest that Biglaw’s edge is being eroded when it comes to marketing reach? First off, information regarding newly-filed cases, and thus engagement opportunities, is being communicated in real time to firms of all sizes. In the past, the company being sued would usually be the one to break the news to potential counsel, and would direct the opportunity to pitch for the work to one or more Biglaw or legacy firms. Now everyone knows, at least in patent litigation, who got sued, for what, and where. With that information, it is a simple matter to identify relevant in-house counsel at the defendant, through LinkedIn and web searches, and quickly get to work crafting a targeted email approach. In short, technology allows ex-Biglaw lawyers like myself to become proactive in trying to cut into Biglaw’s market share. Without needing a big marketing budget or infrastructure. We are happy to try and make the most of the opportunity.
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. You can reach him at email@example.com or follow him on Twitter: @gkroub.