Kroub Silbersher & Kolmykov PLLC

Our law firm does not have a Twitter account. But our consulting and patent monetization firm, Markman Advisors, does (@MarkmanAdvisors) — an active one, where we post about patent litigation-related events that are of interest to our followers. Twitter has become our number-one way of interacting with the investment community that is the target for our consulting and patent monetization services.

Yet our law firm still does not have a Twitter account — and I am not convinced it should. As a practicing litigator, I am reluctant to give out my opinions on legal issues through such a broad-reaching medium. Lawyers on Twitter either need to have a lot of guts, or follow the typical boring Biglaw marketing model. I am not interested too much in either approach.

Our engagement with Twitter is relatively recent, dating to the launch of our law firm and consulting practice. Prior to Twitter, our focus was on demonstrating our patent litigation bona fides via investor-focused articles on websites like Seeking Alpha and Harvest. The goal of that work was to demonstrate that Markman Advisors offered investors, inventors, and companies interested in patent situations a unique analytical approach, informed by our collective experience litigating big-ticket patent cases while at Biglaw firms. We were fortunate to build a following on those platforms, which led to meetings with the type of clients we were interested in representing. In the course of those discussions, we found out that for the investment community — traders, hedge funds, whomever — Twitter is a necessary and powerful communications tool.

Being lawyers, our first reaction was skepticism….

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If you need it, build it. We needed help. And we saw an opportunity. So we took action, and now have another business as a result. I’ll explain. The need was simple. Because of our work with investors interested in understanding how patent litigation events impact on their investments, we found ourselves needing to monitor many active patent cases, in addition to the cases we were litigating ourselves. At one point, we considered hiring an intern to help with this specific task, at least during the trading day. But we quickly realized that solving this problem required a software-based solution. So we set out to build one. We looked for something available that would do the job, and failed to find anything useful.

Thanks in no small measure to the talent of our programmer, what we built worked. We were able to get automated alerts of new docket entries and opinions directly to our email. And we could do so for multiple cases, alleviating the concern that we would miss an important opinion. Because our clients tend to have sizable investments, there is a premium placed on our ability to let them know of litigation events quickly and to interpret those events for them, so that they could protect their positions or initiate new ones, based on the recently released publicly available information. As a fail-safe, we began having the alerts sent directly to subscribers of our consulting services. And now we have decided to offer it publicly (www.litigationalpha.com) to fellow lawyers, retail investors, and whoever else can benefit from automated alerts generated based off District Courts docket entries and opinions….

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Germany has won the World Cup. The final game was a low-scoring 1-0, but nonetheless a thrilling hair-puller of missed opportunities on both sides. The single goal, in minute 113, was an elegant, technically perfect two-touch volley — all the more impressive because it was delivered by a 22-year-old substitute who did not join the game until the second half.

The game was also a contrast of different playing styles. Argentina built its offence around a star striker, Lionel Messi, who was expected to execute a well-timed stroke of veritable futbol magic that would hopefully usher his country to its third World Cup victory. Backing him was a deep-sitting defense that repeatedly stifled German goal-scoring attempts, but was nevertheless not expected to score absent some Messi magic. By contrast, Germany lacked a superstar of the world-renown of Messi. Instead, its playing style prioritized short, deft, technical passing among the team as a whole. The victorious Germans carefully worked the ball through various mid-field channels until, eventually, it reached the back of the opponent’s net.

I am not an avid soccer fan, but like many Americans, I tune into the World Cup every four years. Who was I rooting for?

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For Biglaw attorneys, it can take a while to realize the importance of face-to-face interaction in the business world. Especially for those young attorneys who start working at Biglaw firms immediately after graduating law school, and who attended law school immediately after college. In my case, I had a year of real “work experience” before starting law school, but in a very junior position.

So I was not involved, as I suspect most young people outside of tech startups are, in important business interactions. It is debatable whether someone’s experience seeking funding for an app that locates and arranges delivery of fresh donuts on a 24-hour basis counts as “real” business experience of value to lawyers. Nevertheless, many Biglaw attorneys land in their partner-discarded Aeron chair knock-off by jumping directly off the college-law school cliff of debt. And as a result have never attended an important business meeting before joining Biglaw. Ever….

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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….

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The experience of leaving a Biglaw partnership to start a boutique law firm did not allow me to stop thinking about Biglaw. If anything, I think about Biglaw now more than ever. Because the very nesting grounds that I flew away from, IP litigation departments at national and international law firms, are some of my upstart boutique’s biggest competition for new business. And considering our experience with the first five or so cases that our firm has brought, our adversaries as well. Of course, I continue to work with Biglaw firms as co-counsel on some cases as well.

So I think about Biglaw. How it works, and most often how it fights patent cases. For over a decade I was a Biglaw-branded pugilist, and now that I am on the other side of the ring, I am forced to respect but try and beat the Mike Tyson’s Punchout-worthy cast of characters that Biglaw rolls out on behalf of its clients. There are not many Glass Joe’s in the bunch. Which makes it fun.

I would not have left unless I thought that my partners and I would be competitive — both with Biglaw and with the many quality IP boutiques that have come before us and continue to thrive. But as I think back on how IP litigation practice has changed just in the short amount of time that I have been practicing, I take comfort in the fact that the playing field between Biglaw and boutiques has been leveled across a number of fronts. Two areas in particular deserve focus….

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This is not a column about getting bloated Biglaw partners into running shape, as much as many of them need the exercise. Instead, let’s focus on another 10K milestone, one that Biglaw associates chase after, spurred on by a number of incentives, ranging from a simple desire to keep their hard-earned jobs to the burning ambition necessary to even aim for partnership: reaching 10,000 billable hours.

In the popular conception, 10,000 hours of practice at any skill is a critical hurdle to achieving mastery. It does not work that way for lawyers, especially those that start out in Biglaw.

As anyone who has started their career in Biglaw knows, the early years are more about survival than anything else. The most critical skill is adaptability, both in terms of being able to handle the lifestyle stresses presented by the Biglaw junior associate experience, and recognizing just how little law school has prepared one for Biglaw legal practice. In fact, I would say that for purposes of tracking personal progress towards the 10K mark, the first year of Biglaw practice (and maybe two or three depending on whether one is in a firm that “rotates” their juniors to expose them to different practices areas) should be thrown out. Consider that time as the foundation that allows for future productive lawyering if it makes you feel better. And first-years would do well to disabuse themselves of the notion that they will be “contributing” or doing “quality” work. Obviously they need to do their best, and perform up to Biglaw standards, but the hard truth is that the first-year in Biglaw is there to force high-flying and well-credentialed aspiring lawyers to humbly confront two uncomfortable questions. First, do you even want to be doing this? And second, even if you want to, are you good enough?

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Passover is a time for family. Judaism has holidays galore, but Passover stands unique in its family-centric nature. The highlight of the holiday, the seder (literally “order,” due to the specific program of the evening), is by its very nature a family meal writ large. And on Passover, the definition of family is an expansive one for Jews, with the unfortunate or downtrodden as welcome and entitled to sit at the seder table as one’s immediate relatives. The seder itself commemorates the biblical paschal offering, which was by design intended to be consumed in a communal setting, amongst family.

Just last week, I was speaking to a client about Passover, and despite our differences in both age and observance level, we easily agreed that some of our strongest personal memories are anchored in our childhood seder experiences. In my case, the fact that my childhood seders were fortunate enough to have included my grandparents was a special blessing. Especially since they themselves (together with my parents, who were young children at the time) were forced to flee Egypt as refugees, leaving family and possessions behind. Thankfully, they all ended up (my Dad by way of France, hence my name) in this wonderful free country, where opportunity is open to all who are willing to invest in creating it for themselves. For me, the most fulfilling part of making partner in 2009 was being able to share that recognition with my grandfather, who was in the final stages of a heroic decade-long battle with cancer at the time. His courage in leaving the place of his birth, locked in the bathroom of a passenger ship to Italy to avoid detection, paved the way for our family’s rebirth on these shores. Many have similar stories, and those stories make holidays more meaningful, no matter what holiday is being celebrated.

While I was in Biglaw, holidays presented some of the few opportunities I had for uninterrupted family time. I was always grateful to have worked with people who respected my religious observances, and tried my best to minimize the disruption caused by my unavailability….

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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?

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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….

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