Ed. note: Please welcome our new legal technology columnist, Jeff Bennion.
My name is Jeff Bennion, and I am a new columnist here. I’m going to write all about how we should and shouldn’t use technology in our law practices.
I am a solo practicing out of San Diego. On top of my lawyerly duties, I get asked by lawyers to advise on all matters technical – from e-discovery to trial technology to law practice management. Usually I get brought in after people have tried and failed at something. I worked in a 200-lawyer firm, a midsized firm, and a three-person firm before going solo. I’ve written for Cracked.com on such topics as whether it’s a good idea for Amazon to sell books about knife fighting for beginners, the problems with the jury system, and, of course, the Batcave. I teach college paralegal classes.
One of the most common questions I get asked is, “How do I make my PowerPoints awesome for openings/closings/whatever?” Now, I’m a big fan of using technology in trial. I had a whole article written about all of my trial gadgets that compared me to Tony Stark. I remember how boring those hour-and-a-half classes were in law school, so I wouldn’t want jurors to sit through six hours of watching lawyers talk to witnesses for four days a week for several weeks at a time without breaking it up with some graphics or something.
The courtroom battle between Alexandra Marchuk and the litigation boutique where she once worked, Faruqi & Faruqi, rages on. As longtime readers will recall, Marchuk alleges that F&F partner Juan Monteverde sexually harassed her, in severe fashion, and that the firm’s leaders ignored his alleged misdeeds.
But no matter who wins in court, it’s possible to argue that the firm is ending up the loser. It has endured extensive bad publicity, and some of the resulting instability has apparently led to lawyer departures.
Who are the latest attorneys to defect from Faruqi & Faruqi?
Is there any case so awful that it compares favorably to nearly 20 years of warfare?
No. No, there really isn’t.
So when Quinn Emanuel’s John Quinn was quoted calling the Apple v. Samsung brouhaha “Apple’s Vietnam,” it ruffled a few feathers from the sort of people who still remember the Vietnam War as more than an inconvenience.
I love the smell of IP litigation in the morning! Smells like, victory….
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….
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?
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.
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….
On Tuesday, the D.C. Circuit benchslapped a gaggle of lawyers for filing briefs with excessive acronyms. The court’s per curiam order directed the parties to “submit briefs that eliminate uncommon acronyms used in their previously filed final briefs.”
Alas, attempts to comply with this order have raised a new problem — a problem that some readers saw a mile away….
The patent world can at times seem very small. The same firms, representing the same group of technology companies, pursuing the same strategies, both to maximize profits for their firms and to deliver results for their clients. Sure people move around, but the players in the larger sense are pretty static. Most patent cases are of limited importance to everyone but the parties involved as well. Sometimes a case has a broader scope, and becomes of interest to industry competitors or even investors. Every once in a while a patent case captures the public fancy, as Apple v. Samsung undoubtedly has, usually because of the nature of the parties involved or the ubiquity of the technology at issue. When that happens, the patent world can seem very big — global in scope, even.
Sometimes a little case can actually turn into a huge deal. When the Supreme Court gets involved, for example. Especially when the issue in the case has far-reaching economic implications for society at large, and not just for the litigants involved. I have seen a number of “big” patent cases during my career, but none has the disruptive potential of a case that is set for oral argument next week in the Supreme Court. From humble beginnings as a declaratory judgment action filed in an unusual forum for patent cases (District of D.C.,) the dispute between Alice Corp. and CLS Bank has grown into one of the most closely-watched and debated patent cases — ever. And deservedly so, because the viability of software patents is on the line. With major ramifications possible: for technology companies of all sizes, IP firms and lawyers, the courts, and the good old global economy as well….
Ed. note: The Asia Chronicles column is authored by Kinney Recruiting. Kinney has made more placements of U.S. associates, counsels and partners in Asia than any other recruiting firm in each of the past seven years. You can reach them by email: firstname.lastname@example.org.
Please note that Evan Jowers and Robert Kinney are still in Hong Kong and will stay FOR THE REMAINDER OF THIS WEEK. We still have a handful of available slots for meetings with our Asia Chronicles fans. If we have not been in touch lately, reach out and let us know when we could meet! There is no need for an agenda at all. Most of our in-person meetings on these trips are with folks who understand that improving a legal practice through lateral hiring is an information-driven process that takes time to handle correctly.
Regarding trends in lateral US associate hiring in Hong Kong, we of course keep much of what we know off of this blog. Based on placement revenue, though, Kinney is having one of our most successful years ever in Asia. We are helping a number of our law firm clients with M&A, fund formation, cap markets, project finance, FCPA and disputes openings. These are very specific needs in many cases, so a conversation with us before jumping in may be helpful. As always, we like to be sure to get the maximum number of interviews per submission, using a well-informed, highly targeted, and selective approach, taking into account short, medium and long-term career aims.
Making a well informed decision during a job search is easier said than done – the information we provide comes from 10 years of being the market leader in US attorney placements at the top tier firms in Asia. There is no substitute for having known a hiring partner since he/she was an associate or for having helped a partner grow his or her practice from zip to zooming, and this is happily where we stand today – with years of background information on just about every relevant person in all the markets we serve, and most especially in Hong Kong/China/Greater Asia. So get in touch and get a download from us this week if we can fit it in, or soon in any case!
The legal industry is being disrupted at every level by technological advances. While legal tech entrepreneurs and innovators are racing to create a more efficient and productive future, there is widespread indifference on the part of attorneys toward these emerging technologies.
When the LexisNexis Cloud Technology Survey results were reported earlier this year, it showed that attorneys were starting to peer less skeptically into the future, and slowly but surely leaning more toward all the benefits the law cloud has to offer.
Because let’s face it, plenty of attorneys are perhaps a bit too comfortable with their “system” of practice management, which may or may not include neon highlighters, sticky notes, dog-eared file folders, and a word processing program that was last updated when the term “raise the roof” was still de rigueur.