Patent law so hot right now

A time-sensitive matter comes in. An experienced hand is needed to help. Where to look for that help? In Biglaw, the answer is usually an easy one: call up Partner No. 37 in distinguished branch office No. 6, and keep the billable hours rolling — with a happy nod towards a successful “cross-sell,” and instant validation of the underlying “size is good” concept behind so many of today’s firms. But is Partner No. 37 really the best lawyer to help out? Hard to believe that the answer is “yes” more often than not. Because Biglaw firms are constructed the way they are, however, there is a premium on making sure that existing firm resources are utilized as much as possible.

At the same time, we know the legal industry is struggling to cope with demand fluctuations, or all too often a lack of demand for expensive legal services. In the current environment, it is not a surprise to see Biglaw firms contorting themselves to reach optimal size, whether through mergers, layoffs, or lateral growth. Despite their efforts, there are very few firms that are optimally size-calibrated in relation to the demand for their services. For those firms fortunate enough to experience the occasional demand spike, retaining the ability to be nimble on staffing can mean the difference between a satisfied client or one who looks elsewhere “next time there is a big need.” Firms want repeat business, and being able to incorporate experienced additional lawyers — within the budget for a particular matter — onto the legal team can make a real difference in whether or not that repeat business happens.

But where else can firms (of all sizes) go for experienced help on short notice?

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Raise your hand if you’ve been to Marshall, Texas. It’s on the eastern edge of the Lone Star State, not far south from Springdale, Arkansas, where Jim Bob and Michelle are raising 19 kids (and hopefully no more), and just west of Monroe, Louisiana, where the Robertsons play whack-a-duck every fall.

I see a few hands raised. Vacationing in Marshall, perhaps? No? Visiting family? No?

Then, I bet you’re patent litigators….

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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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Since Lat tweeted this past weekend about my UpCounsel profile, I thought I would share some thoughts about my experience with the service to date. First off, compared to leaving a Biglaw partnership to open a new firm, trying out a new legal platform was easy. I first heard about UpCounsel from a former in-house client who had struck out on his own. He happens to now be back in-house, but at the time we discussed UpCounsel, he was very enthusiastic about his experience using the site. Since I happen to like trying out new things, signing up once I left Biglaw was an easy decision.

Notice how I did not join UpCounsel while a Biglaw partner. Such things are simply not done. For all of Biglaw’s talk about encouraging partners to be “entrepreneurial” or to “try new marketing ideas,” there is a lot of resistance to using “new ways” to reach potential new clients. Couple that inertia with a general distaste towards marketing individual lawyers at the expense of “firm branding” (aside from a select group of key current rainmakers), and platforms like UpCounsel face a Tough Mudder-level set of obstacles to overcome if they want to break into the Biglaw firm marketing rotation. But I don’t think UpCounsel and their “evolution of legal services”-oriented kin want to….

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It’s great to be an in-house lawyer these days. The jobs enjoy greater prestige than they did in the past. Depending on which company you work for, the compensation can outstrip Biglaw, big time.

And let’s not forget: the work can be very, very interesting. For example, imagine being the general counsel or another in-house lawyer at Apple — a company involved in two of the most high-profile litigation battles currently raging….

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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….

double red triangle arrows Continue reading “Beyond Biglaw: Biglaw’s Eroding Edge (Part 1)”

Watching other lawyers in action is fun. Much more fun than watching myself in action, as I have had the opportunity to do on a number of occasions. Such as during my trial training days, when the instructors decided that making us watch clips of ourselves try and conduct a direct examination was valuable. At least they got a kick out of it. But as edifying as watching video of yourself can be, you can learn a whole lot more by watching other lawyers. This lesson was ingrained in me as far back as my 1L “summer clerkship” in New Jersey state court. I remember the clerks gathering around on motion day to check out arguments in front of other judges, mostly to watch the lawyers in action. Ditto for trials.

Of course, once you enter practice — especially in Biglaw, where opportunities to even get out of the office are hard-earned — it becomes even more important to turn opportunities to watch other advocates into learning experiences. Because of the nature of the cases we were handling, many of which involved Biglaw firms of some repute on both sides, there were plenty of opportunities to watch great lawyers in action. Just as frequently, I was able to watch inexperienced lawyers from great firms struggle to get through routine litigation events. I am sure that many other lawyers were forced to endure my inexperienced attempts to handle those events along the way as well. Experienced lawyers just love sitting through a deposition where the questioner spends an hour getting through the educational background of the witness…

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You learn a lot of lessons practicing in Biglaw. A big one is that you can never be prepared enough. There is always another opinion of your presiding judge to read, or a brief drafted by your opponent in an earlier case to review. Anyone who makes it more than a few years in Biglaw learns that lesson. But as much as preparation is valued, and pursued with fervor as an ideal onto itself, there is absolutely no way for even the most idealistic Biglaw recruit to fully appreciate what they are getting themselves into.

As many know, law school itself has little to teach about the realities of Biglaw, other than to idealize it as a fantasy land of big paychecks and “interesting work.” And everyone’s Biglaw experience is so unique that anecdotal tidbits are of limited utility. Does the professor, who so proudly includes on his resume a two year stint as a M&A associate at a white-shoe firm two decades ago, have much actionable advice to give a graduating 3L headed for a first-year post at even that same firm? Not really, except to perhaps suggest that the best type of relationship with that firm is one where it is your former employer….

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One of the questions I have been asked since leaving Biglaw is how I decided to join forces with my current partners. It is a good question, because over the years I have had the opportunity to work with many lawyers, both at my firm and at others. I have technically even had hundreds of “partners” between my two prior Biglaw firms. But other than my current partners, I can think of only a handful whom I would have considered opening a firm with.

My professional ambition was never to open a boutique. I very much enjoyed my time in Biglaw, and always thought that I would stay in Biglaw for the remainder of my career. Did that mean that I expected to remain at the same firm for my entire career? Of course not, no matter how appealing that idea sounded. The fraying of the Biglaw social contract as a result of the 2008 recession sealed that deal. But it was a big leap from knowing that my career could involve some moves within Biglaw to leaving Biglaw altogether.

Finding the right compatriots was a critical element of that decision. How did it come about?

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In our recent look at Texas law firms, the firm of Baker Botts placed sixth out of six surveyed firms. But there are some things cooking down there that could cause the dough to rise.

Perhaps taking advantage of the recent turmoil in the Texas offices of Weil Gotshal, Baker Botts just nabbed a lateral from WGM: Nicolas Barzoukas, an IP litigator in Houston. We don’t yet know whether other attorneys are making the same move, but it’s possible. Neither Baker Botts nor Weil responded to our requests for comment, but we do note that Barzoukas’s bio is gone from Weil’s website. (We’ve posted a cached version at the end of this story.)

So that’s the good news about Baker Botts. Now, on to the bad….

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