Intellectual Property

Toward A Post-Corona IP Culture (Part I)

Nothing is as culture-crushing as double standards, and this is a time of heightened concerns around maintaining a productive and positive culture at firms. 

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By now, most of us have started to adjust to the new IP litigation reality. Where courts are running, but mostly at a much slower pace than usual. And where clients are grappling with the double hit of short-term revenue crunches coupled with long-term uncertainty as to when the much-hoped-for recovery can even begin. Perhaps of more immediate concern for practicing IP lawyers are the challenges that firms of all sizes have been forced to confront, seemingly overnight. Anyone that reads these pages has seen the news of the belt tightening occurring around the industry, both in terms of partner and associate pay, as well as the unfortunate news of layoffs at firms up and down the legal food chain. We are in a period of great uncertainty, both within our firms and within the legal industry, as society continues to weather the coronavirus assault on our economy and the lives of so many who have been stricken with its health-ravaging and all-too-often deadly effects.

It may seem premature to start thinking about the post-crisis future while the storm is still raging all around us. At the same time, however, the current challenges bring with them a major opportunity for course correction within the IP litigation ecosystem, along with a chance to reckon with the major changes our slice of the industry has encountered over the past two decades.

Some illustrative examples of those changes are the: 1) contraction (and in many cases demise) of large, specialized IP boutiques, 2) changing nature of partnership within Biglaw firms and its effect on IP groups, top to bottom, 3) increased weaponization of attorney motions in patent cases, and 4) a general shift in the collegiality among litigators, fueled in part by the continuing debate over the patent troll narrative, among other IP-specific developments.

At the outset, of course, it is important to retain our humility whenever we start talking about finding a “better way” of doing things going forward. But that very same humility can’t paralyze us into failing to acknowledge where things have perhaps gone off course, or dissuade us from starting an industry-wide conversation about a better post-corona IP culture. A culture that can be established first within our own firms, then in our dealings with clients and adversaries, and finally in connection with our interactions with the broader citizenry. No time like the present to start, after all.

First, within our firms. Some firms, like ours, have had long practice with keeping open lines of communication between partners on administrative and client matters using technological tools like video- and text-based chat. In fact, I wrote about the use of chat on these pages back in 2015, noting “that sophisticated lawyers need to understand how best to utilize this powerful way to communicate,” while keeping in mind that “the point of using chat is to enhance, rather than hamper, productivity.” What was true in 2015 is even more true today, when many of us have no choice but to use chat or video tools like Google Meet and Zoom, to communicate with each other and with clients. In very short order, it seems obvious that IP lawyers at firms of all sizes have been thrust into almost exclusive use of a new means of communication. Which brings with it the opportunity to make thought-out cultural improvements starting with the present.

Let’s take for example the oft-marketed but sometimes inconsistently followed rule at most firms of “no jerks.” On the one hand, tolerance for abusive or even impolite behavior toward anyone in our firms should be going down, not up, among IP (and all) lawyers during these demanding times. And there is no doubt that separating jerks from their physical seats of power in the office should help reduce incidents of culturally damaging behavior. At the same time, the dynamics engendered by increased use of video- and text-based chat also presents opportunity for perhaps less-obvious examples of abusive or intimidating behavior, which firm management must be aware of while working with human resources personnel to ensure that clear intra-firm rules for remote communication are established and followed.

Imagine for a moment a partner that has developed an image around the office for being a taskmaster. We can only imagine that there will be even less tolerance than usual for any line-crossing behavior by anyone within the firm, no matter their importance. Nothing is as culture-crushing as double standards, and this is a time of heightened concerns around maintaining a productive and positive culture at firms.

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Now we all know that there is a balance at many firms between demanding excellence in performance of professional duties at all times versus respecting the humanity of lawyers and staff, particularly with respect to their personal lives. There is a tendency at times of stress — which the current situation has engendered on many fronts — to swing the pendulum in the direction of demanding “shared sacrifice” from personnel, in the name of coming together on behalf of the greater good of the firm. A noble sentiment, but one that must be balanced with the recognition that the disruption caused by this pandemic has extended to the family lives of many. Which may mean understanding that at certain times some lawyers will not want to have their video on during a work interaction, such as when they have not had a chance to dress or groom appropriately, or when it is a high-traffic time with kids moving through the background of their workspace. These types of concerns require firm leaders to consider how best to straddle the line between rallying the troops around the need to remain as productive as ever, while also demonstrating empathy toward the disparate home office situations that lawyers and staff find themselves in.

Ultimately, it is obvious that how resilient a firm’s culture is — and how best that culture adapts to our new reality — will go a long way toward determining how strong it is when this crisis inevitably passes us all by. IP lawyers have long been lauded for their technological savvy, and we are now in a period of rapid adoption of technological tools necessary to keep our practices going. Understanding that each of our professional “homes” are different and may require adoption of different approaches to dealing with COVID-19 is the first step. The next step is to recognize that this is a unique opportunity to strengthen the culture of our firms, either by fixing cultural issues or by buttressing the already-strong modes of communication we enjoy. The foundation, however, is the same. An affirming culture, based on respectful and empathetic intra-firm communication, will provide the basis for positive engagement with clients and adversaries, as well as the broader public. We will discuss the latter two categories in next week’s column.

Please feel free to send comments or questions to me at [email protected] or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at [email protected] or follow him on Twitter: @gkroub.

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