Wishing David Lat A Speedy Recovery From COVID-19

This is one of the more awkward columns I’ve ever had to write. Above the Law is known for being irreverent and snarky, so a heartfelt post about a personal friend feels a little strange. But also strange is not acknowledging that a prominent figure in the legal world is currently hospitalized with the coronavirus. That’s right: David Lat, who founded Above the Law in 2006, has been diagnosed with the coronavirus.

Lat’s been very forthcoming in his personal interactions with the pandemic, posting about his diagnosis on social media.

As close watchers of ATL know, Lat stepped away from the day-to-day operations of the blog in 2019 and transitioned to a role as a legal recruiter at Lateral Link. However, he couldn’t really stay away and he writes a biweekly column for us. And we first got the inkling something was amiss yesterday when his biweekly column wasn’t ready. That’s when he shared he was waiting on the results of COVID-19 testing, which was eventually confirmed as positive.

Throughout his medical saga, Lat has lamented about how difficult it was to actually get the COVID-19 test. Without knowledge of direct exposure or international travel to hot zones, he had to jump through a series of hoops — a process he described on Facebook as “Kafkaesque.” We hope that, armed with an accurate diagnosis, he (and his husband, who also has the illness) can quickly make a full recovery.

And let’s hope he finds it less painful than his time at Wachtell. (Sorry, I had to do it.)


headshotKathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

This President And His Congressional Enablers Doomed The Economy Well Before COVID-19

As of this writing, if we are to go back all the way to 1928, two out of the six worst days for the stock market have occurred in the past week. The epic fall is quite obviously attributable to the impact of the worldwide COVID-19 pandemic. However, even before the pandemic, our economy was already in rather obvious trouble. In order to understand why, however, we have to get into some necessary background into the extraordinarily complicated issue of our national debt.

Perhaps unsurprisingly to everyone reading this, the views regarding the impact of our national debt on the economy vary substantially. For some, the fact that our debt has increased greatly during the 21st century while inflation has continually dropped is proof positive that deficits don’t really matter, just government spending does. On the other side of the spectrum are the deficits hawks we all probably know who rant (always when it’s not their politician/side that’s in power), about how the debt will ruin us all and that a constitutional amendment requiring a balanced budget is necessary to prevent collapse. For what it is worth, I subscribe to the argument that the truth is rather absurdly complicated.

First of all, the deficit is a highly misleading economic measure given that it is calculated on the basis of cash flow, rather than economic accrual. Utilizing a cash flow measure creates, as Daniel Shaviro describes, “systematic, not just random, mismeasurement.” However misleading, taxpayers bear an undeniable economic burden of paying interest on the debt. If that burden becomes too high and tax revenues are no longer able to pay for government spending, absent dramatic fiscal policy changes, younger generations and future generations end up bearing a great burden for the reckless spending by older or previous generations. Which brings me to this presidency.

During this president’s three years in office, he has signed off on budgets that have added nearly 5 trillion to the debt. It might be a counterintuitive thing to say, but this increase in spending and debt could not have come at a worse time such as when the economy was doing well. As Eric Bohem illustrates in Reason, in the past, during periods of continual economic growth government deficits have traditionally fallen. The deficit decrease during periods of prosperity has allowed succeeding generations to better respond to an inevitable crisis. In our current reality however, the decrease we saw during the previous president’s second term has been replaced by the current president’s massive spending. Now, as we face the COVID-19 fallout, instead of approaching it on better fiscal footing, we start off already in a deep hole that is only expected grow enormously during this crisis.

This reality means not only will my generation and future generations have the burden of paying for the reckless spending of this administration, but we will have to couple that burden with paying for a crisis that as early as last week this president was claiming was a media/Democrat conspiracy. Moreover, the fact that such reckless spending levels during the past three years occurred during a period when revenue was at record levels — in part due to historic unilateral tax increases the president imposed on the consumer middle class exclusively — only adds insult to my generation’s injury.

Of course, the long-term forecast has always been one of doom and gloom. But stating that fact only furthers the argument that we should have been preparing for an inevitably turbulent future by controlling reckless spending whenever we can. And that it was destructive not to do so. Unfortunately, I don’t think we can expect any long-term planning as long as this president is in office.


Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

Looking For A Better Way To Collaborate? Put Your HighQ To The Test

As the practice of law continues to go increasingly digital, lawyers and their clients are constantly on the lookout for a better way to communicate and collaborate on everything from simple information sharing to complex projects and transactions.

HighQ is that better way. A recent addition to the Thomson Reuters family, HighQ offers law firms and businesses a powerful way to streamline their collaboration and improve the delivery of legal services. With the HighQ platform, both sides of an engagement are empowered to be more effective, efficient, innovative, and proactive. In a sea of technology options, HighQ is the platform you need when you want to work smarter in today’s demanding and competitive legal market.

The Power of HighQ

The folks behind HighQ started out with a mission that sounds simple enough: to transform the way law firms and corporate legal departments work and engage with their clients and colleagues. While the effort that went into creating HighQ might have been anything but simple, its developers succeeded in creating a sophisticated, user-friendly way to make collaboration and engagement a breeze, complete with efficient automation of legal processes and better management of complex projects and transactions.

HighQ works by offering a platform of many different capabilities that users can combine to solve their most pressing business problems. It offers seven core capabilities: document management, content management, task management, social collaboration, file sharing and syncing, smart forms and sheets, and a dashboard builder. Five additional capabilities – data visualization, document automation, enterprise knowledge management, AI, and workflow automation – can be added separately. All of these capabilities are built upon a foundation of security and compliance, auditing and reporting, and APIs and integrations, which extend throughout every aspect the HighQ platform.

You can think of each of these capabilities as the building blocks you use to customize your HighQ experience. Just pick and choose the functionalities you need to solve a specific problem or to handle a given project, then combine them in a template solution and hit deploy. All those capabilities are now packaged together for a given matter, and the template can be saved and redeployed for similar engagements in the future. The various building blocks can be combined and recombined in any number of ways to solve whatever problems might arise.

So, what can you do with HighQ? The answer is basically anything, but there are five overarching ways that law firms are using HighQ to engage with clients and improve business:

  • Promoting the firm and attracting new clients
  • Engaging current clients by adding value and insight
  • Securely sharing content and communicating with external clients
  • Delivering legal services and work product
  • Working and collaborating internally on projects

HighQ also conveniently integrates with best-in-class solutions in a variety of areas, including document automation, AI, and document management, among others. With HighQ, you have the most advanced ecosystem of connectivity solutions available, meaning that it will quickly become your home base for all your legal work.

How it Works

When you first log in to your HighQ platform, you see a main dashboard for a particular engagement, which can be specifically branded with the name of that client.

On the left is a list of projects (called sites), which serves as a sort of virtual filing cabinet for the engagement. In the center is a feed of your recent activity. If this reminds you of a social media interface, you’re not wrong – the feed offers social collaboration capabilities, such as likes and comments. On the right are your files and tasks, so you can easily find the things you’re working and any tasks that have been assigned to you (whether by you or created by someone else).

When you click into a file, you see it in an online viewer where you can add annotations, make redactions, and view metadata. You can also internally share files or send them to external users. HighQ places a high priority on security, so you can always set permissions and limitations on who can access files, and how.

The tasks area offers a range of legal project management capabilities.

From here you can add tasks, review the details of current tasks, access documents related to a given task, change task priority simply by clicking and dragging, and much more.

Back on the main dashboard screen, when you access a particular matter (site), you get a new dashboard that you can customize with modules. This allows you to build and tailor a screen that shows you a range of data visualizations to better understand your project at glance.

You can also click into any given visualization to see an iSheet, which is essentially a combination database/spreadsheet that compiles all the information you need to track a matter.

There’s also a separate firmwide data dashboard that incorporates the social collaboration features of all users’ individual dashboard on a given matter and allows users to add items or visualizations for the whole firm to see.

Users with admin rights can access the project’s workflow engines and create rules for how the platform functions across a project, using if/then logic. There’s no coding or technical skill required – any user can easily manage how the platform functions, from how tasks trigger other actions to how iSheet edits cause documents to be created.

While you’re seeing all that, your clients see a different, more simplified dashboard, branded with your firm’s name.

Your clients have easy access to whatever content you want to share – essentially a one-stop-shop for your thought leadership and insights, where you can demonstrate your expertise. You can think of this as a way to commoditize the knowledge that previously just sat hidden in your files or in your head and make it available to your clients 24/7 in a useful environment that’s linked to what they’re working on.

Your clients can also communicate with you, feed you matter information and data, and submit legal service requests, as well as access work product and visualizations of the work being done on a project.

Simply put, there’s not much HighQ can’t do when it comes to collaboration between lawyers and clients, whether you’re at a law firm or a corporate legal department.

Try HighQ to solve your next big business problem, and you’ll soon find yourself using the platform to manage all your client engagements. HighQ currently works with approximately a million users at over 100,000 different organizations, including 75% of today’s Fortune 500 companies.

Lawyers are always looking for a better way to communicate and collaborate. HighQ is the answer. This is the only toolkit you need to solve even your most complex business problems and provide the best client service possible.

REQUEST A DEMO HERE

Looking For A Better Way To Collaborate? Put Your HighQ To The Test

As the practice of law continues to go increasingly digital, lawyers and their clients are constantly on the lookout for a better way to communicate and collaborate on everything from simple information sharing to complex projects and transactions.

HighQ is that better way. A recent addition to the Thomson Reuters family, HighQ offers law firms and businesses a powerful way to streamline their collaboration and improve the delivery of legal services. With the HighQ platform, both sides of an engagement are empowered to be more effective, efficient, innovative, and proactive. In a sea of technology options, HighQ is the platform you need when you want to work smarter in today’s demanding and competitive legal market.

The Power of HighQ

The folks behind HighQ started out with a mission that sounds simple enough: to transform the way law firms and corporate legal departments work and engage with their clients and colleagues. While the effort that went into creating HighQ might have been anything but simple, its developers succeeded in creating a sophisticated, user-friendly way to make collaboration and engagement a breeze, complete with efficient automation of legal processes and better management of complex projects and transactions.

HighQ works by offering a platform of many different capabilities that users can combine to solve their most pressing business problems. It offers seven core capabilities: document management, content management, task management, social collaboration, file sharing and syncing, smart forms and sheets, and a dashboard builder. Five additional capabilities – data visualization, document automation, enterprise knowledge management, AI, and workflow automation – can be added separately. All of these capabilities are built upon a foundation of security and compliance, auditing and reporting, and APIs and integrations, which extend throughout every aspect the HighQ platform.

You can think of each of these capabilities as the building blocks you use to customize your HighQ experience. Just pick and choose the functionalities you need to solve a specific problem or to handle a given project, then combine them in a template solution and hit deploy. All those capabilities are now packaged together for a given matter, and the template can be saved and redeployed for similar engagements in the future. The various building blocks can be combined and recombined in any number of ways to solve whatever problems might arise.

So, what can you do with HighQ? The answer is basically anything, but there are five overarching ways that law firms are using HighQ to engage with clients and improve business:

  • Promoting the firm and attracting new clients
  • Engaging current clients by adding value and insight
  • Securely sharing content and communicating with external clients
  • Delivering legal services and work product
  • Working and collaborating internally on projects

HighQ also conveniently integrates with best-in-class solutions in a variety of areas, including document automation, AI, and document management, among others. With HighQ, you have the most advanced ecosystem of connectivity solutions available, meaning that it will quickly become your home base for all your legal work.

How it Works

When you first log in to your HighQ platform, you see a main dashboard for a particular engagement, which can be specifically branded with the name of that client.

On the left is a list of projects (called sites), which serves as a sort of virtual filing cabinet for the engagement. In the center is a feed of your recent activity. If this reminds you of a social media interface, you’re not wrong – the feed offers social collaboration capabilities, such as likes and comments. On the right are your files and tasks, so you can easily find the things you’re working and any tasks that have been assigned to you (whether by you or created by someone else).

When you click into a file, you see it in an online viewer where you can add annotations, make redactions, and view metadata. You can also internally share files or send them to external users. HighQ places a high priority on security, so you can always set permissions and limitations on who can access files, and how.

The tasks area offers a range of legal project management capabilities.

From here you can add tasks, review the details of current tasks, access documents related to a given task, change task priority simply by clicking and dragging, and much more.

Back on the main dashboard screen, when you access a particular matter (site), you get a new dashboard that you can customize with modules. This allows you to build and tailor a screen that shows you a range of data visualizations to better understand your project at glance.

You can also click into any given visualization to see an iSheet, which is essentially a combination database/spreadsheet that compiles all the information you need to track a matter.

There’s also a separate firmwide data dashboard that incorporates the social collaboration features of all users’ individual dashboard on a given matter and allows users to add items or visualizations for the whole firm to see.

Users with admin rights can access the project’s workflow engines and create rules for how the platform functions across a project, using if/then logic. There’s no coding or technical skill required – any user can easily manage how the platform functions, from how tasks trigger other actions to how iSheet edits cause documents to be created.

While you’re seeing all that, your clients see a different, more simplified dashboard, branded with your firm’s name.

Your clients have easy access to whatever content you want to share – essentially a one-stop-shop for your thought leadership and insights, where you can demonstrate your expertise. You can think of this as a way to commoditize the knowledge that previously just sat hidden in your files or in your head and make it available to your clients 24/7 in a useful environment that’s linked to what they’re working on.

Your clients can also communicate with you, feed you matter information and data, and submit legal service requests, as well as access work product and visualizations of the work being done on a project.

Simply put, there’s not much HighQ can’t do when it comes to collaboration between lawyers and clients, whether you’re at a law firm or a corporate legal department.

Try HighQ to solve your next big business problem, and you’ll soon find yourself using the platform to manage all your client engagements. HighQ currently works with approximately a million users at over 100,000 different organizations, including 75% of today’s Fortune 500 companies.

Lawyers are always looking for a better way to communicate and collaborate. HighQ is the answer. This is the only toolkit you need to solve even your most complex business problems and provide the best client service possible.

REQUEST A DEMO HERE

Reach Out, Make A Connection

(Image via CDC/Dr. Fred Murphy/Public domain)

Ed. note: Please welcome Molly McDonough to the pages of Above the Law. Her writing will focus on client communications.

Everyone is paying attention to the coronavirus right now, except maybe Chicago St. Patrick’s Day revelers who thought it would be OK to pub crawl over the weekend.

Those partiers didn’t get the social-distancing message. But millions of others did. And they’re scared. They need reassurance and guidance, especially for situations that are already out of their control.

Think child custody, divorce, criminal defense, wills and trusts, guardianship, powers of attorney, advanced directives, contracts (many of which are in a state of disruption). The list goes on and on.

Companies I do business with are flooding me with notes about COVID-19. For the most part, these communications have been less than helpful. They read as self-serving and often rehash the same CDC information I’ve read a million times.

That’s not to say there aren’t some good client messages and connections happening.

Take Bay Area family lawyer Erin Levine, founder of Hello Divorce. After getting more than 50 questions about how the pandemic could impact divorce proceedings, she produced a helpful Q&A for her clients and, undoubtedly, many others looking for guidance.

In her piece, “Will Coronavirus Affect My Divorce?” Levine covers court dates and possible closings, co-parenting decisions, and child support if jobs are at risk. Levine’s team has since fielded more than 500 questions from the Hello Divorce form at the end of the blog post, her firm’s contact form, and via Instagram.

Utah lawyer Rebecca Long Okura also urged her clients and potential clients to prepare COVID-19 co-parenting plans sooner rather than later. She created a realistic hypothetical case profile to discuss the issues and then jumped into the comments to address specific questions and situations.

Long Okura sent the link to clients and has been working with them directly to address the co-parenting issues she raised.

I like these examples because they aren’t vague, cover-your-bases messages. They are specific to these practice areas and create opportunities for meaningful client connections.

Seattle lawyer Dan Harris is capturing his firm’s client worries and common questions at his China Law Blog. Given his firm practices at the epicenter of outbreaks in China and the United States, Harris has much to say on the topic. In his first of what I expect will be many blog posts, he summarizes questions in several key practice areas. Each of the topics in his overview would be good fodder for a personalized Q&A for lawyers reaching out to clients.

But even if you don’t have time to write a Q&A for your clients, you need to make a connection. Reach out. Let your clients know how to reach you and how you’ll stay connected to their current matters or if they need you for something else. No doubt, you would let clients know if matters get postponed. But even if they aren’t, your clients will be wondering.

The lawyers who are blogging, posting meaningful updates, and actively reaching out to their clients show they are knowledgeable and care about their clients. They also show they recognize their clients’ fears and are working on ways to provide answers at a time when sometimes the answer is, we’ll have to wait and see.


Molly McDonough is a longtime legal affairs writer and editor. Before launching McDonough Media, she was editor and publisher of the ABA’s flagship magazine, the ABA Journal. She writes about access to justice at A Just Society.

Lawyers And Legal Professionals Must Care For Their Mental Health Amid COVID-19 Crisis

(Image via Getty)

Fighting isolation and loneliness amid a broad public health concern might seem more challenging, but the best way to do it is generally the same as in the absence of an outbreak: with intention and commitment. Schedule time to check in (by phone or video) with family and friends and keep the appointment. Even if you’re tired, make the calls and give yourself permission to be fully present for the conversations. In a time of increased stress, a sense of connection can be transformative and, for some, lifesaving.

—  Patrick Krill, an attorney who is a certified alcohol and drug counselor and works as a consultant to numerous law firms on mental health and substance abuse issues, in an op-ed about how lawyers and legal professionals can protect their mental health during the coronavirus outbreak that’s plagued the world.


Staci ZaretskyStaci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

Donald Trump Didn’t Disband Pandemic Team, He Did Far Worse

When we started hearing that the Trump administration sowed the seeds for the lackluster response to this outbreak by firing the nation’s whole pandemic preparedness team a few years ago, it was genuinely disturbing how unsurprising it was.

But former administration officials are now pushing back against the report that Trump recklessly fired the response team of experts by claiming… he didn’t dissolve the team at all. An odd flex given that Donald Trump already admitted that he fired everyone in the office, explaining that he didn’t want people on the payroll when there wasn’t an active threat and “when we need them, we can get them back very quickly.”

And while being comically contradicted by Trump himself should end the inquiry, the managerial lackeys who actually staked their careers on this debacle are taking to the press to try and defend their crumbling professional reputations.

Tim Morrison, a former NSC official, wrote to the Washington Post claiming, “No, the White House didn’t ‘dissolve’ its pandemic response office. I was there.” It’s an editorial earning a lot of plaudits from John Bolton, Morrison’s former boss. who is also deeply implicated in this move since he oversaw the decision. Right-wing Twitter is sending it around in… I don’t know… some kind of weird attempt to claim that whatever Trump did with the team isn’t why the response has been so badly botched?

It’s also an editorial that seems to woefully misunderstand both “pandemics” and “preparedness.”

Morrison’s claim is that he ran the successor organization to the pandemic preparedness group, a move that cut most of the minds behind the original, but…

One such move at the NSC was to create the counterproliferation and biodefense directorate, which was the result of consolidating three directorates into one, given the obvious overlap between arms control and nonproliferation, weapons of mass destruction terrorism, and global health and biodefense. It is this reorganization that critics have misconstrued or intentionally misrepresented. If anything, the combined directorate was stronger because related expertise could be commingled.

This is where we can all take a lesson from Ford v. Ferrari.

When you take a highly specialized racing unit and say, “we’re making changes, firing your people, and putting you under the domestic sedan unit,” well, you end up losing Le Mans.

Morrison and Bolton are publicly arguing that they aren’t responsible for dismantling a highly praised pandemic team because they buried its mission under the auspices of an arms control and bioterror unit. Except those are security threats predicated upon predicting and remediating human state and non-state actors. Where, exactly, does a group born out of influenza responses fit? Because when your leadership is a bioterrorism hammer, everything becomes a nail. This is how you end up with 800 scenarios for a nerve gas attack on public transit and 0 scenarios for dealing with an asymptomatic pneumoniatic flu.

Like the revolving door corporate hacks that they are, the administration made its cuts about “efficiency” rather than “results” and somehow has the gall to pretend they were right when the whole operation crashes around them. Diseases might come from bioterrorism, but they’re far more likely to come from the serendipity of mutation. If some entity were planning a bioterror attack, it would focus on agents that are highly lethal and, necessarily, not highly contagious — diseases can’t survive when they kill the host. This is precisely why an organization charged with gameplanning terrorist attacks is ill-suited to deal with traditional pandemics. The whole frame of reference is wrong.

Dissolving the team would have been bad, but what the administration actually did was far worse. What they actually did was slit the throat of America’s preparedness for an outbreak like this while convincing themselves they still had a plan. Senior administration officials honestly believed they had this covered by their cut-rate bioterror team. The whole operation revolves around the idea that there’s someone to attack, someone to blame, someone to fire. But there’s no villain here and they can’t seem to grasp what to do about that.

If only they had some sort of “team” charged with “preparing” for something like this…

No, the White House didn’t ‘dissolve’ its pandemic response office. I was there. [Washington Post]
Trump disbanded NSC pandemic unit that experts had praised [AP]


HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Paul Weiss’s Bold Leadership On Coronavirus Pro Bono Efforts

Brad Karp

Terror is a feeling we’re all getting used to keeping at bay. The novel virus COVID-19 seems to be coming for us all, indiscriminately afflicting friends and celebrities with equal ease. And even for those privileged enough to assume they can survive the health impacts, the economic downturn is looming, the first harbinger of which are the slew of restaurant workers that have just been laid off. It’s enough to make anyone want to bury their head in the sand until the whole mess blows over.

That (albeit, understandable) approach is pretty much the opposite of what Paul Weiss chairman Brad Karp did as the impacts of COVID-19 started to cascade. He’s decided to harness the awesome power of Biglaw to help those who are facing daunting economic realities. As officials on the federal, state and local levels are working to ameliorate those impacts, Karp is organizing pro bono efforts at Paul Weiss to help folks navigate those complicated waters. As he told Law.com:

“As these programs are rolling out, I believe we’re going to be able to help these individuals access emergency resources that would otherwise be unavailable,” he said.

On Saturday afternoon, he sent a firmwide email looking for volunteers to build a “swat team” to make sense of these resources. Within two hours, over 350 attorneys at the firm had responded by pledging their assistance. Another 25 to 50 have volunteered since the start of the day Monday.

“I’ve been chair of this firm for 13 years,” Karp said. “There’s nothing I’ve seen that compares to this.”

Those lawyers are already at work. They’re researching federal programs, New York state programs, New York City programs, other state programs, and private and charitable organization programs. They’re drafting FAQs, templates and other forms. And they’ll be staffing a 24/7 hotline to answer questions about all the programs.

Karp anticipates the firm will spend 2,500 hours a day on the effort, but he doesn’t think that’ll be enough. He’s calling on other firms to join in the effort so that the full power of Biglaw can be thrown at the problem:

“I think in the U.S. we’re going to need thousands of lawyers to step up and work with us on this,” he said.

Hopefully Biglaw heeds the call.


headshotKathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

Flat Is The Future …

Pound for pound, it is hard to top reading attorney’s fees decisions as a worthwhile investment of time for patent litigators. They don’t come around so often, even in these post-Octane days of weaponized attorney’s fees motions in patent cases, but they have much to teach us. Take the case profiled in my June 2018 column on this issue. There, I noted how “patent litigation defendants who are clearly unprepared to mount a full defense of the case brought against them” were at risk of being tagged with attorney’s fees when their inevitable loss came along. And how, as a practical matter, patent litigators pitching for defense work would do well to make sure that the prospective client had the resources and will to take the fight to the end before signing on as defense counsel. Nothing magical, just an easy example of a lesson learned from reviewing just one attorney’s fees decision.

In addition to learning what to do to avoid an attorney’s fee award, attorney’s fees decisions are valuable for a few other reasons. For one, they often present insights into how district court judges weigh the merits of arguments made in patent cases. While a judge may or may not let the parties know whether a summary judgment or claim construction decision was a close call at the time it was made, attorney’s fees motions force that same judge to provide an honest appraisal of the strength or infirmity in the arguments underlying the critical decisions in the case. Additionally, attorney’s fees decisions are helpful in terms of analyzing the factors that lead to a patent case being decided on the merits, as opposed as through the overwhelmingly usual vehicle of settlement.

There is also a voyeuristic element to attorney’s fees decisions, at least for those of us interested in the costs of patent litigation. Yes, it is important to know what types of costs will be credited by the court to the winning party. But the juicier stuff often lies in the analysis of the fees charged by the winning side’s lawyers — including whether the judge in a particular case is willing to determine that those fees are reasonable. As we all know, hourly rates for senior patent litigators can easily approach four figures — and rare is the litigation firm (Biglaw or boutique) where even junior associate rates are less than three hundred or four hundred dollars an hour. While most attorney’s fees decisions involve some commentary from the judge as to whether such rates are reasonable, it seems like judges around the country recognize that patent litigation is a premium practice and is priced accordingly. So as long as there is no obvious overcharging, most attorney’s fees requests seem to pass muster more or less intact.

One thing, however, is clear about the overwhelming majority of attorney’s fees decisions to date. They hold tight to the traditional hourly billing model as the basis for determining fee awards. Which makes sense, considering how entrenched hourly billing for most litigation remains. At the same time, alternative billing models — such as flat-fee or hybrid arrangements — have taken hold, especially at the upper echelons of the litigation universe. In the patent realm, some of the leading proponents of alternative fee arrangements have been leading litigation boutiques, even as Biglaw IP groups have also been forced to compete by deviating from their sky-high hourly scales as well. While these alternative billing arrangements have taken root in patent disputes, there has not been much discussion yet of how to treat such arrangements in the context of attorney’s fees awards. Probably because so few patent cases actually reach that stage.

The scarcity of discussion on the changing reality of how IP firms charge clients for patent work in attorney’s fees decisions presents a challenge for clients, lawyers, and courts forced to confront such issues. I was happy, therefore, to see that a recent attorney’s fees decision addressed some of these thorny issues head-on. The case at issue involved Straight Path IP — a former darling of the publicly traded patent enforcement business era — as well as tech heavyweights Apple and Cisco. With the latter prevailing at trial and appeal, the inevitable attorney’s fee motion ensued. Once granted, the court decided to appoint a special master to sort out the fee awards to Apple and Cisco. While the award to Apple was relatively straightforward, Cisco’s use of alternative fee arrangements with its counsel made for a more interesting treatment.

In fact, the special master (Matthew Borden) did an excellent job of framing the issues around alternative fee arrangements in the attorney’s fees context. For one, his report discusses the increased adoption of alternative fee arrangements by sophisticated litigants like Cisco and Microsoft, as well as the motivations that make such arrangements attractive for those companies and their chosen firms. At the same time, the report recognizes that large contingency fees have traditionally not been recoverable for a prevailing party — and that under certain circumstances a flat-fee arrangement could mimic a large contingency fee if the result was achieved with fewer hours than expected. Or that “opportunity for mischief exists” with certain types of fee structures, particularly where the client and firm may be tempted to engineer a larger-than-necessary fee to gain leverage over a counterparty. At the same time, the report suggests that reasonable flat fees should be recoverable in patent cases, subject to some measure of accountability and judicial review.

Ultimately, the special master in Straight Path recommended that Cisco recover half of its expended fees, based in part on the unique circumstances of the case, including that Cisco had swapped counsel midstream. Despite the haircut, Cisco was entitled to recover nearly $2 million in fees — a sizeable sum by any measure. More importantly for both Cisco and future patent litigants, the report provides a welcome starting point for courts confronting flat fee arrangements in attorney’s fees motions. Because flat is the future, at least when it comes to fee arrangements in patent cases.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com 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 gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

Lawyering From A Pandemic (Part III)

(Image via Getty)

Ed. note: This is the latest installment in a series of posts on motherhood in the legal profession, in partnership with our friends at MothersEsquire. Welcome Lindsay Kennedy back to our pages.

In South Korea, we started our pandemic journey in late January. The Korean school my 3-year-old attends was closed for most of February and all of March. The American school on the military installation closed four weeks ago. My sexy husband, an active-duty soldier, has been working long hours.  For all this time, it has fallen on me to guide my Kindergartner in virtual school, work, and handle everything, while not going anywhere except the commissary.

Our motto has become “Protect the Bubble!” Our bubble is our neighborhood. It is a two-street world with mostly Americans — military families. The working moms are all at home, the work-from-home moms are all still trying to preserve their career, and the stay-at-home moms are helping me keep it together.

It reminds me of my childhood in the 1980s. There are no activities for kids to attend. Snacks are given freely to the groups of feral children. And the kids play most of the day outside, after completing their schoolwork. When the weather is bad, I end up with five or six kids in my living room building forts and pretending to be gymnastic stars (because my house is the only place they are allowed to jump on the couch).

Somehow while all this goes on, I sneak upstairs and get a few minutes of research done. I do research and writing contract work for attorneys and want — no need — to keep doing it to maintain my sanity. I don’t charge much, but my brain needs this outlet in general, let alone during this challenging time.

The Korean people are rationing masks. Each day you can buy one mask and some days, based on the last digit of your birth year, you can buy more. They wear masks to protect others from their own germs, not to protect themselves. They find it rude when someone does not wear a mask, I was politely told by a friendly Korean woman.

In the beginning, we experienced what I called panic. For 24 hours, there was no meat, cereal, or crackers at the commissary. But within one day, shelves were fully stocked. We never ran out of toilet paper. The Korean grocery stores never ran out of anything.

This “panic” turned into exhaustion rather quickly and has remained at a stalemate for weeks. Even the kids are tired of playing at home all the time. The number of people who are diagnosed with the coronavirus is finally going down each day. We can see a light at the end of the tunnel.

The lockdown is hurting many businesses and some are finding ways to adapt. Restaurants are re-inventing their take out options. Others are closing permanently.

It took me a long time to understand that I am not doing this to protect myself or my family. We are not high risk; we are not even medium risk. If we got it, we’d be fine. In the 1980s, it was normal when a kid caught chicken pox for every relative and neighbor kid to come over to get infected.  The thought of doing this approach has crossed my mind.

But the more people that contract the virus, the more it spreads to those that are at risk. This country is the size of Indiana with the dense population of 1.5 times the population of California.  It has been very impressive to watch an entire nation give up so many personal liberties by choice to protect its most vulnerable citizens. Without this high-level of dedication, I have no doubt that millions would have died.

The relentless effort in tracing every step an infected person took is both frightening and remarkable. The locations are instantly released to the public and extensive sanitation follows.

We are not out of the woods yet. Lower numbers still mean new diagnoses daily. Weeks ago, one person with little-to-no symptoms went to a church service and within a day or two hundreds of cases could be traced directly to him. Even weeks later, Daegu, a city with a population of over 2 million, is still considered a hotspot — the entire city is off limits.

The schools are finally talking about opening up again. There is hope that our lives will be back to normal soon. But my mentality will forever be changed -– experiencing an entire nation work together despite it hurting their personal livelihood. Writing about it doesn’t begin to do it justice. It inspires me to do something for the greater good in this world -– I just have to figure out what that will be. Until then, we will keep protecting our bubble!


Lindsay Kennedy is a part-time lawyer doing legal research and writing for other attorneys and military wife with two daughters in South Korea.  Lindsay is also the Executive Director of MothersEsquire, Inc.  She supports changes in the legal profession to allow for more non-traditional options so both parents are afforded the opportunity to enjoy their family. You can reach her at LKennedy624@gmail.com.