Helping Trial Lawyers Navigate the Appellate System

What Do “The Last Days of Big Law” Mean for Boutique Firms?

Noam Scheiber’s recent New Republic article, “The Last Days of Big Law,” has been buzzing over my social media stream for the past week or so. It’s a pretty sobering read, although it hasn’t gone uncriticized.

For example, in “Don’t Bury Big Law Just Yet,” The American Lawyer‘s Robin Sparkman wrote that “[r]umors of [the giant law firms’] demise are greatly exaggerated.” Slate‘s Mark Obbie previously reached the same conclusion in  “The Fascinating Vampire Squids of Law,” where he riffed off the New Republic cover’s Breaking Bad theme. (7/30/13 Update: Scheiber responded to his critics here.)

I have always been thankful for the opportunities big-firm life provided early in my legal career, but Scheiber’s article—prophetic or not—made me glad to have departed that life when I did. That was seven years ago this month, around the same time, according to Scheiber, that economic realities began changing the way clients view legal services in general and the Big Law model in particular.

For years, I have believed that resistance to increasing Big Law rates and greater relative demand for specialized (non-commoditized) legal services would benefit boutique firms and solos catering to a defined niche. In my practice area, for example, the market no longer seems to support training young associates to become appellate specialists. Sophisticated clients don’t want to pay big-firm rates for partner-level work, much less for the learning curve younger lawyers must go through to become competent appellate practitioners. In recent years, I’ve watched contemporaries leave big firms to start their own shops, either because their firms couldn’t support them any longer or because they saw the same opportunity I did.

These trends leave me wondering: Who at Big Law is going to oversee significant appellate matters when the vanguard retires or otherwise moves on? Firms often recruit former appellate judges to join their ranks after leaving the bench, and that—like a mid-season Major League Baseball trade—may be a reasonable stop-gap. But without teams of appellate experts housed at big firms on a long-term basis, in-house counsel’s continued reliance on the “CYA factor” when deciding who will handle their company’s high-level appellate work would no longer seem viable.

Will the continuing evolution of Big Law, in whatever form, benefit specialized boutique firms? Big Law’s life story is still being written, but I still say yes.

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D. Todd Smith
About the Author

D. Todd Smith is an Austin-based civil appellate specialist who works with trial teams from the earliest stages of litigation. In trial courts, he takes the lead on strategic analysis and briefing, jury charges, and potentially dispositive motions, all with a focus on preserving error and positioning cases for appellate review.

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