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Unless the world becomes sinless, there always will be a place for litigation. The question, then, is whom to hire when sin reaches the suit stage — a lawyer from a big firm or one from a boutique? The issue of big firm versus boutique firm too often is falsely cast in terms of successful trial lawyers versus unsuccessful ones. The real issue is the difference in the value the client gets from one versus the other. What is meant by value? Imagine the over-confident trial attorney completing her direct examination, turning to the jury and smugly announcing, “pass the witness.” At that moment, with all eyes fixed on you, there are no big firms, no small firms. Indeed, there are no firms at all. It is you and the witness in the legal equivalent of the Main Street showdown with the newest gunslinger in town. If you win, you’re a hero. If you lose, the whole case may be lost for good, although dying in a dusty West Texas town may seem preferable to sitting down after a lousy cross. There are precious few lawyers who consistently “win” cross-examinations. You and the witness know it because you are there. Unfortunately, a general counsel doesn’t always know what goes on in the courtroom. Ask any general counsel to list the top three litigation firms in Dallas, then ask her to list the top three trial lawyers in each firm. Finally, ask what characteristics of each lawyer contributed to her success. Most likely, each step will reveal a dismaying amount of ignorance about the true quality of trial lawyers in town. It’s important, then, to educate general counsel and others about the characteristics a good trial lawyer should possess. Without first-hand knowledge, general counsel depend on unreliable marketing information to make decisions about which trial or appellate attorney to choose. Large firms often sell themselves on the argument that they are the best simply because they are big or have been around for years. The truth is that bigger is not always better. No one goes to the largest restaurant for the best meal or to the largest English department to find the best-written books. Boutiques, in spite of or even because of size, are better. Trial and appellate boutiques can and should generally be more successful than the big firms for four reasons: consistency of message; consistency of talent; ability to take contingent fees and thus supplement an hourly practice; and greater efficiency. ECONOMIC EFFICIENCY Because a boutique specializes in one area of law, it is easier for it to present a consistent message. The brochure from any large firm will discuss long-dead founders, philosophy and maybe a featured win or two, but it won’t tell you anything about the people at the firm. That’s because a big firm has no clue who will be at the firm at any given time. There is a constant shuffling of new and well-established talent in the partnership and associate ranks. There is usually no real team, even in the litigation section. Boutiques, on the other hand, depend on the precise working relationship of their people — people they have specifically sought out and in whom they have invested. Boutiques handle contingent-fee cases because they can do so more efficiently. The economies of scale that large firms depend on never have been balanced against conflicts of interest. The bigger the firm, the more difficult it is to bring a claim against anyone other than the destitute or those lacking social standing. Thus the larger firm is wedded to an hourly model and a cost-plus kind of billing, which often encourages inefficiency and sloth. The boutique’s efficiency is supplemented by the lessons learned in contingent-fee practice. There is nothing like carrying $4 million or $5 million in a contingent-fee case to promote efficiency. Short but effective depositions, simple pleadings and no continuances become key differences in trial strategy. Trial and appellate boutiques will continue to grow and prosper. A more efficient and effective solution to litigation should overcome the tired arguments that big and old actually mean something when one’s adversary says, “pass the witness.” Mike Lynn is a partner in the Dallas trial and appellate boutique of Lynn Tillotson & Pinker. His e-mail address is [email protected]

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