Alan Silverstein is a partner at Connolly Gallagher LLP in Wilmington, Delaware, where the firm represents the ILN. In this episode, Lindsay and Alan discuss the state of the patent market, the potential consequences for litigation funding of market constriction, and the very real impact of working from home on associate advancement.
You can listen to the podcast here, or we’ve provided a transcript of the highlights below.
Lindsay: Hello, and welcome to the Law Firm ILN-telligence Podcast. I’m your host, Lindsay Griffiths, executive director of the International Lawyers Network. Our guest this week is Alan Silverstein with Connolly Gallagher in Delaware. Alan, welcome. We’re really happy to have you with us. Why don’t you tell us a little bit about yourself, and the firm, and your practice?
Alan: Sure. Thanks, Lindsay, and I’m really happy to be here as well, and also happy to be a member of ILN. I’m a partner at Connolly Gallagher in Wilmington, Delaware. We are, by Delaware standards, a mid-size firm of around thirty attorneys. My practice focuses on complex commercial disputes with an emphasis in intellectual property litigation. I started my career doing exclusively patent litigation and I’ve branched out from there.
My firm serves clients in Delaware across the United States and abroad. In addition to our commercial litigation practices, we do corporate litigation. We have an active trust and estates group, and an active labor and employment group. We also represent local government frequently here in Delaware. My practice is both Delaware council, which some people call the local council, as well as lead counsel work here in Delaware and outside the State.
Lindsay: Great. So, what would you say is your biggest challenge at the moment and how are you working to overcome that?
Alan: My biggest challenge, and this might be personal to me, is staffing and delegation. We want to be able to give our associates and staff a good work-life balance and the flexibility to work from home and things like that. We think that’s really important. It’s one of the things at our firm that we operate on pretty heavily is making sure that our staff and associates are happy. But being a small firm with essentially one location and low overhead means that working with staff in-person does take on a significant importance.
One of the things I’m finding here in Wilmington is that national and larger firms have a very different perspective, for example, a national firm with the Delaware office has its paralegals at any given location support attorneys, in any case, in any other location at that national firm. So, work from home for them makes a lot of sense. Obviously, the situation is different for us as a one-office firm here in Wilmington. I’ll caveat that with, we have an office in Newark, Delaware as well just down the road, but we’re essentially one location.
The same for staff would be true for our associates as well. National firms put together litigation teams across offices, so it doesn’t really matter if folks are in the same office or working from home. Again, that’s something we don’t really do. So smaller firms like ours that have a tight-knit culture in one location wind up being at a disadvantage when recruiting and retaining staff and associates.
Separately, after joining Connolly Gallagher a couple of years ago, I have much more control over my cases and I’m higher up on the scale than I was at my previous, significantly larger firm. Learning to pass work off to associates and staff and not doing everything myself, or even expecting that work’s going to roll downhill towards me, has been a bit of a change. So exclusive to me, that’s a pretty big challenge for me on my own. I note that change to being at Connolly Gallagher’s only a couple of years now, but it’s been a very happy change. Part of the reason for me coming here was to have more control over my practice, and that certainly has happened.
Lindsay: I would imagine too that given the timing of your move and then everything that happened with the pandemic, that was unique, not that it wouldn’t be a challenge at any time that that happened because I’m very much the same way where I like to have control over my work and being able to delegate is a big challenge for me, but given that the pandemic was sort of happening at the same time, it’s hard when you are navigating that, being out of the office, then coming back to the office and getting to know people and figuring out how do you connect with people and then pass on work to them, when there wasn’t really that in-office piece in the beginning.
Alan: Absolutely. When I made the move here to Connolly Gallagher, my previous firm had only recently reopened its office, and I remember coming back to that firm and seeing twenty-three new associates that had just taken the bar that I had never met in person before essentially.
Alan: So, it certainly is a unique experience. Then I moved over here to Connolly Gallagher very shortly thereafter and had a lot of new people to meet and form new relationships with. Certainly, a big time of change towards the end of the pandemic.
Lindsay: Yes, definitely, definitely. So how about the current state of the market overall and the impact on your clients and your practice?
Alan: Sure. Well, the patent litigation practice is relatively stable. Even when the economy is down, companies want to protect their inventions. Of course, companies are worried about the economy and there’s some tightening of the purse strings, but it’s not a huge swing as you might see in other practices. We have a lot of transactional or transactional-adjacent matters here at our firm. Those are down, of course, as is litigation for transactional matters. Delaware is a center for merger and acquisition litigation, so we expect to see some softening there, but at the same time, we expect to see bankruptcy grow significantly as a result of the current market. We do bankruptcy work here as well.
As for my clients specifically, I will see them being more cost-conscious than they would maybe in the past. We’re fairly competitive with rates compared to other firms in town, so I see less pressure from my clients to reduce rates or reduce retainers or things like that. But I think if the economy continues to soften, companies are going to look for ways to avoid litigation, which is the majority of what I do, and look for more cost-effective solutions. Fortunately, we have those sorts of solutions available including alternative dispute resolution, mediation, and arbitration, which might help our clients cut costs as economic uncertainty grows.
Lindsay: Yes, absolutely. You’re talking a lot about how the patent market is really sort of stable. I mean, obviously, as you say, things might change depending on what clients are looking at. So, what, for you, is the biggest area related to your practice that you are most curious about?
Alan: The area that I am the most curious about in patent practice is seeing whether or not litigation funding increases or decreases in the future. There are a lot of entities out there that are supporting non-patent and non-practicing entity patent litigation, as well as a lot of entities looking just to support patent litigation in general, especially for small businesses. I’m curious if, as the economy potentially slows, that money to support litigation is going to still be out there. I get hit up multiple times a day with litigation funding offers via email that can’t be an endless flow of money in the future, and I wonder if we’ll see less patent cases as a result.
Lindsay: I would think, in the same vein, as the market constricts a little bit, more companies would want that litigation funding as the market constricts.
Alan: That’s certainly possible. Patent litigation is a little bit of a gamble. Some entities have been able to monetize it. I even know of a couple of firms here in town that attempted at one point to start their own cottage business of financing patent litigations with varying degrees of success. I would think that good-quality patent cases will continue to get funding. Non-practicing entity cases where the payoff might not be sufficient will not see funding in the future.
Lindsay: Sure, that makes sense. So, what would you say is something most people misunderstand about your field of work?
Alan: I think people don’t understand what a patent actually gives you the right to do. It gives you the right to exclude others from making your invention. It does not prevent others from competing with you or doing things that are similar to your invention.
Regularly, I have new, potential clients call me and talk about getting a patent for their invention and they describe it to me in wonderful detail and it’s a very good idea, but it’s such a specific device with such a specific purpose, that the exclusion rights that come with an issued patent might not be valuable to that client at the end of the day. That’s why it’s important for inventors to understand early in the invention process what sort of intellectual property rights they might have and how they might protect them in the future.
Lindsay: Which is why, the overarching lesson I always get from talking to lawyers, no matter what the field is, bring your lawyer in, early and often.
Alan: Absolutely. I know people will think that we want that so that we can generate the fees, but we really are looking out for you. It’s easier to plan ahead than it is to fix mistakes.
Lindsay: That’s right, and less expensive.
Lindsay: So, tell us something interesting about yourself that most people don’t know.
Alan: This is a good question. Well, as we talked about at the beginning of the day today, most people don’t know that I have family in Singapore and that I spent a large part of my childhood in Singapore. Three months a year during the summer, sometimes a couple of weeks at Christmas. My mother was one of eight children. So, I have family in Singapore. I also have three aunts and assorted cousins in Sydney, Australia from my mother’s side of the family, and I have family in Leeds, in the United Kingdom from that part of my family as well. So, traveling to see family takes on a whole new meaning.
Lindsay: Seriously, especially Singapore and Australia, those are really extensive flights.
Alan: It is. My wife and I have been married for 10 years and she has still not met some of my Australian relatives, unfortunately.
Lindsay: I believe it. I believe it. What is your favorite thing to see when you’re traveling, besides the people, of course?
Alan: Sure. So, anybody that goes to Singapore regularly will tell you it’s the food. The food in Singapore is the best I’ve ever had anywhere in the world. It’s a mixing of Indonesian, Malaysian, and Chinese cultures and it absolutely can’t be beat. The other great part about Singapore is, it is a tropical island. It’s a tiny island at the end of the Malaysian Peninsula and you’re really in the middle of a rainforest. It’s a beautiful place to visit and I encourage everybody to go.
Lindsay: Yeah, I’ve been there a couple of times and I love it. I couldn’t agree more. Okay. So who has been your biggest mentor over your career?
Alan: It was one of the first partners I worked for, a predecessor from Connolly Gallagher where I’m at now. It was [inaudible], and I worked with a partner attorney that had me take an expert deposition the January after I was admitted to the bar in September. So, four months later, he put me in a seat to take the deposition of an expert in a multimillion-dollar patent case. He gave me those opportunities and developed me as an attorney right from the get-go, and those experiences are invaluable.
I think one of the biggest problems we have in growing associates is we just don’t give them enough opportunities. I know fifth, sixth, seventh-year associates here in Wilmington that have never taken a deposition, which have not stood up in court and argued a discovery motion. That’s really a shame because they’re missing these opportunities to develop their skills early. Early skill development is not only good because you have those skills sooner, but also, you don’t get in any bad habits or you see things that you might not have seen as a senior associate, have you not had those experiences early on.
So that partner set my career on a great trajectory by giving me those early experiences. At the same time, he didn’t let me get away with anything because I was a first or second year. If I messed something up, he let me know about it immediately, and that’s an important learning experience as well. Oftentimes, first, second-year associates are starved for feedback, and they get told that no news is good news. That’s not true. First and second years should be getting the bad news, even if it’s just from a mentoring or a teaching perspective. They should know what’s being changed in their work product before it goes out the door.
Lindsay: Absolutely. One of the things that all of us, I think, have learned in recent years is that there’s a lot to be learned from failure, that failure is not a bad thing, and that you can’t grow without it.
Alan: Absolutely. You remember and you learn the most from your failures or your difficult times or your challenges than you do from the things that were easy. I can remember every bad argument I ever made in front of a judge. The good ones, I just remember as a win.
Lindsay: Sure. Exactly right. You hope you remember what you did right, but as you say, you just sort of remember the feeling that went with it, but the bad things, you remember every single detail.
Alan: And you never make that mistake again, hopefully.
Lindsay: No, no. Do you think I’m curious, you’re talking a lot about the associates, and you spoke before about this work-life balance and not doing as much work from home in a mid-size firm like Connolly? That’s something that we’ve been exploring a lot with some other guests, is this idea that a lot of the associates are missing some of the knowledge, the experience, and the learning that previous generations were getting by being in the office. Is that something that you’re seeing, I mean not necessarily at your firm, but across this generation of associates?
Alan: Absolutely, and it was something that we talked about a lot during the pandemic. As a senior attorney, if you don’t have a relationship or know the junior attorneys, you’re much less likely to give them work in the first place, be it give them development opportunities like I was just talking about, and it’s not because they might not be good at it or they might have difficulty with it. It’s simply because you don’t know who they are and there’s no sense of a firm culture as them being a part of it.
I think that’s the most difficult part of the work-from-home environment that we now find ourselves in, is getting those opportunities where senior attorneys, partners, and senior associates alike, and junior attorneys are in the same room so that there can be that sense of team that encourages proper work assignment, proper development opportunities, and things like that. It’s a very tough problem to traverse because I think the younger associates don’t view talking to attorneys on the phone or via Zoom to be as different as the senior attorney’s view speaking in person and having that relationship.
I worked on a team previously where our three offices were right next door to each other, and we did a lot of cases together. Being able to walk next door and just talk about something for a couple of minutes and then the five-minute conversation that ensues after about what you did this weekend, is invaluable to having a team feeling it, and then in turn, having these development opportunities come up.
Lindsay: Yes, and as much as I love Zoom and the technological opportunities that have arisen during the pandemic, there is just no way to replicate being in person, unfortunately. As much as you try to be intentional about it, you just really can’t replicate it.
Lindsay: So, what would you say is the most important lesson you’ve learned over your career?
Alan: The most important lesson I’ve learned over my career is that before I give an answer, I have to be sure of what that answer is, and I’m sure you’ve heard this before from other attorneys. You might have seen recently in the news there was a slide deck from Paul Hastings that came out that was advice to junior associates there. One of the things on that slide deck was, “I don’t know is never an answer,” and I really disagree with that advice. If I’m a junior associate, in particular, and a question is asked of me and I am not sure of what the answer is, tell them that. The last thing you want to have happen is a fact ending up in a brief that you never got to review that you said was true and winds up being false. It’s not just limited to arguments before the court and things like that.
You want to make sure that your colleagues have confidence in you and that when they ask you a question, they know that they’re getting the right answer. It’s very easy as a young associate, or even a senior attorney working with a client, to lose reputation because you gave an answer that turns out not to be correct.
Lindsay: Absolutely. I think early in my career I learned that “I don’t know, but I’ll find out,” it’s absolutely an acceptable answer.
Alan: I think so too. I think that good attorneys that we’re in the same place that junior associates are now, recognize when associates are able to say that and then actually find the answer, that’s the kind of associate you want on your team.
Lindsay: Right. Absolutely. I couldn’t agree more. How about a client that changed your practice?
Alan: It was the first client that I had where I was running the litigation on my own, and you learn all the things that you don’t realize you have to be paying attention to. At the end of the day, the client had a positive outcome, but I learned that even if there’s a positive outcome, how you get there is really important. There were some real speed bumps along the way in that case, and while the client was happy at the end of the day, the client might not have had the greatest faith in me going forward after that because of how long it took us to get there.
I think it’s important to recognize, as a young attorney, where you prioritize certain aspects of your practice and how you’re going to handle cases like that when you’re on your own for the first time. I might have been more worried about what my partners and my senior associates that I worked with were thinking about the case, than what the client was thinking about the case. A very important lesson that I will never make that mistake again.
Lindsay: See, there you go. But you learned from it, and that’s the main thing. So, what does being a part of the ILN mean to you?
Alan: Being a part of the ILN is actually a very new experience for me. As I said, I’ve only been here at Connolly Gallagher for a little less than two years at this point, but the dividends have already paid off. I have a great working relationship now with a firm in Philadelphia that I basically didn’t know two years ago. I met somebody at the last ILN conference from the UK that, two months later, called me back with a matter that I would’ve never expected to get.
It’s not so much the business development opportunities, which, of course, are a valuable part of it, but the friendship and the relationships that come out of it, these aren’t just people that I do business with or provide legal services to, these are people that I’m now friends with and I look forward to speaking with and seeing at the next ILN conference. I think that that’s a unique part of ILN that I haven’t seen in other professional organizations that I’ve been a part of. The camaraderie and the relationship aspect shine through with this group.
Lindsay: That’s great. I’m really glad to hear it. And one final question, what is something that you’re really enjoying right now that has nothing to do with work?
Alan: That has nothing to do with work.
Alan: All right.
Lindsay: That’s always the hardest question.
Alan: That is the hardest question. I wasn’t ready for this one. Let’s see here. Well, this is a very personal thing, but I think others will have experienced the same. I’ve lived in my house with my wife now for 12 years. We’re finally redoing our bathrooms, and it is actually the most fun experience I’ve had in a while. Making those choices and making it exactly what you want it to be is a lot of fun. I’ve never done major renovations or things like that on a house before, and this has been a lot of fun. We’re almost done with the first bathroom, the guest bathroom, and then we’ll move on to the master soon.
Lindsay: That’ll be great. It’ll be so rewarding when it’s finished.
Alan: Yes, absolutely.
Lindsay: Wonderful. Well, Alan, thank you so much for joining us. I really appreciate you being here with us today. To all of our listeners, thank you as well. We’ll be back again next week with our next guest, and in the meantime, please take a moment to rate, review, and subscribe on Apple Podcasts or wherever you listen to podcasts. Thank you so much.
Alan: Thanks, Lindsay. It was a pleasure.