As partners at Paul Weiss, Alexandra Walsh and Beth Wilkinson often talked about starting a firm together, and how they might structure it to address issues in the legal industry like gender disparity and a lack of training opportunities for young associates.
Two years ago, they teamed up with Sean Eskovitz of Munger Tolles to do just that.
Since the new firm—trial boutique Wilkinson Walsh & Eskovitz—opened its doors in February 2016, it has not billed a single hour, according to the firm’s partners.
Clients pay the firm a fixed fee based on the complexity of the matter and the stage of the litigation. Sometimes a portion of these fees are withheld until the firm wins a case; sometimes they’re increased in the event of a particularly good outcome.
Associates are paid—and promoted—according to the quality of their work.
“We don’t bonus people based on hours because we don’t measure hours,” said Wilkinson. “I can read a brief and never look at your timesheets and know whether the brief is good or bad.”
The effect of eliminating the billable hour is twofold, Wilkinson Walsh partners say: Lawyers feel less pressure to monitor how they’re spending each minute of the day, and clients feel more comfortable having associates in the room for high-level meetings because they aren’t paying extra for it. Wilkinson and Walsh believe that structure gives young litigators a leg up in professional development.
Paul Weiss doesn’t have a billable hour requirement for its associates, but, like most Big Law firms, it does bill clients by the hour.
“The issue of how best to train young lawyers to become skilled practitioners is one that law firms have grappled with for generations,” Brad Karp, chair of Paul Weiss, told Bloomberg Law. “There are no absolutes.” He said that large firms and boutiques are both poised to offer great training opportunities to young lawyers.
Wilkinson Walsh also doesn’t plan to follow a lock-step promotion model, instead promoting lawyers to partner when they are deemed ready.
“At most of the other firms I was looking at, I don’t know that I would already be a partner,” said Rakesh Kilaru, who joined the firm as an associate from the White House Counsel’s office in 2017. He graduated from law school in 2010 and was promoted to partner in January.
Walsh said this was part of her goal in starting the new firm: giving young associates the opportunity to develop skills and contacts early on in their careers. Many Big Law firms have good intentions, particularly when it comes to promoting women and diversity, but it’s hard to overcome habits that have been in place for decades, she said.
“One of the great things about starting your own place is that you really get to define your culture and your values from the outset,” said Walsh. “We’re writing on a blank slate.”
It’s not unusual for Big Law partners to start their own firms after establishing their careers in bigger litigation shops. But historically, the lawyers going out on their own—and taking big client work with them—have been men.
Wilkinson Walsh is part of a growing group of high-end litigation boutiques founded by women with the goal of restructuring how legal work is done. Their aim—on top of handling important legal work for their clients—is to correct what they see as structural inequalities in Big Law that have contributed to the dearth of women at the top of the profession.
Faith Gay, who recently left Quinn Emanuel with partner Philippe Z. Selendy to found Selendy & Gay, said her new firm will use alternative fees as much as possible. “It’s freeing not to focus solely on the billable hour,” she said. Although Selendy & Gay won’t be ditching billable hours altogether, it won’t be publishing its profits per partner, according to Gay.
“Opportunities for women can be much better by running their own enterprises,” Gay told Bloomberg Law.
Because in-house counsel are increasingly sharing their litigation work across multiple firms, trial boutiques like Wilkinson Walsh and Selendy & Gay aren’t necessarily taking cases away from Big Law. Rather, they’re joining high-profile cases in partnership with Big Law firms.
Steven M. Greenspan, vice president and chief litigation counsel of United Technologies Corporation, has used this model for decades—hiring a nimble trial firm to supplement the work of his regional counsel when big cases arise. Recently, he’s seen more in-house counsel do the same, he told Bloomberg Law.
“I’m starting to see it more in part because people realize that there’s a real specialty in courtroom work,” Greenspan said. “To put it bluntly, there’s a difference between a trial lawyer and a litigator.”
In just over two years since it opened, Wilkinson Walsh has grown from six to more than 40 attorneys. It has won high-profile victories in cases ranging from major pharmaceutical antitrust matters to child custody battles. Many of them have been in cooperation with big firms.
For example, Wilkinson Walsh won its first major trial, just months after its founding, successfully defending Philip Morris against allegations that it deceived smokers in its marketing of Marlboro Lights. On that case, the firm served as co-counsel with lawyers from Winston & Strawn.
The following spring, the firm won a bellwether trial in a massive multi-district litigation alleging Bayer inadequately labeled the drug Xarelto. The firm won a trial over similar claims in Pennsylvania state court in January. That trial team included lawyers from Arnold & Porter and Goldman Ismail Tomaselli Brennan & Baum LLP.
“I don’t think that 10 or 15 years ago McKinsey or Novartis or the large insurers would have come to small firms for their top work, and now they do,” said Gay, referring to some of her clients. “Now, I believe the market has changed, and the absolute top clients use smaller firms for all kinds of really interesting creative things and some of their bigger matters.”
Last fall, Wilkinson Walsh was hired to represent John Kapoor after he was charged with leading a conspiracy to bribe doctors and pharmacists to over-prescribe an opioid pain medication made by Insys Therapeutics, which he founded.
Walsh and Wilkinson said they both jumped at the opportunity to represent Kapoor, seeing it as a way into the “boy’s club” of white collar work.
“The last bastion of the white male club is the white collar trial bar,” said Wilkinson. “There are very few women who try a lot of cases, or try any cases in the white collar space.”
“We got the call and we said, ‘We’ve got to do this,’” said Walsh.
The number of jury trials has been steadily declining in the United States for decades, leaving fewer opportunities for young lawyers at large firms to get their feet wet in the courtroom. And at many firms, young female associates say they often remain invisible when working on matters with senior lawyers, who are more likely to be men.
Roberta Kaplan, another power litigator who recently left Paul Weiss to found her own boutique, said she encourages her associates to be in as many meetings as possible to avoid this dynamic.
“We obviously have a lot of women working for us, and those women have had the kinds of experiences working at Kaplan & Co., in terms of dealing with clients and handling matters, that I don’t think they would be able to get at a big firm,” she said.
Likewise at Wilkinson Walsh, the firm’s associates say freedom from the billable hour has also afforded them more opportunities for professional growth. Associate Cali Cope-Kasten believes it has also created space for gender equity.
“Even at Paul Weiss, I billed as a junior associate female as many hours as my male colleagues did on the case,” Cope-Kasten said. “It wasn’t even a billable hours issue. But it was simply the client didn’t know who I was because I wasn’t a person who was being introduced on calls or attending meetings.”
Karp doesn’t believe it is “particularly revealing” to compare Big Law with trial boutiques and to draw “broad generalities about their training of young lawyers,“ he said. “What really matters is a law firm’s commitment to attract, develop, retain, and promote the finest legal talent,” he said.
“I can’t think of a matter I’ve been on where the client has not known my name, has not been able to recognize my face,” Cope-Kasten said. “These are huge corporations and their general counsel or the person working in house knows who the associates are because you are in the room, you are in the conversation.”