Michael Whalen | General litigation vs. specialty litigation—What’s next for general litigators in tech?

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Tech impacts almost every major company. New types of disputes and problems are constantly arising—all of which present opportunities for general litigators with a broad understanding of the regulations and laws impacting tech. What can the new attorney expect, and how should they prepare?


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Episode Transcript


Wayne Stacy, Mike Whalen


Wayne Stacy  00:00

Welcome, everyone to the Careers and Technology podcast from the Berkeley Center of Technology. I’m your host, Wayne Stacy, the Executive Director for BCLT. And today, we’re fortunate to have Mike Whalen from Paul Hastings with us. Mike is an attorney in the litigation department of Paul Hastings, specializing in general litigation with most of his clients in the tech space. So he gives us a really interesting view of how litigation is impacting tech companies and how to get ready for a career in that. So Mike, let me let me start with the idea about, you know, General litigation versus specialty litigation. You know, what should what should a student be thinking about?


Mike Whalen  00:49

So I think, for a student, and when it’s great to be here, and to talk with you, and hopefully help students figure out what they potentially want out of their career, especially those looking at litigation, which is what I’m familiar with, and students thinking about, it should really think broadly, I think about, you know, what they enjoy what led them to go to law school. And what led me in particular down the path of general litigation is really the notion of problem solving, and being able to think through problems across different industries, across different procedural matrices, whether you’re in court or out of court, and maybe a post judgment proceeding. And I think that’s really the skill of a generalist litigator, the ability to see a lot of industries see a lot of problems and see a lot of areas of the law. And if that’s something that interests students, then they should really think hard about being a general litigator, because I do think there’s a general shift, in this day and age you’re either hyper specialized, or there’s a real emphasis in larger firms like Paul Hastings, on having a broad base of skills as a generalist.


Wayne Stacy  01:53

So that’s a it’s an interesting point about being hyper specialized. You know, I spent nearly all of my life doing patent litigation, which would be that hyper specialization, and not a lot of other things. 20 years ago, people said that, well, General litigation is dead. In big firms, you’ve got to be hyper specialized. But it seems to be drifting back towards the two specialization, you know, specialization and general litigation coexisting very, very well.


Mike Whalen  02:25

Yeah, I think that’s right. And I think that’s the nature of where legal practice, again, at firms like Paul Hastings and other firms that you’ve spoken with on the podcast, I think that’s where it’s headed, in that, in general, the practice is driven by our clients hardest problems. And for some of our clients, particularly say, in the biotech space or in the pharma space, those hardest problems will consistently recur in the IP space. And there’s absolutely an area for that hyper specialization. And you do see that a lot. But in other situations, our clients hardest problems change day to day, week to week, month to month, and that really cries out for a generalist who both can react to those problems, but also know when it’s time to collaborate and work with specialists. And I think more often than not our teams, particularly in traditional specialist fields, such as antitrust, you’re really seeing a blend of specialties, generalist litigators, and antitrust litigators.


Wayne Stacy  03:23

Antitrust is another great example of something that was traditionally thought of to be hyper specialized. But what you’re saying is that you’re seeing a blend between the hyper specialized antitrust practice and the general lit practice. So how do you get involved in an antitrust matter, for example?


Mike Whalen  03:42

Yeah, I think there are a few ways and I think it relates some to enforcement priorities or where trends are in the law. So antitrust is a great one, become and is becoming a real inflection point in enforcement. And I think whenever that occurs, you see that echoed sort of across the litigation spectrum, whether it’s lawsuits from competitors or purchasers. And, you know, it’s something we saw not too long ago in the trade secret space, and that’s ongoing. So the way a matter like that will occur is sometimes it’s very obvious. It’s, you know, FTC suing Facebook, for instance. But in other ways, it’s a little more subtle, where you will have the overlay of a potential competitor action or a contract suit that implicates antitrust issues, and maybe they’re bubbling under the surface for a while, but then they break through because the interpretation of the contract in what looks like a contract dispute, all of a sudden, implicates core anti trust principles. And then at that point, you have to you know, you have to bring in the specialists but you’re also dealing with something that looks traditionally like normal commercial litigation, and but all of a sudden you have a hybrid and it’s really important to have that collaborative working model and have that fluency across a special specialist subgroups, and general litigation.


Wayne Stacy  05:01

Well, you know, it’s clear in areas like patent law where you go get your clients there people sued for patent infringement, or in pieces of antitrust, like you said the FTC. I mean, there’s a lawsuit filed and it shows up in the news or on the reporter, very quickly. But if you’re doing general litigation, where does your work come from? How do you think about getting involved with with particular clients?


Mike Whalen  05:30

Yeah, it’s a, it’s not always a straightforward I wish it was. But the beauty of being a generalist litigator by thing and something that I find exciting is that, you know, you’re always looking for the next problem, but you don’t know where it’s going to come from. And, again, at firms that have a well rounded practice area, so deep corporate group, deep litigation group, tax group bankruptcy group, you never know, when a client is going to have a problem that needs litigation help, and maybe it doesn’t make its way into court, maybe you’re just, you know, assessing risk on the front end, or, you know, you’re doing an evaluation of a potential business combination and potential risk in the future. But that’s really where the generals litigator comes in, as they’re sort of ready to react to any situation. And those situations are less predictable. You don’t know when they’ll come, how they’ll come or in what context. But I think that’s that’s a lot of excitement.


Wayne Stacy  06:25

You mentioned corporate practices, you know, I guess sometimes it’s not always obvious that one attorney within a law firm really helps generate work for another attorney within a law firm. And it seems like the corporate practice is is pretty important for general litigators to feed from.


Mike Whalen  06:47

Yeah, I think that’s absolutely correct. And vice versa, I think there’s probably a greater emphasis right now on the generation from the corporate side. So if you bump in any business school students stay in touch with them. But some of that’s a function of the market you know, when the economy’s doing well, a lot of the work is flowing through the corporate practice. And then, you know, the old adage that litigation is counter cyclical, when there’s downturn, corporations, funds, financial institutions, they look to maximize value, and sometimes maximizing value is looking through a different lens at a problem that might have been fine when everything was good, but now is front and center. And that’s where litigators come into the mix. And part of that is the need and desire again, at a firm like Paul Hastings in particular, we want to be where a client can come with all of their problems and their hardest problems. And you don’t want to turn someone away because you don’t have an answer just because it’s moved over into litigation. And part of that’s having that infrastructure at a firm but as a litigator and thinking of your career as potential generalist litigator, you want to be the person that’s able to answer those questions.


Wayne Stacy  08:02

Well, there may be a tendency for people to say, well, that’s great. That makes sense. For a generalist litigator, most industries, but tech? Well, the tech industry somehow requires specialty practices. How do you respond to that kind of statement?


Mike Whalen  08:21

Well, I would say first, it certainly does. But tech is so pervasive now and so big, and touches on everything, that it is more and more sort of crying out for the attention of a generalist, even if it’s someone who otherwise had some specialty, the need to be cross conversant across a number of different areas is really important. And I think my practice is a good example where I’m in Chicago, not necessarily a tech hub, increasingly so over the years, but not one of the traditional tech hubs of the United States. But my practice by virtue of being tapped into a firm with a strong presence in tech hubs, both overseas and in the United States, but also having a very great litigation group. I deal with tech clients all the time. And if I’m not dealing with tech lines, I’m on the credit side dealing with investments in a tech company. I’m working for an established player in an industry that you wouldn’t necessarily think was susceptible to the injection of new technology. But it is for instance, you know, the auto industry or now just emerging alternative medicine, all sorts of areas that you wouldn’t think are affected by technology but absolutely are and maybe you’re not representing a tech company, but you’re going to deal with tech issues sooner rather than later.


Wayne Stacy  09:45

So kind of with this breadth of of your practice, you know, if you were going to tell students these are the classes you should look at taking mean people always say you’re going to litigate your take civil procedure. Go take remedies gonna take evidence. But it seems like you need more than that. Where would you steer students if they had a whole host of courses to take, which of course we do at Berkeley?


Mike Whalen  10:12

Yeah, so I think those are absolutely the courses that you should take build up your procedural muscles. But also, it’s really important whether or not you actually specialize in an area, go take some core courses. Now you don’t need to fill your course load up with your big, I don’t know how the credit system works at Berkeley. But where I went to law school, it was four credits were your big core classes, you don’t need for four credit classes, or three, four credit classes. But take a few of them because I think learning how to think systematically through a system of law will really help you in the future, because you can learn how to learn your base principles, delve into those base principles, learn how a rule plays out through that system of law, and maybe don’t practice that system of law for a while. But you’ll learn the skills for digesting and absorbing those substantive areas. Because when the client comes and asked you to confront a new problem, well, you know, the procedure, you know how to write a brief, but you need to be able to learn how to digest that area of law and maybe you’re not the final answer giver for that client. But to give them that first answer, reassure them know that you can find the right people and think through the problem. I think that’s really important.


Wayne Stacy  11:24

Well, Mike, thank you for for sharing with us today. I think this is an important message for people to to understand that the markets, the market shifting a little bit, and tech companies are requiring more breadth. So I think it’ll be important for students to look for those classes.


Mike Whalen  11:43

Yeah, definitely. Thank you.


Wayne Stacy  11:46

Take care. Have a good day.