Federal Circuit Judge Dyk Has Big Reservations About Big Law

US Federal Circuit Judge Timothy B. Dyk is concerned that the pressures of Big Law life are draining the joy and purpose out of legal practice—and potentially hurting the quality of representation.

The appellate judge and former Jones Day partner, whose memoir “The Education of a Federal Judge” was published in October, told Bloomberg Law in an exclusive interview that he’s watched the legal world morph from a collection of boutique firms specializing in issues like patent litigation into centralized businesses that cover a litany of practice areas.

During his more than two decades on the nation’s top patent court, he’s seen the rise of the Big Law model and its reliance on hourly billing, and he’s noted a fluctuation in work quality and burnout.

“The legal fees are so high compared to what they were when I was a young lawyer that the opportunity to spend as much time as the brief drafter would like on the brief has been affected,” Dyk said. “And I think the amount of time that more partners can spend on briefs is also limited by the very high hourly rate that they charge. Whether that’s affected the overall work product is difficult to say.”

“I do see cases where there are issues that have been missed, records that haven’t been made the way they should be.”

A Changing Environment

In his book, the Clinton appointee wrote critically about the tilt toward materialism that the rise of Big Law has brought, observing that “money has become the central goal and measure of accomplishment for many lawyers” instead of a case well argued and that today’s attorneys “risk what the Japanese call karoshi—death by overwork.”

The 85-year-old Dyk, also a former partner at the firm now called Wilmer Cutler Pickering Hale and Dorr LLP, said he hopes younger attorneys can recapture the joy of practicing law despite the increasingly corporate environment.

“I had great fun in private practice. I get a little discouraged sometimes when some of my clerks suggest that maybe they’re not having as much fun as I did,” he said.

“I think it is more difficult to navigate private practice now than it used to be. The firms are so much larger and the compensation is so much higher. It strikes me that fewer and fewer people are making partner, and fewer and fewer of those associates actually want to become partners.”

The remedy for corporate burnout? Dyk said he hopes small firms will continue to blossom, offering young attorneys a respite from the top-dollar hourly billing cycle and a chance to “explore the issues and enjoy the process.”

Common Mistakes

Attorneys who feel their ears burning after arguing before a Federal Circuit panel should know the judges are talking about them. Dyk said every panel’s debrief session starts with an assessment of the counsel’s performance.

“It is the first subject of discussion after we finish the oral argument and recess to the conference room to discuss the case, almost invariably,” Dyk said. “We do notice whether people have done well or not. We not only comment when people do a poor job; we also comment when they do a good job.”

On that note, Dyk said a common problem he sees are attorneys who gloss over the technology at issue in patent cases, a hurdle for both juries and judicial panels made up of generalists.

“That can be a problem for us on appeal in some of these complicated cases, that the parties need to do a better job of explaining complex technology to us so that we can understand what’s going on and get to the legal issues,” Dyk said.

“I think it’s not infrequent that we get briefs which don’t put a premium on explaining the technology in a way that we can understand it.”

Patent Jury Trials

When he’s not engaged with Federal Circuit business, Dyk sometimes presides over federal district court bench and jury trials, including in Delaware and Massachusetts. He’s observed that trial counsel can overcomplicate a patent infringement case by explaining a dozen claim limitations to a jury when only a couple of them are disputed.

“I have insisted—and think it’s appropriate to insist—on the jury instructions being framed in such a way that the jury can understand what it is being asked to do,” he said. “I think there’s been a tendency, in some cases, to instruct the jury on all 12 of the limitations. And that just confuses them.”

Overall, Dyk has found his visits to lower courts instructive.

“One of the things I’ve learned is that the jury system really works very well,” he said.

“I have been impressed how seriously they they take the cases and how much they care about getting to the right result.”