In an ideal world, I would want to know the personality type, temperament, and action style of the attorneys working on my company’s patent case.
An important key to success in litigation is the core personality of the litigators.
Are they highly competitive? Do they thrive on winning? Do they love complex, difficult challenges? Are they strategic, big picture thinkers? Are they creative in crafting arguments? Can they see multiple meanings and quickly identify ambiguity? Do they obsessively dig into the law to find the best legal support and use it in creative ways? Do they love research and writing? Do they love technology? Are they curious?
Frankly, some attorneys are natural litigators who would answer a resounding “Yes!” to the above questions and some are not.
Worse yet, some attorneys who practice litigation hate it. They may hate conflict, competition, research, and writing. You can usually spot these anti-litigators by their bad attitudes, grumbling, and crappy briefs.
Many of these attorneys regret that they went to law school. When they took a job in litigation, they didn’t realize they would hate it until they tried it. Unfortunately, most anti-litigators didn’t realize that their core personality type was unsuited for litigation. I don’t blame them for feeling trapped in their jobs because of their enormous law school loans, but I wouldn’t want them on my company’s litigation team.
I’ve worked with and against attorneys in some of the top law firms in the country and I can tell you that all firms have both natural litigators and anti-litigators working on cases for clients.
I believe that a case can actually be staffed with fewer attorneys who will ultimately do a better job if the core team attorneys are natural litigators who actually love litigation. Natural litigators can save money and greatly increase the odds of winning. They tend to work harder and smarter because they enjoy their work.
To decrease costs in a typical patent case with one to three patents and under $250 million at stake, I would want only three main attorneys working on the case. Optimally, I would want at least two of the three attorneys to be natural litigators.
When doing litigation, the more attorneys working on a case the higher the cost. I would want to keep the overall numbers of attorneys who do anything on a case to a minimum. Occasional help with document review by a very junior attorney or prior art review by an in-house expert would be cost effective, but I wouldn’t want to add attorneys to the team if possible.
If a law firm tells you that they can’t manage a typical patent case with a team of only three primary attorneys — run. This may mean that they are very inefficient and your bill will be very high. (However, if they tell you that they can’t use three attorneys because your company lacks a document retention policy and you have millions of potentially relevant documents, then it’s your own fault. Be prepared to spend millions because of your lack of foresight.)
For a patent case, I would want to hire three main types of attorneys who are primarily litigators and not patent prosecution attorneys. Ideally, I would want them all to be registered patent attorneys and natural litigators.
I would hire one lead attorney. See my last post in this series about saving money in patent litigation for details about the characteristics I think are critical for the lead attorney to contain costs and increase the odds of winning a patent case.
At a big general firm I would hire a competent junior partner. I would want the lead attorney to be intimately involved in the claim construction.
In my jaded opinion, if you hire a very senior partner at a big, general law firm, it is unlikely they will add significantly to the case, no matter how persuasively they argue to the contrary. They are unlikely to really run the case or dig into the claim construction. If you hire a top partner at a general law firm, you are likely to end up with two or three other partners billing to your case. This can be very, very expensive.
I would hire an experienced junior partner to save costs. At a big firms, junior litigation partners are typically, highly experienced and competent. They are really running the cases anyway. If you just hire the junior partner, you won’t have to pay for all of the dead weight of partners on top.
At an IP specialty firm, I would hire either a senior or junior partner to lead the case. Many senior partners at a patent specialty firm are very active in their cases and actually work on the claim construction. They may actually run the case and can be well worth the higher, billable-hour fee.
The core attorney is really the workhorse of the team who will be billing the most hours. I would want an attorney with 4-7 years of primary patent litigation experience. I would want someone who is a very good writer and who has lots of experience writing briefs and motions. Frankly, I’ve been shocked by how poorly some patent attorneys write. If they spend a lot of time doing patent prosecution and they don’t have extensive experience writing briefs, I wouldn’t want them on my case.
The core attorney should be doing the majority of the work including writing briefs and doing the preliminary claim construction analysis. It is critical that this attorney be engaged and energized by litigation. I think it is critical that this person be a natural litigator.
Finally, I would want a junior attorney with 2-4 years of experience. I would want someone who really loves research and writing. This attorney should be in charge of document collection and review in discovery.
By screening all potential attorneys for the case, hiring natural litigators, and minimizing the number of attorneys on the team, you can decrease the cost of litigation while increasing the odds of winning.
If you are someone who loves information and wants to know more about personality types, temperament and action styles as they relate to litigation attorneys, read my analysis below. This blog post is a good representation of my core action styles. I’m an obsessive researcher and a compulsive information giver. I also love quick summaries, which is why the summary and simple description of a natural litigator is above. Luckily, I’m also a quick writer.
Personality Types, Temperament, and Action Styles in Litigation Attorneys
I’ve had a keen interest in personality types and people’s core characteristics for many years. In my twenties, I felt stuck and demoralized when I worked in clinical laboratories. I loved science but I worked in jobs that were antithetical to my core personality and strengths.
I didn’t know that people could be energized by their job or that a career was possible for a woman. What can I say? I was raised on a farm in Utah.
Eventually I discovered the helpful frameworks of the Myers/Briggs personality type and Keirsey temperaments. I got out of dreary labs and went to law school to follow a career that was a great fit for my core self who loves strategy, systems, complexity, difficult problems, in-depth research and writing.
Over the last decade that I’ve spent doing litigation, it has be interesting to watch the variety of personality types and action styles of attorneys who love litigation verses those who would rather walk over hot coals.
My conclusion based on my extensive reading, observations, and informal field research is that natural litigators have certain traits in common.
Natural litigators have an ENTJ or INTJ personality type with the corresponding Conceptualizer temperament and both a Fact Finder and Quick Start action style. These characteristics are explained in more detail below.
First a micro-primer on basic personality types. In the Meyers-Briggs framework there are 16 different personality types based on four sets of opposite characteristics.
- (E) Extraversion — an orientation toward people vs. Introversion — an orientation toward solitude (I)
- (S) Sensing — focus on detailed information vs. Intuition — focus on the big picture (N)
- (T) Thinking — making decision logically vs. Feeling — making decisions based on others’ feelings (F)
- (J) Judging – prefers closure and structure vs. Perceiving — prefers spontaneity and flexibility
Although a person can function in both dimensions, a person will have an innate preference for one side of the continuum. For example, extraverts get their energy from other people. But some people, like myself, may only be mildly extraverted and still enjoy spending large amounts of time alone. Some people are extremely extroverted and hate spending any time in solitude. People have a natural set point where they are more comfortable and act more naturally.
(E) Extraversion / Introversion (I)
This dimension concerns how people are orientated to other people and the outside world.
Extraverts are energized by contact with other people. They tend to think out loud and speak before they think. They talk more than they listen and they respond quickly. Introverts are energized by solitude. They think before they speak. They listen more than they talk and it takes more time for them to respond verbally.
I don’t think this characteristic matters much for litigation attorneys.
I’ve known excellent, articulate litigators who were Introverts. Some people confuse being personable and articulate with Extraversion. Some Introverts are highly verbal and articulate but prolonged contact with people drains their energy. Since most attorneys spend a lot of time alone reading and writing, being somewhat introverted can be an asset.
Some extreme Extraverts need to speak while they think. This can increase litigation costs if they need to chat with another attorney to develop their arguments.
(S) Sensing / Intuition (N)
This set of characteristics has to do with how people process information. Sensors focus on concrete, immediate details. They are often literal and practical. Many engineers are Sensors.
In contrast, Intuitives focus on concepts, meanings, and the big picture. They are imaginative and creative. They naturally focus on strategy.
Although I think there is a place in litigation for people with a natural inclination toward both dimensions, I think Intuitives are the most creative litigators and the best at patent claim construction. Intuitives focus on meanings and can see patterns instinctively. Claim construction is all about the meaning of words and being able to see the big picture in order to recognize the implications for the infringement analysis.
Litigators must think about strategy and be able to see the implications of their actions. I would want the core attorney for my company’s litigation team to be an Intuitive.
Frankly, far more patent attorneys are Sensors than Intuitives. Although some Sensors have developed the ability to think strategically, at their core, they are still very detail orientated. Sensors can provide value to a patent case by focusing on technical details but I wouldn’t want them in charge of claim construction unless they had consciously developed their Intuitive side. Some Sensor patent litigators who have done litigation for years have developed both sides and are can be excellent at both mastering the details and strategy.
(T) Thinking / Feeling (F)
This dimension has to do with how people make decisions and their orientation to the feelings of other people. The titles of these characteristics are misleading and are miscorrelated with specific genders.
The titles are misleading because Feelers may be highly analytical and technical. Feelers simply focus on how other people feel when they make decisions. Contrary to popular belief, I know many engineers who are Feelers.
Moreover, in our culture, men are supposed to be Thinkers and women are supposed to be Feelers. But this isn’t reality. I know many men who are Feelers. It just isn’t gender appropriate. People may not realize that an Introverted male is a Feeler because he is analytical and quiet. I’m actually married to one.
Thinkers make decisions rationally and logically. They are not naturally oriented to others’ feelings. They are often direct and blunt. In our culture, men are supposed to be Thinkers. Many women, however, are Thinkers, myself included. Women Thinkers tend to be nicer than their male counterparts because they have been socialized as females to be nice and consider other’s feelings.
In my experience, extreme Feelers don’t like litigation. They generally don’t like conflict and fighting.
In stark contrast, Thinkers don’t take litigation personally and thrive in argument mode. A Thinker is more likely to laugh at a nasty letter from opposing counsel and write a nastier one back — while chuckeling.
Litigation can be war. I’ve had senior opposing counsel yell and swear at me. Litigators need to be tough-skinned. I wouldn’t want to hire someone who is going to get his feelings hurt or worry about being competitive. In litigation, I would want an attorney who is a more cold-blooded. If you are a defendant, you really want to hire a patent litigation attorney who gets a thrill from destroying patents. And some of the best patent litigators who do are are women.
(J) Judging / Perceiving (P)
This set of characteristics concerns the need for structure and closure. My favorite description of the difference between a Judger and a Perceiver is that a Judger loves having a list and crossing off items on it. In contrast, if a Perceiver makes a list, he will probably never look at it again.
Most lawyers of all types are Judgers. It would be difficult if not impossible for an extreme Perceiver to make it through law school and pass the bar exams.
When you put one of each dimension together, you get one of the 16 different personality types.
Each personality type has different strengths and at the heart of each personality type is a core temperament: Conceptualizer (NT); Traditionalists (SJ); Idealists (NF); and Experiencers (SP).
For a patent litigation team you will primarily be dealing with Conceptualizers and Traditionalists.
(Idealists don’t usually like litigation, unless it is in the area of human rights or social justice. I haven’t seen very many in patent litigation. Experiencers are the adventurous types who usually don’t go to law school — it’s too conceptual and not fun enough.)
Conceptualizers (NTs) gravitate to the law as a profession and are the natural litigators. Only about 10% of the American population has this temperament.
Conceptualizers are natural strategic thinkers who are curious and hard driving. They automatically see the big picture and many sides to an argument. They love complex, difficult challenges. They thrive when things get hard. They are creative and generate many ideas easily. Many love technology and science.
Traditionalists (SJ) are about 45% of the American population. They focus on facts and love data. They thrive when there is structure and order. They love rules and conformity. Traditionalists are dependable, practical, organized and systematic. Many engineers and registered patent attorneys are Traditionalists. In fact, because of their orientation as Sensors, Traditionalists are very good at navigating the PTO’s complex rules.
Frankly, in my experience working at both a large general firm and an IP specialty firm, there are more Conceptualizers and people with an ENTJ and INTJ personality type at big law firms. This may be why general firms claim to have better litigators. ENTJs have a reputation for being mean legal sharks. In my experience, an IP specialty firm has more Traditionalists and the Conceptualizers stand out as an anomaly. Traditionalists tend to be nicer people in general.
Both types of firms have attorneys with both Temperaments. At a minimum, I would want at least the core attorney on the litigation team to be a Conceptualizer.
I’ll admit that I’m biased: I’m an ENTJ. But from years of doing litigation, I really believe that a Conceptualizer can outlawyer a Traditionalist, even in a patent case.
As if this post was not already too long, I wanted to mention conation, also called action style or mode. Research in this area is fairly recent and a pioneer in the field is Kathy Kolbe of the Kolbe Institute.
According to Kolbe, action styles don’t describe what a person can do — they describe what a person will do naturally. Conation is about instinctual action.
There are four main action styles: 1) Fact Finder; 2) Quick Start; 3) Follow Thru; and 4) Implementor.
- Fact Finders focus on data and love research and writing.
- Quick Starts love variety and are highly creative and verbal.
- Follow Thrus love organization and structure.
- Implementors love physical objects and movement.
You can take a test to find out your action style at Kolbe.com. The test will give you a score for each action style on a scale from 1 to 10, which indicates resistance to acting in a specific mode to insistence in that mode. If you score high in an area, you are insistent in that action mode. You are basically compulsive in that behavior. It is the way you will naturally act on your own volition. (If you have read this far and just clicked that link it is highly likely that you are a Fact Finder.)
Again according to Kolbe who says that she works with law firms, people who are both insistent Fact Finders and Quick Starts are good at litigation. As Fact Finders, they compulsively research and enjoy writing. As Quick Starts, they are highly creative and verbal.
I was surprised at my results and also in total agreement with Kolbe’s assessment of litigators. I’m both an insistent Fact Finder and a Quick Start. This combo explained why I obsessively research and I’m a walking encyclopedia about subjects that interest me. I also enjoy writing and easily reach a state of mental flow when writing a brief or blog post. I also get bored easily and love doing many things at once. I love depositions where being a quick thinker and talker is a big advantage.
There are many litigation attorneys who are Fact Finders. I think insistent Fact Finders are the best litigation researchers and brief writers. I would be happy to have one on my litigation team. But I really think the most natural litigators are insistent in both Fact Finder and Quick Start modes. And if I had my druthers, I would want to know the action style of the attorneys on my company’s litigation team.
If you happen to be a Fact Finder, the type of person who might have actually read this whole post, and you want even more information about how personality and action styles relate to careers, send me an email at hubbardbowman [at] me.com. I will send you a longer article that I wrote with more examples on this fascinating topic. If you do work that is in synch with your personality and action style, you will be a much happier person.
If you hire a team of natural litigators, it is more likely that you will be much happier with the bill and the outcome of your patent case.
Fact Finders rock! Really, who else is reading legal blogs?
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