MARK MIGDAL BILLS ITSELF AS A DIFFERENT KIND OF LITIGATION BOUTIQUE

Firm: Mark Migdal & Hayden

Name partners: Etan Mark, Josh Migdal and Don Hayden

Head count: To borrow a Talmudic saying, our success is not found “in something that has been weighed, nor in something that has been measured, nor in something that has been counted, only in something that is hidden from the eyes.” So we don’t like to think of ourselves in terms of “head count.” But if you really want an answer, 13 (nine attorneys and four support staff members).

Location: Miami

Practice areas: Complex commercial litigation, international disputes and arbitration, and construction/real estate litigation

Governance structure and compensation model: As Steve Jobs wisely noted, “It doesn’t make sense to hire smart people and tell them what to do; we hire smart people so they can tell us what to do.” One reason that we insist that each of our attorneys has significant experience is so that we can govern collectively. Everyone has input regarding hiring decisions, the technological direction of the firm, and our business development and marketing strategy. Compensation is primarily focused on providing everyone with a share of the firm’s success. We strive to offer an opportunity for attorneys to bet on the business and themselves in their compensation model.

Do you offer alternative fee arrangements? Yes. Our firm is built on the premise of realigning the practice of law, and we try to practice what we preach instead of offering clients an illusion of collaboration. We are happy to absorb risk on behalf of our clients and believe that doing so provides more natural incentives to encourage our attorneys to work better and smarter. At the moment, we probably have a dozen different fee arrangements on our commercial litigation matters ranging from pure contingency to pure hourly to everything in between. This includes monthly flat fees, monthly “not to exceeds,” collars and blended fee arrangements.

What do you view as the two biggest opportunities for your firm, and what are the two biggest threats? As the legal marketplace in Miami continues to evolve, our greatest opportunity is creating a new generation of law firms in Miami. We believe that the time is ripe to connect with our community’s business leaders and entrepreneurs in a genuine, service-oriented way. Clients are often disillusioned from their prior experiences with their attorneys. Our goal is to provide them with a breath of fresh air — a relationship with their counsel that they don’t dread, but that they appreciate. The execution of this opportunity permeates everything we do — a focus and appreciation of our client’s real business issues, fee arrangements, substantive work, culture, technology and branding.

Another opportunity is our ability to start from a clean slate. Our lack of institutional history presents us with an exciting ability to burn the model down and rebuild it brick by brick (or byte by byte) in the way that optimizes our performance and results for our clients. Even better, we try to do this in a way that involves our entire team, embracing the diversity of opinions so that everyone has a voice in helping us build a firm we think is pretty special.

We know this is going to sound theatrical, but one of the biggest threats to our firm — and every business looking to grow in Miami — is climate change. We are in the crosshairs. You don’t need to be a meteorologist to see it. If there is no Miami in 50-100 years from now, there is no need to build a multi-generational law firm. If we love this city and we want it to be viable for our grandchildren, we need to develop the collective will to act. A secondary threat is the retention and election of excellent judges in our state judiciary. We underpay our public servants, have too few judges, fail to maintain courthouses and attorneys refuse to hold each other to the highest standards of professionalism. Then clients complain when they can’t get a hearing date for three months. We need to focus on electing outstanding people to sit on the bench and supporting our excellent jurists.

The legal market is so competitive now — what trends do you see, and has anything, including alternative service providers, altered your approach? Is your chief competition other mid-market firms, or is your firm competing against big firms for the same work? With some exceptions, clients are no longer starstruck by the name of a law firm. Experience has taught clients that great attorneys are great attorneys, and the firm that is standing behind that attorney can be just as much of a hindrance as an advantage. Sometimes it takes a client getting his/her clock cleaned by a smaller player to be awakened to that reality. Technology has allowed smaller, nimbler firms to achieve some incredible advantages in litigation. We have not observed a specific trend in our competition. Sometimes we are pitching against a multinational behemoth, and sometimes we are pitching against a solo practitioner. In every pitch, we work hard to differentiate our approach and our product.

There is much debate around how law firms can foster the next generation of legal talent. What advantages and disadvantages do small and midsize firms have in attracting and retaining young lawyers, particularly millennials? Midsize firms are at a disadvantage when it comes to attracting young attorneys because they — particularly prospective litigators — come out of law school with the impression that they need to work for a large law firm. They are attracted by perceived prestige, misconceptions about compensation and the on-paper sexiness of matters. But we have an advantage in retention. At our firm, attorneys have so much more control over their careers. They drive the strategic direction of the firm, they substantively engage in cases, they are encouraged to develop their own book of business, and they are compensated in a transparent way that relates to their business development. Those young attorneys who are successful in this community thrive when given these types of opportunities; they are not keen to relinquish that control by moving to a more bureaucratic law firm. It also trains attorneys on developing a more entrepreneurial mindset (or sechel as my grandfather would say), which we believe translates to better client service.

Does your firm employ any nonlawyer professionals in high- level positions (e.g. COO, business development officer, chief strategy officer, etc.)? If so, why is it advantageous to have a nonlawyer in that role? If not, have you considered hiring any? We use independent contractors for business development, branding and public relations. At this point in time, we believe that maintaining that relationship is advantageous because it ensures that they have the pulse of the market, constantly looking for ways to adapt and be creative.

What would you say is the most innovative thing your firm has done recently, whether it be technology advancements, internal operations, how you work with clients, etc.? Innovation implies something that no one else is doing. We can talk all day about our customer relationship management, embrace of technology, branding, alternative fee arrangements and our efforts to build a culture of true collaboration. We recently offered a client a time-based alternative fee arrangement, which offers success payments depending on the outcome of a litigation that decreases over time. We are certain other firms have the same offering (we just don’t know of any). Every day, we commit to not resting on our laurels, continuing to innovate and aggressive self-improvement.

Does your firm have a succession plan in place? If so, what challenges do you face in trying to execute that plan? If you don’t currently have a plan, is it an issue your firm is thinking about? Not yet. We are still focused on continued success and smart growth — then we’ll pivot to succession.