Perhaps because I have a son who is about to enter the profession and perhaps because he is a coveted recruit, I write this post as a small and quiet call for a new paradigm in the treatment of litigation associates and, in turn, a new paradigm for how law is practiced.
I am, of course, speaking in generalities, but these observations are nevertheless generally true. The legal profession and, in particular, the large to mid-size firms, are doing an abysmal job in training their litigation associates to become trial lawyers.
Firms are now completely driven by the bottom line. It controls all that is done. Lure top associates with ever increasing starting salaries in order to lay claim that "our firm attracts the best talent." Work those associates to death on make work tasks to pay for those salaries and to produce the profits necessary to keep up with the Jones to maintain or raise "profits per partner" in order to keep and lure supposed rainmakers.
The result - few if any private sector associates are gaining any concept of the big picture in the cases they work on. They are given zounds of projects to work on as part of a larger group of pyramided lawyers in various matters. But how many are actually an integral part of any case's litigation team?
It is the rare [very rare] exception where a firm staffs its cases with small teams; where the associates work closely with a senior partner on all aspects of the case. As those who have read my other posts or who have read my articles know [go to my web site for the articles], even the largest cases are more effectively run with small litigation teams. It is the best way to win and it costs less for the client. It is also the best way for young lawyers to develop the skills they will need to be case leaders.
Top law graduates - intelligent as they are - accept the current Faustian deal only because the money seems to be too good to pass up. But as everyone knows, most associates will be gone within 4-5 years, and most of these young litigators leave with little if any marketable skills. Few have even taken a deposition let alone participated in any meaningful way in a trial or some other form of contested hearing. Those that stay have limited skills for their years and this experience lag continues - with some "litigation" partners at large firms never having tried a case either as a first or second chair!
How could so many smart people act so stupidly for a few extra short term dollars?
There is only one end point for this trend - eventually the only people capable of trying cases in large firms are going to be former USDAs or State's Attorneys. But there are not enough USDA or State's Attorney jobs available to provide the training for the private sector's needs.
Moreover, let me tell you a little known secret - there is actually an art - unfortunately a dying one - to handling large complex civil litigation matters that one only learns from doing them in the private sector. So even government trained attorneys - while having a leg up on their private sector counterparts in terms of courtroom experience - are at a disadvantage when they come up against seasoned private sector civil litigators who know what they are doing. For example, it is one thing when you have the FBI gathering your evidence for you and another when you have to do it yourself.
Those firms currently drunk on the short term revenues from this inefficient pyramid are going to be in for a rude awakening based upon simple economics of supply and demand.
On the supply side, law school graduates aspiring to be litigators are going to get smart and realize that they are better off tightening their belts in their early years and gain in the trenches trial experience at a smaller firm [say a litigation boutique] where, to borrow a phrase, rather than giving them a fish the firms teach them how to fish. There are already supply side organizations cropping up such as "Law Students Building a Better Legal Profession" [click here] that are starting to confront the issue of the quality of associate life and training.
Yet, it still amazes me how the herd mentality takes over for most the top law school grads. How else can one explain seemingly intelligent people who, for a few extra short term dollars, knowingly squander all that they have worked for to be worked to death for 4-5 years and walk away with few meaningful marketable skills. It is a losing proposition. If it were a case it would be dismissed out of court.
Here is absolute rule no. 1 for soon to be law school grads who aspire to be litigators - if you want to have personal autonomy [e.g. control your career arc] make sure that where ever you land you are going to be given the opportunity to (1) take and defend depositions and argue before courts within your first 2-3 years and (2) try cases as second and first chair within the first 5 years of your practice. Ask the associates who interview you how many depositions they have taken and defended. Ask them how many trials they have worked on and what they did.
They may not like these questions, but if you intend to make a career out of asking the right questions, it makes sense to do so when you are making an important career choice. You are entitled to know these things. If someone is going to hold it against you for asking these questions then you should think twice about why you want to work at such a place.
For those litigation associates who now realize that their high paying jobs are on a track to nowhere in terms of skill development, get out. Get over the prestige issue and get over the money thing. Nine years out, no one will care where you spent your first years of practice if don't have needed skills, and whatever money you made upfront in your early years will be quickly lost in diminished earning capacity later on.
On the demand side, as large and mid-size general practice firms' development of litigation talent continues on its diminished trend, more and more top flight litigation boutiques are going to become the norm - not only because smart law school grads who want to become real trial lawyers are going to flock to them but also because clients big and small are going to prefer to hire these firms.
In short, unless this trend reverses and large firms pay attention to something other than short term profitability, the marketplace will dictate a division - where the best/most talented litigation firms and departments will be litigation only firms.
The trend has already begun - pioneered by firms like Susman Godfrey and followed by firms like Barlit Beck. Yes, these firms are uber versions of litigation only firms that currently have the luxury of selecting only the cream of the crop law school grads. But one should not write them off as one hit wonders - firms that only arose because of the unique abilities of their founders.
There is a valid business model behind these firms, why they are so successful and, most important, why they are more sought after than large firm litigation departments time and again. The model is quite simple - they get the talent, they develop the talent, and,as a result, they provide a better product.
The model is being successfully followed. Numerous complex litigation boutiques are sprouting up in every major metropolitan area.
Will the litigation boutique overtake large firm litigation departments in my lifetime? Probably not. But having litigated my fair share of antitrust matters, I am a firm believer in the marketplace. You don't have to be a Nobel Laureate economist to understand that both the supply side and demand side may very well seek an alternative when law the large firms fail to provide what both sides want.
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Posted by: Idm cdkey | January 03, 2011 at 09:00 PM