Legal Profession Blog

Follow Up to Career Advice - In-House Prospects

Orin Kerr graciously linked from the Volokh Conspiracy over here to the litigation versus corporate career post.  I want to return the favor by linking back to a set of comments being posted over there.  The same over at Above the Law.  There are a number of thoughtful comments out there. 

One of the themes being discussed is whether it's easier to move in-house if you've been a transactional lawyer or a litigator in-house.  I don't have any idea what the data is on this, but my philosophy as a general counsel, unless I was hiring for a specific specialty, like a litigation supervisor, an HR lawyer, or a patent lawyer, was to look for the best available athlete, and I had a track record of hiring both transactional and litigation lawyers to be divisional or business group GCs.

Many leading GCs are or were former litigators, including Jeff Kindler, first at McDonald's and then Pfizer (and now CEO of Pfizer), Peter Kreindler at Honeywell, Don Kempf at Morgan Stanley, Paul McGrath at FMC Corp. and then American Standard, and the list could go on and on.  John Donofrio, the GC at Visteon, and Bob Armitage, the GC at Eli Lilly, are patent lawyers by background.

I think many of the comments reflect something I suggested before, which is how hard it is at the bottom of the heap to experience what it's like to be a senior lawyer in either specialty.  For example, the communication skills you learn as a litigator translate nicely into talking publicly to a board or in a negotiation.  A congenial personality works well in front of a jury as well as in a boardroom (the six or twelve lay people in either environment tend not to like assholes any more than anybody else).  One of my mentors at Dykema, now retired, Don Young (Harvard '63 I think) had a fearsome reputation both internally and externally (as a summer associate I drew a cartoon of an associate who looked like he had just put his finger in an electric socket; the caption had him saying to another lawyer, "Don Young just reviewed my research memo"), but in front of a jury he was the embodiment of Mr. Charm.  Fortunately, despite the fearsome reputation, he also had a sense of humor and an appreciation for chutzpah in young lawyers, much less summer associates who had yet to get an offer!

[Jeff Lipshaw]

Litigation or Transactional Law Career: Some Advice to Law Students

Posted by Jeff Lipshaw

A reader who is interning in a NYC corporate law firm, and about to enter law school, saw my earlier post alluding to the creative possibilities in transactional work, and sought advice about choosing between transactional work and litigation work.  I'm happy to share some thoughts.

1.  Mostly I will be talking about big firm practice, but I should issue a disclaimer.  There's big firm practice, and there's mega-firm practice.  The reason it's important to make the distinction is because I'm looking backwards at a career in which many of the fulfilling aspects came later, after I did my time in the trenches (both in litigation and corporate).  So there is a substantial period of learning how to chop the wood before a new lawyer gets to build, much less design, the house.  My perception is that period is shorter in big firms outside of the financial centers.  You will probably take on more responsibility more quickly at a big firm in Detroit than Chicago, in St. Louis than Los Angeles, in Salt Lake City than New York.   [UPDATE:  See comment below on how this differs between transactional and litigation.]

2.  Law school, at least the way it's mostly taught, does not tell you much about the way the transactional practice works.  That's because of the case method.  Cases are always about litigation.  (Interestingly, business schools teach transactions in the case method, but they are cases in doing business, rather than litigating about it.)  Even contracts class, as usually taught, is something of a bait-and-switch.  Don't blow it off, because you'll need it for the bar exam, but there's not a lot of contract law that comes to the fore in transactional practice.  I often say, and am probably not far off, that the practice of contracts is 90% interpretation, and 10% all other (offer and acceptance, consideration, duress, mistake), and the teaching of contracts is 90% all other, and 10% interpretation.  Litigation tends to involve the LAW a lot more.  The number of occasions for going to the library and doing extensive research on a legal issue is far greater in litigation, and when you do research an issue on the transactional side, it rarely turns into work product in the way a brief springs out of the cases.  You might do corporate research, for example, on whether a transaction involves substantially all of the assets of a corporation, and hence require shareholder approval, but that will tell you how to structure the deal, not be the basis for an argument.

3.  Are you a win-lose kind of person or a win-win kind of person?  Great trial lawyers are sublimated warriors.  Winning a trial or decimating a witness in cross-examination is the thrill of conquest and vanquishing.  If you are not that kind of person, it can wear on you.  Personally, I realized ten years into a litigation career, (a) I wanted to be liked (if not loved) too much to be a conqueror, (b) dealing with the opponents' conception of the truth (opening up the other side's brief and reading it, for example) was frustrating and hard on my blood pressure, and (c) as I discuss below, once you get beyond the adrenaline rush that causes your eyeballs to pop out of your head (some people like that), the way trials work in cases that big firms do can be kind of . . . boring.

On the flip side, negotiating transactions is also "adversarial" in a way, and a lot of it is about winning points.  Just like a litigator can't win without good facts and good witnesses, a transactional lawyer can't make points without exogenous business leverage.  For example, even in a "friendly" business combination involving public companies, there are a series of points negotiated between the acquirer and the target that have to do with how tied up the deal is.  The task for the sellers is to maintain some wiggle room for future leverage, and the task for buyers is to make it as difficult as possible for the target's board of directors, short of violating their fiduciary duties, to get out of the deal if a better one comes along.  But that's all less a matter of the lawyer's skill than the leverage the client has or lacks.  (See the Bear Stearns - J.P. Morgan deal for an example of this.)

The bane of a transactional lawyer's existence, though, is an adversary who seems more intent on winning "lawyer points" than getting the deal done.  One aspect of creativity in deal lawyering, it seems to me, is knowing when to hold 'em and when to fold 'em - how to concede the points you don't need, or trade them for the ones you do.  Negotiating with a lawyer who, like a litigator, needs to conquer or vanquish, is tiresome.

One of my late ex-colleagues and dear friends told me that he found the give-and-take of negotiated deals tiresome in just that way, and that's why he "stuck to raising money in the public capital markets."

4.  The first part of a career, whether in litigation or corporate, is a combination of doing the grunt work and learning professional techniques.  Doing the grunt work, well, sucks.  Learning the professional techniques, whether it's second-chairing a deposition, or attending the negotiation of the acquisition agreement, is a lot of fun, as long as you like to learn.  Being creative with those techniques is something that comes later.  Two examples.  Litigation.  An old saw of cross-examination is that you never ask a question for which you don't know the answer.  That pretty much guarantees that you won't make a mistake.  But great cross-examiners violate that rule all the time, because they know what questions to ask in which they either don't care what the answer is, or have a plan for whatever comes out.   Corporate.  Things like the shareholders' rights plan (the poison pill) are invented by creative lawyers.  But generally that's by lawyers with cycles of learning in the transactions.

Moreover, technique in itself can get old.  It's the context then that supplies the interest.  I'll give two non-legal professional examples.  When my daughter was born 24 years ago, I was (obviously) blown away by the experience.  I said something to the OB about how thrilling it must be to deliver new babies.  He said the physical aspect of it lost its wonder after a while, and the thrill came from dealing with the parents.  Or to take a counter example, dentistry.  I don't know how much professional satisfaction comes from doing fillings and crowns once you've mastered the technique.  I do understand dentists have high suicide rates, compared to other professions, for whatever reasons. 

Similarly, mere technique in high-powered litigation or corporate work can get old.  As I've said, I didn't like litigation.  We had a ten week trial in Cheyenne, Wyoming in 1986, litigating a whole set of complex contractual issues between a coal supplier and a utility.  In the midst of what ought to be the most exciting time for a corporate litigator, I realized I was bored.  I knew what every already deposed witness was going to say, and what the cross-examination would be.  In corporate work, it got to the point that I negotiated the key business points of the deal, but was bored stiff by the lawyers' wrangling over the environmental representation or the interstices of the definition of the "knowledge" standard for representations that hinged on it.

5. (UPDATED)  Get good mentoring on this.  I don't take anything away from law professors (I am one, after all), but note that the experience (as opposed to mere knowledge or analysis) of mature practice occurs well after most professors have left practice to go into the academy.  Indeed, at the 2-4 year level, which is pretty common, you are still moving from grunt work to learning technique.  Obviously, thoughtful professors will have observed what senior lawyers do, and can be intelligent and insightful, but they haven't necessarily experienced what it's like to be a senior lawyer in practice.   Many of those senior lawyers - corporate and litigation - have real passion for their jobs, and it pays to listen to them talk about why.  Or talk to adjunct professors.  One of my most rewarding classes was a mock litigation course taught by Charles Marson, who had been the Executive Director of the northern California ACLU.

As with many decisions in life, there's no silver bullet, or algorithm, or pat answer.  You just pays your money and takes your chances!

Young Lawyers: What Do You Want to Be When You Grow Up? (And Can You Repay the Loans?)

Posted by Jeff Lipshaw

I have, in the past, expressed some disdain toward the victimology advocated in some quarters over the plight of very highly paid young Big Law lawyers.  The only thing yet that has given me pause to reconsider the fervency of that belief is the troubling and puzzling issue why one would incur up to $100,000 in student loan debt without at least some shot at one of those pricey jobs that would provide the basis for repaying the loan.  Nevertheless, my sense is that the Golden (or at least Silver or Bronze) Handcuffs might well be as effective as the debt in tying one to an unsatisfying career in Big Law, but that's merely reflecting my own experience.  The bigger concern is what happens to people who don't get those kinds of jobs, but incur that kind of debt.

Notwithstanding the economic pressures from whatever source, I think we have to acknowledge, however, some personal accountability for what we want to be when we grow up.  On that score, the February 2008 edition of the ABA Journal, freshly delivered to the mailboxes here in Suite 250, has an interesting pair of juxtaposed articles.  One is an excerpt from Making Waves and Riding the Currents, the memoir of Charles Halpern (left), who left the relative security of Arnold & Porter in the 60s to found the Center for Law and Social Policy, and later became the first dean of the CUNY School of Law.  The excerpt describes his decision to leave Arnold & Porter and its lifestyle (although, notably, the question of being saddled with debt does not come up).  The other is a description of a week in the life of Stephen Susman (right), the founder partner of Houston's Susman, Godfrey, and a big-time Big Law lawyer (albeit an entrepreneurial one), replete with early morning personal training and dog walking in Central Park, breakfasts with George Soros, benefits, fancy lunches and dinners at posh NYC restaurants, conference calls, and prep sessions for pending hearings in which he will be up against David Boies.

Do these stories reflect the polar extremes of what we want to be when we grow up?  Is the idea of personal autonomy and accountability - that either career is achievable - a myth that collapses in the face of the present economic reality facing most of today's law students?

For Lincoln's Birthday Next Tuesday: Kentucky's Lincoln and Brandeis Speak to Young Lawyers

Posted by Alan Childress
Everyone knows Abe Lincoln was born in Kentucky, but I had forgotten that Louis Brandeis was born there too.  Here is a great old post from Kentucky lawyer-blogger Ben Cowgill, 'interviewing' them both about their advice to those entering the legal profession.  It is nicely footnoted and thoughtful.  It is called Old Wisdom for New Lawyers.  One useful exchange:

Cowgill: But I seem to recall that you refused to take vacations as a young lawyer. Did you have a change of heart?

Brandeis: I soon learned that I could do twelve months' work in eleven months, but not in twelve.

Looking for Meaning in Cambridge on Thanksgiving Morning

Posted by Jeff Lipshaw

I wondered this Thanksgiving morning whether there is a blog where the pharmacists who staff the 24 hour CVS in Porter Square (where I filled a prescription), or the baristas who open the Mass. Ave. Starbucks at 6:00 a.m. (where I got some coffee), or the people who work at Kohl's and will be at their stations at 4:30 a.m. tomorrow morning, or the people who drive the T trains all day on the holidays can bitch and moan about their lot in life.  I happened to be reading Paul Gowder's blog post over at Law and Letters about the travails of being an exploited young lawyer, and thought I'd note a couple things.

1.  The "corporate serf" thing or the big firm/do-gooder dichotomy for graduates of the elite schools is just plain wrong.  Thirty years ago, I made a life style decision NOT to go to work at a law firm in New York, opting instead for less money and more lifestyle in Detroit.  That option still exists.

2.  With all the ink spilled about the likely fate of the vast majority of law students, why do they keep going to law school?  Maybe the ones who don't see themselves as victims just don't write about it.

3.  There's an article in the New York Times this morning about the perks that the big law firms offer to their associates in the competitive market for talent.  The list that follows is taken verbatim from the article:  candied apples on everyone's desk from the "happiness committee," milkshakes from Potbelly Sandwich Works, concierge services (pick up theater and sports tickets, dry cleaning, car repair, etc.), top off bonuses, sabbaticals, mortgage guarantees, subsidies for buying hybrid cars, on-site tailoring, personal issues coach and psychotherapists, wine parties (tuna tartare, baby lamb chops), dinner delivered from the Palm Restaurant (on a silver tray), yoga classes, nap rooms, child care, and emergency nanny services.

I return to my thoughts from yesterday about futility.  Very few people in the world are lucky enough to find meaning for their lives in their work.  If you are looking for meaning in your life, and doing your job as a lawyer has as much meaning to you as filling an order for a quad soy latte with extra foam, then you either have to look for meaning elsewhere, or deal with the same cognitive gap of futility in squeezing meaning out of something that is not meaningful.  But lawyers at least have a chance.

When my daughter was born over twenty-three years ago, as we were still basking in the miracle of having created this baby, I remarked to the obstetrician in Ann Arbor (who was about to leave for a post-doc at Duke) how amazing it must be to see babies born every day.  His response was interesting.  He said that the physical act of giving birth had, to him, become routine; the magic and the meaning was in the connection with the people who were his patients.

Practicing law probably falls somewhere between making espressos and delivering babies, but the point is that there's no guarantee that work will make our lives seem important to us, and we need to deal with that either by changing the work or finding another place for meaning.

Happy Thanksgiving!

You Be The Judge

Here's a test of your attitude towards lawyer sanction. How would you evaluate the following charges in a complaint recently filed by the Illinois ARDC? In the wake of his termination as an associate of a law firm in Elgin, Illinois, the attorney is alleged to have made a series of unauthorized purchases on the firm credit card. Among the purchases - several pieces of artwork ("Ete Hiver Chamonix Mont-Blanc" and others), a lady of justice statue, and a "medium black hipster coat." Total: roughly $1200, mostly at Target. The attorney was charged criminally but diverted to a Second Chance Program which required restitution. The charges are deferred pending completion of the program.

Count two involves an argument with the partner who fired him and the handling of his last paycheck. The attorney left a text mesage for the partner as follows: "We're now settled. Otherwise, I'll tie you up in Court on fraud & malpractice charges & report you to the ARDC. Your S-Corp. is dissolved...dumbass!" The charge: threatening to present professional disciplinary actions to obtain an advantage in a civil matter in violation of Illinois Rule 1.2(e). Note that there is no such rule in the ABA Model Rules.

How would you decide this one? What factors would influence your decision as to misconduct and sanction? (Mike Frisch)

The "Do We Need to Know..." Trilogy: Part 2 - The Little Judgment Calls Real Lawyers Make Right from the Start

Another one of my evasions to the "do we need to know..." question (besides saying that students should think of the law as Jewish scholars thought of the Talmud - a sea across which we could never swim) is to recall the first time I had to write a research memo for a partner in a law firm as a summer associate.   As is often the case with summer associate research assignments, the issue was particularly arcane and fact specific.  The partner didn't give me a page or word limit.  He didn't say "just restrict your research to the Michigan digests."  He didn't say how long I should spend on it.  All he gave me was the assignment and a due date.

The fact is that he didn't know the answer, which is why I got the assignment.  Any question akin to a pre-test "do we need to know?" (like "do I need to look at?" or "how long should I spend?") would have provoked different and perhaps unpleasant responses, depending on the lawyer (caveat to the "how long" question - you might get a response that says if you haven't anything in X hours of research time, come back to me).  While the more senior lawyers in the litigation or in the transaction make the BIG judgment calls, young lawyers start making little judgment calls right off the bat.  "I am the only person researching this issue, and only I know if I have looked hard enough for the answer.  Only I know if I have gone past the time of diminishing returns in the research.  Only I know if it's time to stop researching and time to start writing.  Only I know if I need to know anything else to answer the question."

[Jeff Lipshaw]

Richmond on Ethical Duties of Law Firm Associates

Posted by Alan Childress
Douglas Richmond (Sr. VP of the insurer Aon Risk Services-Professional Services Group) has posted to SSRN the article, "Professional Responsibilities of Law Firm Associates."  It is also in Brandeis Law Journal, vol. 45, p. 199, 2007.  Here is his abstract:

Most American lawyers practice in law firms.  Although firms are variously structured, the lawyers who practice in them can generally be divided between partners and associates. While associates and partners share professional duties and problems, in several key respects associates' professional responsibility concerns and problems differ significantly from partners'. This article has its genesis in those differences and the common perception that associates are increasingly pressured to act unethically.

The article begins by examining law firm culture because it is culture more than ethics rules or other professional standards that influences associates' behavior. The article then discusses associates in the professional responsibility framework, focusing on Model Rule 5.2 and section 12 of the Restatement (Third) of the Law Governing Lawyers, before examining professsional responsibility subjects of special importance to associates: the duties of competence, diligence, and confidentiality; overbilling; ethics issues associated with legal writing, including the duty of candor to the tribunal, plagiarism, and the duty to diclose directly adverse authority in the controlling jurisdiction; the duty to report serious misconduct by other lawyers, focusing on difficulties associated with reporting misconduct by partners; and associates' duty of loyalty to their firms.

The article concludes with a call for further research into associates' professional responsibility problems by groups positioned to conduct empirical studies of the subject, such as the ABA or NALP.

Son of Even More Than You Ever Wanted to Know About Lawyer Unhappiness Returns - The Sequel, Part IV

In the interest of bring all available data to the fore on this issue, we note that Susan Saab Fortney (Texas Tech, left) has recently added a comment to John Steele's post on this issue.  She says:

Building on my earlier empirical work on associate satisfaction, law firm culture, and billable hour expectations, I designed a national cross-profession study of lawyers practicing in firms, corporations, and government offices. The study obtained qualitative and quantitative information using two questionnaires: one designed for managing attorneys and one designed for supervised attorneys. We also conducted focus groups in five cities around the country.

Close to 50% of supervised attorneys agreed with the statement, "I feel stressed and fatigued most of the time." 63% of supervised law firm supervised respondents agreed that they are forced to sacrifice fulfillment outside work in order to advance their careers. Nearly half of the supervised attorneys in law firms and supervised attorneys in corporate offices reported that they were interested in exchanging lower compenation for working fewer hours.

I discuss these findings and others in a NALP Foundation book called, IN PURSUIT OF ATTORNEY WORK-LIFE BALANCE: BEST PRACTICES IN MANAGEMENT. I would be happy to send interested people a short article published in the NALP BULLETIN. I also discuss select findings in a Fordham symposium article called, The Billable Hours Derby: Empirical Data on the Problems and Pressure Points, 33 FORDHAM URB. L.J. 171 (2005).

I don't know how that compares to other professions (dentists, medical residents, inner-city school teachers), or to managing lawyers, but it's certainly another set of data points, and confirms that this is hard work that generally pays a pretty good wage.  Whether I felt stressed and fatigued would have depended on what day you caught me (at any level).  Fifty-fifty sounds about right.  I would also have answered that I sacrificed fulfillment outside work every day of a twenty-six years career in the practice - as associate, partner, of counsel, and general counsel.  Almost every second of certain points of my life was devoted either to work or to the needs of my children, and it was only as they grew up and pursued their own interests that I returned to many things that fulfill me:  golf - at a handicap less than 20; art, such as I produce it; writing; teaching (first as an adjunct), etc.  Even now, I have a hard time giving up writing (blog, article, book review or otherwise) to go play the little Audubon Park course, and I still haven't managed to regrout the mosaic that has been sitting in my apartment since August.   You can take the boy out of the Type A environment, but you can't take the Type A out of the boy.

[Jeff Lipshaw]

More on Lawyer Happiness (or the Lack Thereof)

John Steele over at Legal Ethics Forum has touched off a very interesting dialogue on the subject of lawyer happiness and unhappiness, and the scholarship of it.  Both John's observations and the comments of other really first-rate thinkers (including John) on ethics are recommended.

John credits the book we have both reviewed as "cultural criticism in the mode of Roland Barthes."  I would also (and did) give it credit as one instance of anthropological or cultural narrative, but, in fact, the author and its publisher market the book as something more: "empirical" and as involving "painstaking analysis."  I suppose in the very broadest sense that might be true, but I leave that to the reader.  I have said about as much as I want about it.

John also referred to an article by Patrick Schiltz published in the Vanderbilt Law Review back in 1999.  My reaction to the Schiltz article was about like Brad Wendel's in the comments over at LEF:  there was certainly more beef and balance to it.  And it stressed personal choice and accountability as a normative recommendation.  Plus, Schiltz had the benefit of a relatively extended stay in a big firm.  But Schiltz had his own bouts with hyperbole - I thought the description of the cocktail party was pretty funny, but it IS hyperbole, and having hors d'oeuvres at a partner's house isn't unethical, which is what it seemed to suggest it helped lead to.  (A couple shrimp wrapped in bacon, and the next thing you know you are a heroin addict!)  I used to go to a party like that just about every Christmas hosted by the head of the litigation group.  He and his wife are still married after forty years or so.  And while he was a fearsome litigator, he was one of the most honorable people I ever met.  (He did like his Dewar's, on the rocks and with a twist.)  Only to say, as law professor-anthropologist John Conley does, you have to be careful what you infer from this kind of data. 

And Schiltz's intro on depression and lawyers is highly suspect.  As my wife, an MPH, advised this morning, there's no way you can tell (as Schiltz admits, but only fleetingly) whether depression-inclined people self-select to be lawyers, or being a lawyer causes or exacerbates depression.  Given depression's biochemical etiology, I'd be inclined to think the seeds are there to begin with, but we may never know.

Finally, Bill Henderson (Indiana) of "Young Associates in Trouble" and Empirical Legal Studies passed on the following references.  The Harvard Law Bulletin has an article in the fall 2006 issue on the "After the JD" study being undertaken by David Wilkins (Harvard, right) and the HLS Center on Lawyers and the Professional Services Industry.  This is a ten year longitudinal study tracking nearly 4,000 new lawyers.  Says the Bulletin:  "Job satisfaction is one aspect of the responses that Wilkins finds most interesting.  According to the study, and contrary to what most believe, there is 'no evidence' of 'any pervasive unhappiness in the profession,' he says - at least not among those who began practicing in 2000."  Bill also suggested John P. Heinz, Kathleen E. Hull, and Ava H. Harter, "Lawyers and their Discontents:  Findings from a Survey of the Chicago Bar," 74 Indiana Law Journal 735 (1999), which found that lawyers were no unhappier than any other profession or job.

Again, all of this to say that we need to be very careful, particularly as law professors, in describing the world as we think it is, and in figuring out how our view of the "ought" affects it, if that is at all possible.

[Jeff Lipshaw]

Conley on Racial Equity in Private Firms

Posted by Jeff Lipshaw

One of the wonderfully rewarding aspects about jumping into academia after so long in the practice is to realize that part of the job description of professional teacher is (or should be) to be a professional learner.  (That we are professional learners even in business was part of my management philosophy, so perhaps that says something, but I don't know quite what.)

That's an introduction to my recommendation of a tremendously interesting article, methodologically and substantively, by John Conley (North Carolina, left), who I featured in a post yesterday.  The article is "Tales of Diversity:  What Lawyers Say About Racial Equity in Private Firms," 31 Law & Social Inquiry 831 (2006).  Professor Conley is an anthropologist and law professor, so the first part of the paper is an explanation of the scholarly discipline of ethnographic narrative - what you can learn and just how much you can generalize from what people say about their culture - in this case, lawyers about their jobs and their firms.  The second part is a report on what lawyers in different kinds of firms actually say about racial diversity.  The abstract follows below the fold, but as Larry Solum would say: download it while it's hot!

Here is the abstract:

This paper reports on what a narrative study of the legal profession has revealed about diversity in private law firms. Since 1995 I have taught a course about the legal profession that revolves around interviews with lawyers representing the breadth of the legal profession. Over nine iterations, I have completed over 100 such interviews. They have yielded narratives on such topics as how various kinds of practice groups work, how legal careers evolve, how lawyers' professional and personal lives interact, how lawyers feel about their profession, and what they believe are their most difficult moral and ethical challenges. The topic of diversity in various practice settings has also figured prominently in most of the interviews. All of the lawyers interviewed have expressed enthusiasm for diversity as a value to be pursued. However, almost without exception, private-firm lawyers have admitted that their respective organizations have made unsatisfactory progress. When asked to analyze their firm's performance, most provide explanations that do not augur well for the diversification of the private bar in the near future. Their narratives implicate as causal factors the history of individual firms, the nature of intimate business associations, the profession's dominant hiring and promotion models, and, in most cases, the absence of external pressures to diversify

Get It In Writing!

The United States Court of Appeals for the District of Columbia Circuit overturned a trial court determination that a junior lawyer was entitled to 1/3 of a more senior lawyer's contingency fee that would have paid her more than $1.3 million from claims against Iran that were collected from frozen Iranian assets. The junior lawyer had worked for the senior lawyer for about five years without a written compensation agreement but had received a 1/3 share of fees in nine earlier cases. The court concluded that the conversations between the two lawyers did not create an enforceable oral contract. (Mike Frisch)

Younger Generation of Women Lawyers Not Staying in Big Law Firms? "In Droves"?

Posted by Alan Childress

That is the premise (and generational-divide explanation) noted and discussed by Nicole Black at Sui Generis here, based in part on an article from California Lawyer. Whether the premises are true (and true nationally)--that women are way-disproportionately leaving biglaw practice, and this is especially true with Gen X and Gen Y subjects--is something on which Bill Henderson at ELS blog is more equipped to comment, with all his law-firm data and empirical-crunching talents.  But it does seem true to almost any casual observer like me with interest in the demographics of the legal profession that the generational divide Nicole spots is really there, and that women have higher turnover rates at biglaw.  Now I just wonder if it is empirically true.

Days of Whine and Roses, or the Strangled Cries of Lawyers in Love

Posted by Jeff Lipshaw

David Luban at Balkinization has a Marxist take on the economic structures of law firms.  (HT to Brian Leiter at our sister blog within the growing Caron empire.)  More precisely, it's a worm's-eye view (as William Baxter said of Gilbert's on Antitrust on the first day of class) of very large financial center law firms with staggering first year associate pay and high associate to partner ratios.  And guess what?  The partners make a lot of money off the backs of the highly paid associates!  (This, by the way, did not originate with law firms.  Any service firm, including the large accounting firms, work the same way.  Ask my wife, who was a FYP ("first year person") at what then was called Arthur Young & Co.)

You have to scroll through the comments to get a balanced view of this.  And, in the interest of full disclosure, I come at this as someone who had the worm's eye view, the bird's eye view, the partner's eye view, the of counsel's eye view, and the client's eye view.  The only view I never had was the rainmaker's eye view.  On the other hand, when I was the client, I got to have the rainmakers suck up to me, and some of them became my friends, so I have privileged access to the dark places in their souls.

So here are some observations about what is right and what is wrong:

1.  There is or at least was a significant difference in associate-partner ratio in the "fly-over" parts of the country.  While that may have changed over the last twenty years or so, I think in the midwestern large firms associates are still hired with the expectation that they will become partners.  My guess is that natural attrition pares the group down to the point that you don't have a Ponzi scheme - i.e. that the firm has to keep doubling in size to keep the associate-partner ratio at about one to one.

2.  The commenter about "service partners" is on the money.  The real divide in a law firm is not between partner and associate, but between net takers and net givers.  I guess if the leverage ratio is so high that immediately upon becoming partner you are raking in money faster than you can spend it you don't notice this, but net-net, when I became a partner in 1987, what with self-employment tax, capital contributions, paying for my own parking, borrowing to make up for the lack of special distributions, if the cash flow wasn't there, around estimated tax time, I'm pretty sure I made less in the first year of partnership than I did in the last year of associate-dom.  The line between net takers and net givers can be masked as well by partnership structure and compensation policy, i.e., multi-tiered partnerships, equity partners, salaried partners, base point systems with discretionary bonus versus straight return on equity.

3.  The commenter who says it's a free country is on the money.  It's quaint now, but when I graduated from law school in 1979, you could go to Detroit and make a base pay of $22,000, to New York and make a base pay of, as I recall, about $30,000, or become a consultant at Bain and make $44,000.  Even then you made a life style choice, and traded money, prestige or whatever the Cravaths of the world offered for whatever the Detroits, or St. Louises, or Pittsburghs of the world offered.

4.  The commenter who notes that there is something, let's call it a brand, that makes an associate worth all that pay because of the brand (and not just the associate's labor) is on the money.  The associate contributes to the maintenance of that brand, as do the partners, but it's a nice and touchy question when the lawyer or the brand is worth more.  When David Boies perceived himself as more valuable than the benefit that the Cravath brand bestowed upon him, he left.  The same applies to Fred Bartlit and Kirkland.  (That's an oversimplication but I think it's basically true.)

If I were to put some social science jargon around what's going on here, I'd forsake the Marxist economics, and go with path dependency.  And view the bitching and moaning as the voices of those stuck in the path.  Or go with Jackson Browne's take:

I can't keep up with what's been going on
I think my heart must just be slowing down
Among the human beings in their designer jeans
Am I the only one who hears the screams
And the strangled cries of lawyers in love

Porter on Vaulting the Maternal Wall in Law Firms and Law Jobs

Posted by Alan Childress

Nicole Porter (St. Louis Univ.--Law) has posted to SSRN her essay, "Re-Defining Superwoman: An Essay on Overcoming the Maternal Wall in the Legal Workplace."  It is also published in 13 Duke Journal of Gender Law & Policy 55 (2006).  Its abstract:

In this Essay, I discuss the work/life balance challenges facing women lawyers who are mothers. Despite these challenges, I believe that mother-attorneys can successfully manage a career and a family. In reaching this conclusion, I attempt to dispel the myth that mother-attorneys need to be “Superwoman” in order to succeed in this profession. The essay first discusses the obstacles women face - from stereotypical views of their competence (both in the workplace and at home), to the difficulty of maintaining a successful and meaningful law practice while working a reduced-hours schedule, to managing the guilt that inevitably accompanies the fact that it is impossible to be everything to everyone, all at once.

While I examine the many possible legal and structural solutions to the problem of the “maternal wall,” I ultimately conclude that major change is unlikely to occur in the near future. Accordingly, in an effort to adopt an optimistic view of being a mother-attorney, I conclude this essay with my advice on changing what is in women's capacity to change immediately - their own actions and attitudes. In my opinion, the key to being successful is to focus on the goals and expectations that matter to you - rather than the goals perceived to be set by society. I do not advocate mediocrity; quite the contrary, I suggest women strive to do the highest quality work possible while focusing on the aspects of work and home that really matter to you, your family and your career. Feeling guilty that you cannot be both “mother of the year” and “superstar attorney” at the same time is a fruitless waste of energy, and will ultimately keep women from being both happy and successful as attorneys who have the joy of also being mothers.

Top Ten Social Skills Warning Signs

I can't recall why this file is on my computer, or where it comes from, but my sneaking suspicion is that I wrote it at some point in my checkered past.  It is a top ten list of social skill warnings of which law firms need to take note when interviewing law students (particularly those who are going to be making $150,000 or more to start).

10.  Candidate appears to believe “finger food” means biting one’s nails.

9.    Pulls out cell phone and sends text message to friend who is interviewing upstairs.

8.    First ten minutes of interview is spent discussing the relative merits of Old Spice and Axe body sprays.

7.    Candidate unbuttons suit jacket, revealing four inches of exposed Homer Simpson boxer shorts.

6.    In response to “what can I tell you about us?” candidate inquires whether the firm has a policy on downloading internet porn.

5.    “Most significant accomplishment” answer involves the phrases “college drunk” and “blow chunks.”

4.    Concession to “business attire” is a backwards fitted baseball cap.

3.    Candidate refers to contracts professor as a “law weenie.”

2.    Seeing picture of family on male partner's desk, candidate asks “was your wife pregnant when they took this?”

1.    On belching at lunch, instead of simple apology, chants:  “Excuse me, please it was so rude, it was not me, it was my food, it got so lonely down below, it just popped up to say hello.”

[Jeff Lipshaw]

Zaring and Henderson on What Two Lawyer Novels, and the Stats, Say About Associates' Happiness

Posted by Alan Childress
David Zaring (Wash. & Lee [left]) and William Henderson (Ind.--Bloomington) have posted on SSRN here their new review essay:  a comparison of the life and unhappiness of big-firm "elite" associates portrayed in two recent novels with the available empirical data on job satisfaction gleaned from associates from lots of different law firm experiences.  They call it "Young Associates in Trouble," and it will appear this year in Michigan Law Review, volume 105.  Here is the abstract [I added book links]:

In the Shadow of the Law.  By Kermit Roosevelt.  New York: Farrar, Straus and Giroux.  2005. Pp. 346. $24. [Here on Yahoo.]

Utterly Monkey: A Novel.  By Nick Laird.  London & New York: Harper Perennial.  2005.  Pp. 344. $13.95. [Here from HarperCollins.]
 
Two recent novels portray the substantively unhappy and morally unfulfilling lives of young associates who work long hours in large, elite law firms. As it turns out, their search for love, happiness, and moral purpose is largely in vain. In the rarefied atmosphere of both fictitious firms, the best and the brightest while away their best years doing document reviews, drafting due diligence memoranda that no one will read, and otherwise presiding over legal matters with lots of zeros but precious little intrinsic interest. If this is what large law firm practice is like, the reader is bound to ask why large law firm jobs are so coveted. Is it really all about money?

In this review essay, we compare Kermit Roosevelt's and Nick Laird's bleak portrayals with findings from a unique dataset on law firm profitability, prestige, hours worked, and various measures of several associate satisfactions. We also mine the findings of several empirical studies that track the experience of lawyers over time. We observe that higher firm profitability is associated with higher salaries, bonuses, and prestige. Yet, higher profits also have a statistically significant relationship with longer hours, a less family-friendly workplace, less interesting work, less opportunity to work with partners, less associate training, less communication regarding partnership, and a higher reported likelihood of leaving the firm within the next two years. Nonetheless, graduates from the nation's most elite law schools tend to gravitate toward the most profitable and prestigious (and most grueling) law firms. The attraction of the most elite firms may be superior outplacement options. Or perhaps, as both novels intimate, it may stem from a reluctance to make hard life choices.

The available empirical evidence suggests that success within the elite law firm environment often entails a difficult array of personal and professional trade-offs. Although we find our empirical data to be informative, the novel may be a particularly effective vehicle for examining the rather existential nature of these choices. Thus, we suspect that the accounts drawn by Roosevelt and Laird will resonate with many elite, large law firm lawyers.

If a non-lawyer lies in a forest of clients....

Posted by Nancy Rapoport.

In this morning's New York Times, Nathan Koppel wrote about an associate who wasn't a graduate of a law school or a member of the bar.  Case of the Paralegal Who Played a Lawyer Raises Many Questions.  Apparently, the associate was a decent actor, at least for a while.  In the article's "if a tree falls in the forest and there's no one there to hear it" moment, Koppel points out:

Connecticut authorities debated what Mr. Dubois [the Connecticut head of disciplinary proceedings] called the “metaphysical question” of whether they could even disbar someone who was never a lawyer and had only temporary privileges to practice in the state. They decided they could, and should, to keep other states from issuing privileges based on the faulty Connecticut credentials.

Good call.

Yet Another Reason it Sucks to be the Governor's Daughter

For instance, your colleagues leak your emails.  Headline and first paragraphs from AP (?!) and found in today's online New York Lawyer:

Emily Pataki, Now NY Biglaw Associate, Fails Bar Exam on First Try

ALBANY, N.Y. -- Emily Pataki, like the late John F. Kennedy Jr., has failed the New York state bar exam on her first attempt.

Pataki, the eldest daughter of Republican Gov. George Pataki and, like her father, a graduate of Columbia University Law School, informed colleagues at the White & Case law firm in New York City in an e-mail memo Tuesday that she failed the exam. A copy of her e-mail was obtained by the New York Observer weekly newspaper and reported Tuesday on its political Web site.

My 2 cents:  You know what?  The bar exam is hard.  Brilliant people have failed it.  It'll be tough, Emily, but hang in there.  This will be a distant memory soon enough and you will do great things in law.  Anyway, this is not news and should not be an AP or NYL story.  [Alan Childress]

Curmudgeon's Guide

Over at the Wall Street Journal's Law Blog, Peter Lattman is running excerpts from a new book entitled The Curmudgeon's Guide to Practicing Law, by Mark Hermann.  I looked at the excerpt on prepping witnesses for, and defending depositions (hell is an eternity of defending depositions; my stomach still churns thinking about it, and I haven't done it in almost seventeen years).  The advice looks sound, ethical, and about what most lawyers would say is standard operating procedure.  I hope, however,  later chapters explain that the question-parsing hair-splitting approach to being a witness (a) managed to trip up Bill Clinton in a pretty famous deposition; and (b) is not the way you want a witness to behave in front of a jury, most of whom generally use language in the ordinary human's way, and look askance at what sounds like "lawyer talk."  [Jeff Lipshaw]

Quick Advice on Firing Associates

Over at LawBiz blog, law firm consultant (and attorney) Ed Poll has some quick tips on firing an associate in such a way, apparently, as to avoid his or her going postal.  It is clear that he ultimately advises having a real severance policy, and marvels at law firms and law offices that do not, but short of that his advice seems useful for employers in this prickly situation.  [Alan Childress]

What to Advise Junior Profs About Blogging/SSRN?

Posted by Alan Childress

Nancy Levit of UMKC, on whose earlier work [on 'domesticating' women teachers in law schools] I previously posted, has just posted a new abstract and article on SSRN, called "Scholarship Advice for New Law Professors in the Electronic Age."  In it, she explores the rather cloudy mentoring situation of advising untenured colleagues about whether to dip their toes into blogging, how to use SSRN, and other techy issues that may cause political or lost-in-translation problems among the fuller faculty.   [Abstract after the jump below.]  I'd add what she acknowledges more diplomatically than I do:  that fuller faculty has some oldfart Luddites.  [BTW, how is it that there even is a Luddite.com?  is there an Anarchists.org?]  They may look askance (or the nice ones, just skance) at any attempt to 'play' or 'waste time' on the internet (and may be right) -- and, especially, to claim some academic or scholarly cred for it.   What would you advise a junior colleague about such activities?  Even the stock "do it until it actually interferes with your real writing and class prep"--essentially classic advice from the Boy Scout Handbook--insufficiently accounts for the backlash that may occur even without proof of such interference with the paying job.  To her credit, Nancy does not stop at the Hallmark card lingo.

The article is out for submission and your consideration or even disagreement.  Because Nancy is apparently secure in herself, and obviously tenured in writing such a piece and asking the following before publishing it, she seriously would like to hear your views on the issue -- what is your advice to that junior prof? ...does it depend on factors I am not mentioning?  ...does it depend on how many others at the school already blog or push SSRN (and how they are liked for that fact among the fullers?)  She has provided her email link here (that is dangerous but we are here to serve) and/or you can post your comments on this site.  There was a much-reported discussion earlier this year at a Harvard Law conference on blogging and academia with an all-star cast and agenda, at which Randy Barnett made waves about the "incompatibility" of blogging and scholarship.  He got the ball rolling on that at January's AALS in DC, helpfully debated by Dan Solove and others at concurringopinions here and linked and highlighted by Paul Caron here.  Jeff tells me there was some nice follow-up about Larry Solum but I have not found it to link it here, yet.  {UPDATE:  Jeff gave me the link to Markel's summary, including Solum's AALS talk, on Prawfs here.}  For some other thoughts specific to blogging (Levit's is not), and one of the best titles of the year, see Christine Hurt's and Tung Yin's "Blogging While Untenured and Other Extreme Sports."  Meanwhile, please don't let Tulane's Tania Tetlow see any of this before she agrees to guestblog on our LPB.

I enjoyed Nancy Levit's advice and think it ought to be published even without the modifications she invites from readers.  (That of course is one of the advantages and dangers, especially to junior profs, of posting on SSRN before placing the piece--would you advise someone to do that, or worry they will endlessly massage the piece before moving onto the next one?  [not an issue with Levit]) One part of her article that I find less convincing is her marketing statement (my term) that the piece explains to senior colleagues what the brave new world is and translates it for them.  To be fair, it contains useful tips about citing blogs and using SSRN for long-established writers, and she does not say as such that it is an educational brochure for faculty skeptics.  But to the extent it is, I doubt the older and fartier ones will read it unless it is foisted on them, and I hope she is not suggesting that the junior person ought to be the one to hand the article to a Luddite on some kind of suicidal educational mission.  Better to stay in the Saigon Hilton playing karate with the mirror than to enter that jungle seeking to tame the old man.

The complete abstract is (and the article may be downloaded from SSRN):

The article suggests that the legal academy is in a time of transition between promotion and tenure rules based on traditional methods of publication and contemporary electronic and interdisciplinary possibilities for publication. While a number of articles contain recommendations for newer law professors about the process of scholarship, most of those articles are between five and twenty years old and do not address publishing in the age of blogs, expedited reviews, electronic submissions, and open-access databases.

The substance and length of what law professors write, the formats in which they do so, and the fora in which they publish are evolving. This article breaks new ground in offering advice for those who have recently joined the academy on how to comply with promotion and tenure guidelines while taking advantage of publishing opportunities in the electronic age.  Although it gives special emphasis to newer faculty and to issues raised by modern technology, the article is not limited to those sorts of issue.  Professors who have been writing for years may find some useful nuggets about citation practices regarding blogs, the impact of recent law review limits on article length, electronic methods of browsing journals and articles in other disciplines, access to government documents, and posting on open-access archives.

Life Lessons

There has been extended commentary over at PrawfsBlawg on the subject of "disciplining the lazy student."  I think Paul Horwitz's post hits the mark.  I like to have participation, and followed the lead of colleagues here at Tulane who use a "panel" system similar to the one Paul describes.  The only point, in my mind, is to have somebody prepared for a discussion, and to allocate that preparedness in a fair way.

In my classes, there's a penalty for absence or unpreparedness, but it's a low threshold to avoid it.  You have to want to get marked down to get marked down.  There are instances, however, where a student, due to exigencies, has been missing when I look down at the seating chart and up at the seat.  In every case, I learn later that the reason for the absence has been understandable and, indeed, excusable.  But I make the point each time that there is a life lesson here.  These exigencies will come up in practice, and even if you have a personal emergency, there may be judges, clients, partners, or others waiting for you, and you need to deal with that as well by the courtesy of a phone call or e-mail to explain what happened.

[Jeff Lipshaw]

Teaching Leadership to Law Firm Associates

A commercial conference organizer is offering a "Law Firm Associate Leadership Summit" that has been certified for CLE credit in New York and California.  Part of the pitch:  "Becoming a successful attorney takes more than just great legal skills. Success depends upon proving to your firm that you are a manager, leader, business developer, and mentor. The years spent in law school and as a junior associate don’t teach you these crucial skills, and if you wait to learn them when you make partner…"

Is the factual assertion true?  Are these crucial skills, and are they not taught?  Are they teachable?  Do law firms really want them taught?  Are senior law firm partners, when asked by deans for contributions, demanding more leadership education?  If these skills are not taught by law schools, why are they not taught by the law firms themselves?  Perhaps economic theory might tell us something here....

--Jeff Lipshaw

Straddling the Fence - Career Questions

Posted by Jeff Lipshaw.

We kick off Straddling the Fence with some thoughts on careers.

I had lunch with one of the student groups here at Tulane a couple weeks ago (One of the very nice restaurants in the French Quarter, Bacco, features 10 cent martinis with a lunch order - 30 martini limit per person - but since I have never had the fabled three-martini lunch, much less a single martini lunch, I went with mango flavored iced tea.   I am not a teetotaler by any means, just a very cheap drunk.)

The question came up about career choices, opportunities, and training.  My bona fides in this area include the fact that I've been law firm associate, law firm partner, law firm of counsel, divisional general counsel, and general counsel of a public company.  I've done litigation and corporate.  I've been interviewer and interviewee.  I have been hirer and firer.  So the thoughts may not be right or helpful, but they do spring from a well-developed (if twisted) point of view.

Here are thoughts in no particular order:

1.  "You Don't Know What You Don't Know, But It's Your Basic Skills and Attributes That Matter"

There are entering law students who know precisely why they are here, and what they want to do with their lives.  If you are one of them, skip to the next paragraph.  My brother-in-law wanted to be a sports agent representing skiers.  But he never really wanted to practice law.  He went to law school at Denver University, got his degree, and then knocked on doors until somebody hired him.  The one that opened happened to be International Management Group, one of the largest agency and promotion firms in the world, and his career was off and running.

Most of us don't have that focus that early.  For many of us, it's a default path where merely being bright and analytical provides some likelihood of a decent living and professional status.   Don't worry if you don't know precisely what you want to do, because you don't know what you don't know, and it is going to take a while for you to find out.  I was a history major, and tired of being poor, so I went to law school instead of graduate school in history.  I had no business experience or acumen whatsoever.  Tax, corporations, securities regulation, the UCC, even first year contracts, were all foreign to me.  I gravitated to the natural writing, speaking, arguing kinds of courses - civ pro, evidence, federal courts - and assumed I was meant to be a litigator.  It took ten years in practice, including having made partner as a litigator, to realize that I HATED being a litigator.  I didn't know what the business lawyers did, and couldn't even begin to make a sensible decision as long as I didn't know.

Jeff Kindler, the recently appointed CEO of Pfizer, Inc., one of the largest companies in the world, started his career as a litigator at Williams & Connolly.  He moved in-house at GE as senior counsel for litigation, and then got recruited to McDonald's, where he was first the general counsel, and then the president of the division that ran Boston Market and Chipotle.  He then became the general counsel for Pfizer, and most recently its CEO.  The point is that I suspect it's highly unlikely that Jeff knew when he started law school that he had the business acumen to run a huge company.

When I was hiring lawyers for in-house positions, I looked for "the best available athlete."  Business people tended to believe that the critical thing was knowledge of their business area.  My position was that a great lawyer could learn the business, but as the coach said in Chariots of Fire, I couldn't put in what nature left out.    An example:  I was hiring for the general counsel position of a billion dollar business.  The best young lawyer I knew was an associate in a local law firm - and he had a number of very attractive qualifications:  Harvard grad, African-American, great writer, smart as a whip, but he was a pure litigator with almost no business experience.  To me, the basic skills and the diversity impact (we needed it badly) trumped the holes in the resume on business experience.

More below the fold.

2.  Training and Path Dependency

Unless you loaded up on clinical course and outside clinical activities, you probably don't have much idea what it will be like when you practice.  Even the big firm summer associate's usual fare of research memoranda (in between the river cruises, softball games, and museum parties) is more like law school than most of what you will end up doing as a lawyer.

There is a theory in economics called path dependence. It has to do with the long-term impact of our initial choices.  I joined a law firm in 1979 just about the time of the downfall of the Shah and the return to Iran of Ayatollah Khomeini.  That precipitated an energy crisis, the reaction to which was something called the Emergency Petroleum Allocation Act, under which the Department of Energy regulated how much gasoline could be sold to marketers under the Mandatory Petroleum Allocation Rules.  We represented a large oil company, and I got stuck for almost two years doing responses to petitions for greate