Friday, December 18, 2015
Better BigLaw
My co-blogger Marcia Narine shared an article on social media this week entitled Lawyers have lowest health and wellbeing of all professionals, study finds. Sadly, this is not new news.
Those results, I am afraid, would be even worse if only members of the nation’s largest law firms (a/k/a “BigLaw”) were surveyed. Deborah Rhode (Stanford) talks about some of the problems in BigLaw, described in her book the Trouble with Lawyers.
Let’s assume, for the sake of this post, that the executive committee of a large law firm wants to improve employee welfare. What could the committee realistically do to improve employee wellbeing? Part of the low score for lawyers, I imagine, is just the nature of BigLaw, but under the break I make a few suggestions for consideration.
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To address the problem of low health and wellbeing, I think you have to find the root causes.
Limited Growth. BigLaw takes the top law graduates in the country and puts them into a system that usually has no chance for promotion for at least seven years, engages, mostly, in lock-step compensation, and provides a fair amount of menial work. I don’t think most BigLaw associates “burn out;” I think they get bored and/or feel under-appreciated and under-utilized. To provide more growth opportunities, I suggest:
- Tie More of Associate Compensation to Merit. This might be difficult, as lawyers may be prone to excessively argue their case (or even litigate) if they receive below average compensation, but it may be worth the risks if it the compensation upside keeps your best associates at the firm.
- Involve and Coach Associates. Associates who are involved in all stages of the legal work, and are taught as they progress, are much more likely to feel invested than those who are treated like assembly workers.
- Create a Meaningful “Senior Associate” Title. At many BigLaw firms, making partner takes 7, 8, 9….12 years and is increasingly rare. The “senior associate” title would give junior associates something realistic to shoot for earlier in their career. The senior associate title would have to be substantive to be meaningful – review process, competency checklist, salary increase. I know some firms that have the title and simply reward it without any review or benefit after four or five years; this is not what I am talking about. The process I suggest is closer to the making partner decision and would be more focused on work done rather than years served.
Limited Purpose. Junior associates at large law firms sometimes have a difficult time understanding how their work is meaningful. A few suggestions to improve the sense of purpose include:
- Serious Encouragement of Pro Bono Work. Large law firms vary in how seriously they take pro bono work. For some, pro bono work is something you only do when and if you have time. For others, it is a more important part of the firm’s work. Because pro bono work gives junior associates a chance to work face to face with clients (often with significant, personal needs), the pro bono work can improve an associate’s sense of purpose. Pro bono work can also be excellent associate training and is often useful service to the community.
- Engagement with Clients. The more associates interact with clients, the easier it is for them to see the purpose of their work.
- Mentors/Mentees. Many BigLaw firms have mentorship programs, but it is important to encourage serious mentorship, not just of associates by partners, but also of junior associates by senior associates. This relationship building and guidance of others can add meaning to the work at all levels.
Limited Time. Maybe the toughest part of working in BigLaw is the demands on your time. Below are a few suggestions:
- Provide Improved Predictability. Many BigLaw associates complain more about the lack of predictability than the long hours. Firms could cut against this unpredictability by giving associates certain weekends and certain weeknights off each month. Admittedly, this might be difficult to do; litigation and deals are not particularly predictable, but to the extent associates could cover for one another, the knowledge that – for example – "I can have a guilt-free weekend off three weeks from now" would be priceless.
- On-site Childcare, Dining, Etc. Convenient services on-site could help save time. On-site (or nearly on-site) childcare was something one of my former law firms offered, and I am sure that saved working parents a great deal of time, and I know they valued being able to stop in and see their children during slower day.
- Sabbaticals. At least one large firm provided for lawyer sabbaticals, but I have not heard of this being a widespread practice. That said, I think awarding lawyer sabbaticals is an excellent idea. A sabbatical would be something to look forward to, even if you loved your job. It would provide a change of pace; it would allow you to explore new interests. I imagine you would return to practice recharged and with new perspective.
I know a number of law firms do some of the above, but I think BigLaw would be a better place to work if more firms adopted more of these practices.
https://lawprofessors.typepad.com/business_law/2015/12/better-biglaw.html
Comments
Thanks for the thoughtful comment, Frank.
I do agree that there are plenty of associates who are not cut out for BigLaw or do not enjoy the substantive work. Some of this is because BigLaw is one of the few places that pays law graduates enough to pay back significant educational debt, but that is subject for another post.
But let’s just focus on the BigLaw associates who enjoy the substantive work and would make excellent partners. I think many of them are run off because of the way BigLaw firms are run.
Before I respond to your specific points, let me ask: Do you think poor employee welfare is a problem in BigLaw? If so, what would you suggest to address the issue?
Also, I am not sure what BigLaw practice was like when you left in (or around) 1991 (I was 10 years old), but I think personal computers and smart phones raised expectations significantly. For example, read this regarding e-mail checking expectations, I don’t think it is unusual among top firms: http://abovethelaw.com/2009/10/quinn-emanuel-believes-in-c-b-a-check-blackberry-always/
Competition. Most BigLaw associates thrive on competition - or else they wouldn't have landed a prestigious BigLaw job. Almost everything they have done – spelling bees, debate, sports, undergrad, law school – has been a competition with a bigger "payout" to the best. The cutthroat nature of law school – where only the top 5-10% of the class at my state school got 6-figure jobs – didn’t stop us from working in groups. Now maybe it made us more cliquish, but you could combat this at a law firm by making sure that the bonus was also tied to how well the entire firm did that year.
Associates Leaving. This might not be such a big problem if the associates were treated better. Also, most of my friends who left BigLaw left to go in-house or to much smaller firms or government or left law altogether. Of the forty or so associates I can think of who left, only one went to a competitor. Given how many went in-house and eventually decided which BigLaw firm to hire --- mentoring the associate and treating them well could be a good strategy.
Pro Bono Work. Did you find document review or due diligence rewarding? I don’t know that I knew anyone who did. Pro Bono work is a way to get talented associates to use their full potential before you give them significant responsibility with paying clients. That said, an alternative solution is to outsource the document review and diligence to contract attorneys, and give junior associates more responsibility earlier. Both of my firms did some of this, though, unfortunately, the contract attorney work product was usually awful, and so junior associates had to double check.
Mentoring. I think a formal, funded, monitored mentoring system would actually cut against the type of biases you mentioned. Everyone would be assigned two mentors (a partner and a senior associate) and all would report on the mentoring that took place. There would be a billing code for that time, as some firms already have, and there would be an expectation of a certain number of hours a year.
Predictability. What I suggest is saying, for example – Frank is off the third weekend of every month. This would force the partner to plan, or find an associate who is “on” that weekend. The problem here is this one --- I liked my work substantively, but it was nearly impossible to date or have any outside interests (I can’t imagine how hard it would have been to have a family). Some of my colleagues and I used to joke that the easiest way to get assigned new work was to make outside plans.
On-site Childcare, Dining, Etc. I didn’t have children while working at BigLaw; I just know that the parents I worked with found the childcare absolutely essential at one firm. At the other firm, most associates with young children left the firm pretty quickly --- no matter how much the associates loved the work. Also, I recognize the issues in places like NYC and DC, but not all BigLaw firms are in those areas. As to on-site dining, I almost never had time to eat anywhere else and not having it would have just made very long days longer.
Sabbaticals. I think I have the best job in the world as a professor, but I am still looking forward to my sabbatical. I expect my sabbatical to enrich my work as a professor and I am sure I will come back with new perspective. I can see quite a number of valuable sabbatical projects for lawyers – clerking, completing an LLM, working abroad, etc.
In short, I saw way too many excellent associates – who liked the substantive work and would have been great partners – leave my two BigLaw firms. Most left because the way the firms were managed left little to no time for even a little bit of an outside life. Some left because the growth opportunities were too limited --- now some of these folks are C-level executives, general counsels, etc.
And actually, the ones who stayed did not usually seemed to stay because they loved the work – they usually stayed because they really needed the money to service loans or to continue the lifestyle to which they have become accustomed.
Posted by: Haskell Murray | Dec 18, 2015 12:09:47 PM
I keep forgetting to post on this, Haskell. Forgive the late comment, please--in the Christmas spirit! And I will note that I am commenting on aspects of this issue that you want to assume away in your post and subsequent comment.
I am somewhere between you and Frank on this. Without responding to the specific points that each of you raise (all of which I find helpful--from both perspectives), I want to toss something in here that is penumbral to these points. In commenting, Frank notes that "the students most adept at surviving a brutal tournament match are not necessarily the 'best' folks for the world in which their success as partners will require them to work well as a team with others." I want to extend that point to observe that those who win the BigLaw job seeking tournament are often those who (as Frank puts it) "have no desire for the BigLaw practice or lifestyle and are there solely for the money." (I would add that some are there for the prestige or out of habit in seeking the most elite in everything.) Not every student from an elite law school fits this mold, but I know that many are hired every year from this group that is a bad fit with BigLaw. The problem is more pronounced now, since overall hiring has shrunk, leaving little room at the inn for qualified, intelligent, hardworking applicants from non-elite school backgrounds. Maybe you or I should post on that sometime . . . .
As for your suggestions, I agree with mist of them. But maybe that's because Skadden offered everything you suggest (although not in the precise forms you suggested). The Boston office was small, so, for example, we did not have childcare. But we did have a service that would send someone to care for your mildly ill child if you wanted that help. (Some folks preferred to stay home with their children under those circumstances.) And sabbaticals were not available as a matter of right, but I know a number of folks who informally took time off (unpaid) with the permission of the firm to do other personal and professional things.
Anyway, just a few random responses. Thanks for the post. I think this deserves more attention from us in the new year.
Posted by: joanheminway | Dec 23, 2015 11:59:04 AM
Thanks for this comment Joan.
And to be clear, I would choose BigLaw again as a first legal job. I have a post scheduled for Christmas that discusses some of the strengths of BigLaw.
Also, I agree with you (and Frank) that many associates are a poor fit for BigLaw. That said, there were also quite a number who would have made excellent BigLaw partners - brilliant, great team players, hard working - but they left because of the way the law firms were run. Actually, most of the people who fit that description had children, though there were obviously those who stuck it out to partner with children too.
Posted by: Haskell Murray | Dec 23, 2015 12:15:29 PM
I really appreciate this discussion though I'll keep my thoughts brief. I have thought constantly about the ways that biglaw could become less brutal. I would like to echo many of the aforementioned complaints about long and unpredictable hours, plus grueling work. That said, I had one moment at my old firm which made me question whether things could be meaningfully changed. I was working on a deal with just me and a partner. One weekend I had to go out of town for a wedding and it just so happened that the deal was going to close a few days afterward. Another associate filled in for me on the day that I was out of town and it really created a mess. It was not only inefficient for the client's bill, but I also thought that I had screwed up the deal due to a miscommunication issue (luckily, I didn't). But at that moment I understood why deals are leanly staffed among the fewest amount of lawyers possible, rendering long and unpredictable hours; this system generally produces the best work product. So I'm not quite sure how to lessen the horrors of biglaw in ways that don't potentially hurt a firm's work product. Just my two cents from my limited experience.
Posted by: Greg Day | Jan 1, 2016 4:54:05 PM
Hi Greg. Happy New Year!
I agree that changes would be difficult, especially on deals with only one associate, but 95+% of the deals I was on had more than one associate. Granted, my firms were quite large, but we are talking about BigLaw here.
Also, I wonder if an "expedite fee" to clients would make sense (and maybe even a bonus to the associates for hours worked after a certain time -- at one firm I know we paid our paralegals double-time after 10pm and on weekends). I am sure there are plenty of times when the client really needs the work the next morning or over the weekend, but not every deliverable is done on a real emergency basis and an expedite fee might help prevent unnecessary fire drills.
That said, as competitive as the legal market is, an expedite fee might drive away coveted clients. On the other hand, associates who got regular sleep might be so much more efficient than those who regularly pulled all-nighters that the efficiency of the rested associates would compensate for the expedite fee and/or the inefficiencies in some double staffing. Firms and clients might also benefit from lower turnover if associates stuck around the firm (and the client) longer.
That said, I think some of the grueling nature of BigLaw is the fact that the firms hire mostly extremely competitive associates who drive each other -- at least some of the pressure -- and maybe most of the pressure -- is informal peer-to-peer rather than top-down. Reminds me a bit of my high school track teammate who set a state record in TN and then ran at Stanford. At Stanford they seemed to have tons of injuries because each of these elite runners were used to being #1. They must have run each other into the ground, even though I assume that their coaches tried to hold them back. But that goes back to one of my points -- the only thing most associates use to measure themselves against others is billable hours, which promotes overly long hours (and leads to inefficiencies). Adding other measures, such as some quality metric would be nice, though admittedly difficult.
Posted by: Haskell Murray | Jan 1, 2016 6:05:37 PM
Interesting thought, though I disagree, as noted below. IMO the chief problem with Big Law associate morale is that a large percentage of associates have no desire for the Big Law practice or lifestyle and are there solely for the money. Even unmotivated drones have some economic value, which is why they’re kept around. But I’m not sure that in the modern buyers’ market, it’s in the interest of a firm to work to try to keep people who fundamentally don’t like what they’re doing or who they’re doing it for. In every firm there are associates who thrive and love what they’re doing. This is less about what the firm is doing and more about the internal motivations of the associates themselves. I believe the problem is how to hire more of these and fewer of the others.
Responses to specific points:
Tie More of Associate Compensation to Merit. The problem with this is that it exacerbates the shark tank nature of the associate compensation. It might be good if it keeps the “best” associates at the firm, but the students most adept at surviving a brutal tournament match are not necessarily the “best” folks for the world in which their success as partners will require them to work well as a team with others. Firms already try to provide some incentive through bonuses, without necessarily invoking hand-to-hand combat among the associates. I’m not sure that raising the competitive stakes will reduce tensions.
Involve and Coach Associates. This would certainly help, but the problem is that a law firm has no way to make sure that its well-trained associates stay. Firms known to give exceptional training are viewed as fishing ponds for other firms who want to capture that training without having to pay for it. Training and coaching is expensive, and it’s hard to lock up lawyers with noncompetes.
Create a Meaningful “Senior Associate” Title. IMO this is basically another way of emphasizing the hierarchical nature of firms. If it’s granted simply for seniority, there’s not much of an adverse affect on morale, but if it’s going to be awarded on merit, then another whole round of cutthroat competition is likely. And those who don’t make “senior” on the first ballot will have the signal they need to start looking elsewhere immediately.
Pro Bono Work. If the problem is that young lawyers don’t find the work rewarding, I don’t see that the answer is to provide them with unrelated work that they do find rewarding. The young lawyers I worked with generally really liked working on the kinds of matters the firm handled; those that didn’t left. Pro bono can obviously provide some valuable training, and if that’s why it’s done a firm benefits. But as noted above, if people really want to do something other than Big Law practice, maybe they should just go somewhere else where they can do what they like.
Engagement with Clients. This absolutely is true, but the problem is related to something I mentioned earlier: there is no guarantee that the associate will be there next month, so assigning significant client contact to people who may jump to a competitor (and use the client intro to try to leverage business away) is not necessarily in the firm’s interest. Associates really can’t credibly promise that they will stick around until the partners decide to vote on them, so connecting your clients to future competitors may be really bad business.
Mentors/Mentees. Again, a great point, but serious mentorship requires serious personal engagement with the young lawyer—and by nature it’s going to be uneven. Firms don’t have a great record of mentoring women and lawyers of color, or others outside their own socioeconomic cocoons, so the odds are that much of the mentoring will go to the lawyers who most remind the partners of themselves, which is already what we’ve got.
Provide Improved Predictability. As you note, very difficult to do. Certainly law firms could have better systems to avoid the need to scramble at the last minute—which is what drives much of the predictability—but we are not particularly well known for our management skills. If we could figure out a way to keep the partner who got the request on Tuesday from waiting until Friday morning to assign it to somebody, it would help a lot. An enormous amount of the problem is caused simply by bad management by individual partners. But there’s not much pressure that can be brought on a law firm partner for anything other than not billing enough. Would a firm cut the compensation of a heavy hitting partner because she didn’t managing associate well-being efficiently?
On-site Childcare, Dining, Etc. As for childcare, providing it expensive and in places like New York requires a host of regulatory requirements. (You must have an outdoor play space, for example, and the building can’t have a dry cleaning establishment in the neighborhood.) Parents might really enjoy seeing their children while they’re at work, but given that most workers in the country don’t have that ability, I’m not sure how big the positive effect would be. Not to mention the problem that the child is in your office in the city at 5:00 p.m. for pickup while you’re going to be there until midnight and your spouse is in Westchester. As for dining facilities, this can actually have a negative effect—I’ve heard associates complain about how unless they’re seen publicly in the cafeteria in the evening they must be slacking off.
Sabbaticals. Most firms grant sabbaticals for things like government service or other things that will be useful from a practice perspective. If the idea of the sabbatical is to explore “new interests,” I’m not sure that firms would find it useful. After all, the lawyer would have a year’s less experience than other lawyers in his or her cohort. And after six months or a year the lawyer may choose to come back or may not. I can’t imagine how any lawyers who were committed to the kind of practice that big firms do would be interesting in taking a sabbatical, or why firms would want to retain people who prefer not doing their job for a year or so.
Posted by: Frank Snyder | Dec 18, 2015 9:36:42 AM