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 greater allocations filed in the DOE's Office of Hearings and Appeals by what seemed like every Stop 'n Shop in the country . (One of the best days of my life was January 23, 1981, when President Reagan, for whom I did not vote, issued an executive order ending the MPAR system.)

My concern at the time was the incredibly narrowing effect of this particular practice on my future.  If I had wanted to be an expert in the minutiae of DOE regulation, it would have been a wonderful experience.

If your lifelong passion has been to write railroad car leveraged leasing agreements, or to represent amateur sports organizations, or to write constitutions for developing African nations, go for it.  If, on the other hand, you don't know what you don't know, avoid the wrong path dependencies.  Many lawyers move from the biggest firms in an area to smaller ones.  It doesn't usually happen the other way around.  Many lawyers move from major financial centers like L.A. or New York or Chicago to firms in smaller cities.  It doesn't happen as often the other way around.  Lawyers often move in-house after several years at a law firm.  It doesn't usually happen the other way around.

The basic approach of general to specific or large to small or broad to targeted also enhances training, I think.  Shortly after I made my move from litigation to corporate, I found myself as the representative of acquirer monitoring a shareholders' meeting of the close corporation (owned by a dispersed and highly dysfunctional and factional family).  One of the family members asked if the acquirer could explain the reason for its interest, and there I was, standing in front of thirty people, most of whom hated each other, and were ready to transfer that emotion to me.  Ten years' experience on my feet as a litigator was not wholly irrelevant at that moment, nor was the kind of judgment you get making quick legal/business decisions along the way.

3.  Theory in Practice

"Don't give me theory.  Just tell me the rules."  There are kinds of practices in which one will rarely need to resort to the kind of theory that law professors are inclined to teach.  Just sit in the average county courtroom on the morning when uncontested divorces are being finalized, or driver's license reinstatement hearings are going on.  (In Wayne County, Michigan, where Detroit is the county seat, the civil motion call was on Friday mornings.  If you had a motion to dismiss, or a motion for summary judgment, or a discovery motion, the call would start at 8:30 a.m. or so, but the order of the motions was determined by the signing in of BOTH lawyers.  If your opponent did not show up early, you were forced to sit through a hour or two of the matters that only needed one lawyer, like uncontested divorces and drivers' license reinstatements.  I was pretty sure after a while I could do an uncontested divorce in my sleep, even though I knew nothing about it.)

It doesn't have to be deep theory, but whether it's in litigation or negotiation, law is best practiced as narrative.  (See Dennis Patterson's great article on this subject.)   Expect why the theory behind a statute supports your client's cause, and you are a long way toward winning.  Expect why a provision doesn't work or doesn't make sense (rather than we just don't want it) and you are a long way toward making a deal.

4.  Deep Focus and Ball Juggling

I once hired a brilliant young corporate lawyer from one of the firms that regularly ranks in the top two or three in the country in size, profitability and significant corporate deals.  His job was to be the general counsel of one of our business units.  He decided after a year to leave.  I think the issue was the way his work had been organized in the law firm versus the way it was organized in the in-house practice.  In the law firm, he worked on mega-deals, putting in mega-billable hours, but never having the pressure of competing priorities.  He worked on one deal until it was done, and then moved onto the next.  Moreover, he had the luxury of being able to devote exquisite amounts of attention to the projects.

In-house practice is almost all about priority setting.  There are matters you simply must let fall off the table.  My dictum was that if a contract involved less than $100,000, and was terminable at will or in less than a year, our law department would not review it (beyond making sure it qualified under those criteria).  If you are emotionally incapable of letting some slip by at less than the best, then consider putting yourself in a place that can accommodate you.