By Liz Kurtz | Monday, July 13, 2009
Originally published on July 6, 2009 in our free BigLaw newsletter.
You probably know one or more casualties of the recession. Reports in the legal — and non-legal — press have described the dramatic toll the economy has taken on the legal profession, and many of us have experienced (or at least witnessed) hard times. As reported on Lawshucks.com's notorious "Layoff tracker," 10,550 people have lost their jobs at major law firms in calendar year 2009 alone.
Where do these lawyers go when their big firm jobs die? Some of them, of course, go straight to the ranks of the unemployed, where they remain for varying durations. Others are fortunate enough to benefit from tidy severance packages or firm-wide initiatives, such as the much-publicized "Sidebar" program instituted at megafirm Skadden, Arps, Slate, Meagher & Flom, which essentially pay attorneys to find their bliss elsewhere. And many graduating law students have found their start dates "deferred," with or without the benefit of a stipend (which probably comes in handy on that prolonged post-bar exam travel spree).
Still other refugees from Big Law soldier on, and eventually find another position at a smaller firm. But, while these opportunities are welcome, they often represent a stark departure from life — and practice — as it existed. The shift from a large law firm to a small or midsize shop can be an awkward, humbling, and somewhat anxiety-provoking experience … sort of like being a new associate.
Deposition? What's a Deposition?
"Dawn," a practitioner in New York, is one such attorney. After a clerkship, Dawn worked for six years as an associate in the products liability group at a large law firm. She spent her last three years at the firm managing a significant pharmaceutical case, which went to trial several months before the worst of the economic downturn. When the case ended and months passed without another (similarly sizeable) matter to take its place, Dawn was laid off.
When Dawn hit the job market, she believed that she was well-situated to find another position in litigation — a cagey veteran, with years of experience under her belt. Of course, she had been one of many attorneys staffed on the last big case she worked on, but she had significant responsibilities — or so she thought.
"I ran a huge document review and production," she says. "I prepared countless binders. I wrote memos. I worked really, really long hours. And I was a sixth year, not some wet-behind-the-ears kid out of law school. I thought I knew my stuff inside and out."
Fast forward to Dawn's new position, at a midsize firm where matters are staffed leanly and even brand new associates are expected to run their own cases, appear in court on their own matters, and handle client contact without a partner as acting as intermediary.
In her first week of work, Dawn was asked to meet with a client to go over an affidavit. "I was preparing both the affidavit and the set of forms to which it would be appended, and I knew very little about the underlying matter," she recalls. But, while she knew that she could "review the forms, look on our document management system for ideas about how to write the affidavit, and probably find a colleague to ply with questions," she found herself feeling incredibly daunted by the meeting.
The challenging part, Dawn explains, was "representing to the client that I knew what I was doing. During all those years in practice, I provided back-up. I was really good at it, but I didn't have to think about the impression I was making on the client, and whether I could inspire confidence … especially when I didn't feel certain of myself."
Dawn's sudden sense of being immersed in a brave new world wasn't limited to client contact. Shortly after her arrival, a partner asked her to handle a commercial matter, and then told her that she ought to prepare a motion to dismiss. "Go ahead and write the brief," Dawn remembers him saying. She also remembers the emotional rollercoaster ride that ensued.
"I was thrilled that he trusted me to do it," Dawn says. "Then I panicked. It was the first time I had been given a brief to write without being told what arguments to make." She fought the urge to ask, "Motion to dismiss? On what grounds?" and immediately retreated to the library to hit the books.
Similarly, a few weeks later, Dawn was told to go to a deposition with instructions to "avoid summary judgment." "I spent hours and hours preparing for what was, in fact, a very simple deposition," Dawn recalls. "I was so afraid of appearing incompetent that I probably ended up being the most prepared person in the room."
From Second Chair to Only Chair …
Having spent her career working on large, sophisticated matters (at a large, sophisticated firm), Dawn was shocked by how few practical skills she had managed to develop along the way.
"Even the most elementary tasks are challenging if you've never done them before," Dawn notes. "And there were certainly things that I had no exposure to when I worked at a big law firm, like taking depositions or arguing my own motions. But more than that, I had become accustomed to not thinking for myself."
The inability to approach cases as the decision-maker, Dawn believes, may be the biggest hurdle faced by large firm refugees who find themselves in a different practice setting, in which they are not heavily supervised by hovering partners. "As a big firm lawyer," she says, "you know that your work will be reviewed by someone else before it goes out the door. When you don't have that safety net, your ability to make judgment calls is really tested."
Similarly, she explains, being the "wing man" — even on complex matters — is a far cry from managing a case on your own. "I can't tell you how many memos and binders I prepared over the years," Dawn laments. "But I was never the one asking questions at the deposition, making the argument before the judge, or questioning the witness at a hearing. Doing those things changed my sense of what was important — radically."
According to Dawn, the most important skill to develop — or rediscover — is the ability to trust one's instincts. "As I handled more matters on my own," she says, "I was struck by how often I could spot the strengths and weaknesses in an argument, and how frequently the approach I was comfortable with was actually right. But after years of having your hand held, and never being called upon to act on those instincts, they had definitely atrophied. I've had to develop the confidence to say 'I'm right,' even when other attorneys are beating me up … and I've been surprised by how far confidence goes when you're at odds with an adversary."
The Curse of Being Perceived as "Experienced"…
"Unfortunately, as a senior associate, you don't really have the luxury of being inexperienced," she says. "If you're in your first or second year of practice, people don't expect you to have skills. They know it will take you longer to finish assignments, and that you'll ask a lot of questions."
As a more senior lateral, however, Dawn warns, "you have to be careful. Whether intentionally or not, you've sold yourself as someone with a lot of experience who will be able to do the work with significantly less oversight. There's a very fine line between asking smart questions and displaying total ignorance. It's not good, as a sixth or seventh year, when a second year is litigating circles around you."
"My advice," Dawn says bluntly, "is to suck it up and be prepared to eat some time. You can't bill all the time it takes you to prepare for something fairly basic, or to brush up on the fundamental skills that have been languishing since law school, so you need to go into it assuming that you'll take a hit for some of those hours." But, she insists, "you have to just do it. It's a worthwhile investment."
It also doesn't hurt to learn a few tricks. In addition to the traditional forms of research, Dawn says, "you have other resources." Among the most important, she found, was the "cool associate," who can be a lifesaver.
"You need to find the senior associate — and there's one in every office — who's done it all, and has nothing to prove," she advises. "They'll be a wealth of information, and if they don't view you as competition, the whole 'ego' thing won't get in the way. Or find the partner who loves to talk about his accomplishments and tell war stories. He might be a blowhard, but he's probably a great teacher, too."
And, of course, there are the basics.
"Don't be afraid to pull out your CLE books," Dawn says, "and to rely heavily on the documents in your firm's system. Chances are, the wheel has already been invented." Finally, she adds, watch and learn.
"When I went to depositions on cases I felt somewhat shaky about," she recalls, "I insisted on going last so I could watch how everyone else did things." This experience also allowed Dawn to observe the personalities of the other attorneys involved. "Sort of like a poker game," she adds.
"When I went through my list of questions," she says, "I had the benefit of everyone who had gone before me. But I also had a sense of their personalities, and I could watch the way they reacted. Even when I wasn't entirely sure of the questions I was asking, I could tell a lot from what the attorneys gave away with their body language. They had me figured for someone inexperienced, so they didn't think I'd pick up on the subtleties."
"What it comes down to," Dawn concludes, "is the ability to project confidence, go with your instincts, and be really, really observant. You're never too old to learn those tricks."
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By Neil Squillante | Monday, July 6, 2009
Coming today to BlawgWorld: Our editorial team has selected and linked to 50 articles from the past week worthy of your attention, including our Post of the Week. Here's a sample:
Choosing Practice Management Software (Debut Podcast)
In Praise of Law Firm Layoffs
A Few Thoughts (Or Complaints) About Law Practice Sites
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By Neil Squillante | Monday, June 29, 2009
Coming today to BlawgWorld: Our editorial team has selected and linked to 51 articles from the past week worthy of your attention, including our Post of the Week. Here's a sample:
New Acrobat Training Movies: Search, Touchup Text, and More
Change and Reinvention Are Altering the Legal Profession
Legal Marketing Blawg Update on Email Marketing
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By Neil Squillante | Monday, June 22, 2009
Coming today to BlawgWorld: Our editorial team has selected and linked to 57 articles from the past week worthy of your attention, including our Post of the Week. Here's a sample:
Trial Presentation Software Solutions
Lexis, Coffee Filters, and Associates: Law Firms' Overhead
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By Liz Kurtz | Monday, June 22, 2009
Originally published on June 15, 2009 in our free BigLaw newsletter.
Back in the days when lawyers still had jobs, you could listen in on virtually any group of summer associates, law students, or recently minted attorneys, and hear them chattering excitedly about the great aspects of the position they had (or hoped to have) landed at a law firm. "Free dinner if you're there after 7!" "Car service if you stay past 8!" "Tons of client contact!"
Ask a second or third year associate about these "perks," and they'll tell you that they are, as a general matter, euphemisms for much less glamorous circumstances, like working really, really late. Or at least that's what they would tell you if you could find them: they are probably too busy hiding from clients. In other words, beware: as a young lawyer, having "lots" of client contact may look like a gift when it is, in fact, a Trojan horse.
A Sharp Pain in the …
"Heather," now a senior associate, experienced the joys of client contact in her first year of practice, when she was assigned to work on (what seemed to be) a small, straightforward case. Mr. Sharp, the client, was a wealthy man who had brought a fair amount of business to the firm over the years, including several large, complicated matters. Although the current matter had arisen from a personal dispute between Mr. Sharp and his neighbors (and was tiny by comparison), she saw it as a great opportunity and was thrilled when she was given a fair amount of responsibility. She dove in, embracing the task at hand and familiarizing herself with everything about the case … except the client. Although the partner seemed pleased with her work, he was reluctant to allow her to communicate with Mr. Sharp.
"In hindsight," Heather recalls, "I was warned. Although I was basically handling the case, the partner didn't want me to talk to the client directly." His explanation? "He kept making vague statements about how the client could be 'somewhat difficult,' and 'a lot to handle,'" Heather says. "I should have listened."
For a while, the partner acted as an intermediary: Heather wrote down anything she would have asked the client, emailed it to the partner, and waited for a response. Not surprisingly, this approach quickly became unworkable, running up billables and adding a cumbersome time delay at every turn — especially when the partner was traveling or preoccupied with other matters. Finally, with a sigh, the partner handed Heather Mr. Sharp's number and wished her luck.
During their first telephone conversation, Heather found Mr. Sharp crusty, but charming. "He was a little gruff," she remembers, "but it was sort of endearing." The next time they spoke, Heather was prepared for some mild grumpiness and light carping, but nothing too weighty. But, she says, "he started with a long-winded tirade about something irrelevant. About 20 minutes into it, he asked me if I was married or in a monogamous relationship." Caught off guard, she stammered that she was not. "It was as if I had pulled a lever and opened the floodgates," she laments. "Mr. Sharp spent the next ten minutes lecturing me about the moral failures of loose women who do things like 'date' and 'work.' I didn't know what to say, so I think I just sat there, openmouthed, and waited for him to finish."
Heather was offended by Mr. Sharp's outburst, but not quite sure what to do about it. Would she look like a crybaby if she mentioned it to the partner? She wanted to show him that she could handle anything, even a cranky client. She wanted to remain resolute in the face of adversity. She wanted to slay the dragon.
Heather said nothing, and continued to talk to Mr. Sharp regularly, though with increasing dread. As Mr. Sharp became more comfortable with her, he also became more comfortable sharing his outspoken opinions, many of which were sexist, racist, homophobic, anti-Semitic, or distinguished by a unique combination of multiple bigoted ideas. "In some ways," Heather says, "he was very egalitarian."
In addition to his offensive views, Mr. Sharp was also an unforgiving boss. He demanded that Heather research issues that he considered crucial, and was brutally critical when she could not come up the answers he wanted. He wanted unimportant tasks done immediately, and would often call her multiple times in a day to check her progress. In short, Mr. Sharp was driving her insane.
Heather finally told the partner that she found Mr. Sharp, um, … incredibly difficult. An unmistakably weary look crossed his face. "Well, I don't really have time to referee any personal conflicts between you and Mr. Sharp," he told her. "He's an important client, so do your best, and don't antagonize him." Before fleeing, the partner added "besides, he's just a grumpy old coot! How bad could it be?" As the partner's words floated from his retreating form, Heather tried to steel herself. Maybe it wasn't all that bad … right?
So Long and Thanks for All the Billables
A few weeks later, Heather participated in a conference call with the partner, Mr. Sharp, and local counsel, who was being used for an out-of-state filing. Mr. Sharp's usual tirade began around the fifteen-minute mark, growing more vituperative as the seconds ticked by. Thinking of the closeness she had developed with Sharp during the many, similar tirades she had endured recently, she decided that she might be just the person to redirect things. When he paused for breath, she gently suggested that they talk about some upcoming filing deadlines.
The pause turned into an awkward silence. Then Mr. Sharp spoke, his voice dripping with contempt. "Don't you ever interrupt me," he snarled at her. "Do you hear me?"
"I apologize," Heather said, "but I think we need to address the …"
Mr. Sharp would have none of it. He demanded an answer to his question. Heather, frozen, waited for someone to interject. The line was eerily silent. Finally, after a few more epithets, Mr. Sharp announced that he did not want her on the conference call. Unsure what else to do, Heather said a quick goodbye and clicked off. As she sat in her office waiting to hear from the partner, she had the distinct feeling that she had been sent to bed without supper.
When the partner finally stopped by her office to chat, she knew instantly that Mr. Sharp had gotten the best of her. The partner explained that, while he was aware of how difficult Sharp could be, he was also The Client, and, well … The Client is always right. Heather was taken off the case.
Know When to Hold 'Em and When to Fold 'Em
So: what can an associate do, when faced by a client as difficult as Mr. Sharp? Heather points out that, as a preliminary matter, the notion of "success" may prove impossible when it comes to dealing with a Mr. Sharp.
"Sometimes," she says, "the best you hope for is damage control." More importantly, she says, you need to be aware of how dangerous a client like Mr. Sharp can be for the associate involved.
"If you have an incredibly difficult client, you will probably work your butt off, and still end up looking bad," Heather posits. "You don't want to run crying to a partner every time the client ruffles your feathers. But you do want to make sure that you keep memos to file, so that you can contemporaneously document what's going on."
And, she says, sometimes you have to know when to walk away. "If you really feel that your difficult relationship with a client is hindering your ability to work on a case, or if your role as a figurative punching bag has precluded the possibility of a productive lawyer-client relationship, you need to go to a partner or mentor and explain your situation. No associate wants to turn down work, or admit defeat, or suggest he is incapable of rising to the task at hand, so there is a natural impulse to keep drilling away at it, and not to give up. But when you're dealing with a Mr. Sharp, you it may be better to jump off an impending train wreck before the moment of impact."
How to Receive BigLaw
Many large firms have good reputations for their work and bad reputations as places to work. Why? Published first via email newsletter and later here on our blog, BigLaw goes deep undercover inside some of the country's biggest law firms. But we don't just dish up the dirt. We also mine it for best and worst practices and other nuggets of knowledge. The BigLaw newsletter is free so don't miss the next issue. Please subscribe now.
By Sara Skiff | Friday, June 19, 2009
Coming today to Fat Friday: Rob Foos reviews the new Palm Pre, Lane Trippe responds to a recent BigLaw issue on the "assignment memo," Morris Tabush reviews the BlackBerry Bold and his favorite apps, paralegal Leigh Crawford points to an article about how her small firm survives in a big city, and David Gulbransen compares Dimdim to WebEx for online collaboration. Don't miss this issue.
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By Neil Squillante | Monday, June 15, 2009
Coming today to BlawgWorld: Our editorial team has selected and linked to 62 articles from the past week worthy of your attention, including our Post of the Week. Here's a sample:
Review: Two Days With My Palm Pre
Staying Competitive During an Economic Downturn
Ten and a Half Good Reasons to Blog
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By Marin Feldman | Monday, June 15, 2009
Originally published on June 8, 2009 in our free BigLaw newsletter.
McCarthy Tétrault had a problem. Many of its lawyers rely on dictation devices, but with analog technology quickly becoming obsolete, McCarthy's IT department sought a product designed for this century rather than the last one. The 600+ lawyer firm first tried standalone digital software, but found it slow and inadequate to meet its administrative and workflow needs. Thom Oakes, McCarthy's Director of Information Technology, explains, "We were also restructuring the legal assistants into teams. We had been trying to use a standalone product to scale up to manage workflow, but we found that we had to move up to a more robust product."
Workflow Management Drives Bighand Past Its Rivals
Enter BigHand Digital Dictation. Developed by BigHand, a voice productivity software company with offices in Chicago, Toronto, London, and Sydney, BigHand essentially works by transferring encrypted .wav and .dss files to an internal firm server, and routing them to the appropriate source such as an available transcriptionist. Eight hundred firms worldwide currently use BigHand, including 100 in the United States.
McCarthy chose BigHand over digital dictation competitors such as Crescendo and WinScribe because it found the interface more functional from a transcription perspective and preferred the robust administrative features. It also felt BigHand better addressed the primary problem — workflow management.
McCarthy first rolled out the new technology in March 2008 and implemented an upgrade in November 2008. For remote access, the firm uses BigHand's telephony module rather than its Blackberry app. Lawyers simply call a number and dictate via telephone. The rollouts, according to Oakes, "went very smoothly" and required minimal training for attorneys and secretaries.
Bighand Gets Thumbs Up From Dictation Veterans
More than a year after the initial rollout, Oakes reports that BigHand is "heavily used" by McCarthy personnel. The application provides a level of workflow visibility that many in the firm find helpful.
The lawyers like it because they can send dictation files directly to their secretaries for transcription and can see their files' positions in the network queue. Deal and litigation team leaders like it because they can evaluate team member performance and monitor workload. And administrative managers have restructured deployment of their staff to optimize practice groups, per the firm's original objective.
But BigHand has not converted keyboard jockeys. McCarthy has not seen a general uptick in use of dictation since BigHand arrived. Also, Oakes says that it is hard to tell whether attorneys use BigHand's remote capabilities, which is one of the benefits over standalone digital recorders.
Oakes does not characterize BigHand as a cost savings initiative for McCarthy given BigHand's price, which can range from $300-$500 per user, depending on firm size. Still, Oakes is more than satisfied with his firm's choice of BigHand. "As far as other deployment projects have gone, BigHand went smoothly, quickly, and with overall user acceptance. I can rate it a 10 out of 10. No real complaints from anyone. We're very happy with the entire project."
How to Receive BigLaw
Many large firms have good reputations for their work and bad reputations as places to work. Why? Published first via email newsletter and later here on our blog, BigLaw goes deep undercover inside some of the country's biggest law firms. But we don't just dish up the dirt. We also mine it for best and worst practices and other nuggets of knowledge. The BigLaw newsletter is free so don't miss the next issue. Please subscribe now.
By Neil Squillante | Monday, June 8, 2009
Coming today to BlawgWorld: Our editorial team has selected and linked to 53 articles from the past week worthy of your attention, including our Post of the Week. Here's a sample:
Technology Is Great, but Prove Your Point
A Study in Why Major Law Firms Are Shrinking
Your Firm's Future Is Tied To Your Referral Sources
This issue also contains links to every article in the June 2009 issue of Law Practice. Don't miss this issue or future issues.
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By Neil Squillante | Monday, June 1, 2009
Coming today to BlawgWorld: Our editorial team has selected and linked to 53 articles from the past week worthy of your attention, including our Post of the Week. Here's a sample:
Potholes to Avoid When Using Courtroom Technology
How to Reduce Your Accounts Receivable to Zero in 120 Days
Law Firm Sues Google Over Use of Its Name in Rival's Ads
This issue also contains links to every article in the June 2009 issue of Law Technology News. Don't miss this issue or future issues.
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