The Big Firm Response

My blog on Friday on large law firms and their lawyers poked a bit of fun at my brother-in-law in Arizona, who is a partner in a very large firm. I forwarded him the post and got no response. Today, he responded with a comment to my blog which I have converted into a post. Apparently, he had an opinion on the subject. He also proved the point of my original post by using the word “untermenchen” at one point. This is his response:

In response to my brother in law, I would certainly agree that associate salaries fresh out of law school have just become plain silly. And I say that not because of the amounts at issue, but because of the incongruity between those amounts and the “new work ethic” of those now entering the profession. It is truly difficult to look someone in the face who is making $160K a year and seriously consider their views on work/life balance. That is not to say that our profession cannot make work/life balance a reality. It is to say, however, that those entering the workforce seem to think (and I concede this is a gross generalization) that they ought to be able to punch the clock 9-5 and still get those princely sums of money and bonuses. When an associate bills 1600 hours (10% of which is then written off for various reasons) and charges another 200 hours of non-billable time, and then calls it a year, I can safely say we are paying new associates too much.

The great myth orbiting big firms is the notion that their associates work like slaves. Over the last 15 years I have worked at two of the largest firms in the U.S. You would be shocked to learn that neither firm has succeeded in cajoling, begging, and/or threatening its associates to reach 1700 average associate billable hours across those firms. At my prior firm, average associate billables were below 1650 per year. So, the basic truth is, in any large firm, some people work ridiculously hard and ordinarily succeed. Some people work like mere mortals, hit around 1900-2000 hours, make good client contacts or develop their own business, and also succeed. Many, many more, however, jump into the pool for a few quick laps, sit at the pool bar drinking daquiris while their colleagues lap them, and then whine incessantly about their small bonuses and the sweatshop they have come to loathe. You may be surprised to learn that most large firms lose money (and a lot of it) on associates until they get into their 6th year of practice. Think about that. We make a 6 year investment, which is right around the time associates become truly marketable as individuals rather than as fungible commodities (no offense intended to newbies). It’s akin to drafting a high school kid, giving the kid a big signing bonus, bringing him up through the minors, and as soon as the kid appears to be ready to start hitting .300 and stealing 40 bases a year, the kid goes free agent on you. I realize that is not the most apt analogy, but you get the picture. To use your analogy, consider pouring all that money into Jamarcus Russel, but as soon as it is time for him to take his first snap from center in a meaningful game, he just leaves and your investment was worthless. Enough on associate salaries.

I think my brother in law misapprehends the reasons many of us enjoy working in large law firms. First, to disabuse you of one common myth–while our profits per partner (PPEP) are well in excess of 1.3 million, the vast majority of our partners (and those at other large firms) don’t see anything close to that, and I mean not close. Those big numbers reflect big money players with 10-15 million books. Frankly, they are doing me a favor agreeing to be in the same firm with me–I’m a bit of a sponge in that respect. Is it possible, then, that I would make considerably more money going out on my own? The answer is a very qualified maybe. First, I generate a lot of business for our other offices in other parts of the country–I would not be able to bring that work in (and therefore would not be paid for it) were I in a solo or small shop. Second, I receive a lot of work from other offices around the country, which I would also not get (and would not be compensated for) were I in a solo or small shop. Third, I admittedly like the creature comforts of a large firm–I can find an expert on anything you can imagine in my firm and I actually rely on that breadth of knowledge with some frequency. There are other creature comforts that go with this gig, such as never having to know how to use a copy machine or convert a document to pdf or scrub metadata, or prepare a powerpoint, or prepare a response to an RFP, ad infinitum. It’s comfortable here. You are also correct that I enjoy the comaraderie–I work with a lot of good people throughout the country, who are truly friends of mine. I could go stir crazy in a small shop (not to mention the fact that my mercurial personality doesn’t lend itself to working in close surroundings with a small group of people). Prestige is really not the issue. Frankly, where is the prestige when you get bashed day in and day out but solo practitioners, small firms, regional firms, etc.?

The post following my brother in law’s simply confirms that people presume the worst about folks in large firms, and we have to try like crazy to overcome that presumption. Finally, I have to make a confession. The thing that makes me most likely to stay at a large firm is my intolerance towards unsophisticated purchasers of legal services. This is barely polite way of saying I cannot work with plaintiffs. I don’t mean to suggest that plaintiffs are untermenchen or moronic. I simply prefer to work for/with individuals who appreciate the fact that (a) my time is their money; (b) their case/problem is not the only thing on my desk for the next six months; and (c) I’m a trained professional who does not need to be harangued constantly with emails and phone calls.

I have tried to do a little plaintiff’s work and I can’t handle it. The constant telephone calls for status updates. The constant self-absorbed obsession with the case as if nothing else matters. There, I said it. I’m not proud of it. But it’s the truth–my truth. And that truth makes it hard for me to go solo because most folks in my practice area who go solo cannot survive on institutional clients alone–they have to do some plaintiff’s work. While I know that I could retire very, very young by taking on a few FLSA 16(b) collective actions, the pearl simply is not worth the price.

Frankly, I find most of this to be a tempest in a teapot. The age old distrust between smaller firm practitioners and large firm practitioners makes little sense to me. I don’t generalize about smaller firm attorneys. I don’t assume they are less skilled, less intelligent, less ethical, or anything of the sort. In fact I make a point to drum into my associates a sense of respect for any opponent. Likewise, maybe I’m doing it all wrong, but I have yet to find a judge who will allow me to run a smaller firm lawyer out of the room by virtue of my supposedly superior large firm resources. I just don’t see it–maybe it’s the market in which I practice.

I wholeheartedly agree that smaller firm practitioners and many in the public sector numerically have extraordinary amounts of trial experience, and this does not hold true in large firms. I do think that this fact tends to overshadow the differences in practice, however. I have seen many, many Assistant US Attorneys and prosecutors come and go in the large firm environment. We bring them in because numerically they have hundreds of trials under their belt. They leave because qualitatively, they have little or no experience in the types of cases we tend to try. I have a law school colleague (read “ex-wife”) who has tried well over 500 DUI trials as a prosecutor. She would not have an iota of how to try a Fair Labor Standards Act collective action with 50,000 class members nor would her style allow her to succeed even if she could master the process.

That is not to say that trial experience isn’t important. It is critically important so I give my associates lots of loss leader small cases to try just to gain experience. However, quantity and quality don’t always meet dead center when it comes to trial work. In 20 years I have tried roughly 20 cases. Nonetheless, I am EXTREMELY confident that I can try to a defense verdict an employment case better than someone with 100 non-employment jury trials because I know the subject matter better than anyone else (don’t mean to brag but I’m making a point). More importantly from a client’s perspective, I will obtain summary judgment in 95% of my employment cases because I have a command of my subject matter. I don’t think someone with 500 trials can hit that percentage number without having travelled the path I have followed. In that respect, my brother in law is correct. As a young associate, I third-chaired (read “watched”) countless trials by some of the best trial lawyers in this part of the country. I learned from every one of those experiences and put those lessons to work as I first-chaired my own trials later in my career. Had I simply started trying cases from day one, I firmly believe I would be a very different kind of trial lawyer. In a perfect world, we should all have those learning experience PLUS 500 trials under our belts, but that is pretty rare. That is what puts my brother in law in some very rarified air, having worked with big firm litigators early but then was able to try tons of his own cases. We would all love to have that combination of mentoring and actual hands-on experience, but it’s very tough to get it.