first?

Can't wait for JaKe and Partner to comment...

2 - maybe if you were more confident, you would've made it.

My beard is scratchy, Canteen Boy. But it gives good back rubs.

Doesn't the female "ultimate winner" look like that woman from the Room Store furniture commercials?

http://www.youtube.com/watch?v=dZXfPFpga4Q

I am deeply concerned about my fellow AARP folks that have been terribly hurt by Commissar Obama's economy. If Obama has his way, elder folks like your parents will be placed on a ship to Thule, Greenland where they will be stranded there to perish (similar to Stalin's "early retirement" program where old folks would be given a one way ticket on the Siberian Express). If ERISA lawyers cannot address Commissar Obama's assault on capitalism, what good is it to fight for illusory pension rights?

Commenter 7 sucks.

I think your hottie contest might be the most telling testimonial for the phrase "law school hot" that ever was. Good lord, I think it is bad now, but a few more years will clearly not do any of the girls in my class any good.

9 - Right on, unfortunately. Two years of seeing law school girls has already lowered my standards enough, imagine what working with these broads will lead to. Thank God for secretaries and assistants.

I'm in a tax LL.M. program, having formerly worked for two years in M&A. I'm finding that I actually enjoy ERISA, which dovetails nicely with my other interest, which is getting a paying job again.

Any advice from knowledgeable people about how I can make myself into an ERISA lawyer would be greatly appreciated.

11 - Take an ERISA class of some kind if your LLM program has it. There's so few ERISA classes that many ERISA practices will give you a closer look just for that.

I've got two questions for any of the ERISA lawyers here.

Can any of you talk about how much litigation you do versus transactional/regulatory work?

Do any of you do any work on health insurance plans? If so, what sort of work do you do? Are there people that specialize solely in that, or is it too small of a niche to really make a career out of?

Thanks!

How on earth did Downie beat Crawford? Upset of 2006.

GROOM ROCKS.

I'm an ERISA lawyer. I do mostly counseling. It's a nice middle ground between litigation and transactional.

13 - it depends. Some big firms are mostly transactional M&A, some shops do little counseling and do mainly lit, some do it all. Some big firms do it all, as do the small ERISA shops. A lot of other big/mid firms do a piece but not all. Health plans - can be a career in some firms - insurance co work is part-ERISA / part-other areas, so lots of firms have practices.

There is a significant difference between employee benefits and ERISA litigation, so it is somewhat silly - though understandable - to lump these two together. Even ERISA litigation itself has so many different sub-categories: the huge stock-drop cases and fees cases that are mainly defended by the mega firms (most notably Paul Hastings and Morgan Lewis). Then there are the single plaintiff cases that can be defended by a small shop.

Employee benefits, on the other hand, is the corporate work and counseling with 401k plans, ESOPs, etc. Tax experience is pretty much a prerequisite for this type of work (whereas with the litigation side, it really isn't).

Litigation is fun, challenging, and profitable. The corporate side is boring, mundane... but still profitable (although with no M&A deals and relatively little growth of business in general, these groups are definitely struggling).

13 - I'm an ERISA lawyer at a relatively large firm and I do entirely regulatory and transactional work (mostly regulatory). And the bulk of that work is qualified retirement plans.

It seems like the bulk of ERISA litigation is handled by boutique firms. It is less common for boutique firms to handle regulatory or transactional work. Groom is obviously an exception, and there are a few similar on the west coast. There are also boutique labor firms that handle regulatory and litigation for union plans--both pension and welfare plans. If you represent a union plan, you're going to be conflicted out of doing the work for a lot of employers.

Making a career out of just health plan work is difficult and uncommon, but I know of at least 1 lawyer in my neck of the woods who has done that. There is some concern among practitioners that any sort of health reform that passes Congress will reduce the amount of health plan work available. If you really hate pensions, you're better off going into insurance law.

11 - Commenter 12 is right. It's uncommon for people to come out of law school--even a tax LLM program--with any ERISA classes. One of the reasons I got my job is because I had an ERISA class on my transcript.

I disagree with 18. You're merging M&A benefits lawyers and counseling lawyers - two different things. We all have bias - you just sound like a litigator.

The biggest litigator in the space is probably Eccles at OMM, but you really do see everyone. Sometimes you see the boutiques doing the big litigation but you also see a lot of MLB, OMM, Sidley, etc. For those that do both corp/counseling and lit (some big firms and boutiques) they would say they actually have depth that those who only do lit don't. Lit says they have the big firm depth and experience that other firms don't match. There is no one right answer - each have their own view.

This series has been an absolute hit; however, this thread is TTTrash

ERISA must be an ugly area of law. Law could not be said to be the best-looking profession, but there are a good handful of people just in my practice group at my frim that are better-looking than these two.

19 and 12 - Thanks. I'm taking Pension and Benefit Law this semester, but I was concerned that employers would credit that as nothing more than showing interest in the field. If the stuff I'm learning is actually equipping me to practice in the field, that would be nice - and a nice change from law school.

I'm taking Exec Comp in the Spring. Again, thanks.

The need for an ERISA lawyer is usually replaced by one form paragraph in most M&A transactions. Both sides counsel read it, pretend to understand what it means, and move on.

@24: Are you a first- or second-year corporate associate at a second-tier New York law firm? Can't tell.

@ 24: "The need for an ERISA lawyer is usually replaced by one form paragraph in most M&A transactions. Both sides counsel read it, pretend to understand what it means, and move on."

...until, after the transaction, the buyer realizes his JACKASS corporate lawyers just agreed to the buyer's being responsible for all of the seller's pension plan obligations...without providing for the transfer of the seller's pension plan assets as part of the transaction.

This is why ERISA attorneys laugh at the stupidity of corporate cogs.

I spent my first 3 years as a lawyer as an ERISA litigator. It was actually enjoyable work, assuming you're ok with screwing people out of benefits and generally being evil. I mean this seriously. ERISA is so insurer-friendly that we very often won cases where the court agreed the decision of the insurer was incorrect because of the highly deferential standard of review. ERISA attorneys can bill out at fairly high rates so it was good work. I mostly did disability and health insurance disputes, plus a little "Sereboff" type reimbursement cases.

Now I sue the companies I used to represent on those same types of claims. You have to pick your cases very careful because of the standard of review, but it's proved to be a better living than working for the bad guys.

Just for reference, partners at my ERISA boutique firm were taking home somewhere between 4-800K per year. Associates were a bit below market.

@27 - Where is your firm located? That is EXACTLY the kind of work I want to do.

13 - I'm a Benefits lawyer at a large firm. My practice deals with exec comp, transactional issues, and qualified plan/fiduciary work. I also do a lot of welfare plan work (but I fill a niche at the firm doing that) which I find really interesting. At large firms, a lot of benefits practice is more than just ERISA. I spend equal amounts of time working with ERISA, the Code, and other relevant laws like HIPAA.

I'm a 1st year at a small plaintiff's-side ERISA benefits firm in the South, but I've been with the firm for 5 years as a paralegal and clerk. I can definitely attest to what @27 says. Most of the lawyer work at our firm is litigation, but most of that is brief-writing, since there are no trials in ERISA benefits, and very little discovery. Seems like most of the defense attorneys I've dealt with over the past five years have been partner-level or senior associates at large regional firms. A lot of the plaintiff's firms that do this kind of work also do a lot of Social Security work, since there's a lot of overlap in the type of evidence we have to gather, at least if they're doing like we do and working with people during the appeal process, pre-litigation.

We expect our ERISA associates to spend a lot of time jumping, tumbling, and free running.

http://www.youtube.com/watch?v=s7HBdhW4MLs

27 - Great comment. Please tell us more.... Are you hiring?

Just thought i'd say hello.

Hot Penny Stocks

I am a midlevel attorney that has worked in small ERISA oriented shops. I would say that 90% of my practice was litigation with 10% counseling. ERISA litigation, in my book, has less to do with the substantive areas of litigation because there are so many areas to cover (stock drop, discrimination, collections for multiemployers, etc). And, more to do with knowing how to avoid the procedural pitfalls of ERISA litigation and the relationship of the various actors (fiduciaries, QPAMs, etc). I would say if you want to pursue a career with ERISA litigation, first take a course in Federal Courts/Jurisdiction and then, take a course in trusts. Once you get those fundamentals down, ERISA will make more sense.

"27 - Great comment. Please tell us more.... Are you hiring?"
Wahahhaha. Worst suck up ever.

I am a recent law school grad in the SE, Licensed, currently employed as a non-attorney. Seeking attorney positions in boutique firms (once they open up a bit or my networking does the trick).

I have heard that if you want to go into employment law, you have to pick the side you want to be on. Either you are representing employee plaintiffs. Or you are defending employers. If you didn't take courses in this field, but are interested in it now, how do you go about getting experience or seeking positions?

I think this is a great series of threads, especially for those of us who are ATL readers who actually have never wanted to go into Big Law, but still enjoy the site.

But I am curious...Family Law is one of the largest sectors of small/boutique firms, and yet none of these threads have discussed it yet. I have seen other commenters post requests for it. I, too, have requested it, but still...no discussion. So far, all the topics discussed in these threads seem to relate to areas of law that are commonly found in the larger firms, to some degree or another.

So, please, can you open up a thread on Family Law, already?

@36, FYI, one thing that gets ERISA lawyers annoyed is to call us employment or labor lawyers. Some do both but they are really two different things. Saying you want to do labor or employment law to a lot of ERISA lawyers won't go over well in an interview.

@37-- ok then. Educate me. What are the differences/distinctions?
I am not being flippant. I honestly have no idea, as ANY of these areas (employment/labor, ERISA, etc) were not ones I was originally interested in pursuing when I went to law school.

Where can I go read about/learn about the differences? Where can I obtain practical materials (as opposed to law school caselaw textbooks) to learn about this, and other, areas of law? Do you have any suggestions?

I went to law school to be a family law attorney (hence, my earlier request for a thread on that topic). That said, I happen to have found various other areas of law interesting. I am currently doing some work on a contract, semi-solo basis in the area of wills/estate planning.

I think, in our current economy, attorney's need to think outside of the box a bit and get creative. It is necessary to keep skills fresh and/or develop new skills, even while they are stuck on the breadline or, like me, working primarily as a non-lawyer until something comes along.

As an evening student, working full time, I didn't have many opportunities for summer or school year internships, so I am trying to figure some of this out NOW, after I am already out of law school. I am trying to keep as many employment options open, which means learning something about a number of different areas of law.

So, I return to my questions posed above in this post-- can you make some recommendations for reading material? I am all about developing a personal library of resources.

Thanks! :-)

36

I'd also be interested in knowing more about the relationship between employment law and ERISA. I first learned about ERISA as a law student working at an employment law boutique...one of the cases I handled involved multiple claims - FMLA and ERISA so I have always assumed that there is some overlap.

I realize that there are huge portions of ERISA that have nothing to do with traditional E&L work, but I also know that there is an area to it that overlaps.

Anyone here dabble in both? I'd love to hear more about that. Thanks! This thread has been really useful (the whole series has been, actually).

I'm a third year ERISA transactions attorney at a small firm. While business seems to be slow these days, the work I do see remains high quality and I'm pretty quickly carving out a good niche practice even in a bad economy.

To the person asking for reference material (38): Start by reading the IRC and regs. Then read ERISA and the regs.

37 here. Brief explanation (my two cents).
ERISA - 401(k), pension, exec. comp, plan fiduciary, health care - insurance, HIPAA, cafeteria plans, plan/fiduciary litigation.
Labor - Employee handbooks, personnel policies, termination, discrimination (some ERISA in plans, but mainly labor).
Crossover - FMLA, Employment Agreements

Instead of reading the Internal Revenue Code and the regs--which is not a particularly efficient way for @38 to understand what EB lawyer do--you might pick up the Employee Benefits in a Nutshell book and give it a quick read through.

If it involves retirement plans, cafeteria plans, or health and welfare plans, it's employee benefits. Controlling law is ERISA (which includes subchapter D of the Internal Revenue Code), COBRA, HIPAA (or parts of HIPAA), USERRA, FMLA (or parts of FMLA), and tax withholding laws.

If it involves negotiating with unions and the NLRA, it's labor. Labor law overlaps with EB when it comes to multiemployer retirement and welfare plans.

If it involves managers playing grab-ass, wage-and-hour claims, discrimination, or any non-retirement, non-union, or non-health plan issue, it's employment. Employment law can also be identified as the only one of the three with interesting fact patterns, and I say that as an EB lawyer who really enjoys being an EB lawyer. Although labor law can be pretty entertaining, too.

Ok so from what both 41 and 42 have said, it seems ERISA would not really appeal, necessarily. Thank you both tremendously for the explanations.

It seems to me that I lean more towards labor and/or Employment law. I like interesting fact patterns. That might be obvious from my interest in family law, which usually involves some kind of interesting glitch in a fact pattern (often times someone playing grab ass, as 42 put it, with someone not his/her spouse. LOL). The employment cases I have found interesting in the classes I took in law school all evolved around issues of discrimination, wrongful termination, employment policies. With, of course, a few non-compete issues thrown in there.

And 401K's and the particulars of my own corporate benefits packages make my eyes roll back in my head from a recipient of the information, so I hardly think I would enjoy immersing myself in that kind of work.

So...@42: If I am more interested in employment/labor law (as opposed to ERISA), would the Nutshell be helpful there too?

And, I guess I am back to the original supposition, that if I want to enter into employment law practice, I am going to have to pick sides (why it's necessary to pick sides before looking for work in that area when I have no experience from either perspective is beyond me, of course).

Thanks again 41 and 42 for the additional explanation. Gives me a bit of a starting point! Much obliged.

Sincerely,

36/38

36/38/39- if you want to do a mix of E/L/EB law, your best bet is to go with a labor boutique firm. I got to dabble in all of those fields when I clerked for two firms that represent unions, employees, and benefit funds. At both firms, the lawyers focusing on EB law had the steadiest business, though they considered themselves more as EB lawyers than labor lawyers.

"I have heard that if you want to go into employment law, you have to pick the side you want to be on. Either you are representing employee plaintiffs. Or you are defending employers."

That's the general rule, however, it's not that unusual to see attorneys jumping from the union/plaintiff-side to defense. The reverse is extremely rare because plaintiff/union-side employers tend to be much more dogmatic.

36/38/39- if you want to do a mix of E/L/EB law, your best bet is to go with a labor boutique firm. I got to dabble in all of those fields when I clerked for two firms that represent unions, employees, and benefit funds. At both firms, the lawyers focusing on EB law had the steadiest business, though they considered themselves more as EB lawyers than labor lawyers.

"I have heard that if you want to go into employment law, you have to pick the side you want to be on. Either you are representing employee plaintiffs. Or you are defending employers."

That's the general rule, however, it's not that unusual to see attorneys jumping from the union/plaintiff-side to defense. The reverse is extremely rare because plaintiff/union-side employers tend to be much more dogmatic.

Hey Lat/Elie,

Since this is morphing into an E&L thread, maybe an E&L open thread today would be useful so that all that info could be in one place.

I don't know about how other EB firms branch out, but we've started branching out from ERISA disability benefits to ERISA-governed healthcare claims, non-ERISA private policy disability insurance denials, and other employee benefit denials (life insurance coverage, AD&D, etc.) Each of those uses special knowledge that we've gained in ERISA disability benefits, rather than branching into something like FLSA claims, where we'd be starting from scratch.

13--yes, some attorneys do focus exclusively on health & welfare plans, but the clients tend to be the service providers (TPAs, insurers, banks) rather than employer plan sponsors. It's usually only the really big employers with self-insured health plans that will pay $$$ for good legal work for a health plan. I focus exclusively on H&W plans (all compliance/regulatory--no litigation), and I work in a "biglaw" firm that pays market rate for my city. My boss is very well-known in the industry, so I have a lot of very high-quality work. I don't think that's the case at most places--at my old firm, all the H&W work was boring--plan amendments and SPD updates. You really have to look hard and find a practice group with a stellar reputation and excellent clients in order to focus exclusively on H&W and get the interesting work. Also, if you have long-term plans to get out of working at a law firm, most in-house jobs are really looking for folks with 401(k)/executive comp experience. H&W experience is always a "plus" but it is rarely at the top of the list.

How does one become an ERISA attorney? Simple--express a serious interest in it. This is not a sexy area of law--it does not attract a lot of young associates. My firm looked for over 6 months before they found me (back before the market tanked). They interviewed others, but those people were just kids looking for any job at any law firm. I got the offer because I had a specific interest in ERISA. It is a very narrow, deep field, so it takes a lot of dedication. They really want to groom someone to become an expert--they aren't looking to churn through a bunch of young assoictaes. You really don't get good at ERISA until you are in your 3rd or 4th year (although I guess you can say that about just about any area), so they want to see that you are dedicated and will stick around that long.

Lastly, ths has been a (relatively) great year for me and my entire ERISA group. I've been extremely busy, and my practice group has been one of the busiest groups at my firm this year. We routinely have met or come close to meeting our target each month in a year when most of the other practice areas are really struggling.

#41 - Labor is not hanbooks, policies, etc.

Labor is union law: labor or management side.

Employment law is everything else, excepting ERISA

ERISA are those areas covered by ERISA, namely pensions, welfare funds, top hat plans and even severance pools. Likely to include employee benefits, but not necessarily.

Overlap? Labor and ERISA is a natural with respect to unions and multi-employer plans. I could also see employment law and employee benefits (not necessarily erisa qualified, though). ERISA is often a stand alone dept. or sub-dept. withiin employment of labor law.

I've been on both sides of the union managment divide and can say as a union-side attorney in a "boutique" firm that you gotta now ERISA basics to be effectice, which is to say more ERISA than anyone else except dedicated ERISA attorneys. On the other hand, on management side, there was always a dedicated ERISA sub-dept to pawn that work off too. The Union side firm has a dedicated ERISA attorney, but more for handling QDRO's and other transactional stuff as well as litigation. The labor attorneys handled the every-day erisa issues.

As far as getting into the area? if you know what erisa is, you've got a real head start. no joke. Other than that, take on some erisa assignments if your firm permits such a thiing. If you don't blow your brains out from sheer boredom or completely screw it up, then after about, oh, 2 assignments, you can hold yourself out as an erisa attorney. Why? because there are so few out there that do it and those that do need all the help they can get.

As far as the work? It'll turn you into a potted plant quicker than you can say miracle-gro. Tedious stuff, but not without its merits. If you can understand it, you'll find out the law is pretty well laid out and most circumstances/outcomes are provided for. I dunno, but best analogy may be that if you found evidence or bankruptcy easy, like going from one section to another and following the bouncing ball between the various codes and subcodes and rules, erisa ain't too bad.

#41 - Labor is not hanbooks, policies, etc.

Labor is union law: labor or management side.

Employment law is everything else, excepting ERISA

ERISA are those areas covered by ERISA, namely pensions, welfare funds, top hat plans and even severance pools. Likely to include employee benefits, but not necessarily.

Overlap? Labor and ERISA is a natural with respect to unions and multi-employer plans. I could also see employment law and employee benefits (not necessarily erisa qualified, though). ERISA is often a stand alone dept. or sub-dept. withiin employment of labor law.

I've been on both sides of the union managment divide and can say as a union-side attorney in a "boutique" firm that you gotta now ERISA basics to be effectice, which is to say more ERISA than anyone else except dedicated ERISA attorneys. On the other hand, on management side, there was always a dedicated ERISA sub-dept to pawn that work off too. The Union side firm has a dedicated ERISA attorney, but more for handling QDRO's and other transactional stuff as well as litigation. The labor attorneys handled the every-day erisa issues.

As far as getting into the area? if you know what erisa is, you've got a real head start. no joke. Other than that, take on some erisa assignments if your firm permits such a thiing. If you don't blow your brains out from sheer boredom or completely screw it up, then after about, oh, 2 assignments, you can hold yourself out as an erisa attorney. Why? because there are so few out there that do it and those that do need all the help they can get.

As far as the work? It'll turn you into a potted plant quicker than you can say miracle-gro. Tedious stuff, but not without its merits. If you can understand it, you'll find out the law is pretty well laid out and most circumstances/outcomes are provided for. I dunno, but best analogy may be that if you found evidence or bankruptcy easy, like going from one section to another and following the bouncing ball between the various codes and subcodes and rules, erisa ain't too bad.

There is a difference between labor and employment law although the two often get grouped together (even by lawyers and practice groups). I am a management side employment law litigator. I also do labor law. The two crossover and you rarely find someone who is well experienced in one area and not the other.

ERISA is a whole different ballgame. The plan language, fiduciary duties, and benefit disputes tilt more towards insurance coverage than employment (in my mind at least). The deference given to ERISA fiduciaries means that the defense side is the side to be on (assuming you want to win). The ERISA defense firms that I'm aware of have an ERISA bell that gets rung every time they win another ERISA case. I'm pretty sure that bell rings about 7 times a day.

If you want to see what ERISA practice is, go to Groom's website to the practices tab - the underlying specialties pretty much cover the entire ERISA field. Many people work entirely in one of these areas, though most cross over 2 or 3.