Tom Wallerstein

Law bloggers, including me, spend a lot of time talking about the economics of being a lawyer. This site voraciously covers news about salaries and bonuses, and often opines about the financial value of a law degree. I, too, often write about some particular financial aspect of managing a litigation boutique.

But as I have told countless prospective and current law students, if you’re in it for the money, you’re in the wrong profession. And this was true even in the glory days when six-figure bonuses were routine, and when students were only half joking when they called for starting salaries of $190,000 per year.

Virtually no amount of money can justify tolerating everything it means to be an attorney. Ask someone like Will Meyerhofer. The billable hours, the deadlines, and the overall stress makes many attorneys question why they ever went to law school in the first place. Dear 16 year old me…

Some romantics might respond that law is a noble profession, a vocation more than a job. Plenty of attorneys rationalize their careers as a quest for justice; that is, presumably, what motivates them to work hard. But how many lawyers really advance the public good? Unfortunately, the true public interest jobs don’t pay very well. If helping others is truly your most important goal, then I wonder whether law is the ideal means to that end.

But if not the money, and not the public good, then what motivates a trial lawyer to win? How can a lawyer tolerate everything that it takes to win — the late nights, the seemingly endless legal research and revisions to pleadings and motions, the impossible deadlines, the stress of performing your job publicly? Being a litigator isn’t exactly manual labor, but thinking until it hurts still hurts.

So, how do you do it? You have to really believe in your clients, right? You have to almost love them?
Actually, no. I really like many of my clients, but that doesn’t have too much to do with how hard I work for them. I actually tell my clients, “It’s not about you, it’s about me.” For many clients, it’s very important that their attorney believe in them. I’m pretty quick to explain: Yeah, sure, I believe in you. But that’s not why I want to win. Even though you’re paying me, it’s not about you. It’s about me. I’m wired that way.

You see, I’m a competitive SOB. I hate to lose. I love to win. For me, litigation is a game like many others. And I have loved games since I was a kid. They have rules. The players agree to play within those rules. Everyone tries to win.

Like most games, in litigation, barring settlement, one side wins and one side loses. I like that. The moment before a jury comes back, or the moment before a judge announces his decision is, to me, an almost mystical moment. The whole world stops and you can feel each beat of your heart. Each time I’m in that moment, I think, “This is what it’s all about.” I don’t think I would do as well in a career if there was no one to compete and nothing to win and nothing to lose.

I don’t think you can be a great trial lawyer without this competitive drive, this need to win. I call it the “fire in the belly” and it’s what I always looked for when screening litigation associates for high pressure gigs. It’s hard to explain, but you can usually tell the fire from the ice.

This is one thing both big and small firms have in common. Litigation is inherently competitive. That aspect doesn’t change depending on whether the amount at stake is ten thousand or ten million. Whether two or ten associates are working on the matter doesn’t change the central importance of what you may win and what you may lose.

If anything, the fire in the belly is more important in small litigation firms than in big ones. With fewer team members, the stakes are heightened for each one. If you’re running a case — or a firm — than your drive to win has to kick into overdrive. This means that the competitive aspect of litigation can be heightened in a small firm environment.

Add in some healthy “David versus Goliath” complex and you can see what might drive the 3:00 a.m. emails, or working through a weekend. If you’re a small firm litigating against Biglaw adversaries, it can be important to show them that they are dealing with the same skill level and aggression they would expect from another Biglaw firm.

To me, being a trial lawyer has never been about the money. But neither has it been about dedication to client service or some profound sense of social justice. I do what I do because I’m good at it, it’s fun, and I like to compete. I never got the call to play for the San Jose Sharks, so law seemed like a good alternative.

In a commencement speech at Stanford, Steve Jobs said that “the only way to do great work is to love what you do.” I think that is especially true of litigators. I can’t convince a new client I’ve only just met that I will fight to the ends of the earth for him. But I can explain to him why I’m driven to do that for myself.


Tom Wallerstein lives in San Francisco and is a partner with Colt Wallerstein LLP, a Silicon Valley litigation boutique. The firm’s practice focuses on high tech trade secret, employment, and general complex-commercial litigation. He can be reached at [email protected].


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