There are certain legal skills of critical importance that receive the same level of attention as a mid-summer pilot for a sitcom not expected to make it to the fall slate. In fact, there is usually a disconnect, particularly in Biglaw, between what is “taught” and what lawyers really need to learn as they develop. A recent anniversary of sorts reminded me of an example. Let’s discuss the notably unglamorous, but often critically important, role of “second chair” at a hearing or trial.
For the uninitiated, the typical hierarchy on a litigation matter for lawyers is support (faceless associate research drones), team member (associate or higher who is “on the case” but may not even get to sit at counsel table), second chair (trusty lieutenant, perhaps content in the role, or perhaps gunning for more), and first chair (field marshal winning the war and the peace on behalf of a grateful if lighter-pocketed client.)
August is the anniversary of my first patent trial, well over a decade ago….
At that trial, I was the youngest, most junior associate on the team, and it was an accomplishment to even be invited to attend live. Did I sit at counsel table once during those three weeks? No. But I had taken a small step in that direction, by becoming indispensable on the case. My main contribution? I remembered a lot of the facts and had supported a lot of the partners on discovery.
I also happened to really enjoy trial, and patent litigation generally, so I set out to take an even bigger role on my next major case. Like the mailroom guy who dresses in a suit in order to set the tone for a potential promotion, anyone looking to move up in the ranks in the litigation world needs to prepare for both the job they have and the job they want.
If you grow up as a litigator in Biglaw, there is a good chance that you will spend a lot of time “second chairing”; it is actually an accomplishment to earn that status. Some service partners spend their entire careers — successful and lucrative careers — never graduating to the “first chair” on any of their matters. Moons to their rainmaker’s sun, these lawyers are expected, as all second chairs are, to be faithful servants, shepherding cases up to the glorious point when the first chair (aka “trial guy” or sometimes, derisively, “talking head”) can exercise his or her formidable powers of oral advocacy before a rapt jury or judge. Or more often, at least in patent cases, a bored jury, looking forward to freedom from yet another claim-element-by-claim-element “analysis” of the allegedly infringing product by a technical expert. Feel free to ask your local district court judge what they think about patent cases, if you are so interested.
I left law school unfamiliar with the concept of “chairs” in litigation (along with many other things concerning actual law practice). Nor was I prepared for the intense level of interest many litigators evince for keeping track of who sits in which chair at any given time. But I quickly learned that this was an important metric in terms of determining one’s standing in the hierarchy of one’s peers, both at a current firm and relative to the competition in one’s practice area. It may seem simple, but if someone rises to a “second chair”-level and wants to stay there or progress, it is critical to do as good a job as one can as a second chair. But nobody likes to talk about what makes a good second chair, nor is there any official training for the role — which is unfortunate, since how one performs in that role could mean the difference between a stalled career and one that scales the heights of professional success and satisfaction.
The first step to thriving as a second chair involves some introspection. Are you content with the role? If so, then you need to acknowledge that it is probably the highest-value function you contribute to your firm. And thus being good in the role is your best chance for continued employment. Have grander ambitions? Making the most of your time as a second chair, or being able to easily transition between second or first chair roles, will be a valuable contributor to future success as a trial lawyer — particularly if you practice in an area like patent litigation, where even the smallest cases require teamwork. Biglaw or boutique does not make a difference on that front, since if you are doing sophisticated work for sophisticated clients, you will need to interact with others. Sometimes you will lead, and at other times you may be supporting. But in all cases, you will need to perform at your best.
Next week, I’ll continue the discussion, focusing on what some of the critical functions performed by second chairs, with thoughts on how to succeed in the role.
Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique. The firm’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at firstname.lastname@example.org or follow him on Twitter: @gkroub.