After two federal clerkships and several years as a litigator in law firms, David Mowry is happily ensconced as Counsel in Xerox Corporation’s Office of General Counsel. He specializes in commercial leasing transactions, only sometimes misses litigation, and never regrets leaving firm life. You can reach him by email at firstname.lastname@example.org.
I kicked a hornet’s nest last week by bloviating about an anonymous someone else’s contrary opinion to mine regarding clerking. I banged out a column that I thought was interesting, and furthered my argument that taking a clerkship in this economy is better than being unemployed.
However, at the same time, I unfairly attacked someone with a differing opinion, and for that I am sorry. I have apologized to this person over email, and am doing so now in this column.
Foot in mouth disease seems to follow some of us like the cloud behind Pigpen. I can remember all the way back to sixth grade making fun of Mark something-or-other, for his constant coughing in class, only to be sternly told by the teacher that Mark had a serious illness. I recall making fun of the cashier in a hotel bar (whose bank count was always off) where I was employed in accounting, only to learn that he was a “Mainstreamed” employee. And then, of course there was last week’s column….
I am well aware of the basement-dwelling commenters who make a bloodsport of decimating each column written here at ATL. Heck, sometimes they make a good point, or more rarely, are funny. But, I admit that I was surprised upon learning that a legal recruiter out there was taking issue with my column regarding experienced lawyers taking clerkships. I looked up this person, who appears to be still in her 20s, and thought to myself, are you kidding me right now? This is 2013, not 1999.
It should have been readily apparent that I was referring to clerking as an alternative to being unemployed. If it was not clear, then mea culpa. My bad. However, I read some of this recruiter’s tweets and was curious if there wasn’t a more nefarious motive behind advising lawyers to think twice about clerking mid-career — specifically, with government positions, no recruiters need apply.
I was fortunate enough to clerk twice. My judges, and hence my clerking experiences, could not have been more different. I am unable to give factual details, but I can certainly pass on some observations. I am also going to attempt to give you job seekers some tips.
More than any other type of correspondence to my Gmail are queries about jobs. How to get one where I work, how to go in-house, how to leave a firm, when to go back to a firm, how to obtain a clerkship, etc. I want to focus this week on clerkships because I believe they are overlooked by the vast majority of job seekers. I am not preaching here to 3Ls. Future grads have their own system set up by the career center in which blast applications are sent out, only to be thrown in the trash (sorry, I meant filed for safekeeping) by existing clerks. No, I am speaking to the experienced attorney who has found themselves in the midst of a hellish job search. Do not underestimate the clerkship….
Being somewhat of a jam band aficionado, I inevitably came across the 2003 film “Festival Express.” The film documents the 1970 East to West tour by railroad across Canada featuring the Grateful Dead, Janis Joplin, The Band, and Mashmakhan. I mention the latter because, in my opinion, the relatively unknown band puts on two of the more electrifying performances in the movie. However, while the headliners went on to rock immortality, Mashmakhan broke up after only two albums. After the tour, the trajectories of a pool of very talented musicians diverged, some due to drugs, some to luck, and others for reasons unknown.
And so it goes with law — some to drugs, some to luck, and others for reasons unknown….
I wrote last week about ideas to build a book of business. My main point was to start small and branch out from there. I mentioned how, as a young and naïve (ok, ignorant) associate, I was quickly disabused of the idea that I would soon be able to waltz into Pfizer and pick up some strands of litigation.
Then I received the following email in my Gmail account. It is a well-written counterpoint to my argument. A partner in New York City argues that starting small is a recipe for staying small.
In this new year, since there have been several columns of late of the “confessional” type, I thought I might join the bandwagon. Since the overwhelming majority of inquiries from readers regard how best to market themselves to start to build a book of business, let me tell the truth: you can’t. At least not through me, or anyone in a position like mine.
I just passed my fifth year anniversary with my company, and in that time period, I have assigned a relatively low five-figure amount of work to outside counsel. And of that amount, only a small portion went to a former colleague in my network. The rest went to counsel from a list of approved firms for particular regions of the country. My intent is not to depress you, senior associates who have just realized in 2013 that you really don’t have a book to speak of, it is to get you to read between the lines.
In other words, find the differences from whence I speak, and fill in the holes. Those spaces in between are where opportunities exist for you to start to gain your own clients….
It’s the most wonderful time of the year. Bull and S***. If you’re not slaving away trying to get last minute billing hours, you’re slaving away trying to support a crazed population of folks trying to meet year-end sales numbers. It has been a difficult year, at best, for business. Heck, even Apple was downgraded to neutral yesterday. So, here comes the push.
The push is to close every deal possible, no matter the amount, no matter the risk, by 11:59 p.m. on December 31. But our job is to stanch the flow of craziness, is it not? Stay with me here — I am not allowed to collect commission due to a conflict of interest, yet every dollar that boosts our revenue, and thus our numbers for Q4, goes toward the bonus pool from which I directly benefit. If our end of year numbers are strong enough, the analysts punch our ticket into the new year and my options’ value rises. I may be dense (just ask my wife), but I fail to understand the difference from a commission-based return, and a bonus- or option-based return. The end result is the same, is it not? A benefit is conferred upon me based in part on my participation in the process of my sales-side corporation. But I am expected to “push” back.
I cannot, for real reasons, as well as flippancy, express some of the nuttiness that goes on at this time of year. Risks are taken akin to jumping from the high dive toward a half-empty deep end in the hopes that the water will be there in time. And it always ends happily with a splash. But, the troubling aspect to me is this incongruent fallacy of ethics. I am ethically bound to zealously represent my corporation, and at the same time, I am representing people whose very careers are at stake. I am well aware of the order of precedence there, but practically speaking, that line becomes blurred at this time of year, and frankly, I find it to be unsettling to be forced to live a legal fiction….
I often tell the story of my first assignment as a summer associate, to draft a one-page complaint. Two hours later, the assigning partner checked on me and saw that I was still stuck trying to get the index box to align. Shaking his head, he showed me the magic of the firm document library, and the “secret” of cutting and pasting necessary language. Chastened beyond belief, I vowed to avoid reinventing the well-worn wheels of documents. However, once in a while, reinvention becomes a necessity, as the “same old same old” becomes vestigial, and if you cannot coherently answer “why” you are utilizing some form or other, maybe it is time to examine the wheel treads for wear.
Look at the following indemnity clause and decide for yourself how many changes you might make:
[***] at its expense, will defend indemnify, and hold harmless Customer, its parent, subsidiaries, affiliates and their respective members, partners, shareholders, employees, officers, directors, managers, agents and representatives against any and all claims, damages, liabilities, losses, actions, government proceedings and costs and expenses, including reasonable attorneys’ fees and disbursements and court costs (collectively, “Losses”) arising out of, resulting from or relating to [***].
I would remove “hold harmless” and “shareholders,” and limit “any and all claims” to “any and all third party claims”; let me tell you why….
It is that time of year when the treacle runs thick. Nostalgia can lead to the blues that can lead to a bout at P.J. Clarke’s that leads to a pounding head in the morning. Conversely, some of you are full bore into booking hours for end of year bonuses and have no time for such shenanigans. Then there are the lucky among us who are given money simply for having jobs — starting with Cravathians and the imitator firms. If you are one of those, good on you; there is no bitterness here — envy, perhaps — but not bitterness.
As I began to outline this week’s column I was alerted to some truly distressing news: Dave Brubeck has died at 91. If you had the pleasure, as I did, of hearing Mr. Brubeck in person, you were touched by the presence of an American treasure and true musical genius. Even if you’re not familiar with Brubeck’s music, his signature piece, “Take Five,” would likely be instantly recognizable. Brubeck was an inspiration for his artistry, yet was a self-effacing and quiet individual. When I was fortunate enough to see him perform, he ambled ever so slowly to the microphone to say a few words. One was concerned the man would topple over given the frail nature of his shuffling. After saying a few words, he’d shuffle back to his piano stool and the power of some greater being would generate through his fingers. He seemed like a man that you would wish for in a grandfather. Of course, news broke today that Charles Schulz had an ongoing affair, but I digress.
The point is that there are some folks who just exist on a different plane from the rest of us, and whom, for better or worse, we treat as heroes. The same can be said of several attorneys in my career. I am certain that each reader could submit their own list of attorneys who have mentored, assisted, helped up, or just been there for us as young bucks as we made our way through the profession….
It is that time of year when “A Christmas Story” begins to play on the endless loop left vacant by the old WPIX yule log. The scene I refer to is when Scut Farkus tortures Flick by turning his arm behind his back and forcing him to say “uncle” until Scut and his yellow eyes have had enough. Then he and his toady, Grover Dill, retreat back under the rocks from whence they came.
The Scut Farkuses of the in-house world are thankfully very few and even farther between. Usually, there is at least a façade of collegiality between different counsels representing their respective companies. Sometimes, this collegiality becomes real, and drinks are shared as deals are closed. But, yes, Virginia, there is a Scut Farkus Society.
They are the barely competent; just enough to be dangerous, and they usually somehow hit the lottery and work at uber-corporations whose money we as a company desire. As a vendor attorney, there is always a bit of kowtowing to the purchaser. Sometimes it’s a cultural necessity, but more often than not, it is a factor of needing the business. But everyone has a breaking point, yes, even me….
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When Chintan Panchal decided to leave a global BigLaw partnership to start his own firm, he could only hope that he would face the high-quality problem of firm building that many had cautioned him about. Focused on the uncertainty surrounding of a new firm launch, he decided to tackle staffing needs, IT challenges, and financial planning requirements after he had built up his legal practice.
Panchal Associates LLP–a corporate/finance and outside general counsel boutique–was quickly off to a great start. Clients and matters were flying in the door, and Chintan soon had a team of lawyers and staff with a variety of operational needs. To continue building an excellent team and provide them with a competitive benefits package, to expand his physical presence to include a European practice and additional partners, and to scale his operations and IT capabilities to support this growing enterprise brought with it demands of time, money, and expertise. Chintan knew he needed help.
“With the assistance of NexFirm, we have upgraded the capabilities of our firm to meet, and in some cases exceed, the standards we were used to at our former BigLaw firms. Operationally, we can now attract and service clients we didn’t have the bandwidth to support in the past, and continue to build our team with the best and brightest legal talent in the industry,” said Chintan Panchal, adding “It has worked out quite well in our case; NexFirm is an essential partner for us.”
The holiday season is upon us, and yet again, you have no idea what to get for the fickle lawyer in your life. We’re here to help. Even if your bonus check hasn’t arrived yet, any one of the gifts we’ve highlighted here could be a worthy substitute until your employer decides to make it rain.
We’ve got an eclectic selection for you to choose from, so settle in by that stack of documents yet to be reviewed and dig in…
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