Inside Straight

At big law firms, people gripe. It’s a way of life.

Junior associates gripe about being condemned to do scutwork. Senior associates complain about friends having been screwed out of partnership. Junior partners bellyache about not being invited to participate in client pitches. Senior partners grouse about their peers, who don’t work very hard and aren’t very good lawyers, being paid too much. The law firm’s “owners” — the half-dozen guys who actually run the joint — moan that all those other lawyers should quit their whining and get back to work. And everyone kvetches about opposing counsel, unreasonable clients, and working too many hours.

(You’ll note that nobody b*tches about anything. I offer the preceding paragraph as evidence that we needn’t degrade the level of discourse to express ourselves.)

At corporations, this just doesn’t happen. People occasionally whine, of course — there’s a reason why they call it “work” — but griping is not the order of the day, every day, year in and year out.

Why not?

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Call me a step slow.  I’ve only recently stumbled across the memo prepared by Yale Law School warning students about the tyranny of the billable hour. As someone who billed hours for more than 25 years but no longer plays in that sandbox, I feel compelled to comment.

At the outset, let me type words that may startle lawyers just now beginning their careers:  I never felt burdened by the need to bill hours.  (Let the abuse begin!) After clerking, I started my career in the 1980s at a small firm that didn’t make a big deal about billing time.  I was instructed by one senior partner (and I very nearly quote):  “You learn the area of law that you’re researching; that’s what will make you a valuable lawyer some day.  I’ll take care of the bill, making sure that our client pays only a fair price for your work.”  (I later dedicated a book to that guy.)

I was told by another partner:  “We’re a small firm, so we’re not as prominent as the big firms are.  It’s part of your job to help raise the collective profile of this firm and its lawyers.  We don’t particularly care whether you join a bar association, write articles, or go on the board of a non-profit, but we do care that you do something to let people in the community know that we exist.  It’s part of your job.”

I thought those guys were right, and I took that attitude with me when I later (must have popped a gasket and) moved from a small firm in San Francisco to one of the world’s largest firms in Cleveland.  I continued to stay busy with client work, but I also made a point of helping to raise the firm’s profile in the world. I occasionally felt burdened by the crush of work, but I never felt burdened by the need to “bill hours.”  In the course of 25 years, while I practiced law at two different firms, no one ever said a word to me about the number of hours that I billed.

That cuts in both directions. On the one hand, no one ever asked me why I was foolishly wasting all that non-billable time teaching classes and working on non-profit boards. On the other hand (at least after I left San Francisco), no one ever said, “Congratulations for having written those books,” or, “Congratulations on getting that article published in the Wall Street Journal.”  But I, at least, took far more satisfaction in those accomplishments, and in the results that I achieved for clients, than I ever took in having billed a lot of hours (which seems to me like a uniquely unsatisfying professional goal).

How many hours did I bill?

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As an in-house lawyer who occasionally influences our selection of outside counsel, I hear an awful lot of law firm pitches. And I must admit that I’m often entertained by them. I spent better than 25 years in the private practice of law, where attracting new business was an important part of the game. I was never sure which pitches had a chance and which didn’t, so it’s pretty amusing to sit on the other side of the table to see how other folks approach this.

I recently saw one good pitch and one bad one, and I just have to share.

First, the bad one. Several lawyers from a firm visited us for a chance to explain their firm’s capabilities. I don’t remember why we were meeting with them — we actually had a need for them; someone recommended them; someone important asked us to meet with them as a favor; whatever. I used to think that getting in the door to meet with potential clients was a big achievement; I now realize that it meant less than I thought.

Anyway, these guys started the pitch the usual way: The firm has lots of great lawyers who’ve done lots of great things in their lives. The firm is divided into several departments, and those divisions should for some reason matter to me. A couple of magazines had bestowed some awards on the firm or its lawyers. Yadda, yadda, yadda.

And then the associate speaks….

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Career paths are easy at big law firms: As an associate, stay fully occupied doing great work, and become a partner. As a junior partner, stay fully occupied doing great work, and become a powerful partner. As a senior partner, generate enough business to keep you and others fully occupied, and become an even richer and more powerful partner.

These things may or may not be attainable, but everyone understands the career path.

Things are much trickier in-house. Corporations tend to have fewer lawyers than big law firms do, and in-house law departments tend to be flatter. Turnover tends to be less common. Six or eight people often report up to a single supervisor. In that environment, staying fully occupied and doing great work may not move you up the ranks. You can be fully occupied doing great work, but your boss is competent, happy in her job, not close to retirement age, and in good health. She’s going nowhere, so you have nowhere to go in the corporation.

The corporation can actually be very good to its lawyers — investing in leadership and management training, using incentive or equity compensation, and employing other tools for recognizing achievements — but still fall short in actually creating career paths that make sense.

How do corporations create career paths for their in-house lawyers?

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I’m thinking again, as I did on Monday, about why lawyers go insane over time.

Years ago (long before MapQuest was even a gleam in its inventor’s eye), an older lawyer sent me directions for driving to his home. It was pretty easy to get from my apartment to his house; I had to make only three or four turns. But the directions were several typed pages long. Why?

Because this guy had been driven insane by mistakes in the past. He had told someone to turn east on a road, and the person had turned west. So now the directions eliminated that possible mistake: “Turn east (that is, turn right as you are proceeding northbound on route 1) at the light.” Someone else had missed the turn. So now the directions eliminated that possible mistake: “If you see a shopping mall followed by a McDonald’s on the right side of the road, then you have gone too far. Turn around, go back to the light, and turn east (that is, left as you are now proceeding southbound on route 1) at the light.” Having experienced all of these mistakes, the older lawyer felt compelled to help me avoid them, which made his driving directions nearly incomprehensible.

What does this have to do with being a lawyer?

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There’s a reason why people get crotchety when they get old. People forget about things that went right in their professional lives; that’s like water off a duck. But people remember things that got screwed up; that’s what sticks in their craws.

You personally are not necessarily incompetent. But you’re tarred by the ghosts of incompetents past. When your elder — a partner, a boss, a client, whoever — asks you to do something, the boss assumes that you won’t do it. The boss doesn’t assume this because she knows that you’re irresponsible; she assumes it because the clown she asked to do something six months ago was irresponsible, and she has to hedge against you being an irresponsible clown, too.

How do you prove that you’re not irresponsible?

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A few months ago, I attended a hearing on a motion for a temporary restraining order.

The judge came out on the bench and berated one side’s lawyers: “You filed these papers at midnight last night. Your brief is more than 70 pages long and has a foot of exhibits attached to it. I arrived at court at 9 this morning, and you’re now arguing this at 9:30. Do you really think I had a chance to read this stuff?”

How does this happen? How can lawyers be so silly?

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Some tasks are meant to be delegated; others are not.

Sometimes, whether the task is meant to be delegated depends on what the supervisor has in mind.

Let’s think about three examples…

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I came of age in the law in the late 1980s. At the time, arbitration was viewed as a big deal and a possible threat to the judicial system. Many corporations were adding arbitration clauses to their contracts; companies were agreeing to arbitrate, rather than litigate, disputes; and pundits feared that the judicial system would suffer.

What were the perceived benefits of arbitration?

It’s private. Companies wouldn’t have to share their dirty corporate laundry with the world.

You get to pick your own decision-maker. If you fear generalist judges, you can select an industry specialist as your arbitrator.

Arbitration is cheaper. Limited (or no) document production; no depositions; no silly, time-consuming motion practice. No serious appellate review, and thus relatively few time-consuming appeals.

This was perceived as being not just good, but great! Parties could design their own processes to have private judges resolve disputes quickly and efficiently, and corporations would spare themselves the expense and indignity of appearing in court.

Indeed, a couple of decades ago pundits feared that arbitration would soon threaten the judicial system. Parties with means would plainly prefer arbitration to litigation, so there would be ample demand for arbitrators’ services. Arbitrators are often paid at the rate of private practice lawyers, rather than public servants, so good judges would leave the bench in droves to accept more lucrative jobs as private arbitrators. The quality of judges would decline, and America would be left with a two-tiered system of justice: High-quality, private arbitration for the rich, and low-quality, public courts for the poor.

Or that was what the pundits said….

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Do I look like “Dear Abby”?

Somehow, because I’m working in-house and writing this column, I’ve become the adviser to the disaffected. A correspondent now asks: “I’ve worked at a Biglaw firm for several years, am at the end of my rope, and am interviewing for an in-house job next week. How will an interview for an in-house job differ from a Biglaw interview?”

I have three reactions: First, the interview may not be different at all. The in-house lawyers who are interviewing you may be veterans of Biglaw, and they may not have changed their interview styles when they changed jobs. Being qualified and pleasant may be plenty to land the job, as it is at many large law firms that are hiring new associates wholesale.

But the interview may be different in two ways that you should consider….

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