Biglaw, Litigators, Partner Issues, Trials

Buying In: Trying for More Trials

How can lawyers at large law firms get more trial work (or, for non-litigators, more of the work that they find the most interesting)?

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Ed. note: This is the latest column by our newest writer, Anonymous Partner. In case you missed his prior posts, they are collected here.

I want to a be a Biglaw trial lawyer. If you could care less about trial work, but are in Biglaw, feel free to substitute whatever word you want for the word “trial” in the previous sentence — M&A, IPO, appellate, etc.

Why trial work, other than it seems like a good way to put my lack of nervousness when speaking publicly to productive use? Because I have always enjoyed days spent in court, and no matter how much fun it can be to take a contentious deposition or argue a motion, there is simply nothing like the atmosphere, teamwork, and total focus that a trial commands. Toss in the ability to avoid unpleasant obligations by saying “I am prepping for trial,” and the chance for a long vacation afterwards, and you get a great deal Biglaw-wise.

Since Biglaw is not the ideal training ground for trial work, I realize that I need to very flexible and patient if I realistically hope to have a trial practice down the road. In the meantime, I will continue looking for opportunities to work on trials, and I am willing to do some unorthodox things to accelerate my current pace of one trial every five years.

But first, some context….

In my practice area, it is not uncommon for even litigation “chairs” to have very limited trial experience. Some have none. They do not like to admit it. Clients seem okay with this for some reason, most probably because they realize that they can parachute in a “real” trial lawyer to serve as “co-counsel” to the high-priced case shepherd they had previously hired. Biglaw firms are happy to sell the fiction that their litigators try cases — and secretly hope that the “real” trial lawyer the client selects is from their firm and not from the competition.

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Your typical Biglaw firm will have a number of these characters lying around, ready to be pulled off the golf course or their boat to salvage the engagement. Firms are real nice to these “bailout” artists, who tend to be cavalier about things like dress code, facetime, or the usual Biglaw niceties. The vast majority of their “real” trial experience was typically acquired outside of Biglaw, usually in some form of insurance defense work or government service. Once swallowed up by Biglaw, they get the best of all worlds, including the right to act “quirky,” to have every word they speak in court scripted by an army of underlings, and, of course, to be very well-paid. I am not jealous; Biglaw needs these lawyers, and they deserve special treatment for the valuable skills they add.

In my case, I have practiced over a decade, strictly doing litigation — around twenty-thousand billable hours worth, give or take. Lots of litigation hours, but only a couple of trials. My experience is typical for Biglaw. I realize that the day I took a job in Biglaw as a first-year associate, I said goodbye to any chance of being a “real” trial lawyer, at least the way most people picture trial lawyers. And unless I can somehow get my firm’s permission (and I would need permission, even as a partner) to take a six-month leave of absence to serve in my local DA’s office as a special prosecutor, I am pretty much stuck with whatever Biglaw trial opportunities arise.

(By the way, I did speak to my local DA’s office, and they love when Biglaw lawyers come onboard to pitch in. But you need to be willing to work for free and commit to an extended stay — not a real option for most partners, mostly because firms talk a big game about “investing” in talent long-term, but never follow through. It is much easier to buy “real” trial lawyers than to home-grow them.)

So what can you and I and other Biglaw lawyers do to address a disconnect between the type of work you are doing, and the kind of work you hope to be doing? First of all, as with all things Biglaw, assume the worst. Realize that you are not the only one who wants the “good work,” and that within your own firm you will need to compete for the limited opportunities that come up in the natural flow of client matters. So be prepared for a long wait, and realize that the closest you may come to opening your mouth at a trial will be to move in exhibits before the day’s real action gets underway. Be a team player, even when it sucks to see the client congratulate the “lead” trial counsel on his or her delivery of the devastating cross you scripted, based on the admissions you got during depositions (while you were away from your family, and your senior colleague was taking a long lunch back at the home office).

Your time may or may not come, so learn to enjoy the contributions you are already getting to make. And feel free to look at other firms with more of the type of work that you’re most interested in, and see if you can lateral to one of them.

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Another thing to do is maximize the opportunities that your current firm offers for concrete experience. In the case of trial work, most Biglaw firms have internal “trial training” programs, or subscriptions to outside providers such as NITA. Take full advantage of these offerings, especially the longer and more immersive ones. Not only are they fun, and essential for developing your basic skills, but they can also be great bonding opportunities to get to know like-minded colleagues. And if your firm does not offer them, advocate for “refresher” or “advanced” partner-level programs. In my experience, trial lawyers love to teach and are always willing to share tips (as long as you are willing to put up with listening to some war stories).

On that note, Biglaw appears to disfavor but actually rewards being a little outspoken, so make sure everyone who needs to know actually knows that you want trial work. Tell colleagues, clients, ex-colleagues, and lawyers at other firms. Offer to help out with trial preparation, even at discount rates, by volunteering to play the other side at internal or off-site mock trials or arguments. Let colleagues and clients know that you are willing to pitch-in, even on short notice, with second opinions on trial scripts and exhibits. If there is a trial in your city involving your practice area, pack up some work with you and go sit in. Take notes, and try to see what works in the courtroom. Take associates who clerked for trial judges out to lunch, and let them share with you what worked or did not work in their judges’ courtrooms. If one of your matters is going to trial, volunteer to handle the most annoying witness. Make sure you get some role on your feet in court; even if you have to resort to begging. Always show a willingness to invest in your skills. And if you are lucky enough to get a chance to demonstrate them — win.

Any other ideas for getting more trial work — or, for lawyers in other practice areas, the type of work that you most desire? Feel free to email me or share your thoughts in the comments below…

Anonymous Partner is a partner at a major law firm. You can reach him by email at [email protected].

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