Credit: MJgraphics/ShutterstockThe litigation associate track at Big Law firms is badly structured to the detriment of associates. The structural problems this article focuses on are not by design and are difficult to see until you are looking backward. My hope, therefore, is to give younger Big Law litigation associates that retrospective view before they reach the key decision points. If you have a better understanding of your future opportunities, you will be better positioned to plan for and take advantage of them.
The key structural problem is the combination of two facts: (1) You will find out if you are going to make partner somewhere in your seventh to 10th year out of law school; and (2) you are at your most marketable somewhere around your fourth or fifth year out of law school. The problems those two facts create should leap off the page, but here are two big ones. First, you need to make the decision about whether you want to try to make partner before you have a good sense of what that even means or how likely you are to get it. Second, every year beyond the fourth or fifth that you are committing to try to make partner at your firm is a year you are decreasing the ease with which you can transition to another job if you do not make partner. Put differently, as your job security decreases because you get closer to an up-or-out decision, your flexibility in replacing that job also decreases.
The notion that your marketability decreases as your experience increases is counterintuitive. It also relies upon an assumption, namely that you have not built up a track record of significant business development by your seventh or eighth year. Very few people have. If you have, congratulations, you are going to make partner. Assuming you have not, however, let’s compare a fourth-year associate and a seventh-year associate from a law firm’s perspective. A fourth-year associate is cheaper. A fourth-year associate will give you three to six years of work before you need to promote or fire them, versus one to three for a seventh-year. A seventh-year associate will be better at the job, but a seventh-year associate is less willing to do the kind of work that midlevel associates do, often has a family and wants to work fewer hours, and will compete with the people already at the firm for middle management positions. Moreover, firms typically have too many senior associates (that is why not all of them get promoted) and not enough people willing to be thrown in the trenches. To get hired, therefore, a seventh-year associate normally needs to convince a firm that they have a solid business generation plan and a reason that this plan did not or would not work at the associate’s current firm. A midlevel associate normally just needs some partners at their current firm, or a judge for whom they clerked, to vouch for them.
What about in-house? To start with, any recruiter will tell you that in-house positions for litigation associates are hard to come by. They do exist, especially at banks and other huge companies, but most in-house positions are for corporate lawyers, not litigators. In fact, the situation is even worse: Even at large companies that have in-house litigator positions, a very large proportion of them go to associates who have been seconded in that company (and were lucky enough to be seconded at the right time). The scarcity problem doesn’t change as you get more experienced, but is a constant factor. One thing that is important to take away from this is that an in-house position is not a backup plan or consolation prize—it is a prestigious and valuable position that is in high demand.
There are two primary reasons that the transition to in-house becomes harder as you get more experienced. The first is financial. If you move over to an in-house position as a fourth- or fifth-year, your starting salary will be less than what you were making at the firm. But by the time you are a seventh- or eight-year, that gap will have widened, especially if you’re transitioning to a company other than a bank or similar financial institution. The second reason is that while you get more expensive to hire, you do not get significantly more attractive to in-house shops as you get past your fourth or fifth year. For most in-house positions, four years of litigation experience is all they need, and in-house experience is greatly preferred. If you want to become deputy general counsel of a small-to-medium-sized company, you are much better off with four years of litigation and four years of in-house experience than you are with eight years of litigation experience. It is true that most law firms will help their seventh- or eighth-year associates get an in-house position, but they would help with fourth- or fifth-year associates too. Law firms love turning associates into business relationships by putting them at clients or prospective clients.
This is not just another article saying “you should really develop a book of business.” Everyone knows that and most associates still do not (or do not want to) do so for a variety of reasons that can be the subject of other articles. The only thing I will say on that topic is that if you do want to make partner, you should start your attempts to build a book of business early and certainly not wait until you are close to the partnership decision.
There are at least four things you can do once you realize that your decision about partnership, as opposed to the firm’s, arrives by the time you are a fourth-year. First, make your decision about what you want your career to look like early. Seeking to make partner is absolutely the right decision for some. But it is too much work and too much stress and too much risk for someone who doesn’t adequately value the prize at the end. Regardless of where you come out, start deciding what your next steps will be in your third or fourth year and talk to recruiters or your friends about how to make those things happen. You are perfectly positioned at that time to go in-house or to get a position at a smaller firm, which generally offers better partnership opportunities, more humane hours, and a more robust training program to help you build a book of business (in exchange for less money). Some firms make space for service partners who do not bring in a lot of business, and it is worth knowing whether your firm or a firm to which you are considering lateraling does that. The crucial thing is not to wait to see what your firm thinks about you before deciding what you think about them.
Second, if you are going to seek a Big Law partnership, you should also prepare emotionally and financially for Plan B. Preparing emotionally means being realistic and having a Plan B that you are comfortable with. Preparing financially means understanding that a strange feature of being a Big Law associate is that your second job is likely to be less lucrative, at least in the short to medium term. Try saving any income you get above your third or fourth year salary (or first or second year). Paying off loans counts as saving. If you need that extra income for your lifestyle (or, worse, a mortgage payment), Plan B will be a lot harder.
Third, make resume-bolstering moves between your fourth and seventh years. Being a generalist is a lot of fun, but being an antitrust or internal investigations expert is much more marketable. If you can have fun and be happy pursuing a specialty, do it. A fourth-year will find it hard to credibly claim to be a subject-matter expert, but a seventh-year with the right record can do it. If your firm isn’t supportive of your attempt to develop a specialty, that may also give you useful information about whether you should move now rather than wait. Also, do a secondment. There is no path in which the experience and contacts aren’t valuable.
Finally, consider exploring a less traditional career path. Litigators can go into business, consulting, insurance, politics or litigation finance (full disclosure: I am biased toward this option because I work for a litigation finance company). This is not about abandoning your litigation experience—some of these jobs use your litigator skills every day—it is about finding a way of using those skills that balances your goals more effectively than the other options that may be available. Finding these jobs is on you. Recruiters, and even your law firm, have far less ability to place you in these positions, and the positions themselves are rarer. Indeed, a job search in these areas can take years instead of months and requires building relationships. All of which is a reason to start early. Like with a secondment, deepening relationships in these fields will be valuable no matter what you end up doing.
The big takeaway I hope you get from this article is that you have a choice to make and it comes fast. Too many Big Law litigation associates wait to see what their firm’s plan is for their career before deciding what their plan is. It often feels like the decision is not yours to make—after all, no amount of hard work can guarantee partnership. But that feeling can lead you to wait and see, which actually decreases your options and, hence, your ability to make your own decisions. You do have a choice to make, and you do have to make it without complete information. A considered decision as a fourth-year, however, is a lot better than hoping you can find something when it gets urgent. Good luck.
Joshua Libling is portfolio counsel in Validity’s New York office.
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