Originally published on July 6, 2009 in our free BigLaw newsletter.
You probably know one or more casualties of the recession. Reports in the legal — and non-legal — press have described the dramatic toll the economy has taken on the legal profession, and many of us have experienced (or at least witnessed) hard times. As reported on Lawshucks.com's notorious "Layoff tracker," 10,550 people have lost their jobs at major law firms in calendar year 2009 alone.
Where do these lawyers go when their big firm jobs die? Some of them, of course, go straight to the ranks of the unemployed, where they remain for varying durations. Others are fortunate enough to benefit from tidy severance packages or firm-wide initiatives, such as the much-publicized "Sidebar" program instituted at megafirm Skadden, Arps, Slate, Meagher & Flom, which essentially pay attorneys to find their bliss elsewhere. And many graduating law students have found their start dates "deferred," with or without the benefit of a stipend (which probably comes in handy on that prolonged post-bar exam travel spree).
Still other refugees from Big Law soldier on, and eventually find another position at a smaller firm. But, while these opportunities are welcome, they often represent a stark departure from life — and practice — as it existed. The shift from a large law firm to a small or midsize shop can be an awkward, humbling, and somewhat anxiety-provoking experience … sort of like being a new associate.
Deposition? What's a Deposition?
"Dawn," a practitioner in New York, is one such attorney. After a clerkship, Dawn worked for six years as an associate in the products liability group at a large law firm. She spent her last three years at the firm managing a significant pharmaceutical case, which went to trial several months before the worst of the economic downturn. When the case ended and months passed without another (similarly sizeable) matter to take its place, Dawn was laid off.
When Dawn hit the job market, she believed that she was well-situated to find another position in litigation — a cagey veteran, with years of experience under her belt. Of course, she had been one of many attorneys staffed on the last big case she worked on, but she had significant responsibilities — or so she thought.
"I ran a huge document review and production," she says. "I prepared countless binders. I wrote memos. I worked really, really long hours. And I was a sixth year, not some wet-behind-the-ears kid out of law school. I thought I knew my stuff inside and out."
Fast forward to Dawn's new position, at a midsize firm where matters are staffed leanly and even brand new associates are expected to run their own cases, appear in court on their own matters, and handle client contact without a partner as acting as intermediary.
In her first week of work, Dawn was asked to meet with a client to go over an affidavit. "I was preparing both the affidavit and the set of forms to which it would be appended, and I knew very little about the underlying matter," she recalls. But, while she knew that she could "review the forms, look on our document management system for ideas about how to write the affidavit, and probably find a colleague to ply with questions," she found herself feeling incredibly daunted by the meeting.
The challenging part, Dawn explains, was "representing to the client that I knew what I was doing. During all those years in practice, I provided back-up. I was really good at it, but I didn't have to think about the impression I was making on the client, and whether I could inspire confidence … especially when I didn't feel certain of myself."
Dawn's sudden sense of being immersed in a brave new world wasn't limited to client contact. Shortly after her arrival, a partner asked her to handle a commercial matter, and then told her that she ought to prepare a motion to dismiss. "Go ahead and write the brief," Dawn remembers him saying. She also remembers the emotional rollercoaster ride that ensued.
"I was thrilled that he trusted me to do it," Dawn says. "Then I panicked. It was the first time I had been given a brief to write without being told what arguments to make." She fought the urge to ask, "Motion to dismiss? On what grounds?" and immediately retreated to the library to hit the books.
Similarly, a few weeks later, Dawn was told to go to a deposition with instructions to "avoid summary judgment." "I spent hours and hours preparing for what was, in fact, a very simple deposition," Dawn recalls. "I was so afraid of appearing incompetent that I probably ended up being the most prepared person in the room."
From Second Chair to Only Chair …
Having spent her career working on large, sophisticated matters (at a large, sophisticated firm), Dawn was shocked by how few practical skills she had managed to develop along the way.
"Even the most elementary tasks are challenging if you've never done them before," Dawn notes. "And there were certainly things that I had no exposure to when I worked at a big law firm, like taking depositions or arguing my own motions. But more than that, I had become accustomed to not thinking for myself."
The inability to approach cases as the decision-maker, Dawn believes, may be the biggest hurdle faced by large firm refugees who find themselves in a different practice setting, in which they are not heavily supervised by hovering partners. "As a big firm lawyer," she says, "you know that your work will be reviewed by someone else before it goes out the door. When you don't have that safety net, your ability to make judgment calls is really tested."
Similarly, she explains, being the "wing man" — even on complex matters — is a far cry from managing a case on your own. "I can't tell you how many memos and binders I prepared over the years," Dawn laments. "But I was never the one asking questions at the deposition, making the argument before the judge, or questioning the witness at a hearing. Doing those things changed my sense of what was important — radically."
According to Dawn, the most important skill to develop — or rediscover — is the ability to trust one's instincts. "As I handled more matters on my own," she says, "I was struck by how often I could spot the strengths and weaknesses in an argument, and how frequently the approach I was comfortable with was actually right. But after years of having your hand held, and never being called upon to act on those instincts, they had definitely atrophied. I've had to develop the confidence to say 'I'm right,' even when other attorneys are beating me up … and I've been surprised by how far confidence goes when you're at odds with an adversary."
The Curse of Being Perceived as "Experienced"…
"Unfortunately, as a senior associate, you don't really have the luxury of being inexperienced," she says. "If you're in your first or second year of practice, people don't expect you to have skills. They know it will take you longer to finish assignments, and that you'll ask a lot of questions."
As a more senior lateral, however, Dawn warns, "you have to be careful. Whether intentionally or not, you've sold yourself as someone with a lot of experience who will be able to do the work with significantly less oversight. There's a very fine line between asking smart questions and displaying total ignorance. It's not good, as a sixth or seventh year, when a second year is litigating circles around you."
"My advice," Dawn says bluntly, "is to suck it up and be prepared to eat some time. You can't bill all the time it takes you to prepare for something fairly basic, or to brush up on the fundamental skills that have been languishing since law school, so you need to go into it assuming that you'll take a hit for some of those hours." But, she insists, "you have to just do it. It's a worthwhile investment."
It also doesn't hurt to learn a few tricks. In addition to the traditional forms of research, Dawn says, "you have other resources." Among the most important, she found, was the "cool associate," who can be a lifesaver.
"You need to find the senior associate — and there's one in every office — who's done it all, and has nothing to prove," she advises. "They'll be a wealth of information, and if they don't view you as competition, the whole 'ego' thing won't get in the way. Or find the partner who loves to talk about his accomplishments and tell war stories. He might be a blowhard, but he's probably a great teacher, too."
And, of course, there are the basics.
"Don't be afraid to pull out your CLE books," Dawn says, "and to rely heavily on the documents in your firm's system. Chances are, the wheel has already been invented." Finally, she adds, watch and learn.
"When I went to depositions on cases I felt somewhat shaky about," she recalls, "I insisted on going last so I could watch how everyone else did things." This experience also allowed Dawn to observe the personalities of the other attorneys involved. "Sort of like a poker game," she adds.
"When I went through my list of questions," she says, "I had the benefit of everyone who had gone before me. But I also had a sense of their personalities, and I could watch the way they reacted. Even when I wasn't entirely sure of the questions I was asking, I could tell a lot from what the attorneys gave away with their body language. They had me figured for someone inexperienced, so they didn't think I'd pick up on the subtleties."
"What it comes down to," Dawn concludes, "is the ability to project confidence, go with your instincts, and be really, really observant. You're never too old to learn those tricks."
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